Talley v. State

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG
• Citation: Talley v. State, 408 S.E.2d 463, 200 Ga.App. 442 (Ga. App. 1991)
• Decision Date: 28 June 1991
• Docket Number: No. A91A0790,A91A0790
• Parties: TALLEY v. The STATE.

Page 463

408 S.E.2d 463

200 Ga.App. 442

TALLEY v. The STATE.

No. A91A0790.

Court of Appeals of Georgia.

June 28, 1991.

Reconsideration Denied July 12, 1991.

Caleb B. Banks, for appellant.

Janice Talley, pro se.

Robert F. Mumford, Dist. Atty., William F. Todd, Jr., Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Janice Diane Talley appeals the judgment of conviction of two counts of violation of the Georgia Controlled Substances Act by possessing marijuana with intent to distribute exceeding one ounce and by possessing marijuana exceeding one ounce, respectively, and the sentence. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737.

2. Appellant has expressly abandoned her first enumeration of error, based on the receipt of new information rendering the issue moot.

3. Appellant asserts the trial court erred in denying her suppression motion.

(a) The trial court ruled collateral estoppel barred a re-litigation of the same issues raised in the case at bar regarding the legality of the search, as the court previously had ruled during a probation revocation proceeding concerning another indictment that the search of appellant's premises and automobile was valid. Appellant questions whether this court can rule on the trial court's denial of the grounds of collateral estoppel of appellant's motion to suppress evidence and argues that the trial court failed to incorporate into this record, except by reference, its prior ruling on the legality of the search warrant.

This court does not lack judicial power to consider and dispose of this issue; rather, it has been vested with such broad judicial power "as necessary in aid of its jurisdiction or to protect or effectuate its judgments." Ga. Const. of 1983, Art. VI, Sec. I, Par. IV. Further, we have the authority to take judicial notice of records on file in this court. Backus Cadillac-Pontiac v. Ernest, 195 Ga.App. 579, 394 S.E.2d 367. Accordingly, we take judicial notice of the record in A90A0314, Talley v. State, including but not limited to appellant's motion to suppress, filed August 4, 1989, the transcript of the probation revocation proceedings of August 9, 1989, and the order of the trial court, filed August 21, 1989, wherein appellant's motion to suppress was denied. Additionally, the hearing transcript of the probation revocation proceedings was tendered and implicitly accepted in evidence by the trial court when it reissued its ruling declining to relitigate most of appellant's search warrant issues. However, the issues concerning whether the affidavit was executed at the time the search warrant was issued were deemed to be not subject to the collateral estoppel doctrine, and the trial court found as fact that "the affidavit was with the search warrant and executed at the same time."

Estoppel by judgment is sometimes referred to as collateral estoppel or as estoppel by verdict. Smith v. Wood, 115 Ga.App. 265, 266(1), 154 S.E.2d 646. " '[E]stoppel by judgment applies as between the same parties upon any cause of action to matters which were directly decided in the former suit.' " Pitts v. Attaway, 259 Ga. 455, 457(3), 384 S.E.2d 629.

Appellant does not argue in her brief or provide any citation of authority to establish that the trial court applied the doctrine of estoppel by judgment as to any matters which were not directly decided during the probation revocation hearing wherein the court made certain findings of fact and denied appellant's suppression motion. Accordingly, this issue has been abandoned on appeal. Court of Appeals Rule 15(c)(2).

The trial court did not err in applying the doctrine of collateral estoppel in the disposition of appellant's suppression motion. Appellant had a full and fair opportunity to litigate those Fourth Amendment issues during the probation revocation proceedings. See Jacobs v. Hopper, 238 Ga. 461, 233 S.E.2d 169.

