Bell v. State

• Decision Date: 27 May 1992
• Docket Number: No. A92A0736,A92A0736
• Citation: 419 S.E.2d 729,204 Ga.App. 528
• Parties: BELL v. The STATE.
• Court: Georgia Court of Appeals

Page 729

419 S.E.2d 729

204 Ga.App. 528

BELL v. The STATE.

No. A92A0736.

Court of Appeals of Georgia.

May 27, 1992.

Reconsideration Denied June 10, 1992.

Word & Flinn, T. Michael Flinn, Carrollton, for appellant.

Peter J. Skandalakis, Dist. Atty., George F. Hutchinson III, Jeffery W. Hunt, Asst. Dist. Attys., for appellee.

POPE, Judge.

Appellant/defendant Anthony Alan Bell appeals his conviction for possession of cocaine and the denial of his appeal bond.

1. Defendant argues that the trial court erred by denying his motion to suppress the evidence seized during the search of his residence. The affidavit in support of the warrant states as follows: "Your affiant was contacted within the last five (5) days by a confidential source who will remain unnamed for safety purposes. This source states that within this same time frame they personally observed cocaine in the above stated residence. This source is untested and unproven by your affiant however this source has provided detailed information which leads me to believe they do have personal knowledge of the facts stated. Independent collaboration has been done by your affiant and verification of some facts stated have been made. Furthermore your affiant is familiar with Alan Bell whereas Mr. Bell was searched and arrested by your affiant several years ago for the same offense. Mr. Bell has served time for the offense ... of [v]iolation of [the] Georgia Controlled Substance Act. Also, your affiant received a call from an unknown source acting simply as a tipster within the past three (3) months which stated Alan Bell was back in the cocaine business. Information provided by this tipster indicates Bell to be dealing in cocaine. Therefore, your affiant requests this warrant to cover all persons vehicles, and [curtilage] on this premises at the time of execution of this search warrant. Due to the ease of destruction and the fact that a gun was found in the search years ago, your affiant requests that this be a No-Knock Search Warrant."

Based upon the information contained in this affidavit and verbal information presented to the magistrate by the officer seeking the warrant, the magistrate issued a search warrant as requested in the affidavit.

Following a hearing on defendant's motion to suppress, the trial court denied the motion. "As a general rule, the trial court's decision on disputed questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous." (Citations and punctuation omitted.) Talley v. State, 200 Ga.App. 442, 444(3)(c), 408 S.E.2d 463 (1991). We hold the information presented to the magistrate, viewed as a whole, provided a substantial basis for the magistrate to determine there was probable cause to believe there was contraband located on the premises. State v. Morris, 198 Ga.App. 441, 443, 402 S.E.2d 288 (1991).

Furthermore, even if "the affidavit was insufficient to establish probable cause under the totality of the circumstances test enunciated in Illinois v. Gates, [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ], '(t)here is the remaining issue of whether the exclusionary rule would ... be an appropriate sanction to vindicate any purported violation of [Bell's] Fourth Amendment rights. Because the exclusionary rule is designed to deter police misconduct rather than to punish the errors of issuing magistrates, it has been modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance by an officer on a search warrant that is subsequently held to be defective. United States v. Leon, 468 U.S. 897, 905(I) (104 S.Ct. 3405 [3411], 82 L.Ed.2d 677) (1984).' ... Debey v. State, 192 Ga.App. 512, 513 (385 S.E.2d 694) (1989)." Morris, 198 Ga.App. at 443-444, 402 S.E.2d 288.

In Leon, supra, the Supreme Court enunciated four instances when an officer cannot be said to have reasonable grounds for believing a warrant...