Clemons v. State, A02A1298.
| Decision Date | 20 August 2002 |
| Docket Number | No. A02A1298.,A02A1298. |
| Parties | CLEMONS v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Daniel B. Kane, Atlanta, for appellant.
Kelvin Clemons, pro se.
J. Tom Morgan, Dist, Atty., Robert M. Coker, Benjamin M. First, Asst. Dist. Attys., for appellee.
Following a jury trial, Kelvin Clemons appeals his conviction for one count each of trafficking in cocaine, trafficking in methamphetamine, possession of cocaine, and possession of methamphetamine. Clemons contends that the trial court erred by: (1) denying his motion to suppress; (2) reinstating two jurors struck by defense counsel; (3) admitting evidence from a civil forfeiture proceeding; and (4) admitting evidence from a co-defendant's videotaped police interview. For the reasons set forth below, we affirm.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Clemons] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Viewed in this light, the record shows that, on November 30, 1999, the DeKalb County Police drug hotline received an anonymous telephone call. The female voice on the recording stated that Clemons resided at 6265 Marbut Farm Trail and was dealing in kilogram amounts of cocaine. DeKalb detectives verified that Clemons owned the house at Marbut Farm Trail and began surveillance of the house.
On May 2, 2000, police received information from a jail inmate that Clemons received two deliveries of cocaine per week. The inmate described the drug transactions, relating that the drugs would be exchanged for money by a Hispanic male in a gold Ford automobile. On May 5, 2000, the detectives observed activity at the house similar to that described by the jail inmate. The gold car was stopped after leaving Marbut Farm Trail, a drug dog alerted to the trunk of the car, and upon a search, a large amount of cash was found. The driver of the car, Reynaldo Ortuno, was arrested.
The legality of this stop and the subsequent search of the car is not before us. A search warrant covering Clemons's house was issued by a magistrate based on misinformation provided by the police concerning one of the two informants, the police surveillance, and the stop of the gold car. The officer providing the search warrant affidavit failed to disclose to the magistrate that one of the informants was a jail inmate who was seeking a deal to make bail. Rather, the magistrate was advised simply that the informant was a concerned citizen.
1. Clemons argues that the trial court erred in denying his motion to suppress as there was insufficient evidence to support the issuance of the search warrant covering his house. He asserts that the information provided to the magistrate lacked reliability because it came from an anonymous caller and a jail inmate, rather than a concerned citizen, and that there was inadequate corroboration by police of the facts related by the informants. "In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates2 and adopted by the Georgia Supreme Court in State v. Stephens."3 (Punctuation omitted.) Davis v. State. 4
The jail inmate had advised that shipments of illegal narcotics were delivered to the Marbut Farm Trail address twice each week by a Hispanic male driving a gold Ford car, who would enter the garage, unload the narcotics, and then load money into the Ford. The true status of the jail inmate was not disclosed until cross-examination during the hearing on the motion to suppress. At that time, the affiant detective admitted that the "concerned citizen" was, in fact, a jail inmate who was asking for a favor in having bail set. He further admitted that this inmate had no prior history as an informant for the police. It is the duty of police officers to be honest, open, and forthcoming when providing information upon which a magistrate must act. The veracity of all information provided by the officer is brought into question when misrepresentations are made. Such conduct is to be condemned, as it precludes the magistrate from the performance of his duty. The magistrate might well have denied the search warrant had he been aware of the true facts or of the officer's deception.
The affidavit also stated that on November 30, 1999, an anonymous female telephoned the narcotics office answer line stating that Clemons lived at 6265 Marbut Farm Trail in DeKalb County and that he was dealing in kilos of cocaine from that location. The caller described the location of hidden compartments in the house where drugs were hidden and identified three cars that were involved in this drug activity. During the execution of the warrant, several secret compartments were found, and they contained among other items, 112 grams of methamphetamine, three parcels of cocaine weighing 3,039 grams, and several pistols as the female informant had indicated. We note that the finding of contraband cannot justify an otherwise illegal search. The reliability of an informant must be determined based on a pre-search investigation of information provided by the informant. See, e.g., Stanford v. State.5
The affidavit further stated that the detective confirmed that Clemons owned the house at Marbut Farm Trail by use of public real estate tax records, and during surveillance, the cars described in the anonymous call were observed numerous times at the residence.
Lastly, the affidavit stated that on May 5, 2000, a Hispanic male driving a gold Ford Contour was observed by police entering the garage at Marbut Farm Trail, and after the car exited the garage about 30 minutes later, it was stopped by a K-9 police officer whose dog alerted to the odor of narcotics at the seam of the trunk. Cash in the amount of $62,000 was found in the trunk. Clemons, who had driven away from the house in another car, was arrested as was a third co-defendant.
[T]he 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. In addition, the Georgia Supreme Court has cautioned attesting officers and magistrates to make every effort to see that supporting affidavits reflect the maximum indication of reliability.
(Punctuation omitted.) Eaton v. State.6
As to the anonymous call received in November 1999, there are no indicia of reliability to the call.
[V]eracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.
(Punctuation omitted.) Robertson v. State.7
Accordingly, officers seeking warrants should provide the magistrate with any information they have relevant to a CI's (confidential informant's) reliability or motivation, including criminal records and any payments made; and in some cases, if the information is material and the affiant knowingly or recklessly omits it, suppression of the seized material could result.
(Punctuation omitted.) Hockman v. State8 (physical precedent only). This Court has recognized the value of information provided by a "concerned citizen." See Davis, supra at 37, 447 S.E.2d 68. The police officer here breached his duty to accurately inform the magistrate of the fact that the "concerned citizen" was in fact a jail inmate who was seeking bail. We have held, however, that the omission of information does not automatically warrant suppression of evidence. Brown v. State.9 "If any omissions on the part of the officer are offset by independent corroboration of criminal activity, then the magistrate may still have sufficient information to find that probable cause exists." Id. This case does not, however, involve an accidental omission. It involves a knowing misrepresentation to the magistrate. This Court must determine if the search warrant was sufficiently supported.
The detective also states that he corroborated, through surveillance, that cars similar to those described by the anonymous tipster had been seen at the house. Based on the officer's testimony, the facts provided by the jail inmate were predictive of future behavior and were information that would not have been known to the general public, i.e., the events on May 5, 2000, which were corroborated by police observation. See Robertson, supra at 70, 510 S.E.2d 914 (); Edgerton v. State10 (). The contraband, found in the car that had just left Clemons's house, supported the reports of drug dealing at the residence.
"Under a totality of the circumstances approach, corroboration ... supplies an alternative basis for finding probable cause, where there are deficiencies in the showing of the informant's veracity, reliability, or basis of knowledge." (Punctuation omitted.) Sanders v. State.11 We note that trial courts can and should take action where police officers engage in the type of misrepresentation herein involved. The credibility of witnesses is for the trier of fact, rather than ...
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