Jones v. State

• Decision Date: 23 June 2016
• Docket Number: A16A0559
• Citation: 337 Ga.App. 545,788 S.E.2d 132
• Parties: Jones v. The State
• Court: Georgia Court of Appeals

337 Ga.App. 545

788 S.E.2d 132

Jones

v.The State

A16A0559

Court of Appeals of Georgia.

June 23, 2016

Amanda Gaddis Speights, Woodstock, for Appellant.

Cliff Head, Asst. Dist. Atty., Shannon Glover Wallace, Dist. Atty., for Appellee.

McMillian, Judge.

Landry Brian Jones was convicted by a jury of possession of methamphetamine with intent to distribute, theft by receiving stolen property, and possession of a motor vehicle with identification number removed. Jones filed a motion and amended motions for new trial, which the trial court denied following a hearing. Jones appeals, arguing in related enumerations of error that the trial court erred by denying his motion to suppress evidence seized from his home during the execution of several search warrants. As more fully set forth below, we now affirm.

The evidence relevant to the searches is essentially undisputed. On May 23, 2004, at about 4:30 a.m., Jones was shot at his mobile home residence located at 154 Hightower Trail in Cherokee County.¹ Law enforcement personnel with the Cherokee County Sheriff's Department responded to the 911 call reporting the shooting, and Detective Steven Thompson, who at that time was employed in the sheriff's department's Violent Crime Unit, met Jones at the hospital while other officers proceeded to his residence. Thompson spoke with Jones, who had been shot in the left arm but was conscious when the detective arrived at the hospital, and received Jones' consent to search his home for evidence related to the shooting.

Officers conducting the initial search observed baggies, a propane tank and scales inside Jones' home, and coupled with information received while investigating the shooting, police formed the belief that Jones was involved in the drug trade, in particular the sale of methamphetamine. On June 1, 2004, Detective Thompson obtained a warrant to search Jones' home, outlying buildings, and curtilage for evidence of the shooting and the sale and distribution of methamphetamine, and a search was conducted pursuant to the warrant on June 2, 2004. During this second search, officers found a small amount of marijuana inside a drawer in the house and an outside shed and an ATV with a missing vehicle identificatios number (VIN).

The ATV with the missing VIN was subsequently determined to be stolen, and officers obtained a warrant for Jones' arrest for possession of stolen property and misdemeanor marijuana possession. Detective Thompson and another officer went to Jones' residence on June 11, 2004 to arrest him, and Jones exited from the rear door of his trailer and met the officers outside the mobile home. Jones asked the officers if they had a warrant, and they informed him that they did. After Jones was placed under arrest, he indicated that he wanted to secure his home and the officers escorted him back inside. The officers observed several people inside the home and detected the odor of burnt marijuana. Officers also observed a glass pipe and a propane torch on a table in the living area of the mobile home.

Detective Thompson then sought and obtained another warrant based on the smell of burnt marijuana and observation of the glass pipe “of the type ... commonly used for smoking crack cocaine and [methamphetamine and the] cylinder of propane that is often used to heat the illegal substance to be smoked in the glass pipe.”² This search warrant was executed June 11, 2004, the same day Jones was arrested. During the execution of this warrant, police discovered, among other things, a substance subsequently identified as methamphetamine.

Jones was charged with possession of methamphetamine with intent to distribute, theft by receiving stolen property, and possession of a motor vehicle with identification number removed. Jones filed consolidated motions and discovery demands, including a broad, non-particularized motion to suppress, which he later amended to attack more particularly the June 1 and June 11 warrants. Following a hearing at which the trial court expressly cited, and discounted, many of the averments in the affidavit supporting the June 1 warrant, the trial court summarily denied the amended motions to suppress. Subsequently, Jones was tried before a jury and was found guilty on all counts. He filed a motion for new trial, in which he once again challenged the introduction of the evidence found during the execution of the June 1 and June 11 search warrants. The trial court denied Jones' motion, and Jones filed this appeal.

1. Jones first contends that the search of his residence and outlying buildings pursuant to the June 1 warrant was illegal because the affidavit submitted in support of the warrant was legally insufficient to support a finding of probable cause.

