Polke v. State, A91A1677

• Decision Date: 20 February 1992
• Docket Number: No. A91A1677,A91A1677
• Citation: 417 S.E.2d 22,203 Ga.App. 306
• Parties: POLKE v. The STATE.
• Court: Georgia Court of Appeals

Page 22

417 S.E.2d 22

203 Ga.App. 306

POLKE v. The STATE.

No. A91A1677.

Court of Appeals of Georgia.

Feb. 20, 1992.

Reconsideration Denied March 11, 1992.

Stubbs & Associates, M. Francis Stubbs, Reidsville, for appellant.

Richard A. Malone, Dist. Atty., William S. Askew, asst. Dist. Atty., for appellee.

CARLEY, Presiding Judge.

Appellant was tried before a jury and found guilty of trafficking in cocaine and possession of marijuana with intent to distribute. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts.

1. Appellant enumerates as error the denial of his motion to suppress the cocaine.

The only evidence presented at the suppression hearing was the testimony of the arresting officer. Insofar as it is relevant to this appeal, that testimony was as follows: The officer responded to a telephone call from an anonymous tipster, who stated that drugs were then being sold in the Liberty Street area. Although the tipster indicated that "we know who it is," no name was given to the officer. This anonymous tipster had called the police department frequently and the information conveyed in his prior calls had on more than one occasion proved to be true. After driving several blocks on Liberty Street without seeing anyone, the officer made two turns and saw appellant approaching on foot. The officer had been told by other "reliable informants" that appellant was a drug dealer who carried the drugs with him. Earlier that very evening, a person whose past information had never been corroborated had told the officer that he had seen appellant with drugs at some unspecified time and that appellant would have drugs on him that night. When appellant saw the officer, he abruptly turned and crossed some railroad tracks. When the officer later pulled beside appellant, he turned again. Appellant was stopped and frisked and large sums of money found. Although no contraband was discovered at that time, appellant was arrested for a controlled substances violation. He was then taken to the police station, where he was searched and the cocaine was found on his person.

" 'Whether [a] search is sought to be justified as incident to [an] arrest for possession of cocaine or whether it is sought to be justified by exigent circumstances, it cannot be upheld unless probable cause existed for a belief that the [suspect] was currently in unlawful possession of cocaine....' [Cit.]" Salter v. State, 198 Ga.App. 242, 243(1), 401 S.E.2d 541 (1990). In stopping and searching appellant, the officer acted solely on information supplied by informants. " 'The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the "totality of the circumstances" surrounding (1) the basis of the informant's knowledge and (2) the informant['s] veracity or reliability. [Cit.] "(A) deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." [Cit.]' [Cit.]" Rucker v. State, 199 Ga.App. 854, 855, 406 S.E.2d 277 (1991). The case which originally set forth this test, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), must "be considered as the outer limit of probable cause." (Emphasis in original.) State v. Stephens, 252 Ga. 181, 184, 311 S.E.2d 823 (1984).

"Reliable informants" had told the officer that appellant was a drug dealer, but there was no showing as to how those informants had come to that conclusion. Another informant had told the officer that appellant would have drugs on him that evening, but that informant had no prior history of reliability. Yet another informant had told the officer that drugs were then being sold in a specified area, but that informant did not name appellant as the perpetrator. "Considering the totality of the circumstances in this case, we find that the information disclosed [to the officer] was ... insufficient to establish reasonable cause for a belief ... that the appellant was currently in possession of cocaine. In the first place, there was no disclosure of the source of the informant[s'] information. [Cit.]" Felker v. State, 172 Ga.App. 492, 495(4), 323 S.E.2d 817 (1984). "[I]t is questionable ... whether the deficiency in the basis of the informant[s'] knowledge was adequately compensated by the informant[s'] previous record[s] of reliability." Rucker v. State, supra at 855, 406 S.E.2d 277. See Galgano v. State, 147 Ga.App. 284, 248 S.E.2d 548 (1978); Collins v. State, 188 Ga.App. 172, 372 S.E.2d 503 (1988); Indeed, the informant who had told the officer that appellant would have drugs on him that night had no prior history of reliability. "Even if the informant[s] [were] reliable, where no evidence is presented at the suppression hearing to show ' "that the police officer knew how the informant[s] received the information or else had such detailed information that he knew it to be more than mere rumor or suspicion," ' then the information was insufficient to establish probable cause for a search. [Cits.]" Rucker v. State, supra at 855, 406 S.E.2d 277. "There is no suggestion in this case that the informant[s] revealed ... the source of [their] information, nor was the information ... sufficiently detailed to suggest that it was based on anything more substantial than mere rumor. [Cit.]" (Emphasis supplied.) Salter v. State, supra at 243(1), 401 S.E.2d 541. Indeed, the informant whose call prompted the officer to ultimate action never even named appellant as one of the persons involved in the illegal drug activity on Liberty Street. Cf. Kelleher v. State, 185 Ga.App. 774, 777(1), 365 S.E.2d 889 (1988).

