Stephens v. State, 66023

• Decision Date: 21 June 1983
• Docket Number: No. 66023,66023
• Citation: 167 Ga.App. 417,307 S.E.2d 9
• Parties: STEPHENS et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 9

307 S.E.2d 9

167 Ga.App. 417

STEPHENS et al. v. The STATE.

No. 66023.

Court of Appeals of Georgia.

June 21, 1983.

Rehearing Denied July 12, 1983.

Certiorari Granted Sept. 2, 1983.

Daniel F. Byrne, Atlanta, Ansell T. Maund, III, College Park, for appellants.

Arthur E. Mallory III, Dist. Atty., for appellee.

POPE, Judge.

This is an interlocutory appeal of the trial court's denial of defendants' motion to suppress. The sole issue is whether the affidavit upon which the issuance of the search warrant was based can pass constitutional muster.

"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). When, as here, the issuance of a search warrant is based solely upon the affirmations of probable cause in an affidavit, "the facts recited in the affidavit are determinative of the question." Lewis v. State, 126 Ga.App. 123, 127, 190 S.E.2d 123 (1972). Additionally, when, as also here, the affirmation of the existence of probable cause is based upon information supplied to the affiant by an unnamed informant, the affidavit must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant. This, of course, is the venerable Aguilar-Spinelli test. State v. Jackson, 166 Ga.App. 671(1), 305 S.E.2d 417 (1983); Shaner v. State, 153 Ga.App. 694, 696, 266 S.E.2d 338 (1980).

The affidavit at issue here states that the "affiant received information from a confidential and reliable informant ... from a second confidential and reliable informant ... [and] through a third confidential and reliable informant ...." The only language in the affidavit bearing upon the reliability of the informants is: "Affiant's informants # 1, # 2, and # 3, have all proven their reliability by affiant's verification of information through personal investigation. Informant # 3's information has led to the arrest of [defendant's alleged accomplice]...." For obvious reasons, the latter statement has no probative value whatsoever. The former statement is also deficient. It clearly provides no facts upon which the judge could have independently determined the reliability of the informants. There being no facts in the affidavit upon which a finding of reliability of the informants could be based, the information purportedly provided by those informants is entitled to no weight. See State v. Jackson, supra, and cases cited therein.

Without this information, the affidavit does not support a finding of probable cause. The state has thus failed to satisfy its burden (Reddish v. State, supra) and it necessarily follows that the trial court erred in denying defendants' motion to suppress the fruits of the search.

Judgment reversed.

QUILLIAN, P.J., and SOGNIER, J., concur.

On Motion for Rehearing

The state correctly points out in its brief in support of its motion for rehearing that the "venerable Aguilar-Spinelli test," as we called it, ceased to be venerable on June 8, 1983. On that date the United States Supreme Court abandoned the test in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) and reaffirmed the "totality of the circumstances analysis." at ----, 103 S.Ct. at 2332. The court stated: "The task of the issuing magistrate is simply to make a practical, common-sense 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. [Cit.] We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli." Id.

In the case at bar, we applied the Aguilar-Spinelli test and, finding no facts bearing on the reliability of the informants, we held that "the information purportedly provided by those informants is entitled to no weight" and, because without that information the affidavit did not support a finding of probable cause, reversed the denial of the motion to suppress. We now reach the same conclusion under the totality of the circumstances approach.

The affidavit filed in support of the search warrant request consists of nineteen paragraphs, which may be summarized as follows: (1) In January, 1982 a "confidential and reliable informant" told the affiant police officer that a certain person was an active drug dealer; (2) affiant's investigation showed that a close relationship existed between this person and defendant; (3) a "second confidential and reliable informant" told the affiant that defendant was an active drug dealer; (4) a "third confidential and reliable informant" told the affiant that defendant and this other person dealt in drugs together; (5) telephone records showed that the two conversed daily; (6) on May 16, 1982 the affiant learned (by some unidentified means) that the other person had just returned from Florida with marijuana in excess of two hundred pounds; (7) on that day the person was seen with defendant at defendant's home; (8) on the next day the third confidential informant told the police that the person "had stored a load of marijuana" and would be ready to start selling the next day; (9) on that next day the person and several others were observed with defendant at defendant's home; (10) and (11) on the following day the police received a tip that the person was to make a sale in LaGrange; (12) and (13) the person stopped by defendant's home while en route to LaGrange; (14) the person made the sale of one pound of marijuana in LaGrange and was arrested; (15) and (16) nine more pounds of marijuana were found in his...