(b) Additionally, Lieutenant Edge initially observed marijuana in appellant's home while he was therein, during the absence of the owner, for purposes of investigating a burglary that had just been committed on the premises and discovered by police officers in response to a citizen's report of suspicious males around the premises. We find that all entries into the premises by the police prior to vacating the premises to obtain a search warrant were reasonable under the totality of the existing circumstances, particularly as the police were not on the premises to investigate suspected criminal activity of appellant homeowner, but rather were attempting to protect the absent appellant's property and investigate a burglary found to have been committed on the premises. We find the marijuana observed by Lieutenant Edge to have been in "plain view" from his lawful vantage point within the house. "The subjective intent of an officer and the fact that actions taken may have dual motives do not preclude the conclusion that no impermissible invasion occurred because they were objectively reasonable, 'valid independent of their suspicion,' under the Fourth and Fourteenth Amendments. [Cit.] An officer is not required to ignore what he observes when legitimately acting in another capacity." State v. Almand, 196 Ga.App. 40, 41, 395 S.E.2d 609. "As recently stated in ... Horton v. California, U.S. ----, (110 SC 2301, 110 LE2d 112) (1990), '(i)f an article is already in plain view, neither its observation nor its seizure (involves) any invasion of privacy....' " Bozeman v. State, 196 Ga.App. 743, 744(1), 397 S.E.2d 30. Moreover, "[i]n Horton, the Supreme Court abolished the 'inadvertence' requirement as it had developed from the plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443 (91 SC 2022, 29 LE2d 564)." State v. Almand, supra 196 Ga.App at 42, 395 S.E.2d 609. Thus, the record establishes no unlawful search or seizure by the police of the premises before the search warrant was sought.

(c) The trial court found as a fact that the affidavit supporting the search warrant accompanied the warrant and was executed at the same time. "As a general rule, the trial court's decision on [disputed] questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous." (Punctuation omitted.) Santone v. State, 187 Ga.App. 789, 790, 371 S.E.2d 428. The trial court's findings of fact were adequately supported by evidence of record.

(d) Pretermitting the question of whether the search warrant in fact was issued by the magistrate upon an adequate showing of probable cause is the question whether the police reasonably could rely upon the warrant under the good faith exception to the exclusionary rule. We conclude they could.

The exclusionary rule "has been ' "modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance (by an officer) on a search warrant that is subsequently held to be defective." ' United States v. Leon, 468 U.S. 897, 905(I) (104 SC 3405, 82 LE2d 677)." Debey v. State, 192 Ga.App. 512, 513, 385 S.E.2d 694. " ' "(A) warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." (Cit.)' United States v. Leon, supra [468 U.S.] at 922 [104 S.Ct. at 3420]." Adams v. State, 191 Ga.App. 916, 917, 383 S.E.2d 378. "Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable." Leon, supra 468 U.S. at 922, 104 S.Ct. at 3420. And this applies both to the officers who initially obtained the warrant and those who subsequently executed it. Leon, supra at 923, n. 24, 104 S.Ct. at 3420, n. 24. Therefore suppression does remain an appropriate remedy in certain instances, which basically include: the magistrate or judicial officer issuing the warrant being misled by inaccurate information caused by the knowing or reckless falsity of the officers in preparing the affidavit; an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; the warrant being so facially defective that the executing officers cannot reasonably presume it to be valid; and, those instances where the issuing magistrate wholly abandons his judicial role. United States v. Leon, supra at 923, 104 S.Ct. at 3421; State v. Evans, 192 Ga.App. 216, 222, 384 S.E.2d 404.

Moreover, existence of technical defects in a search warrant or its accompanying affidavit will not preclude the existence of objective good faith on the part of the police in relying on the validity of the warrant. See State v. Evans, supra at 222, 384 S.E.2d 404, citing Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737. In fact, factual inaccuracies in the affidavit will not destroy an otherwise adequate showing of probable cause if they are of peripheral relevance, and particularly if they are not based on the personal observations of the affiant and thus do not reflect on his credibility. Summerville v. State, 226 Ga. 854(1), 178 S.E.2d 162; compare Rimmer v. State, 197 Ga.App. 294, 398 S.E.2d 282. Likewise, factual inaccuracies of peripheral relevance will not preclude the good-faith exception to the exclusionary rule.

Any inaccuracies in this search warrant or affidavit were either technical in nature or of peripheral relevance, including the inaccurate statement in the affidavit that two suspects, rather than one suspect, were under arrest. Based on the totality of the circumstances, we find the law enforcement officials acted in objective good faith, within the meaning of Leon, in both obtaining and executing the search warrant and that any...