State v. Stephens

• Decision Date: 06 February 1984
• Docket Number: No. 40184,40184
• Citation: 311 S.E.2d 823,252 Ga. 181
• Parties: The STATE v. STEPHENS, et al.
• Court: Georgia Supreme Court

Page 823

311 S.E.2d 823

252 Ga. 181

The STATE v. STEPHENS, et al.

No. 40184.

Supreme Court of Georgia.

Feb. 6, 1984.

Rehearing Denied March 6, 1984.

Arthor E. Mallory III, Dist. Atty., LaGrange, Robert H. Sullivan, Asst. Dist. Atty., Carrollton, for the State.

Ansell T. Turner Maund III, Daniel F. Byrne, College Park, for Richard Furman Stephens, et al.

WELTNER, Justice.

Richard Furman Stephens and Kathryn Crowe Stephens were indicted for violation of the Georgia Controlled Substances Act, OCGA § 16-13-1 (Code Ann. § 26-9913), et seq. Prior to trial, they moved to suppress evidence obtained pursuant to a search warrant on the ground that the warrant was issued without probable cause. The motion was denied. The Court of Appeals reversed, finding under the "totality of the circumstances" analysis enunciated in Illinois v. Gates, 462 U.S. ----, ----, 103 S.Ct. 2317, 2334, 76 L.Ed.2d 527 (1983), that the affidavit was insufficient. Stephens v. State, 167 Ga.App. 417, 307 S.E.2d 9 (1983).

We granted certiorari to determine whether that test requires exclusion of evidence obtained pursuant to the search warrant.

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The affidavit is based upon information provided by informants and upon investigation by the affiant, a police officer. Under the Aguilar-Spinelli test, infra, two standards for reliability pertained where issuance of a search warrant was based primarily on an informant's tip. The affiant was required to state the underlying circumstances showing (1) the informant's reliability, and (2) the source of the informant's information. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Illinois v. Gates, supra, has now supplanted this rule by a "totality of the circumstances" test. "The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, 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. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." id., 462 U.S. at ----, 103 S.Ct. at 2332. (ellipses and brackets in text).

The requirements of the Gates analysis are near equivalents to those traditionally applied by the courts of our state. "[P]robable cause means ... reasonable grounds, and is that apparent state of facts which seems to exist after reasonable and proper inquiry." Johnson v. State, 111 Ga.App. 298, 303, 141 S.E.2d 574 (1965), citing Coleman v. Allen, 79 Ga. 637, 5 S.E. 204 (1887).

In Strauss v. Stynchcombe, 224 Ga. 859, 865, 165 S.E.2d 302 (1968), we adopted the reasoning set forth in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949): "In dealing with probable cause, ... as the very name implies, we deal with probabilities. They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act." See also Peters v. State, 114 Ga.App. 595, 596, 152 S.E.2d 647 (1966). The United States Supreme Court in Illinois v. Gates seemingly now reaffirms its earlier position, as stated in Brinegar. Thus it appears that we have come full circle, and are now permitted to employ, once again, a practical, common-sense approach to the requirement of probable cause relative to the issuance of search warrants.

In this case, the affidavit attached to the search warrant contains the following information: in January, 1982, the affiant police officer received information from a "confidential and reliable informant" that one Duffie was actively involved in the trafficking of marijuana. In addition, the affiant received information from a second "confidential and reliable informant" that Richard Furman Stephens was involved in drug trafficking. A third "confidential and reliable informant" gave information that Duffie and Stephens were actively involved together in drug trafficking. Affiant's investigation confirmed a "close relationship" between Stephens and Duffie, and telephone toll records showed daily contact between them. Four months later, affiant received information that Duffie had returned from Florida with a shipment of marijuana which would be ready for sale within three days. Upon surveillance of Stephens' residence, affiant observed Duffie and Stephens going in and out of Stephens' house; on the night before the alleged sale, affiant observed a meeting at Stephens' residence lasting from 4:00 P.M. until midnight. On the day of the alleged sale, affiant received information from one Hayes that Duffie planned to sell ten pounds of marijuana to Hayes that afternoon at 3:00 P.M. in LaGrange, Georgia. At 1:45 P.M., affiant saw Duffie arrive at Stephens' residence. Duffie remained in the house for approximately five minutes, then drove to LaGrange, arriving at 2:55 P.M., and delivered one pound of marijuana to Hayes. Duffie was arrested, and nine additional pounds of marijuana were found in his vehicle. The affidavit concluded: "Based upon the above information from informants and affiant's investigation the affiant believes there is probable cause to believe that marijuana is being stored at the residence of Richard Furman Stephens...."

