Williams v. State

• Decision Date: 27 November 1989
• Docket Number: No. A89A1571,A89A1571
• Citation: 193 Ga.App. 677,388 S.E.2d 893
• Parties: WILLIAMS v. The STATE.
• Court: Georgia Court of Appeals

Page 893

388 S.E.2d 893

193 Ga.App. 677

WILLIAMS v. The STATE.

No. A89A1571.

Court of Appeals of Georgia.

Nov. 27, 1989.

Murray M. Silver, Atlanta, for appellant.

William G. Hamrick, Jr., Dist. Atty., Monique F. Kirby, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant Grady Williams appeals his conviction of unlawful possession of cocaine and possession of less than one ounce of marijuana, and his sentence. Held:

Appellant's sole enumeration of error is that the trial court erred in denying his motion to suppress, as probable cause for issuance of the warrant was lacking.

In support of this enumeration, appellant asserts that the affidavit in support of the search warrant was inadequate, as it contained all of the circumstances therein presented to the magistrate, and that this "was completely devoid of any substantiation." The warrant and affidavit have not been made a part of this record for our review. Appellant has attempted to bring the contents of the affidavit before this court by purporting to recite it verbatim in his brief. This court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record. Hudson v. State, 185 Ga.App. 508(1), 364 S.E.2d 635. Moreover, parties cannot supplement the record merely by attaching matters to or reciting matters in their briefs. See generally Rivera v. Harris, 259 Ga. 171(1), 377 S.E.2d 844. We will, however, hereinafter review the suppression hearing transcript to determine to the extent possible the contents of the missing affidavit.

"[A] search conducted pursuant to a search warrant, regular and proper on its face, is presumed to be valid and the burden is on the person who moves to suppress the items found to show that the search warrant was invalid." State v. Slaughter, 252 Ga. 435, 437, 315 S.E.2d 865. In this regard, although the search warrant is not included within the record, appellant has made no assertion on appeal that the search warrant was not regular and proper on its face. Further, there exists a presumption of validity regarding an affidavit supporting a search warrant. Ross v. State, 169 Ga.App. 655, 657, 314 S.E.2d 674. In the absence of a showing that the affiant engaged in misconduct in executing the affidavit or that material misrepresentations were knowingly or recklessly included in the affidavit, the presumption of validity of the affidavit must stand. Hayes v. State, 182 Ga.App. 319, 320, 355 S.E.2d 700. As appellant makes no such allegations and as the trial record discloses no such acts, we find no basis for concluding that the affidavit was not validly executed.

Following the suppression hearing, the superior court entered an order denying appellant's motion to suppress. That order included the findings "that based on the totality of the circumstances there was probable cause to issue the search warrant in this case and that the search was therefore valid." Decisions on questions of fact and credibility made by the trial court at a suppression hearing must be accepted unless clearly erroneous. Santone v. State, 187 Ga.App. 789, 790, 371 S.E.2d 428; accord Williams v. State, 256 Ga. 609, 610, 351 S.E.2d 454. We will now proceed to review the suppression hearing transcript to ascertain to the extent possible the contents of the affidavit, and whether the findings of fact and credibility that were made, at least tacitly, in order for the trial court to conclude that the search was based on probable cause and valid, are shown to be clearly erroneous. If an appellate court finds that an affidavit is susceptible to two or more reasonable factual interpretations, it should, in deference to the magistrate's determination, adopt that interpretation which most strongly supports the ruling of the magistrate as to the existence of probable cause. See Keller v. State, 169 Ga.App. 596, 314 S.E.2d 255, citing Devier v. State, 247 Ga. 635(4), 277 S.E.2d 729 (the magistrate's determination of probable cause is entitled to great deference by reviewing courts); compare Williams v. State, 251 Ga. 749, 794(8)(b)(ii), 312 S.E.2d 40. Moreover, " 'affidavits for search warrants ... must be tested and interpreted by magistrates and courts in a commonsense [sic] and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. ... Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. ' " (Emphasis supplied.) State v. Babb, 134 Ga.App. 302, 303(1), 214 S.E.2d 397, citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.

The evidence at the suppression hearing reveals the following. Detective Nichols of the Carroll County Sheriff's Department testified that he supervised an investigation that took place regarding appellant in April 1988. Detective Nichols had occasion to request the issuance of a search warrant of a room at Tanner Beach State Park that appellant was using. When requesting the warrant, the only information which Detective Nichols gave to the magistrate was that contained in the affidavit supporting the warrant. The affidavit for search warrant included the following information: Detective Nichols received information in the past five days (but prior to the search warrant being issued) from an informant that appellant was using an apartment or a small rental unit at Tanner Beach State Park for the purpose of cutting and weighing cocaine. Detective Nichols also received information from the manager of the Tanner Beach State Park that (two weeks prior to the date the search warrant was executed) one of his maids had found evidence of drug use, including a heavy residue of white powder on several items in the room that appellant had rented. The manager stated that appellant was renting the apartment for two days (apparently April 27-28), and that appellant had previously rented the apartment two weeks earlier. Detective Nichols also had information that appellant had previously been arrested by the sheriff's department for violation of the Georgia Controlled Substances Act.

The search warrant was executed on April 27, 1988. Prior to executing the warrant, Detective Nichols and two other police officers conducted surveillance of appellant's room at Tanner Beach State Park from a room next door. Appellant was observed entering his apartment during the surveillance period. The surveillance revealed "[a] lot of loud talk, drug-related talk. You could tell it was just a party-type atmosphere in [appellant's] room next to us."

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