Shivers v. State
| Decision Date | 01 November 2002 |
| Docket Number | No. A02A1582.,A02A1582. |
| Parties | SHIVERS v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Johnson, Word & Simmons, Gerald P. Word, Carrollton, for appellant.
Peter J. Skandalakis, Dist. Atty., Charles M. Lane, Asst. Dist. Atty., for appellee.
On October 13, 1999, Villa Rica police officers executed a search warrant issued earlier that day upon Scottie Shivers's residence and seized one gram of crack cocaine, packaged in four baggies and concealed in "CD cases." Shivers was charged with two counts of violating the Georgia Controlled Substances Act, by possessing cocaine and by possessing cocaine with the intent to distribute. His motion to suppress the evidence was denied, and a jury found him guilty of the possession count and not guilty of the other count. Shivers appeals, contending that his motion to suppress should have been granted because the warrant was not supported by probable cause. We agree and reverse. Shivers's remaining contention is rendered moot.
The affidavit presented as support for the warrant was sworn by Marc Griffith, then a detective with the Villa Rica Police Department. Griffith stated that based on police observations and numerous reports from unnamed informants, he believed that crack cocaine, other illegal drugs, and drug-related items would be found at Shivers's residence, in his vehicle, and on his person. Shivers contends that the warrant was improperly issued, contesting the reliability of the informants and their information and arguing that the information contained in the affidavit was stale.
In the affidavit at issue here, Griffith first averred that the police department had received "complaints about Scottie Shivers selling illegal drugs." Without any information about the time or location of the alleged acts or the reliability of the informers, these complaints do not amount to probable cause that illegal drugs would be found at Shivers's home or any particular place.5
Second, Griffith averred that he and another law enforcement officer spoke with a "tipster" in September 1999 and that Griffith stated that the tipster was familiar to him and the other officer "from a prior arrest when the tipster was arrested for possession of crack cocaine" and that the
Because the tipster's statement that Shivers sold him crack cocaine lacked any indication of the date or location of any such transaction, it did not establish probable cause that contraband would be found at Shivers's residence or any other particular place. Further, even assuming that the tipster was reliable, his/her information in this case—that Shivers concealed crack cocaine at his residence—was not. The tipster's conclusory claim that "he/she has knowledge" of that information was not supported by any facts from which the judge could have independently determined the basis of the tipster's information. This tip therefore failed to establish probable cause.6
Third, Griffith averred that on October 1, 1999, he arrested a male subject for possession of marijuana and that the male subject told him that he had purchased $50 worth of crack cocaine earlier that evening from "Scott" at "Scott's" residence. He provided a physical description of "Scott." The male subject also stated that "Shivers" had told him that "the next time he comes back, he better be ready for a hair cut." Griffith recognized that the informant's description was consistent with Shivers. Further, his independent investigation confirmed that Shivers operated a barbershop out of his home.
Griffith acknowledged at the suppression hearing that he could not vouch for this informant's reliability. But even if an unidentified informant is not shown to be reliable, his tip may be proved reliable if portions of it are sufficiently corroborated by the police.7 For the corroboration to be meaningful, the information must include a range of details relating to future actions of third parties not easily predicted8 or similar information not available to the general public.9
Although the informant's details may have shown that he knew Shivers, the verification of such publicly available information was not sufficient to show that the informant was a credible source of information about Shivers's alleged criminal activity.10 Further, Griffith testified at the suppression hearing that the male subject had told him that he was headed to buy more crack cocaine from Shivers. While that information about Shivers's future activities could have been corroborated, the police did not confirm the informant's prediction that Shivers would soon sell him the drug. This informant's tip failed to establish probable cause.11
Fourth, Griffith averred that on October 9, 1999, police officers observed a man walk from Shivers's residence and drive away. The officers stopped the car and found crack cocaine in the passenger's sock. The passenger later told Griffith during an interview that the driver had handed him the drug to hide when they noticed the police behind them.
