FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
June 5, 2020
In the Court of Appeals of Georgia
A20A0744. MCMURRAY v. THE STATE.
BROWN, Judge.
Following a combined motion to suppress hearing and stipulated bench trial,
Shannon McMurray was convicted of possession of a controlled substance with intent
to distribute, possession of marijuana with intent to distribute, theft by receiving
stolen property, and possession of a firearm by a convicted felon. He appeals his
convictions, arguing that the trial court erred in denying his motion to suppress and
that insufficient evidence supports his conviction for theft by receiving stolen
property. For the reasons that follow, we reverse McMurray’s conviction for theft by
receiving stolen property, but affirm his remaining convictions.
On appeal from a bench trial resulting in a criminal conviction, we
view all evidence in the light most favorable to the trial court’s verdict,
and the defendant no longer enjoys the presumption of innocence. We
do not re-weigh testimony, determine witness credibility, or address
assertions of conflicting evidence; our role is to determine whether the
evidence presented is sufficient for a rational trier of fact to find guilt
beyond a reasonable doubt.
(Citation and punctuation omitted.) Bell v. State, 349 Ga. App. 621 (824 SE2d 552)
(2019). So construed, the evidence shows that McMurray rented a room at an
extended stay hotel from December 16 until December 31, 2013. During this period,
the hotel’s manager noticed a strong odor of marijuana in the hotel’s interior hallway,
coming from the vicinity of rooms 121, 122, and 123. Eventually, the manager
determined that the odor was emanating from room 121, which was registered to
McMurray. In addition to the odor, the manager observed various people “coming in
and out of the room” every few hours, which “raised a flag.”
On December 27, the manager contacted police, requesting that they remove
McMurray from the hotel because she believed he was involved in drug activity. Two
officers responded to the call, and the manager took them to McMurray’s room. The
officers also smelled the odor of marijuana in the interior hallway and through the
door of room 121. After no one answered knocks on the door, the manager — without
prompting from the officers — opened the door with her master key and entered the
room while the officers remained outside the doorway. One of the responding officers
2
testified at McMurray’s trial and denied seeing anything drug-related inside the room.
The manager also testified that she did not see any drugs while she was inside the
room. However, the report from the incident included the note that “there was
observed two blunts inside the room in plain view.” It is unclear from where this
information originated and who, if any one, saw blunts inside the room. The officers
left the hotel, and the testifying officer relayed the incident to an investigator. The
investigator testified that this officer told him that “rolled marijuana cigarettes had
been observed inside the room.”
After receiving this information, the investigator ran a criminal background
check on McMurray and learned that he was a convicted felon with prior drug and
firearm charges. On December 28, the investigator went to the hotel, noticed the odor
of marijuana in the hallway, and confirmed that the odor was coming from room 121.
The investigator returned to the hotel the next day and again noticed the odor. While
there, the investigator saw a black male, who did not appear to be McMurray, leaving
the room and noticed that the male smelled like marijuana. On the same day, the
investigator presented a search warrant affidavit to a magistrate judge, received a
search warrant with a no-knock provision, and executed the warrant.
3
When police entered room 121, McMurray, a female, and four minor children
were present. Police recovered three firearms, two scales, plastic baggies, a marijuana
pipe, 40 Oxycodone pills, and 542.26 grams of marijuana inside the room. Police also
discovered $696 in cash on McMurray’s person. According to the investigator,
McMurray was cooperative and told him that he was “[selling] to get back on his
feet.” When asked if one of the firearms was stolen, McMurray responded “No —
well, I don’t know, man. I just bought it from some guy and I don’t know his name.”
Police ran the three firearms through GCIC and learned that one was possibly stolen.
An officer contacted the likely owner, and police were able to match the serial
number on the firearm recovered from McMurray’s room with the owner’s paperwork
for the firearm.
McMurray was charged with possession of a controlled substance with intent
to distribute, possession of marijuana with intent to distribute, theft by receiving
stolen property, and possession of a firearm by a convicted felon. McMurray’s trial
counsel filed a motion to suppress the evidence found pursuant to the search warrant,
and McMurray waived his right to a jury trial. The trial court conducted a combined
suppression hearing and bench trial on October 14 and 17, 2014. At the close of
evidence, the trial court found “issues with the warrant,” but concluded it was valid.
