State v. Cartee

• Decision Date: 03 June 2020
• Docket Number: A20A0439
• Citation: 844 S.E.2d 202,355 Ga.App. 326
• Parties: The STATE v. CARTEE et al.
• Court: Georgia Court of Appeals

355 Ga.App. 326

844 S.E.2d 202

The STATE

v.CARTEE et al.

A20A0439

Court of Appeals of Georgia.

June 3, 2020

W. Jeffrey Langley, District Attorney, Samantha L. Barrett, Assistant District Attorney, for appellant.

Jeffrey L. Wolff ; Bernard & Johnson, Catherine S. Bernard, for appellees.

Gobeil, Judge.

In this case, the State appeals from an order of the Superior Court of Lumpkin County granting motions to suppress evidence from a search of Robert Cartee's and Tracey Diamond's residence. The State contends that the trial court erred in finding that there was not probable cause to support the search warrant issued by the magistrate judge. For the reasons explained more fully below, we affirm the trial court's order.

In a hearing on a motion to suppress, we defer to the trial court's credibility determinations and will not disturb its factual findings in the absence of clear error. Gilbert v. State , 245 Ga. App. 809, 810, 539 S.E.2d 506 (2000). Additionally, although we defer to the trial court's factfinding, we owe no deference to the trial court's legal conclusions. Hughes v. State , 296 Ga. 744, 750 (2), 770 S.E.2d 636 (2015). Instead, we independently apply the law to the facts as found by the trial court. Id. ; see also State v. Palmer , 285 Ga. 75, 79, 673 S.E.2d 237 (2009).

Viewed in this light, the record shows that Investigator Shane Murphy of the Lumpkin County Sheriff's Office received an anonymous call reporting that there was a marijuana grow operation in the basement of Cartee's and Diamond's residence, located at 2585 Camp Wahsega Road. The anonymous tipster stated that there was a spray device at the front door of the residence that would mask the odor of marijuana if police were to investigate, and Cartee and Diamond rarely left the residence, as they were busy taking care of the grow operation. The tipster reported that the last time she had "actually physically seen the [marijuana] grow" was two years prior.

Based on the tip, Murphy drove by the residence at the reported address and confirmed that the house had a basement. Murphy then discovered that the property owner, Cartee, had a trash collection account with ARW trash service, and Murphy observed an ARW trash can located on the property. He coordinated with ARW to conduct a "trash pull" for the residence, where he would accompany the trash collectors and collect the trash himself for examination. On the day of the trash pull, Murphy saw a trash can out on the street, touching the mailbox at 2585 Camp Wahsega Road, Cartee's and Diamond's residence. On cross-examination, Murphy conceded that he did not conduct any surveillance on the day of the trash pull and could not specify when the trash can had been placed onto the street, who put the trash can out by the mailbox,¹ or who put any of the trash into the trash can. Murphy did not see any other trash cans out on that part of the street on the day of the trash pull.

Inside the trash can, Murphy found two large white bags, which contained 41 smaller grocery-sized Walmart bags full of marijuana clippings, stems, seeds, and leaves indicative of a marijuana grow operation. The marijuana clippings tested positive for THC. Murphy did not find any mail within the trash can containing any names or addresses that would identify to whom the trash belonged.

Murphy took the information from the anonymous tipster and the trash pull and completed a search warrant affidavit seeking to search Cartee's and Diamond's residence. Specifically, concerning the trash pull, Murphy averred that the trash can containing the marijuana was "on the street next to the curb outside of [Cartee's and Diamond's] residence ... touching the mailbox of 2585 [Camp Wahsega Road]." Murphy presented the search warrant application to a magistrate judge and did not provide any additional testimony in support of the warrant. The search warrant issued, and officers searched the residence.

Officers discovered a marijuana grow operation in a secret room in the basement of the residence. There were marijuana plants, a dehydrator, and "finished product" located on racks. More marijuana plants and grow lights were found in another room. Walmart bags full of marijuana clippings, like the ones found during the trash pull, were discovered in the room with the dehydrator. Several firearms were also found and seized during the search.

