Kessler v. State

• Decision Date: 10 May 1996
• Docket Number: No. A96A0443,A96A0443
• Citation: Kessler v. State, 471 S.E.2d 313, 221 Ga.App. 368 (Ga. App. 1996)
• Parties: KESSLER v. The STATE.
• Court: Georgia Court of Appeals

Page 313

471 S.E.2d 313

221 Ga.App. 368

KESSLER v. The STATE.

No. A96A0443.

Court of Appeals of Georgia.

May 10, 1996.

Summer & Summer, Daniel A. Summer, Gainesville, for appellant.

Lydia J. Sartain, Dist. Atty., Denise M. Arenth, Asst. Dist. Atty., for appellee.

POPE, Presiding Judge.

Frank Kessler was convicted of two violations of the Georgia Controlled Substances Act. Here, he claims that the trial court erred in denying his motion to reveal the identity of the confidential informant, which was raised in the context of a motion to suppress challenging the sufficiency of a search warrant affidavit. We reject Kessler's argument and affirm.

On September 27, 1994, narcotics agent David Spillers swore out an affidavit in order to obtain a search warrant for Kessler's residence. In the affidavit, Spillers stated that he had reason to believe that Kessler was concealing certain drugs and drug-related articles at his residence. Spillers set forth his law enforcement and drug investigatory experience and stated that between September 18 and September 27, 1994, he had been contacted by an informant whom he considered reliable. Spillers stated that the informant said that he had observed Kessler with amphetamine powder and various items relating to the use and distribution of drugs.

Spillers stated that the informant was reliable in that he had previously provided information which led to the issuance of at least two search warrants; that the informant had provided information which led to the arrest of at least three persons for felony drug violations; and that the informant had provided information which led to the seizure of amphetamine powder and marijuana. Spillers stated that for at least three years, he had not known the informant to lie, and that everything the informant had told him during that time was true and correct. Spillers stated that the informant feared harm if its identity were made known and wanted to remain anonymous. The affidavit stated that the informant's directions to Kessler's premises and the description of the premises were true and correct. Spiller stated that he had also checked a directory, which corroborated the informant's information regarding the premises. Finally, Spillers stated that he had probable cause to believe that drugs were being kept at Kessler's premises.

On September 27, the warrant issued for a search of Kessler's person and property. The warrant was executed the same day, and in the ensuing search of Kessler's residence, several bags of methamphetamine, marijuana, and various devices associated with the distribution and use of such drugs were discovered. There is no allegation that the informant was involved in the search in any manner. Based on the evidence seized, Kessler was charged with the two violations of the Georgia Controlled Substances Act for which he was subsequently convicted.

Kessler filed a motion to suppress in which he claimed that he knew the identity of the confidential informant. Kessler claimed that the informant had numerous prior felony and misdemeanor convictions, and that he and Kessler had been involved in an altercation the week before the search warrant was executed. Kessler argued that Spillers' failure to include this additional information about the informant in the affidavit constituted grounds for suppression of the evidence seized.

The court convened for a hearing on the motion and decided to grant leave for Kessler to file a motion for disclosure of the informant's identity and to hold the motion to suppress in abeyance until the motion regarding the informant's identity could be resolved. After conducting an in camera review of the State's file, which showed that the alleged informant had been convicted of a number of violations, including at least one felony, the court denied the motion to disclose the informant's identity. In doing so, the court concluded that the informant acted only as a mere tipster. The court found that because the informant was not present and did not participate in the execution of the search warrant, his identity was absolutely privileged.

Kessler then filed an amended motion to suppress. At the hearing on this motion, Officer Spillers testified that he did not recall giving any information to the magistrate, other than that contained in his affidavit. Kessler proffered certified copies of the informant's convictions, and the court denied the amended motion. "In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the 'totality of the circumstances' analysis enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted by this court in State v. Stephens, 252 Ga. 181, 311 S.E.2d 823 (1984).... Under that analysis '(t)he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, 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. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud(ing)" that probable cause existed.' " (Citations omitted.) Gary v. State, 262 Ga. 573, 577, 422 S.E.2d 426 (1992).

Here, Kessler argues that the court erred in failing to grant his motion to reveal the informant's identity. Kessler contends that since the magistrate was unaware that the informant was a felon, the magistrate was unable to make an independent determination of the informant's veracity. Kessler argues that since a felony conviction may be used to impeach a witness, the magistrate should have been made aware of the conviction in order to make a probable cause determination.

Pretermitting the issue of whether Kessler presented a prima facie case as to the informant's identity, we find his arguments without merit. Although we have not addressed the precise issue raised here, we have discussed the general guidelines for information which should be...