4
The trial court found McMurray guilty on all four charges and sentenced him to 15
years with 5 to be served in confinement.
McMurray’s trial counsel filed a motion for new trial. On January 21, 2016,
new counsel was appointed to represent McMurray. On March 4, 2019, new counsel
filed an amended motion for new trial.1 On March 5, 2019, the trial court held a status
hearing on McMurray’s motion for new trial, during which McMurray’s counsel
stated that the trial court would not need further evidence other than that presented
at trial in order to decide McMurray’s motion. Accordingly, no hearing was held, and
the trial court denied the motion the following day. McMurray filed a timely notice
of appeal.
1. McMurray contends that the trial court erred by denying his motion to
suppress items seized from his hotel room because the search warrant affidavit failed
to establish probable cause. We disagree.
When reviewing whether an affidavit sufficiently establishes the probable
cause necessary for issuance of a warrant, we must keep in mind that
1
The reason for the more than three year gap is unclear from the record. During
the subsequent status hearing, counsel stated he had been thoroughly reviewing the
record since his appointment.
5
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 [the magistrate], 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.
(Citation and punctuation omitted.) Stewart v. State, 217 Ga. App. 45, 46-47 (456
SE2d 693) (1995). “A deferential standard of review is appropriate to further the
Fourth Amendment’s strong preference for searches conducted pursuant to a
warrant.” (Citation and punctuation omitted.) State v. Palmer, 285 Ga. 75, 77 (673
SE2d 237) (2009). And “[a]lthough 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.” (Citation and punctuation omitted.) Id. at
77-78.
With all of this in mind, we now turn to the search warrant affidavit at hand.
The investigator made the following assertions in his affidavit: Officers responded
to a complaint from the hotel manager that the room’s occupant, McMurray, was
6
selling drugs out of the room. The manager told officers that she observed numerous
people coming and going from the room, that the room smelled like marijuana, and
that she believed marijuana was being sold out of the room. The responding officers
could smell the odor of unburnt marijuana coming from the room. The manager
opened the door to the room, and the responding officers noticed an even stronger
odor of marijuana. The officers did not enter the room, but observed rolled marijuana
cigarettes in plain view. After departing, one of the responding officers relayed this
information to the affiant, who then ran a criminal history check on McMurray and
discovered he was a convicted felon with various drug and firearm related charges.
The affiant then went to the hotel and determined that the odor of marijuana was
coming from room 121 and not any other room on the floor. The affiant spoke with
a hotel employee who confirmed what the manager had reported. The following day,
the affiant again went to the hotel and smelled a heavy marijuana odor emanating
from room 121, but no other rooms on the floor. The affiant observed a black male
he did not believe to be McMurray exit room 121. The male smelled like marijuana.
The affiant is a P.O.S.T.-certified police officer who graduated from basic
investigator school and numerous drug-related classes.
7
McMurray argues that material facts set forth in the affidavit were “flatly
contradicted at trial by the very witnesses cited by [the affiant] as sources of his
averments” because both the responding officer who testified at trial and the hotel
manager denied seeing any kind of drugs, blunts, or marijuana cigarettes in plain view
in the room. However, “[w]hen the facts material to a motion to suppress are disputed,
it generally is for the trial judge to resolve those disputes and determine the material
facts.” (Citation and punctuation omitted.) State v. Brogan, 340 Ga. App. 232, 234
(797 SE2d 149) (2017). Where the trial court does not make express findings of fact
after a hearing on a motion to suppress, we construe the evidence most favorably to
uphold the trial court’s judgment. Id. Here, the trial court concluded that the search
warrant was supported by probable cause and thus we must construe the evidence in
support of the trial court’s ruling.
Even if we consider the information regarding the marijuana blunts in plain
view as false and thus omit it, the affidavit nonetheless provided probable cause to
issue the warrant. See Briscoe v. State, 344 Ga. App. 610, 612 (2) (a) (811 SE2d 426)
(2018) (in the case of false information included in the affidavit supporting a search
warrant, the affidavit should be reexamined without the false statement to determine
whether probable cause exists to issue warrant). The affidavit set forth other
8
information relayed to the investigator by the responding officer, including the
complaint by the hotel manager, who was required to call police based on the hotel’s
protocol. See Glass v. State, 304 Ga. App. 414, 416-417 (1) (a) (696 SE2d 140)
(2010) (hotel housekeeping staff considered “concerned citizen informant” and has
“‘preferred status’ insofar as testing the credibility of the informant’s information”).