This lack of detail or disclosure of the source of the informants' information is extremely significant, given the lack of independent corroboration of the tip. See Felker v. State, supra at 495(4), 323 S.E.2d 817. Moreover, the lack of corroboration assumes greater significance where, as here, the informant who precipitated the officer's ultimate action was anonymous. See Stola v. State, 182 Ga.App. 502, 503(1), 356 S.E.2d 222 (1987). Despite an immediate response by the officer to the tip regarding drug activity in the Liberty Street area, the only "corroboration" of the details thereof was the discovery of a lone, evasive person unnamed in the tip walking one block over from Liberty Street. This is no real corroboration at all. Accordingly, "[w]e cannot say here that 'any deficiency in the basis of the informant[s'] knowledge was ... adequately compensated by the totality of the attendant circumstances.' [Cit.]" Rucker v. State, supra at 856, 406 S.E.2d 277. "While the tip, combined with [the discovery of appellant and prior information relating to him may have given] rise to an articulable suspicion of criminal wrongdoing sufficient to support an investigatory detention, [cit.], we do not believe the facts known to the officers after completing their [frisk] of the appellant[, including the discovery of large sums of cash on his person,] ... were sufficient under the circumstances to establish probable cause for the appellant's arrest for unlawful possession of drugs. Accordingly, we are constrained to hold that the ['search incident' to appellant's arrest] was not authorized and that the trial court erred in denying the appellant's motion to suppress. [Cits.]" Salter v. State, supra at 243-244(1), 401 S.E.2d 541. Compare Illinois v. Gates, supra; State v. Stephens, supra.

The dissent ignores fundamental principles of Fourth Amendment jurisprudence.

There were several informants, but, even construing their reports, together, there was no reliable information that appellant was then in current possession of drugs so as to authorize an immediate warrantless arrest for that crime. Under the "totality of the circumstances," the most that can be said is that the officers were in possession of mere rumors, circulating in the underworld, that appellant was in violation of the drug laws. Mere rumors of criminal activity, from sources not otherwise shown to be reliable, will not authorize an immediate warrantless arrest. Salter v. State, supra at 243(1), 401 S.E.2d 541. Compare Jones v. State, 195 Ga.App. 868, 869(1), 395 S.E.2d 69 (1990) (wherein the specific and detailed tip was provided by a concerned citizen).

There was no independent corroboration of the rumors. The officers merely discovered appellant walking alone some distance from Liberty Street. This does not corroborate that drugs were being sold in the Liberty Street area because "sale" requires a seller and a buyer. Compare State v. Billoups, 191 Ga.App. 834, 383 S.E.2d 198 (1989) (wherein the officers personally observed a probable on-going drug deal between two individuals); State v. Grimes, 195 Ga.App. 773, 774(1), 395 S.E.2d 42 (1990) (wherein the officer observed suspicious activity, not the mere presence of an individual). Corroboration of an individual's mere presence at a designated public location is not corroboration of otherwise unreliable rumors of criminal activity so as to authorize an immediate warrantless arrest. Johnson v. State, 197 Ga.App. 538, 398 S.E.2d 826 (1990).

Appellant's flight did give the officers an articulable suspicion to stop and frisk him. However, the frisk did not result in the discovery of drugs. The frisk resulted only in the discovery of large sums of money. Possession of large sums of money certainly may be suspicious, but it is not itself a crime and does not constitute probable cause for an immediate warrantless arrest for possession of contraband. Brown v. State, 191 Ga.App. 779, 383 S.E.2d 170 (1989).

The subsequent post-arrest search of appellant did produce drugs. However, the existence of probable cause cannot be determined on the basis of hindsight. Under the dissent's analysis, any law-abiding citizen who is the target of...