State v. Farmer
| Decision Date | 20 November 1985 |
| Docket Number | No. 70668,70668 |
| Citation | 177 Ga.App. 18,338 S.E.2d 489 |
| Parties | The STATE v. FARMER. |
| Court | Georgia Court of Appeals |
Richard A. Malone, Dist. Atty., Donna O. Willis, Asst. Dist. Atty., for appellant.
John P. Claeys, Augusta, for appellee.
Joseph L. Chambers, Marietta, Charles T. Shean III, Atlanta, amici curiae.
In March 1984, a GBI agent assigned to the Savannah Regional Drug Enforcement Office received information that the appellant, James Shelton Farmer, had cocaine in his residence. Acting on this, the agent prepared an affidavit in support of an application for a search warrant, in which he indicated that the informant had personally observed the cocaine in the Farmer's residence and that the informant was reliable because he or she had previously supplied accurate information which resulted in three arrests for drug charges. The magistrate issued the warrant and Farmer's residence and automobile were searched. Seized were a foil packet containing cocaine, various items having cocaine residue, several butts of marijuana cigarettes, a tetracycline pill, a .22 caliber pistol with the serial number filed off, and another .22 caliber pistol and a .357 Magnum revolver which were subsequently found to be stolen.
Farmer was indicted on two counts of violation of the Georgia Controlled Substances Act, one count of violation of the Georgia Dangerous Drug Act, two counts of theft by receiving stolen property, and one count of criminal use of an article with an altered identification mark. He pled not guilty and filed a motion to suppress the seized items, alleging that the affidavit, the issuance and return of the warrant, and the seizure violated his rights "under the Constitution of these United States and of the sovereign State of Georgia." Following a hearing, the trial court found the affidavit insufficient to support the application for a search warrant, and granted the defendant's motion. This appeal by the state followed. Held:
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court discarded the strict two-pronged, Aguilar-Spinelli requirement of (a) demonstrating an informant's reliability and (b) providing the source of the informant's tip in an affidavit to support issuance of a search warrant, and adopted the "totality of the circumstances" test. Id. at 238-239, 103 S.Ct. at 2332. See also State v. Stephens, 252 Ga. 181, 311 S.E.2d 823 (1984).
In Illinois v. Gates, where the affidavit in support of the search warrant was technically deficient under the Aguilar-Spinelli test, the Supreme Court considered all of the circumstances and found that the affiant officer's corroboration of the informant's tip, by independent investigation, provided sufficient reliability and thus a substantial basis for concluding that probable cause existed. In effect, the police officer's corroboration of the informant's tip substituted for the previously required showing of an informant's reliability and basis of knowledge. Illinois v. Gates, however, certainly did not establish a requirement of such corroboration, and the dissenting opinion's contrary suggestion "is pregnant with innovation, but barren of law." Minor v. State, 63 Ga. 318, 321 (1879).
The affidavit in this case certainly was sufficient to support issuance of a search warrant under the Aguilar-Spinelli test. See Pressel v. State, 163 Ga.App. 188, 190, 292 S.E.2d 553 (1982). The dissenting opinion is unduly concerned about "what led the informant to his conclusion that he saw cocaine"; a fair probability that the informant recognized controlled substances when he or she saw them was sufficiently demonstrated, for purposes of obtaining a search warrant, by the statement that previous tips given by the informant had resulted in three other arrests on drug charges. Because the totality of the circumstances analysis under Illinois v. Gates actually is a more lenient test (supposedly a practical, common-sense approach) than the Aguilar-Spinelli test, it logically follows that the affidavit in this case provided sufficient basis for finding probable cause. The trial court thus erred in granting the defendant's motion to suppress.
Judgment reversed.
The trial court granted the defendant's motion to suppress, having concluded that the agent's affidavit was deficient of itself and that there was no evidence that certain additional information, which the officer testified to at the motion hearing, had been given to the magistrate. In considering whether to issue a search warrant, the magistrate may consider both the affidavit and oral testimony under oath as to probable cause. Maddox v. State, 133 Ga.App. 709, 710, 213 S.E.2d 1 (1975).
1. At issue is whether the affidavit is insufficient as a matter of federal constitutional law to establish the probable cause necessary for issuance of the warrant. 1
The affidavit states:
Under Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), " Mize v. State, 173 Ga.App. 327, 328(1), 326 S.E.2d 782 (1985).
Our Supreme Court has cautiously read Illinois v. Gates, recognizing it as State v. Stephens, supra, 252 Ga. at 184, 311 S.E.2d 823. This is not to say that the Gates view should be questioned. The United States Supreme Court recently and firmly confirmed it: Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984).
Accepting Gates as the outer acceptable parameter, the affidavit in the instant case is insufficient to provide the probable cause required. The affidavit supporting the warrant gave reasons for the affiant's belief in the informant's reliability, stated summarily that the informant had obtained his knowledge by seeing cocaine at the residence, and set forth a time period to show that the information was not stale. "Staleness" as it relates to probable cause is measured by the probability that the thing to be seized is located at the place to be searched and it involves the interval between (i) the time when the thing to be seized is indicated by the evidence or information to be at the place to be searched and (ii) the time when the search warrant is issued. Caffo v. State, 247 Ga. 751, 755, 279 S.E.2d 678 (1981); Shrader v. State, 159 Ga.App. 522, 523, 524, 284 S.E.2d 37 (1981). Thus the request for a search warrant appears to have been timely. But the affidavit is gravely lacking. It in no manner establishes that the affiant took any steps to confirm the data provided by the informant, nor does it give any detail whatsoever about what the informant observed. How, why, or under what circumstances the informant made the determination that he had observed what he took to be cocaine in Farmer's residence was never articulated before the magistrate. What led the informant to his conclusion that he saw cocaine? Was it because he witnessed someone using the substance as one might use the drug cocaine, or because he observed a drug transaction or a powder packaged as cocaine usually is, or perhaps because he knew of previous use or sale of drugs at the residence? Or was it because he saw a small amount of white powder on a dish or ashtray in the bathroom and assumed it was cocaine? The affidavit was totally bare of data which would support the informant's conclusion that what he observed was cocaine. There was little if any basis upon which the magistrate could rely for the accuracy of the report. The lack of indicia precluded a judgment by the magistrate founded on probable cause that what the informant, one step removed from the affiant, saw was cocaine. The affidavit was devoid of any articulation in this regard.
Under the "totality of the circumstances" analysis, corroboration of details of an informant's tip by independent police work is...
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