FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 19, 2018
In the Court of Appeals of Georgia
A18A1144. WINGATE v. THE STATE.
MCFADDEN, Presiding Judge.
Tad David Wingate appeals his convictions of possession of more than an
ounce of marijuana, manufacture of marijuana, possession of methamphetamine, and
possession of the controlled substance carisoprodol. He argues that the trial court
erred by denying his motion to suppress evidence obtained in two searches because
law enforcement officers illegally entered the curtilage of the first searched residence
without a warrant and because the warrants they eventually obtained were not
supported by probable cause.
As a preliminary matter, we reject the state’s argument that Wingate waived the
search warrant issue by failing to raise it in the trial court. As for the merits, we agree
with Wingate that the search warrants were not supported by probable cause. So we
reverse. We do not reach Wingate’s argument that law enforcement officers
improperly entered the curtilage of the property.
1. Waiver.
We reject the state’s argument that Wingate waived his challenge to the
sufficiency of the search warrant applications because he did not raise the issue in his
motion to suppress. The appellate record shows that at the end of the March 24, 2015,
hearing on the motion to suppress, the trial court stated that it would allow Wingate
to submit a brief with his argument and would allow the state to respond. About two
weeks later, Wingate submitted his brief raising the search warrant argument and
citing State v. Kazmierczak, 331 Ga. App. 817 (771 SE2d 473) (2015), the March 30,
2015, opinion upon which Wingate bases his argument to this court. So Wingate did
not waive the argument for appellate review. Cf. Stanley v. State, 206 Ga. App. 125
(1) (424 SE2d 90) (1992) (issue raised in a brief filed with motion to suppress could
be considered as part of the motion).
2. Sufficiency of the affidavits supporting the search warrants.
Wingate’s prosecution arose from the execution of search warrants at two
locations, one on Long Branch Road and the other on Miller McElreath Road. He
argues that the affidavit supporting the issuance of the search warrant for the Long
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Branch Road location did not establish probable cause, and without the evidence
obtained during the execution of that warrant, the warrant for the Miller McElreath
Road property is not supported by probable cause. We agree.
When determining whether to issue a search warrant, the magistrate simply
must
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 concluding that
probable cause existed.
State v. Stephens, 252 Ga. 181, 182, 311 SE2d 823, 824 (1984) (citation and
punctuation omitted). In this case, we “focus on the information set forth within the
four corners of the affidavit[s],” Coleman v. State, 337 Ga. App. 304, 306 (1) (787
SE2d 274) (2016), because both affiants testified that they gave the magistrates no
sworn, oral testimony.
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Wingate argues that the warrant affidavit for the Long Branch Road location,
which is set out in the margin,1 did not establish probable cause because the only
relevant information it contained was the officers’ detection of the odor of marijuana,
1
The search warrant affidavit for the Long Branch Road location was obtained
by a narcotics investigator with the Madison County Sheriff’s Office. In the affidavit,
the investigator testified as follows:
The affiant was contacted by FBI Agent [M. S.] in reference to a
possible marijuana grow at the residence of 501 Long Branch Road.
Agent [M. S.] relayed the information to the affiant via telephone.
Affiant then traveled to the residence and met with Agent [M. S.] along
with agents [J. H.], [M. P.], and [G. M.] who are agents with the FBI
Task Force. Agents explained to affiant that they had come to the
residence to make contact with Tad Wingate. Upon arrival they
attempted to go to the front door but were unable to because of several
boards missing from the deck. As they went around the back of the
house they heard a radio playing in the out building behind the house.
As they approached the out building they smelled a strong odor of
marijuana coming from the building. The door to the out building was
padlocked from the outside and they heard the noise of a fan. They then
made contact with the affiant by telephone. Affiant verified everything
they had said and left the agents and [two investigators] to secure the
residence while affiant typed [a] search warrant for the property.
