Lang v. State
| Decision Date | 31 January 1983 |
| Docket Number | No. 65258,65258 |
| Citation | 165 Ga.App. 576,302 S.E.2d 683 |
| Parties | LANG v. The STATE. |
| Court | Georgia Court of Appeals |
Mark J. Kadish, Rhonda A. Brofman, Atlanta, for appellant.
Darrell E. Wilson, Dist. Atty., Calhoun, Mickey R. Thacker, Asst. Dist. Atty., Cartersville, for appellee.
Gregory T. Lang was convicted by the trial court of trafficking in marijuana by possessing more than one hundred pounds, and of felony possession of drug-related objects. The conviction arises out of Lang's operation on his farm of a sophisticated indoor marijuana cultivation project consisting of approximately one thousand marijuana plants in a large metal building protected by an electric eye-beam alarm system and two additional large metal buildings under construction. The seizure of evidence under warrant exposed the potted plants, several large bags and boxes of harvested marijuana; and 4,125 soil cups in a "nursery" behind the building. The building was 60 feet by 135 feet, and 16 feet high. It was completely fiberglass insulated and was equipped with five 48-inch exhaust fans, six large gas heaters, eighty-six 1,000-watt mercury vapor lights suspended from the ceiling by steel cables, and ten automated control timers. Also seized from the building were soil test kits, pamphlets and records pertaining to planting schedules and planting soil and equipment.
The warrant under which this search was made was issued upon the sworn affidavit of GBI agent Gary Newman particularly describing the appellant, the farm premises, and the target buildings, and reciting:
Appellant Lang enumerates seven errors on appeal. In deciding the issues in this case, we have sifted out, as irrelevant, arguments and injection of evidence concerning other subsequent searches of Lang's residence and farm and other evidence of corroboration of the original search, since the conviction was based on the described evidence of marijuana cultivation seized under authority of the described affidavit alone and the information contained therein. Held:
1. Appellant contends the search warrant was invalid because the executing magistrate was not neutral and detached, a conclusion reached by appellant because the magistrate admitted, after first having denied, that at sometime in the past in an unrelated incident or incidents, he had signed blank warrants to accommodate an officer when he (the magistrate) was to be at a family dinner. Appellant contends this fact shows a close and biased or partial relationship with law enforcement officers sufficient to render the warrant invalid because the magistrate was not neutral and detached, as in State v. Guhl, 140 Ga.App. 23, 230 S.E.2d 22; Baggett v. State, 132 Ga.App. 266, 208 S.E.2d 23; and Jackson v. State, 150 Ga.App. 67, 256 S.E.2d 670. We find no merit in this enumeration. The incident suggested by appellant to show bias and partiality was an isolated incident or incidents in the past and there is no evidence except remote speculation that the magistrate's posture in issuing the search warrant in this case was not neutral and detached. Pressel v. State, 163 Ga.App. 188, 292 S.E.2d 553. Moreover, the evidence shows the sheriff, upon learning of any such blank warrants, had destroyed them and called them "taboo," thus negating any inference that special partial relationship existed between his office and the magistrate or that he permitted his officers and colleagues to obtain warrants signed in blank. No showing exists in this case that the magistrate who issued the warrant was not neutral and detached in the issuance of this warrant.
2. Appellant contends that the search warrant was without probable cause because the information (informant) was not shown to be reliable, there was no corroborating evidence to support the informant's allegations, and the information obtained from the informant was stale. None of these contentions has merit.
The informant was established as reliable, he having previously on more than one occasion given to the sheriff truthful information which, moreover, led to at least one conviction. Shaner v. State, 153 Ga.App. 694, 696-699, 266 S.E.2d 338. Compare Fowler v. State, 128 Ga.App. 501, 503, 197 S.E.2d 502; Pickard v. State, 152 Ga.App. 707(3), 263 S.E.2d 679; see Giles v. State, 149 Ga.App. 263, 254 S.E.2d 154. Moreover, the information was sufficiently detailed to show that it was more than a mere casual rumor or accusation made on reputation, and stated that the informant had been on the property "in the very recent past" and that "Greg Lang is presently storing marijuana in the described building." Collins v. State, 161 Ga.App. 546, 287 S.E.2d 708; Jones v. State, 154 Ga.App. 21, 23, 267 S.E.2d 323. The information was, on its face and by its own terms, not stale.
Additionally, the credibility of the informant and the reliability of his information was corroborated by the officer. The deputy corroborated the information by arranging to accompany the county building inspector on an "inspection" onto property that was posted with "No Trespassing" signs at the junction of a paved county maintained road and the unpaved county maintained road that served as appellant's driveway; but the deputy merely sat in the car and observed the white metal building with electric-eye beam alarm system, which he later said did not look like any hay storage system he had ever seen. The officer also observed an electric-eye beam alarm system over appellant's driveway. He saw two more similar metal buildings under construction, and an electric-eye beam alarm system set up on a perimeter of those buildings, as had been suggested by the informant. The deputy was accompanying a county official on a route and on business as to which the appellant had no reasonable expectation of privacy. See State v. Nichols, 160 Ga.App. 386, 287 S.E.2d 53. The buildings the deputy observed were not dwelling houses and were not used as offices. Giddens v. State, 156 Ga.App. 258, 274 S.E.2d 595 (U.S. cert. denied). Moreover, the fact that "No Trespassing" signs were posted over the driveway is a technicality which does not negate what the deputy saw while accompanying the building inspector and does not render the otherwise valid search warrant invalid. Dunbar v. State, 163 Ga.App. 243, 292 S.E.2d 897. No unreasonable search and no seizure took place, only a visual inspection which, even if it was more "undercover" than appellant would have liked, is not therefore unreliable or unlawful so as to render the search warrant one not based on probable cause. As to questions raised by appellant that the affidavit was infected by "hearsay on hearsay," see Williams v. State, 157 Ga.App. 476, 478, 277 S.E.2d 923.
3. Subsequent searches of Lang's residence and farm were not illegal; and, in any case, we need not address them as no evidence obtained thereby formed the basis of the conviction and any result of the searches was harmless beyond a reasonable doubt.
4. The trial court did not err in refusing to quash the indictment on grounds that the marijuana, except for 100 grams, was destroyed by law enforcement agents with approval of the district attorney, without notice to the appellant or his attorney; nor did the state fail to prove beyond a reasonable doubt that appellant possessed 100 pounds of marijuana.
Surely it would have been far wiser to notify the appellant and his attorney of the destruction of the contraband, especially since appellant was to be charged with trafficking, i.e., possession of more than 100 pounds of marijuana, and since as it happens the total 870 pounds of marijuana weighed contained some undetermined amount of trash, debris, and included stalks of plants that cannot be considered contraband (O.C.G.A. § 16-13-21(16) (Code Ann. § 79A-802)). The practice of destroying evidence without prior notice to the accused has been soundly denounced (see United States v. Henry, 9 Cir., 487 F.2d 912), and with good reason for the state's protection as well as the defendant's. Still, we find no fatal prejudice in this destruction of all the evidence except 100 grams. The state crime laboratory forensic chemist and investigating officers testified the bags of processed marijuana, including trash and debris, weighed 144 pounds. It...
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