Davis v. State, A02A0415.

• Decision Date: 02 July 2002
• Docket Number: No. A02A0415.,A02A0415.
• Citation: 256 Ga. App. 299,568 S.E.2d 161
• Parties: DAVIS v. STATE of Georgia.
• Court: Georgia Court of Appeals

568 S.E.2d 161

256 Ga. App. 299

DAVIS v. STATE of Georgia.

No. A02A0415.

Court of Appeals of Georgia.

July 2, 2002.

J. Alfred Johnson, Marietta, for appellant.

Patrick H. Head, Dist. Atty., William M. Clark, Amy H. McChesney, Asst. Dist. Attys., for appellee. SMITH, Presiding Judge.

Alphonso Davis appeals after a bench trial from the trial court's order denying his motion to suppress evidence and granting the State's forfeiture complaints as to five items of personal property seized when executing a search warrant for Davis's home and cars.¹ Davis raises ten enumerations of error, none of which we find meritorious. We therefore affirm the trial court's ruling and judgment.

Construed to support the judgment, the evidence presented showed that Davis was arrested in DeKalb County for trafficking in cocaine after a controlled buy was set up by DeKalb law enforcement officers using a confidential informant. DeKalb County officers had been informed by law enforcement officers in Greene County that a traffic stop there had revealed cocaine, the source of which was an apartment in DeKalb County. The person arrested in the Greene County traffic stop disclosed his source, and during the investigation of this information, DeKalb County officers became aware of Davis through a confidential informant. The informant told the officers that Davis had been delivering a kilo of cocaine to him twice a month for the past two years, described Davis, and informed the officers that Davis usually carried the cocaine "tucked in his pants or in a bag." The confidential informant stated that although Davis had several addresses, every time Davis made a delivery he came from Cobb County. The informant also told officers that Davis would make these deliveries using one of three vehicles: a green Jeep Cherokee, a red Volvo, or a BMW, and that in the past he had come armed and had displayed the weapon.

At the request of the officers, the informant telephoned Davis to set up the controlled buy, and the officers heard both sides of the conversation. The telephone call took place at about 5:00 p.m. on the evening of October 2, 1999. Davis agreed to deliver the cocaine at 6:30 that evening. The informant had been instructed to try to negotiate the price, but Davis refused to lower the price, stating: "You know how I deal.... I don't bargain." During that telephone conversation, Davis told the informant he would be coming from Cobb County. Davis arrived on time, in a green Jeep Cherokee. He left his vehicle, and the DeKalb County officers observed him proceed toward the informant's apartment building with his left hand "tucked" under his shirt so that it appeared he was holding something. The officers then confronted him, identified themselves, and arrested him. As they did so, "a brick wrapped in tape fell out." The package later tested positive for cocaine. When the DeKalb officers investigated the Jeep, they found a weapon and some correspondence that showed the Cobb County address. The Jeep was registered to Davis at that address. The DeKalb officers then contacted an investigator with the Cobb County Marietta/Cobb/Smyrna (MCS) narcotics unit and informed its officers what had transpired. A Cobb County investigator then applied for a search warrant for Davis's Cobb County apartment and the two other vehicles.

The warrant was obtained, and both DeKalb officers and MCS officers participated in executing it. In a bedroom in Davis's apartment, more than $112,000 in bills of all denominations was found inside one or more Crown Royal bags in a compartment in a television stand. A box of $1 bills was found in a guest room closet. Another gun also was found in the apartment, as were the titles to two of the automobiles. One hundred nineteen grams of cocaine were found in a bag in the glove box of a red Volvo registered to Davis, which was parked outside the apartment. A bulletproof vest and two blank money orders were also found in the Volvo. The officers also observed a silver BMW, which was registered to Davis. After seizing these items, the Cobb County officers initiated the forfeiture proceedings.

