State v. Graddy
| Decision Date | 02 July 2003 |
| Docket Number | No. A03A0765.,A03A0765. |
| Citation | 585 S.E.2d 147,262 Ga. App. 98 |
| Parties | The STATE v. GRADDY. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Robert B. Ellis, Jr., Dist. Atty, Timothy L. Edison, Asst. Dist. Atty., for appellant.
Berrien L. Sutton, Homerville, for appellee.
The State appeals from the trial court's grant of Betty Sue Graddy's motion to suppress the evidence seized from her residence, a shop, shed, and trailer near her residence, and dismissal of the charges of manufacturing methamphetamine, possession of a firearm by a convicted felon, and manufacturing methamphetamine within 1,000 feet of a school for lack of probable cause.
1. When reviewing a trial court's order on a motion to suppress, where some facts are contested and some are not, this Court views the contested facts under the clearly erroneous standard, while review of the application of law to the uncontested facts is de novo. Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994); Swan v. State, 257 Ga.App. 704, 705, 572 S.E.2d 64 (2002).
We consider first the State's fourth enumeration of error, that the trial court erred in finding no probable cause for the issuance of a search warrant.
In determining probable cause for a search warrant, the magistrate is merely to "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before (the magistrate), 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." DeYoung v. State, 268 Ga. 780, 787(7), 493 S.E.2d 157 (1997), quoting State v. Stephens, 252 Ga. 181, 182, 311 S.E.2d 823 (1984).... Ultimately, this Court's role on review is to "determine if the magistrate had a `substantial basis' for concluding that probable cause existed to issue the search (warrant)." DeYoung at 787(7), 493 S.E.2d 157. See also Grier v. State, 266 Ga. 170, 172(2)(b), 465 S.E.2d 655 (1996).
(Footnote omitted.) Abraha v. State, 271 Ga. 309, 311(1), 518 S.E.2d 894 (1999); see also State v. Towe, 246 Ga.App. 808-809, 541 S.E.2d 423 (2000).
When a warrant has been obtained and it is challenged, the burden of proving its invalidity is on the challenger. OCGA § 17-5-30(a); State v. Towe, supra. Because of the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, we accord substantial deference to the magistrate's finding of probable cause. State v. Henderson, 271 Ga. 264, 269-270(4), 517 S.E.2d 61 (1999); accord State v. Towe, supra.
Graddy's motion alleged that the search warrant was issued without probable cause, was based on stale information, and was overbroad. The trial court agreed.
The facts were that on January 23, 2002, Deputy Sheriff Lankford went to Graddy's residence on 440 Woodlake Drive looking for her son, Brad Graddy, for whom there was an outstanding arrest warrant. As Lankford drove up, he saw Brad Graddy pulling up to the Graddy residence in his truck and Lankford pulled his patrol car in front of the truck. Brad Graddy ran, and Lankford saw Andy Mills get out of Brad Graddy's truck and head toward his own truck parked nearby. Lankford detained Mills, at which point Betty Sue Graddy walked up to Brad Graddy's truck and said she did not know why they ran and that she saw Steve Nettles run around the side of her house.
Mills headed for his truck, but Lankford got him back out. As he did so, Lankford saw a very long knife, partially hidden under the seat, and arrested Mills for having a concealed weapon. In Brad Graddy's truck, Lankford found a backpack containing plastic tubing which, based on his training and experience, he believed was going to be used in making methamphetamine. Lankford seized the tubing and went through the backpack, in which he found a set of electronic scales, a methamphetamine recipe, and pictures of Nettles' children.
Mills then began giving information to Lankford regarding Brad Graddy's and Nettles' manufacturing of methamphetamine. Mills said that he had been at Betty Jean Lee's house the entire night, that he had seen a large quantity of dope, and that they were all using dope. He also said that Brad Graddy told him that "they was [sic] going to cook off a bunch of dope later that afternoon or that night." Mills also told Lankford that he had seen Brad Graddy cooking methamphetamine before at Brad Graddy's residence, a trailer near Betty Sue Graddy's house.
At this point, Lankford contacted Agent Blue of the South Georgia Drug Task Force and relayed this information to him. Blue then met Lankford and interviewed him. Based on that, Blue went to the jail along with Lankford and interviewed Mills. After Mills was advised of his rights, he told Blue the same information he had told Lankford. Lankford turned over to Blue the backpack and its contents. Blue then went to the magistrate and presented his affidavit and application for search warrants for both Lee's and Graddy's residences and curtilages. In his affidavit, Blue stated that he had nine years experience and had conducted numerous drug investigations and set out the following:
Agent Blue also told the magistrate1 that Mills had said he had been with Brad Graddy on several occasions at the residence manufacturing methamphetamine and had been at the residence of Jean Lee where he saw methamphetamine and people using methamphetamine. He further told the magistrate why Deputy Lankford had gone to Graddy's and what was found in the backpack in Brad Graddy's truck. It was Blue's understanding from talking to Lankford that Brad and Betty Sue Graddy lived at 440 Woodlake Drive and that was reinforced by Blue's conversation with the magistrate. During the execution of the search warrant, Graddy told Blue that Brad Graddy had been living in the trailer near her residence, but also lived inside the residence with her.
The search warrant issued by the magistrate on January 23, 2002, authorized the search for the "person of Brad Graddy, and the residence of Sue Graddy including the entire curtilage of the house...."
The property involved in the search was the home of Betty Sue Graddy and her recently deceased husband, Son Graddy. There was a small trailer, a shed, and a shop located on the property in addition to the Graddy residence. Son Graddy had run Graddy Post Company from the property, and the shop was used for truck repairs. Brown, Betty Sue Graddy's son-in-law, testified that after Son Graddy died, Betty Sue Graddy had kept the business going. Brown also testified that Brad and his wife, Shannon, lived in the trailer on the property "[w]hen they weren't on the run from the law," and that the whole family was aware of Brad Graddy's legal problems.
Upon arriving at the property, the officers presented the warrant to Betty Sue Graddy and intended to search the small trailer first, looking for Brad Graddy. Agent Blue asked Betty Sue Graddy who owned the trailer and she said she did. She also said that Brad Graddy had been living in the trailer, not paying rent, and also living at her residence. She stated that "he spent most of the time at her residence."
Brad Graddy was not in the trailer, and nothing of evidentiary value was found there. The officers then went to the residence. In the main bedroom near the garage, which officers believed was Brad Graddy's room, they located a Nursing 1996 drug handbook; Good Sense sandwich bags; glass chemical apparatus; a leather bag with several glass beakers; a glass drip tube with hair spray can tops wrapped in tin foil; a glass bottle with white powder; a glass pipe containing suspected methamphetamine; and three firearms. In the bedroom closet, the officers found three Tupperware containers with clear liquid inside. The lids of two were marked "blown" and "not blown." Based on Blue's experience in prior drug cases and education in the subject, he opined that the items found could be assembled into a methamphetamine lab and that the fluid was starting fluid, some already used and some not.
A total of twenty-nine firearms were found in the residence, a number in the living room in a gun case and two in what appeared to be Betty Sue Graddy's bedroom. Agent Blue was aware that Betty Sue Graddy had been convicted in federal court of racketeering. Special Agent Busbin located a computer...
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