We begin our analysis by setting out the standards used in the various levels of judicial review of an application for a search warrant. At the outset, our law is clear that a magistrate may issue a search warrant only upon facts sufficient to support probable cause that a crime is being committed or has been committed. OCGA § 17–5–21 (a) ; State v. Palmer , 285 Ga. 75, 77, 673 S.E.2d 237 (2009).

The magistrate's task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.... Sullivan v. State , 284 Ga. at 361(2), 667 S.E.2d 32 (2008).

(Punctuation omitted.) Prince v. State , 295 Ga. 788, 792(2)(a), 764 S.E.2d 362 (2014) ; Palmer , 285 Ga. at 78, 673 S.E.2d 237. “The test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the factual and practical considerations of everyday life on which reasonable and prudent men act.” (Citations and punctuation omitted.) State v. Hunter , 282 Ga. 278, 278, 646 S.E.2d 465 (2007).

When a trial court reviews a magistrate's decision to issue a search warrant on a motion to suppress, “the trial court may then examine the issue as a first level of review, guided by the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate's decision to issue a search warrant based on a finding of probable cause.” (Citation omitted.) Palmer , 285 Ga. at 77, 673 S.E.2d 237. However, the burden of proving the lawfulness of the warrant is on the State, including the reliability of an informant if the application for the warrant is based upon information provided by an informant. Sutton v. State , 319 Ga.App. 597, 597–98, 737 S.E.2d 706 (2013) ; Dearing v. State , 233 Ga.App. 630, 632, 505 S.E.2d 485 (1998).

On appeal, we also review the search warrant to determine whether probable cause existed under the totality of the circumstances, keeping in mind that the duty of the appellate courts “is to determine if the magistrate had a ‘substantial basis' for concluding that probable cause existed to issue the warrant[ ].” Sullivan v. State , 284 Ga. 358, 361, 667 S.E.2d 32 (2008) ; Powers v. State , 261 Ga.App. 296, 302, 582 S.E.2d 237 (2003). Moreover, we review the trial court's grant or denial of a motion to suppress under the well-established principles that the trial court's findings as to disputed facts will be upheld unless clearly erroneous and the trial court's application of the law to undisputed facts is subject to de novo review. Petty v. State , 283 Ga. 268, 269, 658 S.E.2d 599 (2008). As in the trial court, we will give substantial deference to the magistrate's decision to issue a search warrant. Palmer , 285 Ga. at 77–78, 673 S.E.2d 237 ; Sullivan , 284 Ga. at 361(2), 667 S.E.2d 32 ; Robinson v. State , 312 Ga.App. 736, 745(4)(a), 719 S.E.2d 601 (2011).

With these principles in mind, we examine the affidavit submitted by Detective Thompson in support of the June 1 warrant. In regard to the shooting, Detective Thompson set out the information provided from the statements made by a witness and noted certain forensic evidence that officers found during the course of their investigation at Jones' residence, indicating that police believed they had not yet recovered all evidence related to the shooting, including the bullets fired and the weapon. Additionally, the affidavit recited that while processing the scene of the shooting, officers found “small plastic bags, commonly used in packaging of meth, large propane cylinders, commonly used in the smoking of meth, scales, commonly used in the weighing and packaging of meth.” Officers also observed a room in the residence containing shelves around the walls of it supporting many electronic items, a motorcycle and four wheeler type vehicle in a shed, another four wheeler outside, and many tools, of the “type commonly stolen and exchanged for drugs,” hanging on the walls of the building.³ Further, the affidavit stated that officers observed that Jones' residence was equipped with a surveillance camera, monitoring the outside of the residence and night vision equipment to survey the property. After hearing testimony from Thompson and the magistrate, the trial court credited these averments and although noting that the basis was marginal, nonetheless found that they were sufficient to support probable cause for the June 1 search.⁴

The trial court, however, discounted a number of averments in the affidavit as unsubstantiated rumor or because the averments were too vague to support a finding of probable cause, including that during the course of the investigation, Cherokee County law enforcement officers had spoken with Dawson County Sheriff's Investigator Tim Reed, who told them that he was “very familiar” with Jones, who Reed said “was known to sell methamphetamine and possess stolen property.” Reed also provided...