Based on this evidence, Cartee and Diamond were indicted for trafficking in marijuana (Count 1), possession of marijuana with intent to distribute (Count 2), and possession of a firearm during the commission of a felony (Count 3). Diamond filed a motion to suppress, which as amended argued that the search warrant was not supported by probable cause. Cartee filed a similar motion to suppress.

The parties appeared at a hearing, at which Investigator Murphy testified to the facts as stated above. Notably, on cross-examination, Murphy explained that there was additional information provided by the tipster that he did not include in the search warrant affidavit. For example, the tipster told Murphy that the marijuana grow generated $30,000 in sales per month. Murphy stated that he did not include this and other unspecified information in the affidavit because he believed it to be unreliable or unnecessary to establish probable cause. Murphy also explained that no spray device as relayed by the tipster was found in the house, nor did he discover evidence corroborating the tipster's claim that Cartee and Diamond were making $30,000 per month in sales. Murphy testified that police found no money or transaction records at the residence.

Regarding his investigation after receiving the tip, Murphy testified that the tipster provided the name of "a daughter" who was involved in the marijuana grow operation, but he did not seek to contact the daughter to corroborate the tip. Murphy also testified that he did not conduct additional surveillance of the residence because he believed there were too many houses nearby. Thus, he never saw any foot or vehicle traffic that would have indicated a significant marijuana trafficking operation. Although the tipster did not provide a name, Murphy was able to use her telephone number to determine the likely identity and residence of the tipster. Murphy ran the tipster's criminal history, and discovered that she had misdemeanor theft and traffic convictions.

From the bench, the trial court granted the motions to suppress. The trial court then issued a written order outlining its findings of fact and conclusions of law. At the outset, the trial court found that "upon hearing the testimony and examining the evidence presented[,] many of the facts stated in the [search warrant] affidavit were not credible." Concerning the anonymous tip, the court found that it was not reliable based on: (1) the tipster's history involving crimes of moral turpitude; (2) the fact that this tipster had never before provided reliable information to the police; and (3) other information provided by the tipster that Murphy believed to be unreliable. Further, the court found that the tip was based on stale knowledge, as the tipster told Murphy that she had not been inside the house for two years. Finally, the court found that the information provided by the tipster was not independently corroborated by Murphy before seeking the search warrant, as Murphy did not attempt to contact others who would have had relevant information, conduct a controlled buy of marijuana from the residence, or conduct surveillance of the home.

Next, concerning the trash pull, the court found that it "did not provide probable cause because it did not have any corroborating factors." Important to the court was Murphy's testimony that, because he did not surveil the house before pulling the trash, he did not know when or by whom the trash can was placed onto the street, nor did he know whose trash was in the trash can – it could have been a neighbor's trash. Additionally, no trash containing Cartee's or Diamond's names or their address was found in the trash can, among the marijuana clippings or otherwise. The court conceded that a trash pull in some circumstances can add to or provide probable cause for a search warrant, but concluded that "grave concerns about the credibility of the eviden[c]e and testimony offered of this particular trash pull" rendered it insufficient to reach probable cause in this case.

Accordingly, based on the totality of the circumstances, and noting its responsibility to give great deference to the magistrate judge's decision to issue the search warrant, the court granted Cartee's and Diamond's motions to suppress evidence recovered during the search of their residence. This appeal followed.

On appeal, the State argues that the trial court erroneously concluded that the search warrant was not supported by probable cause. More specifically, the State argues that the anonymous tip, supported by and combined with the results of the trash pull, provided sufficient evidence to support the search warrant. Under the totality of the facts in this case, we affirm the trial court's order.

In Georgia, a search warrant shall only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed. OCGA § 17-5-21 (a).

The magistrate's task in determining if probable cause exists to issue a search warrant 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.

Palmer , 285 Ga. at 77, 673 S.E.2d 237 (citation and punctuation omitted). The trial court then examines the issue as a first level of review, guided by the Fourth Amendment and "the principle that substantial deference must be accorded a magistrate's decision to issue a search...