Polke v. State

Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of trafficking in cocaine and possession of marijuana with intent to distribute. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates as error the denial of his motion to suppress the cocaine.

The only evidence presented at the suppression hearing was the testimony of the arresting officer. Insofar as it is relevant to this appeal, that testimony was as follows: The officer responded to a telephone call from an anonymous tipster, who stated that drugs were then being sold in the Liberty Street area. Although the tipster indicated that “we know who it is,” no name was given to the officer. This anonymous tipster had called the police department frequently and the information conveyed in his prior calls had on more than one occasion proved to be true. After driving several blocks on Liberty Street without seeing anyone, the officer made two turns and saw appellant approaching on foot. The officer had been told by other “reliable informants” that appellant was a drug dealer who carried the drugs with him. Earlier that very evening, a person whose past information had never been corroborated had told the officer that he had seen appellant with drugs at some unspecified time and that appellant would have drugs on him that night. When appellant saw the officer, he abruptly turned and crossed some railroad tracks. When the officer later pulled beside appellant, he turned again. Appellant was stopped and frisked and large sums of money found. Although no contraband was discovered at that time, appellant was arrested for a controlled substances violation. He was then taken to the police station, where he was searched and the cocaine was found on his person.

“ ‘Whether [a] search is sought to be justified as incident to [an] arrest for possession of cocaine or whether it is sought to be justified by exigent circumstances, it cannot be upheld unless probable cause existed for a belief that the [suspect] was currently in unlawful pos*307session of cocaine. . . .’ [Cit.]” Salter v. State, 198 Ga. App. 242, 243 (1) (401 SE2d 541) (1990). In stopping and searching appellant, the officer acted solely on information supplied by informants. “ ‘The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the “totality of the circumstances” surrounding (1) the basis of the informant’s knowledge and (2) the informantes] veracity or reliability. [Cit.] “(A) deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia' of reliability.” [Cit.]’ [Cit.]” Rucker v. State, 199 Ga. App. 854, 855 (406 SE2d 277) (1991). The case which originally set forth this test, Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), must “be considered as the outer limit of probable cause.” (Emphasis in original.) State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984).

“Reliable informants” had told the officer that appellant was a drug dealer, but there was no showing as to how those informants had come to that conclusion. Another informant had told the officer that appellant would have drugs on him that evening, but that informant had no prior history of reliability. Yet another informant had told the officer that drugs were then being sold in a specified area, but that informant did not name appellant as the perpetrator. “Considering the totality of the circumstances in this case, we find that the information disclosed [to the officer] was . . . insufficient to establish reasonable cause for a belief . . . that the appellant was currently in possession of cocaine. In the first place, there was no disclosure of the source of the informant[s’] information. [Cit.]” Felker v. State, 172 Ga. App. 492, 495 (4) (323 SE2d 817) (1984). “[I]t is questionable . . . whether the deficiency in the basis of the informant^’] knowledge was adequately compensated by the informant^’] previous record[s] of reliability.” Rucker v. State, supra at 855. See Galgano v. State, 147 Ga. App. 284 (248 SE2d 548) (1978); Collins v. State, 188 Ga. App. 172 (372 SE2d 503) (1988). Indeed, the informant who had told the officer that appellant would have drugs on him that night had no prior history of reliability. “Even if the informant^] [were] reliable, where no evidence is presented at the suppression hearing to show ‘ “that the police officer knew how the informantfs] received the information or else had such detailed information that he knew it to be more than mere rumor or suspicion,’ ” then the information was insufficient to establish probable cause for a search. [Cits.]” Rucker v. State, supra at 855. “There is no suggestion in this case that the informant[s] revealed . . . the source of [their] information, nor was the information . . . sufficiently detailed to suggest that it was based on anything more substantial than mere rumor. [Cit.]” (Emphasis supplied.) Salter v. State, supra at 243 (1). Indeed, the informant whose *308call prompted the officer to ultimate action never even named appellant as one of the persons involved in the illegal drug activity on Liberty Street. Cf. Kelleher v. State, 185 Ga. App. 774, 777 (1) (365 SE2d 889) (1988).