We find no error in the issuance of a search warrant based upon this affidavit. Each informant's tip was consistent with information received from the other informants. In addition, affiant's own investigation corroborated the information supplied by the informants. "Our decisions applying the totality of circumstances analysis ... have consistently recognized the value of corroboration of details of an informant's tip by independent police work." Illinois v. Gates, 462 U.S. at ----, 103 S.Ct. at 2334. In Gates, the affiant police officer corroborated details of a letter written by an anonymous informant that the defendants were transporting drugs from Florida to Bloomingdale, Illinois. "The corroboration of the ... [informant's] predictions that the Gates' car would be in Florida, that Lance Gates would fly to Florida in the next day or so, and that he would drive the car north toward Bloomingdale all indicated, albeit not with certainty, that the informant's other assertions also were true. 'Because an informant is right about some things, he is more probably right about other facts.' " id., at ----, 103 S.Ct. at 2335.

The showing of probable cause in the present case is of full strength with that of Gates. Information concerning the drug transaction centered around the Stephens' home. The affiant's independent investigations corroborated Stephens' involvement with Duffie, especially in the hours immediately preceding Duffie's attempted sale and subsequent arrest.

* * *

Stephens contends that the informants did not report seeing drugs on the premises, nor did the police overhear the conversations between Duffie and Stephens. He insists that the fact that the officer observed Duffie enter and leave Stephens' house without carrying with him any object which could be marijuana is conclusive proof that Stephens did not supply the contraband which Duffie transported to LaGrange, and that these considerations vitiate all other inferences which might otherwise constitute probable cause for issuance of the warrant.

Not so. By no means is probable cause to be equated with proof by even so much as a preponderance of evidence. As stated in Gates, "[P]robable cause does not demand the certainty we associate with formal trials" id., at ----, 103 S.Ct. at 2336. The issuing magistrate now need only conclude that there is a "fair probability that contraband or evidence of a crime will be found in a particular place." id., at ----, 103 S.Ct. at 2332.

We find that the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant.

* * *

While we today adopt the rule of Illinois v. Gates, we do so not without caveat, for it is, at heart, a rule of subjectivity. One judge's "probable cause" can be another judge's "inarticulable suspicion"--as witnessed by the thoughtful assessment of the Court of Appeals in this case, followed by our contrary view.

Prudence counsels that Gates be considered as the outer limit of probable cause. Accordingly, we urge that attesting officers and magistrates make every effort to see that supporting affidavits reflect the maximum indication of reliability, along the lines of Aguilar-Spinelli, whenever and wherever that shall be feasible.

Judgment reversed.

All the Justices concur, except SMITH, J., who dissents.

SMITH, Justice, dissenting.

Today's majority opinion, which reverses a decision of the Court of Appeals mandating suppression of certain seized evidence, is replete with phrases like "practical, commonsense approach," "subjectivity," "the outer limit of probable cause," and protection of Fourth Amendment (Code Ann. § 1-804) values "whenever and wherever feasible." Like Justice Brennan, I am inclined to view such talk as "code words for an overly permissive attitude toward police practices in derogation of the rights secured by the Fourth Amendment." [Code Ann. § 1-804]. Illinois v. Gates, 462 U.S. ----, ----, 103 S.Ct. 2317, 2359, 76 L.Ed.2d 527 (Brennan, J., dissenting). Because I cannot join in this court's continued erosion of those rights, see LoGiudice v. State, 251 Ga. 711, 309 S.E.2d 355 (1983) (Smith, J., dissenting); Bothwell v. State, 250 Ga. 573, 580, 300 S.E.2d 126 (1983) (Smith, J., dissenting), I dissent.

I would affirm the Court of Appeals in this case, not merely because its opinion is a "thoughtful assessment" (as conceded by the majority), but because it is correct. In a careful analysis of the recent Gates decision, Judge Pope...