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but the affidavit failed to include information about the officers’ qualifications to
identify the odor. Wingate argues that the warrant affidavit for the Miller McElreath
Road location, which is also set out in the margin,2 did not establish probable cause
2
The search warrant affidavit for the Miller McElreath location was obtained
by the chief investigator with the Madison County Sheriff’s Office. In the affidavit,
the chief investigator testified as follows:
On December, 2013, agents and task force officers with the Federal
Bureau of Investigation went to 501 Long Branch Road to attempt to
make contact with a male subject named Tad David Wingate in
reference to an investigation. The FBI had this location listed as the
residence of Tad David Wingate. When they arrived at this location they
heard music coming from an outbuilding behind the residence. The
agents went to this outbuilding to attempt to make contact with Wingate.
When they approached the outbuilding they noticed a strong odor of
marijuana coming from inside the outbuilding. The FBI contacted
Investigator [S. P.] of the Madison County Sheriff’s Office in reference
to their observations at 501 Long Branch Road. The FBI and members
of the Madison County Sheriff’s Office held the residence for a search
warrant to be obtained. Investigator [S. P.] obtained a search warrant
from the Madison County Magistrate’s Court for the location.
Approximately, at 1800 hours this search warrant was served. Once
entry was made into the outbuilding, law enforcement officers found
green leafy plants that appeared to be marijuana in various stages of
growth. Additionally, law enforcement officers located items used in the
manufacturing of marijuana. The residence was also searched and
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because, among other things, it was based on the evidence seized in the impermissible
first search.
In State v. Kazmierczak, 331 Ga. App. 817 (771 SE2d 473) (2015), we held that
an officer’s detection of the odor of marijuana may support the issuance of a search
warrant “if the affidavit for the search warrant contains sufficient information for a
magistrate to determine that the officer who detected the odor of marijuana emanating
from a specified location is qualified to recognize the odor[.]” Id. at 823. Neither
additional plants were located inside. A member of the Madison County
Sheriff’s Office conducted a search for contacts with Tad David
Wingate in the internal database. It was discovered Wingate was
arrested in October 2013 and booked into the Madison County jail. At
the time of booking, Wingate gave Sheriff’s Office staff the address of
829 Miller McElreath Road, Danielsville, Georgia, as being his place of
residence. Sgt. [K. S.] and Deputy [K. E.] were sent to Wingate’s
residence on Miller McElreath Road to attempt to make contact with
Wingate. Upon their arrival they made contact with Wingate and placed
him into custody. Upon making contact with Wingate the law
enforcement officers noticed a strong odor of marijuana coming from
the residence. The residence was secured until a search warrant could be
obtained.
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affidavit in this case included any “information [that would allow] a magistrate to
determine that the officer who detected the odor of marijuana [was] qualified to
recognize the odor. . . .” Id.
The state argues that the magistrate could have concluded that the affiants and
the FBI agents had the necessary training and experience to identify the odor of
marijuana because the magistrate could have inferred that federal law enforcement
officers and investigators with sheriff’s offices have such training and experience.
Such an inference, however, would render the holding in Kazmierczak meaningless.
Absent the detection of the odor of marijuana, the state argues, the magistrate
could have found probable cause to issue the Long Branch Road search warrant
because the affidavit “noted that FBI agents believed there to be a marijuana grow
operation at the location, [and] the afffiant observed that the outbuilding was
padlocked from the outside and that there was the sound of a fan blowing within the
building.” But the statement in the affidavit that an FBI agent contacted the affiant
“in reference to a possible marijuana grow at the residence of 501 Long Branch
Road,” contains no information to support such conclusion. And the affidavit
contains no information that would allow the magistrate to determine that the
presence of a padlock and the sound of a fan blowing are indicative of a criminal
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offense. “A search warrant will only issue upon facts sufficient to show probable
cause that a crime is being committed or has been committed. OCGA § 17-5-21 (a).”
Willoughby v. State, 315 Ga. App. 401, 403 (727 SE2d 194) (2012).
The search warrant affidavit for the Long Branch Road property failed to
establish probable cause. And without the evidence obtained in the search of the Long
Branch Road property, the search warrant affidavit for the Miller McElreath Road
property also failed to establish probable cause. For these reasons, the trial court erred
by denying the motion to suppress and we reverse. So we do not reach Wingate’s
argument that law enforcement officers illegally intruded into the curtilage of the
Long Branch Road property.
Judgment reversed. Ray and Rickman, JJ., concur.
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