Robertson v. State
| Decision Date | 21 January 1999 |
| Docket Number | No. A98A2408.,A98A2408. |
| Citation | 510 S.E.2d 914,236 Ga. App. 68 |
| Parties | ROBERTSON et al. v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Gilbert J. Murrah, Bainbridge, for appellants.
J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.
Wade Robertson was indicted for possession of marijuana with intent to distribute and possession of a firearm by a convicted felon. Kelly Robertson was indicted for possession of marijuana with intent to distribute. The defendants moved to suppress evidence seized in the search of their home, claiming the officer who applied for the search warrant omitted from his affidavit material information regarding the reliability of the informant upon whose information the affidavit was based. We granted the Robertsons' application for interlocutory appeal from the order denying their motion to suppress.
During the hearing on the motion to suppress, the police officer who applied for the search warrant testified that he arrested the informant for driving while under the influence of drugs or alcohol. While the DUI charge was pending, the informant telephoned the officer and told him he knew someone who was selling narcotics and that he was willing to give the officer the information if the officer would "help" him with the DUI charge. The officer knew that the informant had been convicted of burglary and possession of marijuana and was on probation or parole. The officer said he could not promise the informant anything, but he would make the judge aware of his cooperation and assistance. The informant then gave the officer information resulting in three arrests, including the two arrests at issue here.
According to the officer, the informant told him that he had been in the Robertsons' residence and saw what he described as two pounds of marijuana in a desk drawer. The informant was "enraged" when he made the call, telling the officer that he was angry at Wade Robertson because he had made a sexual advance at the informant's "old lady."
The officer swore out an affidavit for search warrant based on the informant's information. Specifically, the officer stated in the affidavit that a previously reliable source told him that he had been in Wade Robertson's home and saw there a quantity of marijuana. The officer wrote that Robertson was "representing the material to be marijuana, for sale." The officer also indicated that the informant had given him information about a drug offense three months earlier which resulted in an arrest. The officer further stated that he corroborated the informant's information by driving by the Robertsons' residence and observing that the exterior of the premises and the car parked out front matched the description given by the informant. Moreover, the officer confirmed with the county "911" system that Wade Robertson lived there. The officer did not include in the affidavit any information about the informant's criminal history, the informant's anger with Wade Robertson, or the fact that the informant was attempting to get "help" from the police on a pending criminal charge. The affidavit was the only information provided to the issuing magistrate.
The Robertsons contend that, by failing to give the magistrate any of this information about the informant, the officer denied the magistrate the opportunity to accurately assess the informant's reliability and veracity. We agree.
Probable cause may be predicated on an informant's tip only if, under the totality of the circumstances, including the informant's veracity and basis of knowledge, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Smith v. State, 218 Ga.App. 12, 14, 460 S.E.2d 114 (1995). "While establishment of the informant's veracity and basis of knowledge is no longer an absolute requirement since [Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ], veracity and basis of knowledge are still major considerations in the probable cause analysis ...
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...provide certain information about the informant to the magistrate and his attempt to mislead the magistrate, citing Robertson v. State, 236 Ga.App. 68, 510 S.E.2d 914 (1999), as a basis for suppressing the The trial court concluded, as do we, that Ware did attempt to mislead the magistrate ......
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