Dugan v. State

• Decision Date: 07 January 1974
• Docket Number: No. 2,No. 48642,48642,2
• Parties: Phyllis D. DUGAN v. The STATE
• Court: Georgia Court of Appeals

Page 722

203 S.E.2d 722

130 Ga.App. 527

Phyllis D. DUGAN v. The STATE.

No. 48642.

Court of Appeals of Georgia, Division No. 2.

Jan. 7, 1974.

Verlyn C. Baker, Decatur, for appellant.

Richard Bell, Dist. Atty., Carl A. Puls, Asst. Dist. Atty., Decatur, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

For decision are rulings adverse to appellant on her motions to suppress evidence forming the basis for two indictments, one for possession of marijuana and the other on four counts of burglary. The evidence consisted of most of the forty-four items of personalty obtained under the first warrant which had been obtained as fruits of a search sought originally for seizure of marijuana. After the search a second warrant had been secured for 'one statue of a Cobra snake and other items that are fruits of the crime of burglary.' (R. 21). Fifty-eight items were taken during the second search.

During their first search of the house for marijuana which was found in the bedroom the officers had observed numerous small electrical appliances stacked in one room. By coincidence, one of the two policemen making the search was a member of the burglary squad who had been enlisted to accompany the single available narcotics officer. This detective identified an Hitachi television set by serial number as having been reported stolen. The result of this first search was the seizure of 44 items which police believed to be stolen. Upon the owner of the television set being contacted mention was made of a statue of a cobra snake which previously had been overlooked. When the stolen goods report had been made the officer remembered he had seen such a snake statue during the first search he then secured another warrant the next day, and returned to the house, this time removing 58 items.

1. Defendant attacks the first warrant for possession of marijuana on the ground that it lacked probable cause.

"In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879. Probable cause exists where 'the facts and circumstances within (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555, 39 A.L.R. 790.' Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327.

Defendant contends that under Aguilar v Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 where the identity of the informant is not disclosed there are two separate tests : the credibility of the informant and the reliability of the information. Both of these criteria must be met by the information provided to the magistrate. Aguilar and Spinelli state: Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances relied on by the person providing the information and some of the underlying circumstances from which the affiant concluded that the informant, whose identity was not disclosed, was credible or his information reliable.

Actually Georgia through case law has set standards which require examination of both the credibility of the informer and the reliability of the information, although the particular expressions used may vary from case to case.

Sams v. State, 121 Ga.App. 46, 172 S.E.2d 473 has often been referred to because it interpreted the Spinelli and Aguilar cases, setting forth the following guidelines. 'Where the hearsay of an informer is relied upon the affidavit must meet two tests: (1) The reasons for the informer's reliability must be furnished and (2) it must either state how the informer obtained the information or the tip must describe the criminal activity in such detail that the magistrate may know it is more than a casual rumor circulating in the underworld or an accusation based merely on the individual's general reputation. Sams v. State, 121 Ga.App. 46, 172 S.E.2d 473.' Cain v. State, 128 Ga.App. 146, 147, 195 S.E.2d 797.

We have held that where the information's source is hearsay then the informant's reliability or credibility is to be shown by indicating whether the information he had given in the past has aided in current police investigations, arrests or convictions, the approximate number of each and over what period of time the information was given. Fowler v. State, 128 Ga.App. 501, 503, 197 S.E.2d 502; Buck v. State, 127 Ga.App. 72, 192 S.E.2d 432; Dresch v. State, 125 Ga.App. 110, 186 S.E.2d 496; Steele v. State, 118 Ga.App. 433(3c), 164 S.E.2d 255.

In the instant case the informer's reliability is supported by his having been 'a confidential and reliable informant who is known personally to me and who has supplied me with information over the past year that has resulted in the arrests of over ten persons on drug charges and who has given intelligence information on over three investigations that are now in process and has always proven to be true and accurate information.' (R. 16).

Defendant argues that the affidavit does not support informer's reliability since there is no indication that he has any knowledge of marijuana. Despite his previous information on drug charges, there is no proof that he ever gave information concerning possession and selling of marijuana. Defendant appears to be saying that the informer could have been mistaken and have been sold something other than marijuana.

The court in response to this argument stated: 'The cour holds as follows: Number 1, that my common sense, which I cannot possible separate from my own nature anyone who tells me that man had to know something in order to pay $20 for a bag, and that is alleged in the affidavit. Added to the other reasons, the motion to suppress is denied.' (T. 71).

'We also see no merit in the suggestion that the arrests must have been for drug violations to support reliability. It may well be that a narcotic informer's experience is customarily with narcotics violations, but information leading to arrest for theft, rape, treason or any offense is just as much a statement of experience supporting reliability as an arrest for a drug offense.' United States v. Shipstead, 9 Cir., 433 F.2d 368, 372.

In accord with the second test in Sams, we have stated that to differentiate a casual rumor from criminal activity which would substantiate probable cause, the reliability of the information can be demonstrated by stating how the information was obtained, by detailing the criminal activity, or by independent corroboration. See Davis v. State, 127 Ga.App. 76, 192 S.E.2d 538; Register v. State, 124 Ga.App. 136, 183 S.E.2d 68; Thrall v. State, 122 Ga.App. 427, 177 S.E.2d 192; Johnson v. State, 121 Ga.App. 477(1), 174 S.E.2d 246. Obviously, the information in the affidavit may fall into several of the categories and it is the magistrate who must determine whether the total amounts to probable cause. In accord, Johnston v. State, 227 Ga. 387, 181 S.E.2d 42; Campbell v. State, 226 Ga. 883, 178 S.E.2d 257.

Sub judice the affidavit continues to describe how the informant obtained such information: 'This informant stated on this Jan. 16, 1973 and he stated that he had been in the above location within the past twelve hours and that he had witnessed a quantity of marijuana at this location and had purchased a quantity within this twelve hours period of time and paid twenty dollars for the bag of marijuana.' (R. 16.).

Further there is additional corroboration: 'Upon checking with other members of the narcotic squad I found that there had been two anonymous phone calls on this subject and all the name was that of 'Dugan' and that he was supposed to be involved in the sales of marijuana. These investigators had checked the location and found that this was D. Dugan's place of residence and a check of the phone book revealed that this was his location also.' (R. 16-17).

Defendant argues that this test is not met since the affidavit does not name the person from whom the informer purchased the marijuana. However, the affidavit does give the location, an approximate time and the amount paid, which considered with the independent corroboration that Dugan lived there and that Dugan had been implicated with drug traffic by several anonymous phone calls would substantiate the magistrate's conclusion that probable cause exists. See Grant v. State, 130 Ga.App. 237, 202 S.E.2d 675 where an affidavit given on similar facts was held to show sufficient probable cause.

'Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given and when a magistrate his found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. 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. Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735, 4 L.Ed.2d 697, 78 A.L.R.2d 233.' United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.

2. The first warrant and the search thereunder were legal. The seizure of...