Shaner v. State

• Decision Date: 10 April 1980
• Docket Number: No. 59097,59097
• Citation: 266 S.E.2d 338,153 Ga.App. 694
• Parties: SHANER et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 338

266 S.E.2d 338

153 Ga.App. 694

SHANER et al. v. The STATE.

No. 59097.

Court of Appeals of Georgia.

Argued Jan. 7, 1980.

Decided March 4, 1980.

Certiorari Denied April 10, 1980.

Wilton E. Stone, Jr., Valdosta, for appellants.

Vickers Neugent, Dist. Atty., Charles R. Reddick, Lew S. Barrow, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellants were convicted of possession of marijuana with intent to distribute. They appeal, enumerating as error the denial of their motion to suppress and the admission into evidence, over objection, of certain self-incriminating statements.

1. The evidence produced on the motion to suppress was as follows: Several days prior to June 27, 1979, an officer of the Lanier County Sheriff's Department and a GBI agent received a tip from a confidential source. The informant was personally known to the officer but had never supplied information before. The informant related that on June 27, at approximately 12:30 or 1 a. m., a 1979 maroon Camaro with a "scope" or "windspoiler" on the back would be passing through Lakeland, Georgia, on Highway 129. The informant further related that this vehicle would bear a Florida tag and would be coming from Ocala, Florida. The informant said that Shaner, a white male and a resident of Ocala, would be driving and that Hylton, also a white male and Ocala resident, would be a passenger. The informant also told the officer that a weapon would be located under the driver's seat and that the vehicle would contain 25 or 30 pounds of marijuana.

At approximately 8 p. m. on the evening of June 26, 1979, two state patrol troopers who were on duty in the area were ordered to report to the Sheriff's office in Lakeland. There, the two troopers were advised by the officer and the agent as to every detail of the informant's tip and were requested to be on the lookout for the described vehicle and individuals. The troopers left on a regular routine patrol of Highway 129. Sometime after midnight, on the morning of June 27, the troopers spotted a vehicle matching the description given them proceeding north on Highway 129 toward Lakeland. Radar indicated that the vehicle was exceeding the posted speed limit. The troopers followed the car and made a routine traffic stop. The trooper asked the driver to step to the rear of the vehicle and verified that he was Shaner and his passenger was Hylton. The trooper then advised Shaner that "I was going to make a traffic charge against him for speeding and he would have to follow me to the Lanier County Sheriff's office, where I turned him over to the Lanier County Sheriff's office, which is required for an out-of-state vehicle."

At the sheriff's office the officer and agent sought the consent of Shaner and Hylton to a search of the vehicle. They did not consent. The judge of the small claims court was called and the following affidavit for a search warrant was made by the agent: "Agent Richard Deas of the GBI and Deputy Dane Bruce of the Lanier County Sheriff (sic) Office received information from a confidential informer that a maroon Camero (sic) with a scope on the back and operated by a Terry Lee Shaner would be coming through Lakeland, Ga. on 6-27-79 at about 12:30 A.M. or 1:00 A.M. and that the vehicle would be transporting about 20 or 30 pounds of marijuana. Informant stated that Terry Lee Shaner is a white male and would be coming from the Ocala, Fla. area. A vehicle matching this description was stopped on 6-27-79 at 12:50 A.M. by Troopers R. E. Joiner and Billy Exum of the Ga. State Patrol on U.S. 129 for speeding (60 mph in a 55 mph zone, see ticket # 47349, attached copy). Vehicle was being operated by Terry Lee Shaner, address on license is 1102 S.E. 33 Ave., Ocala, Fla. Vehicle was traveling north of U. S. 129 which is in the direction of Lakeland, Ga." The agent was sworn and gave testimony in support of the issuance of the search warrant. After reading the affidavit and hearing testimony the magistrate determined that probable cause existed to search the vehicle for contraband and issued the warrant. The search produced a weapon, located under the driver's seat, and a quantity of marijuana which was in excess of 25 pounds in the trunk.

The trial court hearing the motion to suppress determined "that the affidavit and accompanying oral testimony submitted under oath to (the magistrate) were sufficient to establish probable cause for the issuance of said search warrant and that the finding of probable cause by said (magistrate) was amply authorized by the evidence . . ." The court further found that probable cause existed for a warrantless search of the vehicle "resulting from the information supplied by the confidential informant-tipster and that together with the verification thereof by said officers justified said search and seizure." The motion was denied.

Shaner and Hylton urge that the finding that probable cause existed to search the vehicle was erroneous. Citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), they argue that the tip of the informant and the affidavit based upon that tip were insufficient to demonstrate probable cause to search. Under those cases, "where hearsay such as an informer's tip is relied upon for probable cause, the sworn information placed before the justice of the peace must adequately set forth (1) the ' "underlying circumstances" necessary to enable the magistrate independently to judge of the validity . . .' of the information, and (2) the informant's credibility or reliability." Simmons v. State, 233 Ga. 429, 431-432, 211 S.E.2d 725, 727 (1975). Thus, the issue presented here is whether the affidavit and sworn oral testimony satisfied this "two-pronged" test for the determination of probable cause.

We deal initially with the "underlying circumstances" or the "basis of the knowledge" prong. This requirement is designed to locate the original source of the incriminating information and to examine the validity or reliability of that information. This "prong" is not concerned with the overall "reliability" of the informant himself but seeks only to decide if the incriminating information, as opposed to the informant, is "reliable."

The affidavit and the sworn testimony in the instant case do not demonstrate that the magistrate was told how the informant obtained the information which incriminated Shaner and Hylton. Thus the magistrate did not know whether the accusation was based upon the informant's personal observation of the marijuana in the car or upon mere rumor and reputation. Since the object of this "prong" is to insure that a "neutral and detached magistrate" is presented with sufficient facts so as to satisfy himself that the informant obtained the information in a reliable manner, it clearly is the better practice, if the informant has obtained his information through personal observation or contact or through some other "reliable" manner, to include this fact in the affidavit or so inform the magistrate considering its issuance. See, e. g., Walker v. State, 146 Ga.App. 572, 246 S.E.2d 690 (1978). However, the failure to include a statement of the informant's "basis of knowledge" in the affidavit or to specifically inform the magistrate of that basis by sworn testimony does not always cause the resulting warrant to be fatally defective. "In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, supra. Thus where, as here, neither the affidavit nor the sworn oral testimony demonstrates that the magistrate was informed of the manner in which the information was obtained by the informant, it is necessary to decide whether the affidavit and testimony concerning the informant's tip supplied the magistrate with a detailed report "of the sort which in common experience may be recognized as having been obtained in a reliable way . . ." Spinelli v. United States, 393 U.S. supra at 417-418, 89 S.Ct. at 590. "The detail provided by the informant in Draper v. United States, 358 U.S. 307, (79 S.Ct. 329, 3 L.Ed.2d 327) (1959), provides a suitable benchmark." Spinelli, supra at 416, 89 S.Ct. at 589. Since the focus of this "prong" of Aguilar-Spinelli is the reliability of the manner in which the informant obtained his information, determination of whether the tip meets the "sufficient detail" test is based exclusively on what information came from the informant without reference, at this point, to independent verification of his information. " 'Corroboration should not be considered in applying this (the "basis of knowledge") test. Independent corroboration of some of the facts alleged by the informer may indicate truthfulness, i. e., that the tip is not completely fabricated, but does not suggest that the informer's knowledge was obtained through personal observation or other dependable manner.' " Stanley v. State, 19 Md.App. 507, 313 A.2d 847, 862 (1974).

Applying the above stated analysis to the facts in the instant case and using the Draper decision as our "benchmark" we find the...