State v. Tucker

• Decision Date: 20 January 2000
• Docket Number: No. A00A0256.,A00A0256.
• Citation: 242 Ga. App. 3,528 S.E.2d 523
• Parties: STATE of Georgia v. TUCKER.
• Court: Georgia Court of Appeals

528 S.E.2d 523

242 Ga. App. 3

STATE of Georgia v. TUCKER.

No. A00A0256.

Court of Appeals of Georgia.

January 20, 2000.

Kenneth B. Hodges III, District Attorney, Anthony L. Hing, Decatur, for appellant.

Donaldson, Bell & Pickett, Reginald J. R. Bell, Jr., Mark L. Pickett, Albany, for appellee. ELDRIDGE, Judge.

In this forfeiture action, the State appeals from the trial court's order entering judgment in favor of Clyde Douglas Tucker, Jr. Because the trial court's entry of judgment was error as a matter of fact and law, we reverse.

Based on information from a confidential informant ("CI"), Tucker's blue 1997 Chevrolet pickup truck, bearing Aultman Buick-Pontiac ("Aultman Pontiac") drive-out tags, was stopped by the Albany-Dougherty County Drug Unit. Patricia Aultman was driving, and Tucker was the passenger. The vehicle was searched. Approximately 59 grams of cocaine, as well as controlled substances in pill form, were found in a bait box in the back of the truck. A briefcase containing $4,010 in cash was located in the backseat of the truck's extended cab. Tucker was arrested.

The State filed a complaint seeking forfeiture of the $4,010 and the blue 1997 Chevrolet pickup truck. Answers were filed by both Tucker and Plantation Trace Chevrolet, Inc. ("Plantation Trace"), which claimed "innocent ownership" of the vehicle. An in rem forfeiture hearing was held. At that time, Tucker claimed that the search of his pickup truck was without probable cause and that the contraband found in it should be suppressed, in which case the State could not prove that the items sought to be forfeited were "in close proximity" to contraband or used "to facilitate" a violation of the Georgia Controlled Substances Act. OCGA § 16-13-49(d)(2), (6); see Pitts v. State, 207 Ga.App. 606, 428 S.E.2d 650 (1993). A lengthy evidentiary hearing was held on this issue, after which Tucker claimed that the search of his vehicle was without probable cause because "[t]he complete lack of information about the informant and the basis of his knowledge relegated the information he supplied to the status of rumor." After consideration of evidence and argument, the trial court entered an order suppressing the contraband based upon the following findings of fact and conclusions of law:

Testimony of the witnesses at the hearing established that the justification for the stop was based solely upon the fact that the vehicle was displaying a temporary tag and that law enforcement had previously received information that an individual by the name of "Bo Tucker" was in route either to or from Panama City, Florida and would have drugs in his vehicle, that the vehicle was a blue Chevrolet Pickup Extended Cab bearing "Aultman" tags on the front and back, that there would be a female passenger in the vehicle and that there would be several different types of drugs including pills, and possibly marijuana. No testimony or other evidence was presented at the hearing relevant to the issue of the informant's basis for knowledge of the information relat[ed] to law enforcement.... [Thus,] the reliability of the information obtained by law enforcement and the specificity thereof were insufficient to provide ... probable cause for a search and seizure of the vehicle.

Held:

1. In holding that the search of Tucker's vehicle was invalid, the trial court determined that "no other evidence" was presented at the hearing to establish the basis for the CI's information, except for the CI's description of the vehicle and its occupants. We find this determination to be error as a matter of fact.

(a) At the hearing, Investigator Fred Wood with the Albany-Dougherty County Drug Unit testified that the CI had been providing reliable information for at least four years. Wood testified that the CI had provided reliable information to other law enforcement agencies, as well: "This particular informant has given information in the past to myself as well as other law enforcement agencies in and around Albany, Dougherty County that have proved reliable based on arrest and confiscation of drugs, weapons, cash, and other items."

Wood testified that he had personally received information about controlled substances from the CI on at least four other occasions; that each time the information had proved correct; and that each time the information led to both arrest and conviction. Investigator Enfinger with the drug unit also testified at the hearing and stated that the CI had provided reliable information to him regarding a large quantity of marijuana and a cache of automatic weapons. The CI's information led to arrest and conviction in that instance, as well.

