Davis v. State

Andrews, Judge,

dissenting.

I respectfully dissent since I believe the warrant used to search the residence was supported by probable cause. “In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the ‘totality of the circumstances’ analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by this court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). . . . Under that analysis, ‘(t)he 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 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. (Cit.)’ ” Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992); see generally Munson v. State, 211 Ga. App. 80 (438 SE2d 123) (1993). This test is not a hypertechnical test implemented by legal technicians, but is based on the “factual and practical considerations of everyday life on which reasonable and prudent men” act. (Punctuation omitted.) Curry v. State, 255 Ga. 215, 217 (1) (336 SE2d 762) (1985).

Here, a practical, common-sense analysis indicated that there was a fair probability that contraband would be found in the residence. The affidavit stated that the concerned citizen had described in considerable detail the crack cocaine he saw in the bedroom. The affidavit stated that “[i]t was in a clear plastic type bag. That in the bag was small white chunks of substance. That there were also syringes, *39and small vials with a water type substance in them.” The affiant stated that he was familiar with Maddox because he had previously arrested and convicted Maddox of conspiracy to traffic in cocaine. See generally Caffo v. State, 247 Ga. 751 (2) (c) (279 SE2d 678) (1981). These facts plus the detailed description of the residence and subsequent corroboration were sufficient to support the affidavit. See generally Futch v. State, 178 Ga. App. 115 (342 SE2d 493) (1986).

The majority’s approach is not the “totality of the circumstances” approach from Illinois v. Gates. The majority’s concern that the only information regarding the informant’s veracity was that he “displayed a truthful demeanor” and that the only corroboration of the tip was the address of the residence. “[Although information regarding the reliability of the informant is highly relevant to the totality of the circumstances determination, the absence of significant information regarding reliability is not necessarily fatal to an affidavit. Indeed, corroboration of the information given by an informant may provide a substantial basis for finding probable cause, despite deficiencies in the showing of the informant’s veracity, reliability, or basis of knowledge.” (Citations and punctuation omitted.) Munson, supra at 82; compare State v. Bryant, 210 Ga. App. 319, 321 (436 SE2d 57) (1993); State v. Teague, 192 Ga. App. 839 (386 SE2d 718) (1989). In concluding that no probable cause existed, the majority overlooks the importance of the details regarding the drugs and the fact that the magistrate was informed that Maddox had previously been convicted of a drug offense.

The determination that the warrant here was sufficient comports with the deference given searches performed pursuant to warrant. “A grudging or negative attitude by reviewing courts toward warrants, is inconsistent both with the desire to encourage use of the warrant process by police officers and with the recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. . . . 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.” (Citations and punctuation omitted.) Mincey v. State, 180 Ga. App. 898, 900 (1) (350 SE2d 852) (1986); Munson, supra at 83.

While our task is not to encourage minimal compliance with the standards set forth for the issuance of warrants, we are required to determine when those minimal standards have been met. In the instant case, those minimal standards were complied with and the trial court properly denied the motion to suppress.

*40Decided June 24, 1994 Reconsideration denied July 15, 1994 Dickinson, Noel & Peeples, Joseph S. Peeples, for appellant. Timothy G. Madison, District Attorney, Jeffrey G. Morrow, Assistant District Attorney, for appellee.

I am authorized to state that Chief Judge Pope joins in this dissent.