Sanders v. State
| Decision Date | 14 November 2001 |
| Docket Number | No. A01A1287.,A01A1287. |
| Citation | 556 S.E.2d 505,252 Ga. App. 609 |
| Parties | SANDERS v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Patricia A. Buttaro, Peachtree City, for appellant.
Steven L. Harris, Solicitor-General, for appellee.
William Virgil Sanders III appeals his conviction for possession of marijuana, contending that (1) the trial court erred by failing to suppress evidence obtained pursuant to a search warrant and (2) the State failed to establish that venue was proper in Fayette County. For the reasons set forth below, we affirm.
1. We first address Sanders' contention that the trial court erred in failing to suppress that evidence obtained pursuant to a search warrant. "This court's responsibility in reviewing a trial court's ruling on a motion to suppress is to assure there was a substantial basis for the decision, and the evidence is construed to uphold the findings and judgment of the trial court." Claire v. State.1 So viewing the record, the evidence shows that a magistrate judge found probable cause to issue a warrant to search Sanders' residence based upon the averments of a Fayette County police officer. The officer was familiar with Sanders from previous narcotics investigations and from an incident in 1995 in which Sanders was arrested for possession of three ounces of marijuana. In the affidavit, the officer swore that the described incident occurred in Fayette County, Georgia, and that he: was contacted by a confidential reliable informant[ ]. [The informant] stated that within the past seventy-two hours [he] had seen a quantity of marijuana within the residence of Billy Sanders located at 650 East Lanier Ave. Fayetteville, Ga. [The informant] further stated that [he] had seen Billy in possession of a handgun. [The informant] is familiar with marijuana in its various forms and has been responsible for the arrest and seizure of numerous persons and narcotics in the past.
Sanders contends that the magistrate was unable to determine whether probable cause existed because (1) the affidavit failed to set forth sufficient facts upon which the magistrate could determine the reliability of the informant and information he provided, (2) the informant/information was, in fact, not reliable as evidenced by factual inaccuracies, and (3) the information provided by the informant was not sufficiently corroborated.
A magistrate's finding of probable cause is reviewed under the "totality of the circumstances" test enunciated in Illinois v. Gates,2 which provides that:
the 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 concluding that probable cause existed.
(Citations and punctuation omitted.) Munson v. State.3 See Claire, supra at 648-649, 544 S.E.2d 537. For a magistrate to properly determine the veracity and reliability of the informant and his hearsay information:
The type of information which should be furnished to the magistrate ... is: (1) the type of information previously supplied by the informant, (2) the use to which the information was put, and (3) the elapsed time since the information was furnished. And it is not necessary for all three of the factors to be shown as long as the magistrate has sufficient information to make an independent analysis.
(Footnote omitted.) Claire, supra at 649, 544 S.E.2d 537, citing Mitchell v. State.4
The affidavit examined by the magistrate here set forth sufficient facts upon which the magistrate could determine the reliability of the informant and his/her information. The same type of information had previously been supplied by the informant and had led to the seizures of other contraband and arrests of other offenders. In addition, the informant was familiar with marijuana in its various forms. Furthermore, the informant contacted the officer and informed him that the informant personally saw marijuana in Sanders' residence5 within the past 72 hours, and the affidavit was prepared and reviewed by the magistrate on the following day. The affidavit was sufficient. See, e.g., Crawford v. State6 (); Bowe v. State7 ().8
Furthermore, there is no merit to Sanders' contention that the veracity and reliability of the information were called into question by the informant's statements that Sanders possessed a handgun and that there was a "quantity" of marijuana in the house (although the actual search revealed a quantity of less than one ounce). With respect to the handgun, there is no record evidence that the gun was not in Sanders' possession when the informant was at his residence. The only mention of this issue is contained in Sanders' counsels' acknowledgment that Sanders had indeed had a gun in the house, but had pawned the gun "two to three weeks" prior to the search. Since the informant was in Sanders' residence nine days prior to the search, an interpretation that most strongly supports the ruling of the magistrate as to the existence of probable cause is that Sanders was still in possession of the gun when the informant was at his residence,9 but in any event, such conflicts in evidence and the credibility of witnesses are for the jury to resolve.
Similarly, the informant's statement that he saw a "quantity" of marijuana is not contradicted by the amount actually found later upon the execution of the search warrant. The informant was at Sanders' residence nine days prior to the actual search. The interpretation that most strongly supports the issuance of the warrant is that Sanders had more marijuana in his residence when the informant was there. Sanders does not show that the outcome would have been any different if the informant stated that he saw "marijuana," rather than a "quantity of marijuana." See Dorminey v. State10 () (citation omitted).
Finally, Sanders argues that the information provided by the informant was not sufficiently corroborated. "Under a approach, corroboration simply supplies an alternative `basis for finding probable cause, [where there are] deficiencies in the showing of the informant's veracity, reliability, or basis of knowledge." (Citation omitted.) Crawford, supra at 327(4), 504 S.E.2d 19. Here, because the informant's veracity, reliability, and basis of knowledge were sufficiently established, corroboration was not required.
Accordingly, the affidavit sufficiently established probable cause to search Sanders' residence, and the trial court did not err in denying Sanders' motion to suppress.
2. We next address Sanders' contention that the State failed to prove that venue was proper in Fayette County, Georgia. In response, the State maintains that in this bench trial, Sanders stipulated to all the elements to support his conviction, including venue, and sought to preserve only the issue of whether probable cause existed to issue a search warrant. The State argues that Sanders had therefore waived his right to raise this issue on appeal. By entering a not guilty plea on February 27, 1999, Sanders challenged venue. "The act of pleading not guilty to an indictment is considered by law to be an irrefutable challenge to all the allegations set forth therein, including those allegations pertaining to venue." Jones v. State.11 The State was thereafter required to prove venue beyond a reasonable doubt under Jackson v. Virginia.12
Once the burden is placed upon the State to establish venue beyond a reasonable doubt, the burden never shifts to the defendant to disprove venue, as it is axiomatic that the evidentiary burden in a criminal prosecution is "upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt." The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence.
(Footnote omitted.) Jones, supra. See also Tunarka v. State.13
Sanders was convicted at a stipulated bench trial following his plea of not guilty. In Case No. A01A0764, Sanders initially appealed the trial court's denial of his motion to suppress based on a lack of probable cause to issue the warrant. As the warrant and supporting affidavit were not a part of the trial record, the case was remanded at Sanders' request, until such time as the record was complete.14 A hearing was held on Sanders' motion to perfect record, and the present appeal followed that proceeding. The venue issue was raised for the first time in this appeal.
Sanders contends that the State failed to prove that venue was proper in Fayette County. Venue is an essential element of the crime charged, which the State was required to prove, absent a stipulation thereto. The State argues that the case had been tried by stipulation, and that Sanders had stipulated to all the facts required to...
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