The investigator was entitled to credit the hotel manager’s report as well as the
information relayed by the responding officer. See State v. Wells, 332 Ga. App. 404,
406 (1) (771 SE2d 906) (2015) (an officer may present an affidavit in support of a
search warrant based on statements obtained from another officer, and such hearsay
is reliable under the circumstances); Glass, 304 Ga. App. at 416-417 (1) (a).
McMurray argues that although the affidavit states that the responding officers
smelled the odor of marijuana emanating from room 121, the affidavit stated nothing
in regard to those officers’ training in recognizing and detecting the odor of
marijuana. Thus, according to McMurray, the search warrant affidavit contained only
the undisputed fact that the investigator smelled marijuana outside of his hotel room,
and nothing in the affidavit showed that the investigator was qualified or trained to
recognize the odor of marijuana.
9
In State v. Kazmierczak, 331 Ga. App. 817 (771 SE2d 473) (2015), upon which
McMurray relies, this Court recognized that 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, the presence of such an odor may be the sole basis for the
issuance of a search warrant.” (Emphasis supplied.) Id. at 823. Here, the investigator
averred that he was “a graduate of . . . numerous drug related classes.” Pretermitting
whether this information was sufficient for the magistrate to conclude that the
investigator was qualified to recognize the odor of marijuana, the presence of the odor
was not the sole basis for the issuance of the search warrant in this case. Rather, the
affidavit set forth further facts to show probable cause, including the information
from the hotel manager and staff as well as the responding officers. We conclude that
the information presented in the affidavit — even with the omission of the reference
to “marijuana cigarettes” in plain view — provided a sufficient basis for concluding
that, based on practical common sense, there was a fair probability that contraband
would be found in McMurray’s hotel room.
2. McMurray contends that the State presented insufficient evidence showing
that he knew the firearm in his possession to be stolen. We agree.
10
Under OCGA § 16-8-7 (a), “[a] person commits the offense of theft by
receiving stolen property when he receives, disposes of, or retains stolen property
which he knows or should know was stolen. . . .” Thus, proof that McMurray knew
or should have known that the firearm at issue was stolen was an essential element
of the offense. See Daughtie v. State, 297 Ga. 261, 262 (2) (773 SE2d 263) (2015).
“Proof of possession, alone, of recently stolen property is not sufficient to establish
the essential element of the offense of theft by receiving stolen property that the
possessor knew or should have known that the property was stolen.” Wells v. State,
268 Ga. App. 62 (1) (601 SE2d 433) (2004). However, knowledge that goods are
stolen “may be inferred where the circumstances would excite suspicion in the minds
of ordinarily prudent persons.” (Citation and punctuation omitted.) Thomas v. State,
270 Ga. App. 181, 182 (1) (b) (606 SE2d 275) (2004).
Here, the only evidence presented of the offense was that the stolen firearm was
recovered from McMurray’s hotel room along with two other firearms. The owner
testified that he had kept the firearm in his truck console, and only noticed that it was
missing when he cleaned out his truck. The owner reported the gun missing in
October 2013, two months before it was found in McMurray’s possession. When
asked by the investigator if the firearm was stolen, McMurray responded “No — well,
11
I don’t know, man. I just bought it from some guy and I don’t know his name.” We
conclude that this evidence failed to show that McMurray knew or should have
known that the firearm was stolen. See Thomas, 270 Ga. App. at 182 (1) (b) (evidence
that stolen pistol was in defendant’s possession and that he had purchased pistol for
$120 from someone he did not know insufficient to sustain conviction for receiving
stolen property); Crowder v. State, 271 Ga. App. 177, 179-180 (1) (609 SE2d 134)
(2004) (evidence that handgun was found in hotel room to which defendant had key
and that handgun had been reported stolen two years prior to defendant’s arrest
insufficient to sustain conviction for receiving stolen property). See also Wells, 268
Ga. App. at 62 (1). Thus, the conviction of theft by receiving stolen property was not
supported by the evidence and must be reversed.
Judgment affirmed in part and reversed in part. Dillard, P. J., and Rickman,
J., concur.
12