Hawkins v. The State

• Decision Date: 07 September 2010
• Docket Number: No. A09A1639.,A09A1639.
• Citation: 303 Ga.App. 618,694 S.E.2d 132
• Parties: HAWKINSv.The STATE.
• Court: Georgia Court of Appeals

303 Ga.App. 618

694 S.E.2d 132

HAWKINSv.The STATE.

No. A09A1639.

Court of Appeals of Georgia.

March 29, 2010.

Reconsideration Denied April 12, 2010.

Certiorari Denied Sept. 7, 2010.

Barry W. Bishop, for appellant.

Garry T. Moss, Dist. Atty., Sara A. Thompson, Asst. Dist. Atty., for appellee.

BARNES, Judge.

Luther Jerome Hawkins was found guilty of possession of methamphetamine, and following the denial of his motion for new trial he appeals the denial of his motion to suppress. Hawkins contends that the trial court erred in denying his motion to suppress because the information providing the basis for the search warrant was stale, the confidential informant was unreliable, and the secondary search of his bodily fluids should have been suppressed because the initial search of the residence was invalid. He also contends that the trial court erred in denying his motion for mistrial because the State impermissibly elicited evidence of Hawkins' character at trial. Three principles inform an appellate court's review of a trial court's ruling on a motion to suppress evidence found and seized while executing a search warrant.

First, the trial [court] sits as the trier of facts, and [its] findings are analogous to a jury verdict and should not be disturbed if there is any evidence to support the findings. Second, the trial court's decisions on the credibility of witnesses and questions of fact must be accepted unless clearly erroneous. Third, the appellate court must construe the evidence most favorably to the upholding of the trial court's findings and judgments.

(Citations, punctuation and footnotes omitted.) Roberson v. State, 246 Ga.App. 534, 535-536(1), 540 S.E.2d 688 (2000).

The search warrant was supported by the affidavit of an agent with the Cherokee County Multi-Agency Narcotics Squad (“C-MANS”). The agent averred that a confidential informant who had assisted C-MANS in “prior narcotics investigations leading to numerous arrests and seizures of $2,970 of methamphetamine and marijuana” contacted her on August 19, 2005 and said that she overheard a telephone conversation about a “methamphetamine cook.” The informant said that the conversation was between “Sharon” and another individual and that Sharon said that she was planning a methamphetamine cook “later that day ... at Lori and Hawk's [identified as Hawkins] residence around 8:00 or 9:00 pm.”

The agent and the informant drove to the location, and she positively identified it as where Hawkins and his girlfriend, referred to as Hawk and Lori, lived. She also identified the car parked at the home as the couple's, and police later confirmed that the tag was registered to Hawkins' girlfriend. The agent was also familiar with Hawkins because of an earlier investigation of a methamphetamine lab involving the couple.

Based on the information, the magistrate found probable cause to issue a search warrant for methamphetamine and related objects at Hawkins' residence. That same day, August 19, C-MANS agents executed the warrant and recovered glass pipes commonly used to smoke methamphetamine and hand-rolled cigarettes believed to contain marijuana. They also recovered an Altoid can containing methamphetamine from the person of one of the co-defendants. The agent then obtained a search warrant for Hawkins' bodily fluids based on the contraband and statements from both defendants that they had smoked methamphetamine that same day. The samples tested positive for methamphetamine.

Hawkins was charged with possession of methamphetamine based on the bodily fluids search, and possession of less than an ounce of marijuana. Following a jury trial, he was found guilty of possession of methamphetamine. The trial court directed a verdict on the marijuana charge.

1. Hawkins first contends that the trial court erred in denying his motion to suppress because the information in the search warrant was stale. He argues that the information in the affidavit about the telephone conversation referencing a methamphetamine cook did not contain sufficient information to suggest a fair probability that contraband would be found at the location specified in the warrant. He argues that the affidavit did not provide a specific date on when the methamphetamine cook would take place, only that it would be later that day, and thus, the information was stale as it was impossible to tell exactly when the manufacturing of the methamphetamine would occur.

Time is assuredly an element of the concept of probable cause. However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant.

(Citations and punctuation omitted.) Hale v. State, 220 Ga.App. 667, 669(2)(c), 469 S.E.2d 871 (1996). Here, the affidavit stated that

the affiant received information from reliable confidential informant ... pertaining to a methamphetamine lab at [an address], the residence of Lori and Hawk. [The informant] informed the affiant that he/she overheard a telephone conversation pertaining to manufacturing methamphetamine at the above residence.... [The informant] stated he/she heard Sharon speaking to an individual about the methamphetamine cook she was to perform later that day. Sharon stated that all of the preparation work for the cook was complete. Sharon said she was going to Horse Town in order to purchase the iodine needed for the cook. Sharon said that she was going to be cooking at Lori and Hawk's residence around 8:00 or 9:00.

The officer also averred that similarly, in November of 2004, Hawkins was involved in another methamphetamine lab at another residence that he shared with the co-defendants.

The warrant in this case sought, among other things, methamphetamine, documents,...