State v. Davis
| Citation | 457 S.E.2d 194,217 Ga.App. 225 |
| Decision Date | 17 March 1995 |
| Docket Number | No. A94A2670,A94A2670 |
| Parties | STATE v. DAVIS et al. |
| Court | Georgia Court of Appeals |
W. Glenn Thomas, Jr., Dist. Atty., Jesup, C. Keith Higgins, Asst. Dist. Atty., Brunswick, for appellant.
Lane & Crowe, Grayson P. Lane, Brunswick, for appellees.
Defendants Roy Bradley Davis and Terri Lynn Davis are charged by indictment with violations of the Georgia Controlled Substances Act, manufacture of marijuana and possession of more than one ounce of marijuana. The State appeals from the trial court's grant of defendants' motion to suppress evidence discovered pursuant to the execution of a search warrant. The entire record in regard to the issues on appeal consists of the affidavit submitted in support of the application for issuance of the search warrant.
"In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U.S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by ourt in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).... (Punctuation omitted.) Munson v. State, 211 Ga.App. 80, 81, 438 S.E.2d 123 (1993).
The affidavit in this case stated that the affiant was contacted by a concerned citizen, within the past 24 hours, who had been in defendant Roy Davis's residence within the previous week. The concerned citizen stated that while in Davis's residence he observed 30 to 35 growing marijuana plants. This concerned citizen also stated that he knew Davis and that Davis sold marijuana from the above residence. The concerned citizen advised the affiant that he knew what marijuana looked like and that what he saw in Davis's residence was marijuana. The affiant specifically stated that the concerned citizen is in good standing in the community and owns his own business. The affiant also described the concerned citizen as a Glynn County property owner who had nothing to gain by providing information about Davis. The concerned citizen provided the affiant with a description of Davis and the property in question, both of which the affiant determined to be correct. The affiant contacted the Glynn County Sheriff, who informed the affiant that the sheriff had received information, from a reliable source known to the sheriff, that Davis was selling marijuana out of his residence. The affiant also checked the Glynn County Police Department records wherein he found a file on Davis, which confirmed Davis's address.
In his dissent, Presiding Judge McMurray cites Eaton v. State, 210 Ga.App. 273, 275, 435 S.E.2d 756 (1993) in support of the conclusion that the unidentified informant in this case was no more than a mere anonymous tipster. Eaton, however, is distinguishable from the case before us in that the affiant in Eaton specifically testified at the motion to suppress hearing that he did not know the informant and that the sole basis for his characterization of the informant as a concerned citizen was what the informant had told the affiant on the phone. Id. Here no such testimony exists, and the language of the affidavit clearly demonstrates that the affiant in this case had a personal familiarity with the unidentified informant thereby justifying the affiant's description of said informant as a "concerned citizen." This personal familiarity is demonstrated by the fact the affiant specifically stated that the concerned citizen is in good standing in the community; owns his own business; and owns property in Glynn County. The affidavit does not indicate that such information was merely provided to the affiant by the unidentified informant and thus does not bring into question the accuracy of such information.
(Citations omitted.) Whitten v. State, 174 Ga.App. 867, 868, 331 S.E.2d 912 (1985). Considered in its entirety, rather than piecemeal, the affidavit also provides corroboration of the information provided by the concerned citizen. This is evidenced by the affiant's statement that he not only verified Davis's address, but that he also contacted the Glynn County Sheriff's Department and was told by the sheriff that another concerned citizen, known to be reliable, had stated that Davis was selling marijuana out of his residence.
Consequently, given the informer's status as a concerned citizen, the magistrate correctly concluded that the information included in the affidavit, viewed as a whole, provided a sufficient basis for a finding that probable cause existed for the issuance of a warrant. This is especially true in light of the fact that (Citation and punctuation omitted.) Munson v. State, supra, 211 Ga.App. at 83, 438 S.E.2d 123; see Mincey v. State, 180 Ga.App. 898, 900, 350 S.E.2d 852 (1986); see also Futch v. State, 178 Ga.App. 115, 342 S.E.2d 493 (1986). Furthermore, Williams v. State, 193 Ga.App. 677, 678, 388 S.E.2d 893 (1989). The challenger of a search warrant has the burden of proving its invalidity. OCGA § 17-5-30(a); State v. Slaughter, 252 Ga. 435, 437, 315 S.E.2d 865 (1984). In this case, defendants did not meet their burden. Accordingly, we hold that the trial court improperly granted defendants' motion to suppress.
Judgment reversed.
I agree that the affidavit contains sufficient indicia to categorize the informant as a concerned citizen. As I read in context the description of the informant who "contacted" affiant, a GBI agent, within 24 hours before preparation of the affidavit, it appears to be based on the affiant's personal knowledge of the informant. In contrast, except where it was obvious that the information was related by the informant (such as that the informant was in the residence within the past week), the affiant stated that the informant "advised" him of specified information. Thereafter the affiant described what he knew or did, being careful to say what the sheriff "advised."
The indicia of reliability of the informant are set forth directly, not as having been advised by anyone, and the affiant swore or affirmed that "all of the information contained in [the] Affidavit ... [was] true to the best of [his] knowledge and belief." It appears from the handwriting that before the oath was administered, the magistrate added other facts related to her by affiant, including that in the affiant's opinion, what the informant described to him fit the description of growing marijuana.
Thus, based on the record before us, the magistrate had before her an officer who vouched for the informant as a person of good standing in the community, a business owner, a local property owner, a person who the affiant verified was familiar with the property to be searched, the suspect, and what growing marijuana looks like. There is no countervailing evidence, as there was in Eaton v. State, 210 Ga.App. 273, 275, 435 S.E.2d 756 (1993), with respect to the affiant's knowledge of the informant. As stated by the majority, the challenger of a search warrant must prove its invalidity, OCGA § 17-5-30(a)(2); State v. Slaughter, 252 Ga. 435, 437, 315 S.E.2d 865 (1984), and Williams v. State, 193 Ga.App. 677, 678, 388 S.E.2d 893 (1989).
The defendants in this case did not meet their burden, as I cannot conclude as a matter of law that the magistrate erred in finding probable cause to believe that marijuana was growing or at least was present on the premises sought to be searched. In the totality of the circumstances here, the warrant is entitled to the preference accorded by law, and its issuance did not contravene federal constitutional law. Munson v. State, 211 Ga.App. 80, 83, 438 S.E.2d 123 (1993), and cases cited therein; Futch v. State, 178 Ga.App. 115, 342 S.E.2d 493 (1986), and cases cited therein.
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