This lack of detail or disclosure of the source of the informants’ information is extremely significant, given the lack of independent corroboration of the tip. See Felker v. State, supra at 495 (4). Moreover, the lack of corroboration assumes greater significance where, as here, the informant who precipitated the officer’s ultimate action was anonymous. See Stola v. State, 182 Ga. App. 502, 503 (1) (356 SE2d 222) (1987). Despite an immediate response by the officer to the tip regarding drug activity in the Liberty Street area, the only “corroboration” of the details thereof was the discovery of a lone, evasive person unnamed in the tip walking one block over from Liberty Street. This is no real corroboration at all. Accordingly, “[w]e cannot say here that ‘any deficiency in the basis of the informant[s’] knowledge was . . . adequately compensated by the totality of the attendant circumstances.’ [Cit.]” Rucker v. State, supra at 856. “While the tip, combined with [the discovery of appellant and prior information relating to him may have given] rise to an articulable suspicion of criminal wrongdoing sufficient to support an investigatory detention, [cit.], we do not believe the facts known to the officers after completing their [frisk] of the appellant^ including the discovery of large sums of cash on his person,] . . . were sufficient under the circumstances to establish probable cause for the appellant’s arrest for unlawful possession of drugs. Accordingly, we are constrained to hold that the [‘search incident’ to appellant’s arrest] was not authorized and that the trial court erred in denying the appellant’s motion to suppress. [Cits.]” Salter v. State, supra at 243-244 (1). Compare Illinois v. Gates, supra; State v. Stephens, supra.

The dissent ignores fundamental principles of Fourth Amendment jurisprudence.

There were several informants, but, even construing their reports, together, there was no reliable information that appellant was then in current possession of drugs so as to authorize an immediate warrant-less arrest for that crime. Under the “totality of the circumstances,” the most that can be said is that the officers were in possession of mere rumors, circulating in the underworld, that appellant was in violation of the drug laws. Mere rumors of criminal activity, from sources not otherwise shown to be reliable, will not authorize an immediate warrantless arrest. Salter v. State, supra at 243 (1). Compare Jones v. State, 195 Ga. App. 868, 869 (1) (395 SE2d 69) (1990) (wherein the specific and detailed tip was provided by a concerned citizen).

There was no independent corroboration of the rumors. The officers merely discovered appellant walking alone some distance from *309Liberty Street. This does not corroborate that drugs were being sold in the Liberty Street area because “sale” requires a seller and a buyer. Compare State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989) (wherein the officers personally observed a probable on-going drug deal between two individuals); State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990) (wherein the officer observed suspicious activity, not the mere presence of an individual). Corroboration of an individual’s mere presence at a designated public location is not corroboration of otherwise unreliable rumors of criminal activity so as to authorize an immediate warrantless arrest. Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990).

Appellants flight did give the officers an articulable suspicion to stop and frisk him. However, the frisk did not result in the discovery of drugs. The frisk resulted only in the discovery of large sums of money. Possession of large sums of money certainly may be suspicious, but it is not itself a crime and does not constitute probable cause for an immediate warrantless arrest for possession of contraband. Brown v. State, 191 Ga. App. 779 (383 SE2d 170) (1989).

The subsequent post-arrest search of appellant did produce drugs. However, the existence of probable cause cannot be determined on the basis of hindsight. Under the dissent’s analysis, any law-abiding citizen who is the target of anonymous rumors from otherwise unreliable sources would be subject to an immediate warrant-less arrest if he is merely found walking down a public street with a large sum of money in his possession. To protect law-abiding citizens from being subjected to such harassment, the Fourth Amendment serves to limit an officer’s authority to effectuate an arrest and the exclusionary rule mandates the grant of appellant’s motion to suppress. Salter v. State, supra at 243 (1).

2. Appellant enumerates the general grounds. In light of our holding in Division 1, appellant’s conviction for trafficking in cocaine must be reversed because the cocaine was inadmissible.

3. As to the other count, appellant contends that the State failed to prove that he lived in the house where the marijuana was found pursuant to a search warrant or that he had the requisite intent to distribute.

Over a two-month period, officers had undertaken a surveillance of the house in question. The only person seen entering or leaving the premises was appellant, who would enter without knocking and sometimes stay all night. Appellant’s vehicles were regularly parked there, and the water bill for the house was in his name. Appellant made no showing that anyone else had been to the house during the two-month surveillance. “The police surveillance of the [house], in addition to the other evidence adduced, amply supported, if not demanded, a finding by the jury that appellant resided in [the house in *310question].” Barkley v. State, 198 Ga. App. 477, 478 (402 SE2d 88) (1991).