This sequence of events amounted to no more than a mere suspicion that illegal drugs would be found at Shivers's residence. There was no indication that the observing officers saw the driver take contraband from Shivers's residence, and Griffith admitted at the suppression hearing that the driver said nothing at all about the crack cocaine. In addition, there was no showing that the passenger's information was reliable. No details given in the passenger's information were corroborated. When the information supplied by the informant is not corroborated, the issuing judge, in determining the reliability of the information and the informant, must look to see whether the informant himself was reliable.12 This informant was untested. Thus, his uncorroborated information added nothing to the substance of the police officers' information.13 Mere suspicion does not amount to probable cause.
Fifth, Griffith averred that he and another law enforcement officer smelled a "strong odor of burnt marijuana about Shivers' person" on October 11, 1999, when the officers "stopped by" Shivers's residence. At the suppression hearing, Griffith testified, "[Shivers] was out at his house and we pulled up talking to him." When a police officer is the informant, the informant is presumed reliable as a matter of law.14 However, we find that the police detection nonetheless failed to establish probable cause for the search warrant.
The odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, probable cause exists to authorize the issuance of a search warrant.15 The odor of burnt marijuana on Shivers's person may have indicated Shivers's past use of the drug or his presence in an area where the drug was used by another.16 But that alone failed to establish probable cause that marijuana had been smoked or burned or would be found within Shivers's house or its curtilage.17 There was no averment that the odor of burnt marijuana was emanating from anywhere other than Shivers's person, that Shivers had recently exited his house, or that marijuana was then or had recently been burned anywhere at his residence.
Turning to Shivers's claim of staleness, the proper procedure to determine whether information is stale is "to view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant."18 There was a two-day delay between the detection of the odor of burnt marijuana on Shivers's person and...
To continue reading
Request your trial
-
Sutton v. State
...588 S.E.2d 764 (2003). See also St. Fleur v. State, 286 Ga.App. 564, 566(1), 649 S.E.2d 817 (2007) (accord); Shivers v. State, 258 Ga.App. 253, 255, 573 S.E.2d 494 (2002) (accord). As shown above, it is undisputed that It had no direct relationship with the defendant, and there is nothing i......
-
State v. Kazmierczak
...of a search warrant.The seeds that later grew into our misapplication of the law seem to have been planted in Shivers v. State, 258 Ga.App. 253, 573 S.E.2d 494 (2002). In this case, we reversed the conviction of a defendant who was encountered by police outside his home smelling of burnt ma......
-
Fair v. State
...corroborate the information supplied by the informant to establish sufficiently his or her credibility. Shivers v. State, 258 Ga.App. 253, 255, 573 S.E.2d 494 (2002) (holding that meaningful corroboration requires that information include details relating to future actions of third parties ......
-
Wiggins v. State
...Ga.App. at 607(1)(c), 737 S.E.2d 706 (emphasis in original); accord Land, 259 Ga.App. at 863(1), 578 S.E.2d 551 ; Shivers v. State, 258 Ga.App. 253, 255, 573 S.E.2d 494 (2002).14 See Land, 259 Ga.App. at 863(1), 578 S.E.2d 551 (holding that informant's knowledge of defendant's home address,......
-
Criminal Law and Criminal Procedure - John O. Cole and Bonnie K. Cole
...App. 823, 225 S.E.2d 64 (1976). 50. Lyons, 258 Ga. App. at 13, 572 S.E.2d at 636. 51. Id. 52. Id. 53. Id. 54. Id. See Shivers v. State, 258 Ga. App. 253, 255, 573 S.E.2d 494, 497 (2002) (throwing out a warrant when an informant not known to be reliable gave publicly available details). 55. ......
-
Criminal Law
...194, 198 (1999) (holding the smell of burning marijuana alone established probable cause for search of vehicle).86. Shivers v. State, 258 Ga. App. 253, 257, 573 S.E.2d 494, 497-98 (2002) (holding the odor of marijuana outside house is only one factor when determining probable cause for issu......