Davis v. State, A94A0659
Decision Date | 24 June 1994 |
Docket Number | No. A94A0659,A94A0659 |
Citation | 447 S.E.2d 68,214 Ga.App. 36 |
Parties | DAVIS v. The STATE. |
Court | Georgia Court of Appeals |
Dickinson, Noel & Peeples, Joseph S. Peeples, Loganville, for appellant.
Timothy G. Madison, Dist. Atty., Jeffrey G. Morrow, Asst. Dist. Atty., for appellee.
We granted Linda Davis' application for interlocutory review of the trial court's denial of her motion to suppress evidence seized from a house pursuant to a search warrant. Davis' sole contention is that the court erred in denying her motion because the affidavit supporting the warrant did not establish probable cause. Although it is not clear from the record whether Davis has standing to challenge the validity of the warrant, the state has not raised this issue and in fact seems to concede in its brief that she has standing. We therefore presume that Davis has standing and shall address the merits of her appeal.
The affidavit set out below was the only evidence presented to the magistrate who issued the warrant:
"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. Gates, 462 U.S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by ourt in State v Stephens, 252 Ga. 181 (311 SE2d 823) (1984), with the admonition that prudence counsels that Gates be considered as the outer limit of probable cause. In addition, ourt has cautioned attesting officers and magistrates to make every effort to see that supporting affidavits reflect the maximum indication of reliability." (Citations, punctuation and emphasis omitted.) Gary v. State, 262 Ga. 573, 577, 422 S.E.2d 426 (1992). Here, the attesting officer and the magistrate did not make every effort to see that the affidavit reflects the maximum indication of reliability. Based on the unreliable information in the affidavit, the magistrate did not have a substantial basis for concluding that contraband would be found in the house searched.
Although the affiant referred to the informant as a concerned citizen, the informant is not entitled to that status. (Citations and punctuation omitted.) State v. White, 196 Ga.App. 685, 686-687, 396 S.E.2d 601 (1990). No such facts were placed before the magistrate in the instant case. The affiant did not actually speak to the informant. The GBI agent who relayed the information to the affiant had never before received information from the informant. Although the GBI agent told the affiant that the informant displayed a truthful demeanor, no factual basis was given for this conclusion. The affidavit does not indicate how the informant contacted the agent or whether the agent even observed the informant in person. The informant was merely an anonymous tipster, not entitled to preferred status regarding the credibility of his information. The complete lack of information about the informant relegated the information he supplied to the status of rumor. Eaton v. State, 210 Ga.App. 273, 275, 435 S.E.2d 756 (1993).
Moreover, the anonymous tip is unreliable because the independent investigation done by the police in an effort to corroborate it was insufficient; the police corroborated only that the house was located where the tipster said it was. (Punctuation omitted.) State v. Stephens, 252 Ga. 181, 183, 311 S.E.2d 823 (1984); compare Munson v. State, 211 Ga.App. 80, 438 S.E.2d 123 (1993).
The affiant also failed to present sufficient facts upon which the magistrate could have determined the veracity of the informant. "An informant's veracity, reliability, and basis of knowledge are highly relevant in determining the value of his report and while these elements are not entirely separate and independent elements to be rigidly exacted in every case, they are 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." (Citation and punctuation omitted.) State v. White, supra 196 Ga.App. at 687, 396 S.E.2d 601; State v. Brown, 186 Ga.App. 155, 157-158(2), 366 S.E.2d 816 (1988). Here, the magistrate did not have probable cause to issue the search warrant. The trial court therefore erred in denying Davis' motion to suppress.
Judgment reversed.
McMURRAY, BIRDSONG, and BEASLEY, P.JJ., BLACKBURN and SMITH, JJ., and HAROLD R. BANKE, Senior...
To continue reading
Request your trial- Bel Air Carpet, Inc. v. Korey Homes Bldg. Grp., LLC
-
Sutton v. State
...can be concluded that the anonymous tipster is, in fact, a concerned citizen.” (Citation and punctuation omitted.) Davis v. State, 214 Ga.App. 36, 37, 447 S.E.2d 68 (1994). (a) As an initial matter, although the State contends that it is undisputed that It and Source A were concerned citize......
-
State v. McGrath, No. A05-1021.
...affidavit need not demonstrate record of previous reliability to establish the veracity of a "concerned citizen"); Davis v. State, 214 Ga.App. 36, 447 S.E.2d 68, 70 (1994) (denying "concerned citizen" status to an informant when affiant did not provide factual basis for the credibility of h......
-
Harper v. State
...181, 183, 311 S.E.2d 823 (1984) (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)); Davis v. State, 214 Ga.App. 36, 37-38, 447 S.E.2d 68 (1994) (holding that an anonymous informant should not be deemed to possess the inherent veracity of a "concerned citizen" ab......