Galgano v. State, 55628

• Decision Date: 25 September 1978
• Docket Number: No. 55628,55628
• Citation: 248 S.E.2d 548,147 Ga.App. 284
• Court: Georgia Court of Appeals
• Parties: GALGANO v. The STATE.

Page 548

248 S.E.2d 548

147 Ga.App. 284

GALGANO v. The STATE.

No. 55628.

Court of Appeals of Georgia.

Argued April 3, 1978.

Decided Sept. 25, 1978.

Galis, Timmons, Andrews & Head, John W. Timmons, Jr., Athens, for appellant.

Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Asst. Dist. Atty., for appellee.

BANKE, Judge.

The defendant appeals his conviction for possession of hashish and cocaine in violation of the Georgia Controlled Substances Act. He contends that a search warrant obtained by the police authorizing a search of his premises was invalid because it was based upon information provided by a confidential informant whose reliability was not properly demonstrated.

The affidavit in support of the warrant stated that the informant had personally observed "a quantity of marijuana" inside the defendant's premises. This information had not been given directly to the affiant, but had been relayed through a second police officer. With regard to the informant's credibility, the affidavit stated: "This source is believed to be reliable for the following reasons. (1) It confessed to the participation in several recent crimes which a person will not normally do unless telling the truth. (2) It has given information to law enforcement officers in the past which was proven true when checked. (3) It demonstrated a truthful demeanor while relating information to the above peace officer. (4) It sincerely affirmed itself to assist affiant in curbing the illicit drug flow in Georgia." Held :

"Hearsay may support the issuance of a valid warrant if the magistrate is informed of some of the underlying circumstances supporting the affiant's conclusions and his belief that the informant was credible or his information reliable. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Grebe v. State, 125 Ga.App. 873, 189 S.E.2d 698. There must be a substantial basis for crediting such hearsay. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)." Smith v. State, 136 Ga.App. 17, 18, 220 S.E.2d 11, 12 (1975). See also Burns v. State, 119 Ga.App. 678(2), 168 S.E.2d 786 (1969).

In the case before us, there were no underlying facts or circumstances brought to the attention of the magistrate which would tend to corroborate the Information provided by the confidential informant. Thus, the sufficiency of the affidavit must depend entirely on whether there is a substantial basis for believing the informant Himself to be reliable or trustworthy.

We do not find any of the four reasons offered, considered either separately or in conjunction with with each other, to be sufficient. The first, that the informant confessed to participation in recent criminal activity, would tend to lessen his personal credibility rather than to enhance it. While it is true that Information provided by an informant may be deemed inherently credible where it goes against his own penal interest (see United States v. Harris, 403 U.S. 573, 583-584, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), and Smith v. State, 136 Ga.App. 17, 220 S.E.2d 11, supra), there is no connection in this case between the information provided by the informant and the prior criminal activity to which he confessed. Under these circumstances, the informant's past criminal involvement damages rather than supports his credibility.

The third reason offered, that the affiant exhibited a truthful demeanor, is one which is more appropriately employed where the informant is an upright, law-abiding citizen. See, e. g., Davis v. State, 129 Ga.App. 158(3), 198 S.E.2d 913 (1974). We are particularly unpersuaded by this reason since the affiant in this case did not speak with or observe the informant himself but received the information from a second police officer. The fourth stated reason, i. e., the informant's sincere wish to stop the drug traffic in Georgia, also adds no support to his believability. Indeed, when considered alongside his admission to "participation in several recent crimes," it tends, if anything to cast doubt on it.

Unlike the other three reasons offered in the affidavit, the statement that the informant had provided information in the past which had proven to be correct does provide some ground for believing him. However, standing alone and unaccompanied by any specifics as to the type of information provided, the use to which it was put, or the length of time which had elapsed since the information was furnished, the statement amounts to nothing more than a mechanical recital of past reliability. The law requires more than this. It requires that the magistrate be furnished with "Particular facts or circumstances which justify concluding that the informant is a reliable or trustworthy person . . ." United States v. Tucker, 526 F.2d 279 (5th Cir. 1976). (Emphasis supplied.) See Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723) (1964); United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Mabrey, 140 Ga.App. 577, 231 S.E.2d 461 (1976). Accord, United States v. Watts, 176 U.S.App.D.C. 314, 540 F.2d 1093 (1976).

In some cases, the information provided by a confidential informant may be deemed inherently reliable as an admission against penal interest or the information may be corroborated by other information known to the affiant, thus rendering unnecessary a specific factual basis for believing the informant to be personally reliable. See, e. g., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, supra; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723, supra; Smith v. State, 136 Ga.App. 17, 220 S.E.2d 11, supra. However, where, as here, the information is not otherwise shown to be reliable, it is of crucial importance to provide a factual basis for believing the informant himself. While it is not required that a confidential informant's personal identity be compromised, something more is needed than a bald assertion of past reliability. See, e. g., McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) (informant had provided information to affiant 15 or 16...