State v. Palmer
| Decision Date | 13 March 2008 |
| Docket Number | No. A07A2332.,A07A2332. |
| Citation | 291 Ga. App. 157,661 S.E.2d 146 |
| Parties | The STATE v. PALMER. |
| Court | Georgia Court of Appeals |
Paul L. Howard Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant.
Thomas J. Ford III, for appellee.
The State appeals the trial court's grant of David Palmer's motion to suppress drugs and other evidence seized during the execution of a search warrant at Palmer's residence. For reasons that follow, we affirm.
The State contends that we should apply a de novo standard of review. But "where, as here, the credibility of the officer is outcome-determinative," we are required to apply the following principles:
[f]irst, the judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to . . . upholding . . . the trial court's findings and judgment.1
Viewed in this light, the evidence shows that a confidential informant advised the City of Atlanta Police Department that two males, one of whom was possibly in a wheelchair, were selling crack cocaine out of a particular apartment. The informant — who had a criminal record, had assisted police with drug arrests on three or four previous occasions, but had never participated in a controlled buy — offered to purchase cocaine from the individuals while under surveillance.
After searching the informant to make sure he did not have any drugs, the police gave him city-issued funds to buy cocaine. The police then watched the informant approach the building, enter Palmer's apartment, and then exit after 15 to 30 seconds. The police recovered approximately one gram of cocaine from the informant, who advised that he had purchased it from a man in a wheelchair in the apartment. While conducting surveillance the following day, the authorities observed multiple people enter the apartment and then leave after less than a minute.
In his affidavit provided in support of a search warrant application, Officer Ries stated that a 2 The affidavit did not disclose that the informant had a criminal record or his history of assisting the police in drug arrests, but merely stated that he was "reliable," without any facts to support the characterization.3 The affidavit then described the controlled buy, including the cocaine seized, and the surveillance the following day. The magistrate signed a no-knock warrant, the police executed it, seizing crack cocaine, marijuana, electronic scales, bags, and $2,905 in cash from the apartment, and Palmer was arrested.
Palmer moved to suppress the evidence seized, arguing that the information provided to the magistrate lacked reliability, and thus did not provide sufficient probable cause to support the search warrant. At the suppression hearing, the State presented the testimony of Officer Ries. Following the hearing, the trial court denied the motion, stating that
[t]he lack of evidence of the reliability of the informant does cause the [c]ourt concern; however, as the evidence shows, the basis of the search was also based on a controlled buy from the residence. The controlled buy supports the issuance of the warrant and causes this [c]ourt to deny the [m]otion to [s]uppress.
Thereafter, Palmer filed a motion for reconsideration, and after hearing additional oral argument, the trial court reversed its earlier ruling and granted the motion to suppress.4
Palmer argued before the trial court that suppression of the evidence was required because Ries did not provide sufficient information in his affidavit to permit the magistrate to determine the reliability of the confidential informant. Specifically, he alleges that Ries omitted relevant information, including that the informant had a criminal history, that Ries had no personal knowledge regarding the informant's previous assistance to the police, and that the informant had never participated in a controlled buy.
"Veracity and basis of knowledge are still major considerations in the probable cause analysis, and . . . an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant."5 Thus, "officers seeking warrants should provide the magistrate with any information they have relevant to a . . . confidential informant's . . . reliability or motivation, including criminal records."6 The omission of such information can, in certain circumstances, warrant suppression of evidence, unless there is sufficient independent corroboration of criminal activity to support the magistrate's finding of probable cause.7
On appeal, the State contends that notwithstanding Ries's omissions regarding the informant's reliability, the controlled buy and resulting physical evidence provided independent corroboration sufficient to establish probable cause. But while such evidence may have authorized a finding of probable cause, the trial court did not err in concluding to the contrary.
In reviewing a ruling on a motion to suppress, "[o]ur standard of review is highly deferential."8 It is well settled that
[t]he credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony. The factfinder may accept part of a witness' testimony and reject another part, and in the absence of evidence of record demanding a finding contrary to the judge's determination, [we] will not reverse the ruling sustaining a motion to suppress.9
When a defendant moves to suppress evidence based on an illegal search, the State bears the burden of proving that the search was lawful.10 Having reviewed the evidence presented at the suppression hearing, we cannot say that it demanded a conclusion that the search warrant was supported by probable cause.
Ries admitted that he failed to give the magistrate salient information regarding the reliability of the informant, including that he had a criminal record. He also conceded that his search of the informant before the controlled buy, while thorough, was not exhaustive and was conducted outside, at night, with a flashlight. Ries further admitted that he did not have any knowledge regarding the relationship between the informant and Palmer, if any, including whether there was animosity between the two. The police could neither see nor hear what occurred inside Palmer's apartment, including the purported drug exchange. Finally, the police did not find the city-issued money they provided for the controlled buy when they executed the search warrant at Palmer's home.
The dissent concludes that our deference to the trial court as to witness credibility is improper. However, this is not text-true, as it is axiomatic that — notwithstanding the trial court's obligation to give proper deference to the magistrate's finding of probable cause — in reviewing the trial court's grant of a motion to suppress we are required to defer to the trial court's findings as to disputed facts and credibility, unless clearly erroneous.11 Contrary to the position of the dissent, this standard of review applies even to those cases where the trial court grants a motion to suppress evidence obtained during the execution of a search warrant issued from a neutral magistrate.12
We note that the dissent quotes Houston v. State,13 properly stating that "the trial court must pay substantial deference to the magistrate's finding of probable cause."14 However, the dissent omits the remainder of the quotation in which we directed that "[o]n appeal, we construe the evidence in favor of the trial court's findings, which we will not disturb if there is any evidence to support them."15
The procedural posture of the instant case exemplifies the rationale for this standard of review. The magistrate here merely reviewed the affidavit provided by the officer in support of the warrant. It was the trial court that heard Officer Ries's testimony — and observed his demeanor — and was fully informed of all of the material information regarding the informant. Thus, we properly defer to the trial court's fa ctual conclusions and credibility determinations.
As we have previously stated,
[w]e cannot, and will not, usurp the authority of the trial judge to consider such factors as demeanor and other credibility-related evidence in reaching its decision. We reiterate that we are a court for the correction of errors of law and cannot draw a different inference from the evidence or make a credibility determination contrary to the one made by the trial court.16
We find no reversible error with regard to the grant of Palmer's motion to suppress.17
Judgment affirmed.
In light of the substantial deference that must be accorded a magistrate's finding of probable cause, and given the evidence of a controlled buy supporting the issuance of the search warrant, I believe the trial court erred in granting Palmer's motion to suppress. I further believe the majority has unjustifiably assumed that the trial court predicated its decision on a finding that the affiant officer was not credible. Therefore, I respectfully dissent.
...
To continue reading
Request your trial
- State v. Palmer
-
Spaeth v. State
... ... 440, 443-444(1)(b), 574 S.E.2d 590 (2002) ... 7. See Bragg, supra; Cochran, supra at 187, 620 S.E.2d 444; Tran v. State, 246 Ga.App. 153, 156-157(2), 539 S.E.2d 862 (2000) ... 8. (Punctuation omitted.) Moss v. State, 275 Ga. 96, 102-103(13), 561 S.E.2d 382 (2002) ... 9. See State v. Palmer, 291 Ga.App. 157, 159, 661 S.E.2d 146 (2008) (standard of review for trial court's ruling on motion to suppress is "`highly deferential'") ... 10. See Campbell, supra at 756, 589 S.E.2d 313; Brown v. State, 244 Ga.App. 440, 441-442(1) 535 S.E.2d 785 ... ...
- State v. Palmer