Sutton v. State

• Decision Date: 25 January 2013
• Docket Number: No. A12A2223.,A12A2223.
• Citation: 319 Ga.App. 597,737 S.E.2d 706
• Parties: SUTTON v. The STATE.
• Court: Georgia Court of Appeals

319 Ga.App. 597

737 S.E.2d 706

SUTTON

v.The STATE.

No. A12A2223.

Court of Appeals of Georgia.

Jan. 25, 2013.

Graham McKinnon IV, Gainesville, for Appellant.

Lee Darragh, Gainesville, Lindsay Hunter Burton, Alison Wilson Toller, for Appellee.

ELLINGTON, Chief Judge.

Eric Sutton appeals from the denial of his motion to suppress evidence seized pursuant to a search warrant executed at his home.¹ He contends that the trial court erred in denying the motion based upon a finding that the affidavit accompanying the search warrant application was legally sufficient to establish probable cause. As explained below, we agree and reverse.

Under OCGA § 17–5–30(a)(2), a defendant may move the court to suppress seized evidence on the grounds that “[t]he search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.” Further, under OCGA § 17–5–30(b), “the burden of proving that the search and seizure were lawful shall be on the [S]tate.” See also Dearing v. State, 233 Ga.App. 630, 632, 505 S.E.2d 485 (1998) (In response to a motion to suppress evidence seized pursuant to a search warrant, the State has the burden of proving that an informant who provided information to the affiant applying for the search warrant was reliable.).

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.

(Citation and punctuation omitted.) Bryant v. State, 288 Ga. 876, 893(13)(a), 708 S.E.2d 362 (2011). Further, where “other investigation supports the information of the informant, this can be considered as a part of the reliable basis for the finding of probable cause.” (Citation and punctuation omitted.) State v. Davis, 217 Ga.App. 225, 227, 457 S.E.2d 194 (1995).

In determining the sufficiency of a search warrant affidavit, the issuing magistrate or judge must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit, 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. Our duty as a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In reviewing the lower court's decision, we give great deference to the magistrate's determination of probable cause; a presumption of validity attaches to an affidavit supporting a search warrant, and doubtful cases are resolved in favor of upholding the search warrant. The contents of the affidavit are reviewed in the light most favorable to upholding the trial court's determination.

(Footnotes omitted.) Price v. State, 297 Ga.App. 501, 501–502, 677 S.E.2d 683 (2009).

While the trial court's findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review.

(Citations omitted.) Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994). So viewed, the record shows the following facts.

In November or December 2010, an informant contacted an officer of the Flowery Branch Police Department with allegations that the defendant was using and selling illegal drugs. The informant, identified by the officer as “It,” had received such information from a person with whom It had a “personal relationship.” According to It, that person, identified in the affidavit as “Source A,” had a personal relationship with the defendant. However, It had no direct relationship with the defendant, nor had he or she ever personally observed the defendant using or selling drugs. The only information It provided to the officer was what Source A had told him or her. Notably, although Source A reported to It that he or she had seen the defendant use drugs he or she believed to be marijuana, Source A did not report that he or she had ever seen the defendant sell any drugs.

Other than confirming It's statements that the defendant lived at a certain address, drove a certain type of truck, and once owned a certain business, the officer did not conduct an investigation to confirm or corroborate It's statements about the defendant, such as performing surveillance of the defendant's home or conducting a controlled purchase of drugs. Instead, based solely upon It's hearsay statements, the officer executed an affidavit and applied for a search warrant for the defendant's home.

The complete statement in the officer's affidavit that accompanied the search warrant application is as follows: ²

On or between the dates of November 22, 2010 and December 01, 2010, [the officer], a sworn and certified police officer employed for the past 4 and 1/2 years with the City of Flowery Branch, GA and herein after referred to as “your affiant,” was contacted by a source of information whom your affiant will herein after refer to as “It.”

During the course of the contact, “It” stated to affiant that, on or between the afore mentioned dates, it had the opportunity to engage in an unsolicited conversation with a third party, herein after referred to as “[S]ource A,” regarding Eric Sutton of 1519 Treepark Apartments in Flowery Branch, GA. More specifically, the conversation focused on [S]ource A's concern that Eric Sutton was, during the above mentioned dates, actively engaged in the use, storage, and distribution of marijuana. Source A is not personally experienced with marijuana and characterizes the substance based upon representation by Sutton and manner of usage by Eric Sutton.

Source A's concern was expressed to “It” from the point of view of genuine concern for Sutton's health and personal welfare. Source A stated to “It” that Sutton had lost approx. 40 pounds of weight over the past year and that he has displayed an increasing verbal abusive demeanor, has become short tempered and has displayed increasing physical aggression toward others. Source A stated to “It” that Source A is additionally concerned for the safety of the general public and the law enforcement community due to the level of controlled substance abuse by Sutton. Source A is more specifically concerned because Sutton possesses numerous firearms and Source A is fearful that Sutton is likely to use those firearms against law enforcement or an innocent member of the community while experiencing drug induced paranoia.

What Source A related to “It” is considered by your affiant to be truthful, reliable and credible because Source A has a personal relationship with Sutton. As a result of the personal relationship, Source A has had the opportunity, in the past, to make such observations of Sutton as well as to have personally observed the facts and circumstances related. Source A had no apparent motivation to falsify the information related to “It” and because Source A had no reason to believe the facts and circumstances would ever be repeated to law enforcement. Additionally, Source A and “It” have a personal relationship. During the time of the personal relationship, “It” has never known Source A to have lied to “It.”

What “It” related to affiant is considered by your affiant to be truthful, reliable, and credible because affiant is unable to detect any motivation by “It” to falsify the information related to your affiant. Additionally, affiant has learned that “it” is a mature person firmly established and with significant connections in “It's” community. “It” is gainfully employed with no known criminal record. Similar to Source A, “It” felt compelled to forward the information to law enforcement regarding Sutton because of a genuine concern for the health and best welfare of Eric Sutton as well as out of concern for the general public and the law enforcement community. Other descriptors indicative of reliability and credibility can be provided by your affiant in the form of oral testimony. Your affiant is reluctant to do so in writing at this time because of the level of fear of Sutton's retaliation should information appear that leads Sutton to the identity of either Source A or “It.”

Last, “It” provided affiant with the residential address of Eric Sutton, a description of the vehicle he most typically operates, and that he use to own a Company known as TAB Inc.

Affiant checked Georgia Crime Information Center (GCIC) information on Nov. 30, 2010, regarding Sutton's driver's license and found Eric Sutton to be registered as a licensed driver in the State of Georgia with a residential address of 1519 Treepark Circle, Treepark Apartments, Flowery Branch, GA 30542. On November 30, 2010 affiant traveled to the 1500 building of Treepark Apartments and did personally observe the black pickup truck with a lift kit bearing the GA tag TABINC, as described by “It,” parked in the handicap parking space in the front of the building number 1500. Affiant checked GCIC information regarding the tag displayed on the truck and found the tag to be registered to Eric Sutton of 1519 Treepark Circle, Treepark Apartments, Flowery Branch, GA 30542. Additionally, the tag was shown to be registered on a black 2007 GMC Sierra K1500. Affiant checked public records regarding Sutton's former business and learned that Sutton was listed as the former owner of a business located on McEver Rd. in Oakwood, GA identified as TAB Merchandising, Inc.

Affiant's training and...