Cichetti v. State, 72643

• Decision Date: 03 December 1986
• Docket Number: No. 72643,72643
• Citation: 181 Ga.App. 272,351 S.E.2d 707
• Parties: CICHETTI et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 707

351 S.E.2d 707

181 Ga.App. 272

CICHETTI et al. v. The STATE.

No. 72643.

Court of Appeals of Georgia.

Dec. 3, 1986.

Rehearing Denied Dec. 15, 1986.

Certiorari Denied Jan. 15, 1987.

David E. Ralston, for appellants.

Roger G. Queen, Dist. Atty., for appellee.

BENHAM, Judge.

Appellants were convicted of trafficking in marijuana. See O.C.G.A. § 16-13-31(c). On appeal, appellants cite as error the denial of their motion to suppress and the inclusion of certain hearsay testimony at trial. We affirm.

1. Asserting as inadequate the affidavit upon which a warrant was issued to search their home, appellants contend the trial court erred in denying their motion to suppress. Specifically, appellants argue that the affiant/officer had no knowledge of the truthfulness or reliability of the informant upon whose tip the affidavit seeking the warrant was based. Appellants maintain that the search of their home and the seizure of the contraband found there violated their rights to be free from unreasonable search and seizure as protected by the Fourth Amendment to the United States Constitution and Art. I, Sec. I, Par. XIII of the Georgia Constitution.

In the affidavit which accompanied the request for the issuance of a search warrant, the affiant/officer stated that he had "received information from a source that Marijuana is being grown and stored at the residence of [appellants]. Said source stated that within the past ten days she/he personally observed Marijuana growing to the rear of the residence. Said source further advised that she/he had personally observed a quantity of Marijuana inside the residence. Affiant has never received information from source before, however Affiant has personally known said source for approximately one year. Affiant has found the source to be truthful, gainfully employed and has no known criminal record. Affiant believes the above information to be true and correct."

Prior to 1983, an affidavit based upon information provided by a confidential informant was scrutinized for information showing the informant's reliability and the source of the informant's information. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). However, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court rejected the Aguilar-Spinelli "two-pronged test" as "hypertechnical and divorced from the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984). The Georgia Supreme Court described the requirements of the Gates analysis as "near equivalents to those traditionally applied by the courts of this state" (State v. Stephens, 252 Ga. 181, 182, 311 S.E.2d 823) (1984), and adopted that standard of review. Id. at 184, 311 S.E.2d 823. Thus, while an informant's veracity, reliability, and basis of knowledge are "highly relevant in determining the value of his report," these elements are not "entirely separate and independent requirements to be rigidly exacted in every case ... Rather, ... they should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is 'probable cause' to believe that contraband or evidence is located in a particular place." Illinois v. Gates, supra, 462 U.S. at 230, 103 S.Ct. at 2328.

In place of the two-pronged Aguilar-Spinelli test, the United States Supreme Court as well as the Georgia Supreme Court reaffirmed the "totality of the circumstances" analysis. Illinois v. Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332; State v. Stephens, supra, 252 Ga. at 182, 311 S.E.2d 823. "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for concluding' that probable cause existed." Illinois v. Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332; State v. Stephens, supra, 252 Ga. at 182, 311 S.E.2d 823. While fulfilling our role as an appellate court, we should "grant ... deference to the decision of the Magistrate to issue a warrant" and avoid "after the fact, de novo scrutiny" of the sufficiency of the affidavit. Massachusetts v. Upton, supra, 466 U.S. at 732, 104 S.Ct. at 2087. See also Illinois v. Gates, supra, 462 U.S. at 236, 103 S.Ct. at 2331.

In the case at bar, the affiant/officer prepared his affidavit seeking a search warrant after a concerned citizen reported seeing marijuana in appellants' home as well as growing behind appellants' home. Although the informant had not previously given a tip to the officer, he was personally known to the officer, was regularly employed, had no known criminal record, and appeared truthful. See Thomas v. State, 173 Ga.App. 481 (1), 326 S.E.2d 840 (1985); Johnson v. State, 164 Ga.App. 501 (3), 297 S.E.2d 38 (1982). "This court has always given the concerned citizen informer a preferred status insofar as testing the credibility of his information. [Cits.]" Whitten v. State, 174 Ga.App. 867, 868, 331 S.E.2d 912 (1985). In addition, the informant's personal observation of the contraband formed the basis of his information. Id. See also Franklin v. State, 179 Ga.App. 220, 345 S.E.2d 912 (1986); Farmer v. State, 177 Ga.App. 18, 338 S.E.2d 489 (1985). We conclude that the magistrate had a substantial basis for concluding that there was a "fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, supra, 462 U.S. at 238, 103 S.Ct. at 2332. See also State v. Stephens, supra, 252 Ga. at 184, 311 S.E.2d 823; Franklin v. State, s...