State v. Gilman

• Decision Date: 02 November 1995
• Docket Number: No. A95A1813,A95A1813
• Parties: The STATE v. GILMAN.
• Court: Georgia Court of Appeals

Page 720

463 S.E.2d 720

218 Ga.App. 895

The STATE v. GILMAN.

No. A95A1813.

Court of Appeals of Georgia.

Nov. 2, 1995.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, Eastman, for appellant.

Franklin J. Hogue, Macon, for appellee.

BEASLEY, Chief Judge.

Gilman was indicted for possession of cocaine with intent to distribute. OCGA § 16-13-30(b). Pursuant to OCGA § 5-7-1(a)(4), the State appeals from the grant of his motion to suppress evidence seized in a search. The court ruled after hearing argument at the close of the State's evidence, before Gilman presented any evidence.

A confidential informant telephoned Officer Watson of the Warner Robins Police Department at about 7:00 p.m. and told him Gilman would be traveling from his job at a car dealership to "Friends on the Hill," a cocktail lounge, while in possession of a quantity of cocaine. The informant also said Gilman was wearing a yellow shirt, got off work at 8:00 p.m., and would possibly be driving a Camaro. Watson had known the informant for approximately four months and had spoken with him on at least ten occasions. The prior conversations had led to one incident that produced an arrest and the recovery of some marijuana and cash; the information the informant had given on the other occasions also concerned drug activity and had been verified by the police but had not produced arrests. The informant was facing criminal charges for non-drug offenses.

Watson and another officer drove to a location from which they could observe the car dealership and saw a man (Gilman) wearing a yellow shirt. He left the dealership driving a Camaro, proceeded onto the interstate, and exited onto a road that led to the cocktail lounge. While Gilman was in transit, Watson contacted Officer Roundtree, who stopped the Camaro before it reached the cocktail lounge. Roundtree asked Gilman to consent to a search of his person and the car, which Gilman did. ¹ Two plastic bags containing cocaine were found in his pocket, and Roundtree arrested him.

Gilman was taken to a Warner Robins police facility and interviewed. After being advised of his rights, he told the officers he had more cocaine at his home in Bleckley County. Watson and an agent from the Georgia Bureau of Investigation went with Gilman to the vicinity of his home where, to keep the fact of his arrest from his wife, he was allowed to go alone and retrieve the additional cocaine. He shortly returned to the officers with two more packages of cocaine. It is the indictment for possession of these last two packages which has resulted in this appeal.

During the hearing, the court questioned Watson about how the informant knew Gilman would have cocaine when he left the dealership. Watson answered that the informant had seen the cocaine at the dealership that day but to answer further would reveal the informant's identity. The court, citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), ruled the State had not shown the police had probable cause to stop Gilman because no evidence was presented about how the informant knew Gilman would have cocaine in his possession. The court reasoned that the cocaine found in the search, and the cocaine later produced by Gilman, resulted from an illegal detention and must be suppressed. See Brown v. State, 188 Ga.App. 184, 187, 372 S.E.2d 514 (1988).

"In Illinois v. Gates, [supra], the United States Supreme Court replaced the "two-pronged" test of Aguilar v. Texas, 378 U.S. 108 (84 SC 1509, 12 LEd2d 723) (1964) with a more flexible 'totality-of-the-circumstances' test, under which the existence of probable cause is determined by whether, 'given all the circumstances ..., 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.' Illinois v. Gates, supra, 462 U.S. at 238. [Cit.]" State v. Watson, 205 Ga.App. 313, 314 (422 SE2d 202) (1992). Here, the court focused on the State's need to make a showing about the informant's "basis of knowledge." The court also expressed some concerns about the informant's reliability, in light of the fact that ten communications had produced only one arrest.

In finding probable cause lacking, the court applied a more strict standard than the law requires. If the traffic stop was valid and Gilman's consent freely and voluntarily given, the motion should have been denied. See State v. Holton, 205 Ga.App. 434, 435-437(1), 422 S.E.2d 295 (1992). "[P]robable cause is not ... necessary to justify a brief investigative stop of an automobile. 'An individual's freedom to use public highways is circumscribed by the state's police power where the officer has specific and articulable facts which warrant a stop of the vehicle to investigate the circumstances which provoke a reasonable and founded suspicion. [Cit.] "(W)hat is a 'reasonable articulable ground' for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere...