Coleman v. State, A16A0517

• Decision Date: 07 June 2016
• Docket Number: A16A0517
• Parties: Coleman v. The State.
• Court: Georgia Court of Appeals

337 Ga.App. 304

787 S.E.2d 274

Coleman

v.The State.

A16A0517

Court of Appeals of Georgia.

June 7, 2016

G. Richard Stepp, for Appellant.

Marlene Shari Zekser, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., Lawrenceville, for Appellee.

Phipps

, Presiding Judge.

On December 8, 2011, law enforcement officers executed a search warrant at an apartment being leased by Corey Ronqueze Coleman and discovered therein cocaine, marijuana, marijuana plants, and various drug paraphernalia such as boxes of plastic baggies, digital scales, and a notebook of instructions on cultivating marijuana plants. Coleman was indicted for possession of cocaine, manufacturing marijuana, and possession of marijuana with the intent to distribute. A jury found Coleman guilty as charged, and he was convicted thereon. Coleman filed a motion for new trial claiming ineffective assistance of trial counsel, but the trial court denied the motion. In this appeal, Coleman challenges the rejection of his ineffectiveness claim. We affirm.

Pursuant to Strickland v. Washington

,¹

[i]n order to succeed on [a] claim of ineffective assistance, [a defendant] must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If [the defendant] fails to meet his or her burden of proving either prong of the Strickland

test, the reviewing court does not have to examine the other prong. In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.²

1. Coleman complains that his trial lawyer failed to pursue a motion to suppress the drug evidence, arguing that the underlying search warrant was issued without the requisite showing of probable cause. At the hearing on Coleman's motion for new trial, Coleman's trial lawyer testified that he had not pursued a suppression motion because he had determined that such motion would not be granted. The lawyer further testified that he and Coleman had decided to pursue a defense that another individual was the sole resident of the apartment, which defense did not hinge upon suppressing the drug evidence.

“Where, as here, trial counsel's failure to [pursue] a motion to suppress is the basis for a claim for ineffective assistance, the burden is on the appellant to make a strong showing that the damaging evidence would have been suppressed had counsel [pursued] the motion.”³ As explained below, Coleman has failed to meet his burden.

We first reiterate the standards applicable to the various levels of judicial scrutiny involved in the warrant process.

A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed.⁴ The magistrate's task in determining if probable cause exists to issue a search warrant 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. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate's decision to issue a search warrant based on a finding of probable cause. A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis set forth in Illinois v. Gates

.⁵ The duty of the appellate courts is to determine if the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrant. The Fourth Amendment requires no more.⁶

Next, we turn to the circumstances presented by the instant case. On December 8, 2011, a narcotics officer with the Gwinnett County Police Department filed with the Magistrate Court of Gwinnett County an application seeking a warrant to search a specified apartment for marijuana and associated contraband. In support of the application, the officer presented the magistrate with his affidavit.

Coleman asserts, and the record supports, that no oral testimony was considered by the magistrate as part of the warrant application process. Coleman therefore posits that the magistrate's finding of probable cause was based solely upon the officer's affidavit. We thus focus on the information set forth within the four corners of the affidavit.

At the beginning of the affidavit, the officer set forth as background that, on December 8, 2011, two other police officers—Officer Copeland and Officer Nassery—approached a male who was walking within the apartment complex because those officers had discerned that the male was engaging in suspicious behavior. The affidavit, as Coleman particularly recites on appeal, went on to state:

Officer[s] Copeland and Nassery then made contact with the suspect who was identified as William Wilborn. Once Officer Copeland made contact with Wilborn he noticed a small white chunky substance in the males [sic] hand which based on his training and experience he recognized to be crack cocaine[.] Officer Copeland NIK tested the white chunky substance and received a positive response indicating the presence of cocaine. Officer Copeland then tried to retrieve the crack cocaine from Wilborn, where Wilburn [sic] in return attempted to flee. A brief struggle between officers and Wilborn occurred, where Wilborns [sic] shirt came up and revealed that he has [sic] a small hand gun in his possession. Officers finally placed Wilborn in custody. Officer Copeland then read Wilborn his Miranda rights which he stated he understood and wished to answer some questions. Officer Copeland asked Wilborn if he had anymore contraband in his possession and Wilborn stated he had some marijuana in his groin area. Officer Copeland NIK tested the marijuana and received a positive response indicating the presence [sic] marijuana. Wilborn stated he purchased the marijuana from a black male in an apartment located within the complex. He went on to state he and three other males were at the location to rob the individuals at the apartment for their illegal narcotics. Sgt. Tonelli ... then spoke to Wilborn. Wilborn gave Sgt. Tonelli detailed directions to the apartment where he purchased the marijuana. The apartment in question turned out to be [the specific apartment leased by Coleman]. Wilburn [sic] stated while he was in the apartment purchasing the marijuana he saw what he believed to be two pounds of marijuana. He also stated there was a black female and black male inside. Wilborn stated the black male had a black handgun located on him. Wilborn stated he also saw two shotguns while in the apartment next tot [sic] the front door. Sgt. J. Morales ... and Officer Nassery attempted to make contact with the occupants of the apartment and received no answer. While at the door both officers were able to smell the overwhelming smell of unburned marijuana coming from the door. Affiant believes there is enough probable cause to believe there will be more marijuana located at [the apartment specified] based on the following facts. First, the statement from William Wilborn where he stated he purchased marijuana from the apartment where [sic] stated he saw additional marijuana inside. And the fact that two officers smelled fresh unburned marijuana coming from the apartment. Affiant therefore requests a search warrant be issued for [the specified apartment].

Coleman maintains on appeal that the affidavit failed to supply an adequate basis for determining that probable cause existed because: the affidavit did not set forth sufficient facts from which the magistrate could ascertain the veracity of Wilborn, who had served as a key informant; the officers' detection of the odor of marijuana at the apartment door was insufficient as a sole basis for establishing probable cause; the officers' conduct at the apartment door amounted to an unlawful search; and the averring officer failed to apprise the magistrate of Wilborn's prior convictions. According to Coleman, had his trial lawyer cited these “insufficiencies” in pursuing a suppression motion, the trial court would have been required to grant the motion. We cannot agree.

(a) Any deficiency in the affidavit with respect to Wilborn's veracity was not fatal. Under the Gates

analysis, an informant's veracity, reliability, and basis of knowledge are neither “independently dispositive, [nor] irrelevant. They are instead several of a number of relevant factors, which we must review giving great deference to the magistrate's determination of probable cause, keeping in mind that ‘affidavits are normally drafted by nonlawyers in the midst and haste of a criminal investigation.’ ”⁷ Here, Wilborn's tip that marijuana was being sold out of a particular apartment was sufficiently corroborated by: his own attempt to flee and brief struggle with the officers he encountered in the apartment complex's parking lot; the police seizure of suspected illegal drugs and a handgun from Wilborn's person; the results of immediate field testing by police indicating that the seized substances were cocaine and marijuana; and the police officers' detection of a strong odor of unburned marijuana emanating from the...