Perkins v. State

• Decision Date: 08 March 1996
• Docket Number: No. A95A2145,A95A2145
• Citation: Perkins v. State, 469 S.E.2d 796, 220 Ga.App. 524 (Ga. App. 1996)
• Parties: PERKINS v. The STATE.
• Court: Georgia Court of Appeals

Page 796

469 S.E.2d 796

220 Ga.App. 524

PERKINS v. The STATE.

No. A95A2145.

Court of Appeals of Georgia.

March 8, 1996.

Alan J. Baverman, Atlanta, for appellant.

Roger G. Queen, District Attorney, Joe W. Hendricks, Jr., Assistant District Attorney, Ellijay, for appellee.

POPE, Presiding Judge.

After his motion to suppress evidence seized in a search of his home was denied, defendant David Perkins was convicted of manufacturing marijuana in Fannin County. On appeal, defendant asserts that the evidence should have been suppressed because the officer who obtained the search warrant (a) withheld information relevant to the confidential informant's ("CI's") reliability from the magistrate, and (b) relied in part on information he had obtained in an earlier, warrantless search. Concluding that probable cause for the search warrant existed regardless of the CI's initial reliability and even if we disregard the officer's observations in the earlier search, we affirm.

Defendant had two homes he inherited from his father; one was in Cobb County and one was in Fannin County. After an informant of unknown reliability reported that defendant was growing marijuana in both houses, Officer Cebula of Cobb County and Trooper Burch of Fannin County set up a controlled buy of marijuana at defendant's Cobb County home. They searched the CI and his car, gave the CI funds to use for the purchase of marijuana, followed him to the Cobb County home, and watched the CI enter the house and emerge a short time later. They then followed the CI back to a prearranged location, where the CI turned over to Officer Cebula an amount of marijuana. Based on an affidavit which included a description of the controlled buy, Officer Cebula obtained a search warrant for defendant's Cobb County home the following day. This warrant was executed, and the officers seized marijuana plants and related paraphernalia from an indoor marijuana "grow."

Trooper Burch then obtained a warrant to search the Fannin County residence. Burch's affidavit recited what the CI had told the officers about defendant's marijuana growing activities and related that Burch had been to the Fannin County home, smelled the odor of marijuana, observed that the lower level windows were all covered, and had seen large amounts of potting soil in plastic bags around the house. The affidavit did not describe either the controlled buy or the results of the warrant executed in Cobb County. Trooper Burch testified at the motion to suppress hearing, however, that he orally informed the magistrate that the Cobb warrant had been executed and a "grow" with numerous marijuana plants had been found. Trooper Burch executed the Fannin County warrant and seized 54 additional plants as well as processed marijuana and paraphernalia.

1. The question presented is whether, taking a common sense approach, the information presented to the issuing magistrate showed a reasonable probability that contraband would be found in the place to be searched. See State v. Stephens, 252 Ga. 181, 182, 311 S.E.2d 823 (1984). In this case, the controlled buy at the Cobb County home provided probable cause for the search of that residence; and the results of the search of defendant's Cobb County home, coupled with information from the CI (who could then be considered reliable as a result of the controlled buy and the earlier Cobb County search) that defendant was growing marijuana in both his homes, provided probable cause for the search of the Fannin County home.

2. Defendant contends the information provided the magistrate in support of the Fannin County warrant was insufficient because Trooper Burch failed to inform the magistrate that the CI had demanded and received money from the officers, and that the CI had a criminal record. Even under the common sense "totality of the circumstances" test of Stephens, an informant's reliability is a relevant consideration. Poole v. State, 175 Ga.App. 374(1), 333 S.E.2d 207 (1985). Accordingly, officers seeking warrants should provide the magistrate with any information they have relevant to a CI's...