At the hearing, Davis was called by the State for cross-examination. He admitted he was the sole resident of the apartment. He invoked his Fifth Amendment privilege against self-incrimination with regard to all questions about the DeKalb County incident and arrest. Although he acknowledged ownership of all three vehicles, he denied any knowledge of the cocaine found in the Volvo and testified he had never dealt with drug dealers. He claimed he intended to use the money orders to pay his rent on the apartment, which was $802 plus "a late charge or something," and that the pistol found in the apartment belonged to his son, who left it in the closet during a visit to keep it from his children. Although he claimed to have had somewhere between $35,000 and $60,000 income a year between a small business and a pension, the State showed that his tax returns reported annual income ranging from a maximum of approximately $15,000 to as little as a loss of $6,000. He claimed that the cash found in the apartment was his life savings. He stated that he kept it there because he had "had some problems at the bank before" and felt it was safer in his apartment. He also said, however, that he kept the bulletproof vest because he had been robbed several times at his previous home, which he still owned.

1. In five enumerations of error, Davis contends the trial court erred in denying his motion to suppress because the magistrate lacked probable cause to issue the search warrant. He argues that the affidavit in support of the application for the warrant was defective for a number of reasons: It contained mere conclusions, it did not contain any facts that allowed the magistrate to determine the reliability of the confidential informant or the information he provided; it withheld the confidential informant's "significant criminal history" and evidence that agents promised favors to the informant in exchange for his cooperation; it did not establish a "nexus" between Davis's acts in DeKalb County and his Cobb County apartment under the "totality of the circumstances" test, and the only verification of facts in the affidavit was that of "innocent details."

Because Davis does not argue these enumerations separately, we will address them together as well. In doing so, we note that in reviewing a trial court's ruling on a motion to suppress, we must be guided by three principles. First, the trial court sits as the trier of fact, and the trial court's findings on conflicting evidence are therefore analogous to a jury's verdict. The ruling should not be disturbed unless completely unsupported by evidence. Second, the trial court's decision with regard to credibility must be accepted unless clearly erroneous. Third, we must construe the evidence most strongly in favor of upholding the trial court's findings. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994). In deciding whether probable cause is present to support the issuance of the warrant, the issuing magistrate must make "a practical, common sense decision" as to whether a fair probability exists that contraband or evidence of a crime will be found at a given place, "given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of the person supplying hearsay information." Turner v. State, 247 Ga.App. 775, 778-779(4), 544 S.E.2d 765 (2001). This court must decide whether substantial evidence exists in the record to support issuance of the warrant. Id. The burden of proving the lawfulness of the warrant is on the State. This burden shifts to the movant only after the State has met its burden. In doubtful or marginal cases, the preference accorded to warrants must prevail. Davis v. State, 266 Ga. 212, 213, 465 S.E.2d 438 (1996).

In this case, the affidavit did not consist of "mere conclusions." It recited that a confidential informant had advised an investigator employed by the Sheriff of DeKalb County that he could "set up a drug deal" with Davis for one kilo of cocaine, that Davis lived in a Cobb County apartment, and that he was using that location to store and sell cocaine. The confidential informant also stated to officers that Davis had several other vehicles and identified them as a red Volvo and a BMW. The informant's information was proved reliable when the controlled buy was arranged and Davis appeared at the buy's location at the arranged time with a kilo of cocaine. It was further verified by officers, who found correspondence and an insurance card in Davis's possession indicating a certain address in Smyrna, Cobb County, and checked with the apartment complex management and with a credit bureau, both of which verified the address as Davis's. In addition, the officers went to the apartment complex and observed both a red Volvo and a silver BMW parked near Davis's apartment. Both vehicles were registered to Davis.

The controlled buy supervised by law enforcement officers would alone have provided probable cause. Turner, supra at 779(4), 544 S.E.2d 765. "Even if an officer cannot provide information regarding the veracity of an informant or the basis of his knowledge, a tip may be proved reliable if portions of the tip are sufficiently corroborated. [Cits.]" State v. Wesson, 237 Ga.App. 789, 791, 516...