State v. Bryant

• Decision Date: 20 September 1993
• Docket Number: A93A0949,Nos. A93A0948,s. A93A0948
• Citation: 436 S.E.2d 57,210 Ga.App. 319
• Parties: The STATE v. BRYANT (two cases).
• Court: Georgia Court of Appeals

Page 57

436 S.E.2d 57

210 Ga.App. 319

The STATE v. BRYANT (two cases).

Nos. A93A0948, A93A0949.

Court of Appeals of Georgia.

Sept. 20, 1993.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, Nancy I. Jordan, Asst. Dist. Attys., for appellant.

Jack J. Menendez, Marietta, for appellees.

COOPER, Judge.

Dale Bryant and Terry Bryant were charged with violating the Georgia Controlled Substances Act by possessing cocaine with the intent to distribute. They moved to suppress evidence seized during a search of Dale Bryant's apartment. The trial court granted the motion, and the State appeals.

Officer Michelle Scott obtained a search warrant for Dale Bryant's apartment based on a tip from an informant. In her affidavit in support of the search warrant, she stated that "[o]ver the past couple of weeks, affiant has received numerous telephone calls ... from a confidential and reliable informant. The confidential and reliable informant told affiant that Dale Bryant was dealing cocaine from his residence and that Dale Bryant had in his possession a large quantity of cocaine and a large quantity of marijuana within the past 72 hours." The affiant went on to state that the informant told affiant Dale Bryant's address and described his vehicle and tag number and that the information regarding his address and vehicle was independently corroborated. The affiant also stated that the informant described Dale Bryant's physical appearance and told her where Dale Bryant banked and this information was also independently confirmed. Lastly, the affiant stated that her office had received another complaint naming Dale Bryant as a drug dealer but did not identify the source of the complaint. The trial court granted the motion to suppress, ruling that the search warrant lacked probable cause because the affidavit did not set forth sufficient facts from which the magistrate could independently determine the reliability of the information and the informant. In its sole enumeration of error, the State contends that this ruling was erroneous.

" 'Under the standard set forth by the United States Supreme Court in Illinois v. Gates, (462) U.S. (213) (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant's tip only if, under the "totality of the circumstances," including the "veracity" and "basis of knowledge" of the informant, there is a "fair probability" that contraband or evidence of a crime will be found in a particular place. [Cit.]' [Cit.]" Salter v. State, 198 Ga.App. 242, 243(1), 401 S.E.2d 541 (1990). While establishment of the informant's veracity and basis of knowledge is no longer an absolute requirement since Gates, veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that "[a]n affidavit submitted in support of a search warrant must ' "set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant." ' [Cit.]" State v. Teague, 192 Ga.App. 839, 840, 386 S.E.2d 718 (1989). Officer Scott's affidavit in this case provided no factual information regarding the informant's veracity or basis of knowledge; she did not, for example, state that the informant was known to her, that he had provided useful information in the past, or that his information came from personal knowledge. Compare State v. McKendree, 188 Ga.App. 290, 372 S.E.2d 673 (1988). Although Officer Scott testified at the hearing on the motion to suppress that she met with the informant and observed him coming out of Dale Bryant's apartment, the State failed to establish that she communicated this information to the magistrate. Moreover, even if these additional facts were considered, they would not be sufficient to allow the magistrate to independently evaluate the reliability of the informant and his information. See Teague, supra (affidavit insufficient even though it related that informant's information was based on personal observation and that informant had truthful demeanor). "The complete lack of information about the informant and the basis of his knowledge relegated the information he...