Further evidence at the hearing showed that the CI "knew" Tucker. The CI had been in Tucker's house and had seen contraband there. The CI had provided information which aided in the previous arrest of Tucker in another county. Tucker's prior 1997 conviction in neighboring Colquitt County for possession of marijuana with intent to distribute was introduced and was before the trial court. Notably, defense counsel attempted to question Wood regarding other counties in which the CI provided information regarding Tucker; the trial court held an in camera meeting with Wood and Enfinger, after which the court refused to allow defense counsel to pursue the subject:

[A]s a result of that discussion, I will not allow further questioning concerning the county in which the confidential informant, the county or counties in which the confidential informant has previously provided information that may have had a connection with this particular party, Mr. Tucker. As that information has a high probability of compromising the confidentiality and identity of the informant in this case.

The information acquired from the in camera meeting with the investigators was also before the trial court.

As to the incident in question, the evidence showed that the CI told Woods that Bo Tucker, a/k/a Clyde Douglas Tucker, Jr., had gone to Panama City, Florida, and that Tucker would be carrying several different types of drugs, including pills, when he reentered Dougherty County. The CI knew drugs by sight. And "there were pills seen." The CI told Woods that on the evening of November 8, 1998: "Bo Tucker would be in a blue Chevrolet pickup extended cab with Aultman Tags on the front and back and that there would be a female passenger, or a female with him, and that he would have drugs when he came back into Dougherty County." The arresting officer testified at the hearing that on the evening of November 8, 1998, drug unit officers saw a blue Chevrolet extended cab pickup truck with Aultman Pontiac tags on the front and back and occupied by a white male and a white female traveling north on Highway 91.

All of this "other evidence" was presented at the hearing and established the CI's reliability and basis of knowledge. The trial court's finding that, except for the CI's description of the vehicle and occupants, "no other evidence was presented" was error as a matter of fact.

(b) The trial court concluded that "the reliability of the information obtained by law enforcement and the specificity thereof were insufficient to provide... probable cause for a search and seizure of the vehicle." Under the facts of this case, we find this conclusion to be error as a matter of law.

Probable cause to search may be provided by information from a reliable confidential informant. Martin v. State, 214 Ga. App. 388, 389, 448 S.E.2d 57 (1994).

The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant's knowledge and (2) the informant's veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.

(Citations and punctuation omitted; emphasis supplied.) Wells v. State, 212 Ga.App. 60, 63(2), 441 S.E.2d 460 (1994).¹ When the details of a tip are corroborated "by the personal observation of the investigating officers, a reliable informant's tip is sufficient to establish probable cause for a warrantless search." (Citation and punctuation omitted.) Dupree v. State, 232 Ga.App. 573, 574, 502 S.E.2d 511 (1998).

Here, the basis for the CI's knowledge was sufficiently established by the evidence presented at the hearing. The CI knew Tucker, had prior dealings with Tucker, had been in Tucker's home, and had "seen pills" in Tucker's possession just before providing the information to law enforcement. Deficiency, if any at all, in the basis for the CI's knowledge found more than adequate compensation in: (1) the informant's "previous record of reliability," which was well established by testimony from both Woods and Enfinger;² (2) the specificity of the CI's information, which included everything from Tucker's identity, to the direction Tucker's vehicle would be traveling, to the fact that the vehicle was an "extended cab" pickup with "Aultman" tags;³ and (3) the personal observations of the arresting officer which—prior to the stop— corroborated all of the details given by the CI as to the vehicle's location, make, description, tags, and occupants.⁴

This evidence was sufficient to establish probable cause for a search of Tucker's vehicle and the seizure of contraband found therein. Wells v. State, supra. The trial court's findings to the contrary were error as a matter of law.

(c) In rendering judgment on a complaint for forfeiture, the trial court is required to make mixed findings of fact and law, which this Court must accept unless they are clearly erroneous. See, e.g., Mitchell v. State of Ga., 236 Ga.App. 335, 336, 511 S.E.2d 880 (1999). We find that the trial court's suppression of contraband in this case was clearly erroneous. Since the trial court...