The search of the house revealed a total of 2.2 ounces of marijuana rolled up in 47 plastic bags and a red tool box containing almost $8,000 cash in various large and small denominations. “Circumstantial evidence that the total quantity of marijuana possessed by [appellant] was packaged in numerous small [plastic bags, and that a large amount of cash was also found,] is sufficient for a rational trier of fact to find [appellant] guilty of possession with intent to distribute. [Cits.] We find the circumstantial evidence in this case sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Henderson v. State, 184 Ga. App. 834, 836 (2) (363 SE2d 52) (1987). See also Wiley v. State, 178 Ga. App. 136 (1) (342 SE2d 342) (1986); Hunter v. State, 190 Ga. App. 52, 54 (2) (378 SE2d 338) (1989).

4. The admission into evidence of a photograph of appellant is enumerated as error.

The photograph was found during the search of the house, lying in plain view on a coffee table in the living room. Thus, it was relevant to show that the house was appellant’s residence. “Photographs which are relevant to any issue in the case are admissible even though they may have an effect upon the jury. [Cit.]” Barfield v. State, 170 Ga. App. 796, 797 (2) (318 SE2d 219) (1984). See also Ramey v. State, 250 Ga. 455, 456 (1) (298 SE2d 503) (1983).

5. Appellant enumerates as error the instruction given the jury regarding the photograph, urging that it amounted to an impermissible comment on the evidence and the weight to be attached thereto.

“ ‘ “Where, in charging the jury, the court correctly states the law governing the case, but exception is taken to an illustration used by the court explanatory of a legal principle, this court will not narrowly scrutinize the illustration if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead the jury.” ’ [Cit.]” Ridgeway v. State, 174 Ga. App. 663, 667 (7) (330 SE2d 916) (1985). Here, the trial court correctly stated the law regarding the admission of the photograph and, although an explanatory illustration of the legal principle was employed, the trial court subsequently told the jury that it did not mean to give too strong an illustration, but that it was merely trying to help them understand the principle. Accordingly, there was no error.

6. The trial court’s failure to sustain an objection to an officer’s testimony regarding conclusions which were or could be drawn from the photograph is enumerated as error. “However, this enumeration is not supported by argument or citation of authority and so is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). [Cit.]” (Emphasis supplied.) Saunders v. State, 195 Ga. App. 810, 811 (2) (395 *311SE2d 53) (1990).

7. The failure of the trial court to instruct the jury to disregard certain “improper and hearsay” testimony is enumerated as error. However, the record shows that appellant’s objection was sustained prior to any actual hearsay testimony being given. On appeal, appellant urges that certain other testimony was inadmissible as constituting an opinion on an ultimate issue. However, the record shows that no objection was raised at the time this testimony was given.

8. The trial court’s giving of a charge on the subject of searches and probable cause is enumerated as error.

Appellant objected below only on the ground that the charge is “not a correct statement of law, the whole thing taken as a whole.” On appeal, appellant nevertheless contends that the instruction relates to an issue not within the province of the jury and is an impermissible comment on the evidence. As to the objection raised below, the charge appears to be an accurate statement of the law. The trial court informed the jury that the issues of lawfulness of any search and existence of probable cause are not issues for the jury. The objections on appeal may be valid, but those objections were waived when appellant did not raise them below “and did not reserve the right to make further objections. [Cit.]” Garrett v. State, 184 Ga. App. 715, 716 (4) (362 SE2d 423) (1987).

9. Appellant’s remaining enumeration of error relates to the jury charge. However, the objection raised on appeal was not raised below and appellant did not reserve the right to make further objections. Accordingly, the right to assert this enumeration of error was waived.

10. Appellant’s conviction and sentence for possession of marijuana with intent to distribute are affirmed. His conviction and sentence for trafficking in cocaine are reversed.

Judgment affirmed in part and reversed in part.

Sognier, C. J., Pope and Cooper, JJ., and Judge Arnold Shulman concur. McMurray, P. J., Birdsong, P. J., Beasley and Andrews, JJ., concur in part and dissent in part.