Dorminey v. State
Decision Date | 02 October 1992 |
Docket Number | Nos. A92A1463,A92A1464,s. A92A1463 |
Parties | DORMINEY v. The STATE (two cases). |
Court | Georgia Court of Appeals |
John G. Cicala, Jr., Snellville, George L. Kimel, Duluth, for appellant.
Thomas C. Lawler III, Dist. Atty., Debra K. Turner, Asst. Dist. Atty., for appellee.
Appellant was tried before a jury and found guilty of possession of marijuana with intent to distribute. In Case No. A92A1463, he appeals from the judgment of conviction and sentence entered by the trial court on the jury's guilty verdict. In Case No. A92A1464, he appeals from the denial of his motion for appeal bond.
1. Appellant enumerates as error only the denial of his motion to suppress the marijuana which was seized from his residence pursuant to a search warrant.
The warrant had been sought on the basis of information supplied by an otherwise unidentified "concerned citizen." At the hearing on appellant's motion, it was shown that the affidavit submitted to the magistrate may have contained "embellishments" as to the extent of the information supplied to the affiant by the concerned citizen. However, these embellishments certainly cannot be characterized as deliberate falsehoods and, when these embellishments are eliminated from consideration, the affidavit contains the following unchallenged information: The concerned citizen had seen at least two pounds of marijuana in appellant's residence on several occasions in the last three months. The concerned citizen confirmed information already obtained by police regarding appellant's relationship with a suspected drug supplier and a suspiciously high volume of vehicular and pedestrian traffic at his residence. The affiant determined that the concerned citizen had no criminal record himself and he assessed the concerned citizen to be intelligent, mature, sober, and coherent.
It would appear that the affidavit meets even the abandoned two-pronged Aguilar- Spinelli test. See Hardy v. State, 162 Ga.App. 797, 798-799(2), 292 S.E.2d 902 (1982); Devier v. State, 247 Ga. 635, 638(5, 6), 277 S.E.2d 729 (1981). Moreover, this more stringent test has now been replaced by the less rigorous "totality of the circumstances" test. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Stephens, 252 Ga. 181, 184, 311 S.E.2d 823 (1984). See also Peacock v. State, 170 Ga.App. 309, 310(1), 316 S.E.2d 864 (1984); Bromley v. State, 259 Ga. 377, 379(3), 380 S.E.2d 694 (1989). This test has been met in the instant case, in that the information set forth in the affidavit provided a substantial basis from which the magistrate could determine that marijuana was currently being stored at appellant's house. See Bell v. State, 204 Ga.App. 528(1), 419 S.E.2d 729 (1992); McQueen v. State, 189 Ga.App. 743, 744, 377 S.E.2d 682 (1988); Hunter v. State, 198 Ga.App. 41, 42(1), 400 S.E.2d 641 (1990).
Dale v. State, 198 Ga.App. 479, 480(4), 402 S.E.2d 90 (1991). See also State v. Thomas, 203 Ga.App. 623, 624, 417 S.E.2d 328 (1992); Ledbetter v. State, 190 Ga.App. 843, 844(1), 380 S.E.2d 313 (1989); McQueen v. State, supra 189 Ga.App. at 744, 377 S.E.2d 682; Hunter v. State, supra 198 Ga.App. at 42-43(1), 400 S.E.2d 641. Hayes v. State, 182 Ga.App. 319, 320(1), 355 S.E.2d 700 (1987). Even if the statements alleged to have been embellished are State v. Thomas, supra at 624. See also Rimmer v. State, 197 Ga.App. 294, 295(1), 398 S.E.2d 282 (1990).
Moreover, Talley v. State, 200 Ga.App. 442, 445(3d), 408 S.E.2d 463 (1991). See also Taylor v. State, 204 Ga.App. 236, 237(2), 419 S.E.2d 56 (1992); Davis v. State, 198 Ga.App. 310(1), 401 S.E.2d 326 (1991).
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