State v. Jackson

• Decision Date: 18 May 1983
• Docket Number: No. 65599,65599
• Citation: 166 Ga.App. 671,305 S.E.2d 417
• Parties: The STATE v. JACKSON.
• Court: Georgia Court of Appeals

Page 417

305 S.E.2d 417

166 Ga.App. 671

The STATE v. JACKSON.

No. 65599.

Court of Appeals of Georgia.

May 18, 1983.

E. Byron Smith, Dist. Atty., Tommy K. Floyd, Asst. Dist. Atty., for appellant.

Harvey J. Kennedy, Jr., Barnesville, for appellee.

POPE, Judge.

Mary F. Jackson was indicted for possession of an amount of marijuana in excess of one ounce in violation of the Georgia Controlled Substances Act. Prior to arraignment and entry of her plea, Jackson filed a motion to suppress evidence seized pursuant to a search warrant. After an evidentiary hearing, the trial court granted the motion to suppress because the affidavit upon which the search warrant issued did not establish the reliability of the confidential informant. The state appeals the grant of Jackson's motion to suppress.

The affidavit in support of the warrant stated that the affiant law enforcement officer's belief that contraband was being concealed by Jackson was "based on information provided by a reliable informer who is a concerned citizen and known personally by the affiant, and who saw pills and marijuana at 507 Gordon Road on the night of 23 May, 1982...." The affidavit and search warrant are dated May 24, 1982.

1. From the record, it is clear that the affiant police officer acted to obtain the search warrant based solely upon the tip provided by an unnamed informant. Under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), " 'where hearsay such as an informer's tip is relied upon for probable cause, the sworn information placed before the justice of the peace must adequately set forth (1) the " 'underlying circumstances' necessary to enable the magistrate independently to judge of the validity ..." of the information, and (2) the informant's credibility or reliability.' " Shaner v. State, 153 Ga.App. 694, 696, 266 S.E.2d 338 (1980), quoting Simmons v. State, 233 Ga. 429, 431-2, 211 S.E.2d 725 (1975). The information presented to the magistrate must contain particular facts or circumstances which justify the affiant's conclusion that both the informant and the information furnished are reliable and trustworthy. See State v. Griffin, 154 Ga.App. 361, 268 S.E.2d 412 (1980); Cooksey v. State, 149 Ga.App. 572(2), 254 S.E.2d 892 (1979). "The state has the burden of showing that probable cause existed and that the facts establishing probable cause were presented to the magistrate prior to the issuance of the warrant." Reddish v. State, 161 Ga.App. 170, 288 S.E.2d 266 (1982).

This court has been provided no transcript of the evidence adduced at the hearing on the motion to suppress. Since we have no evidence that the issuing magistrate was informed of any additional facts or circumstances, "the sufficiency of the affidavit must depend entirely on whether there is a substantial basis for believing the informant himself to be reliable or trustworthy." Galgano v. State, 147 Ga.App. 284, 285, 248 S.E.2d 548 (1978). Cf. Tisby v. State, 157 Ga.App. 200, 276 S.E.2d 875 (1981). This determination must, thus, be solely based upon information presented upon the face of the affidavit itself. Spinelli v. United States, supra, 393 U.S. at 413 n. 3, 89 S.Ct. at 587 n. 3; see Aguilar v. Texas, supra, 378 U.S. at 109 n. 1, 84 S.Ct. at 1511 n. 1.

2. In the case sub judice, the information supplied to the affiant was the product of the informant's personal observation; therefore, the first prong of the Aguilar-Spinelli test, the credibility of the information, has been satisfied. See Driscoll v. State, 129 Ga.App. 702(1), 201 S.E.2d 11 (1973). However, Jackson's successful challenge to the affidavit and our inquiry in this appeal focus on the second prong, the credibility or reliability of the informant. "This requirement seeks demonstration of a general proposition--that the informant himself, as opposed to the specific reliability of the incriminating information addressed in the first 'prong,' is a person upon whose truthfulness reliance may reasonably be placed." Shaner v. State, supra, 153 Ga.App. at 698, 266 S.E.2d 338.

The present veracity of the information is frequently shown by specific reference to past performance in providing valuable information to law enforcement authorities. See Anderson v. State, 249 Ga. 132(5), 287 S.E.2d 195 (1982); Pressel v. State, 163 Ga.App. 188(1b), 292 S.E.2d 553 (1982); McCannon v. State, 161 Ga.App. 685(4), 288 S.E.2d 663 (1982). The term "reliable informer," used in the affidavit in the present case, is a term of art which neither requires nor implies that the informant has previously supplied such information. See Britt v. State, 161 Ga.App. 244(1), 288 S.E.2d 309 (1982). Presentation to the magistrate of the informant's previous "track record" of reliability is not the only means of establishing his trustworthiness. Giles v. State, 149 Ga.App. 263(2d), 254 S.E.2d 154 (1979). Credibility has been ascribed to those informants who were victims of the crime or whose statements to the authorities were against their penal interest. See Wilcoxen v. State, 162 Ga.App. 800(2), 292 S.E.2d 905 (1982); Hardy v. State, 162 Ga.App. 797(1), 292 S.E.2d 902 (1982).

To some extent, the application of the Aguilar-Spinelli mode of analysis has been relaxed when the affidavit contains hearsay allegations made by someone other than a confidential informant. "Where the hearsay comes from a confidential informant--as likely as not a member of the criminal community and frequently one who is providing information in order to escape prosecution himself--the Aguilar standards are readily applicable. [Cit.] But where the hearsay declarant is an identified interested citizen or, especially, an identified government official or police officer, the credibility is not as suspect and the analysis not as stringent. People v. Glaubman , 485 P.2d 711 (Colo.1971); Walker v. State, 196 [So.]2d 8 (Fla. [App.] 1967)." ¹ Tuzman v. State, 145 Ga.App. 761, 766, 244 S.E.2d 882 (1978). In Tuzman the affidavit contained averments of allegations against the appellant dentist which were relayed to the affiant by named government and law enforcement authorities as well as by practicing dentists who comprised the Peer Review Committee of the Georgia Dental Association. This court found that the affidavit presented sufficient indicia of the reliability of the informants.

Relying upon the rationale of Tuzman for the distinction in application of the Aguilar-Spinelli standard, this court held in Miller v. State, 155 Ga.App. 399, 400, 270 S.E.2d 822 (1980), that "there is a sufficient showing of credibility and thus probability of truthfulness when the affiant can state to the magistrate that his investigation shows that the [unnamed ] informant is indeed a law-abiding citizen or the informant is personally known to the affiant to be a law-abiding citizen." In the case sub judice, the state argues that the affidavit at issue is factually similar enough to the affidavit in Miller to allow it to suffice in showing the veracity of the informant. We disagree. In pertinent part, the affidavit in Miller stated that the affiant received information from a "confidential informant" who "is a concerned citizen whom affiant has personally known for over five years, and has known him to be a truthful and reliable citizen." As is apparent from a comparison of the affidavits in Miller and in this case, the affidavit in Miller...