State v. Farmer

Deen, Presiding Judge.

In March 1984, a GBI agent assigned to the Savannah Regional Drug Enforcement Office received information that the appellant, James Shelton Farmer, had cocaine in his residence. Acting on this, the agent prepared an affidavit in support of an application for a search warrant, in which he indicated that the informant had personally observed the cocaine in Farmer’s residence and that the informant was reliable because he or she had previously supplied accurate information which resulted in three arrests for drug charges. The magistrate issued the warrant and Farmer’s residence and automobile were searched. Seized were a foil packet containing cocaine, various items having cocaine residue, several butts of marijuana cigarettes, a tetracycline pill, a .22 caliber pistol with the serial number filed off, *19and another .22 caliber pistol and a .357 Magnum revolver which were subsequently found to be stolen.

Farmer was indicted on two counts of violation of the Georgia Controlled Substances Act, one count of violation of the Georgia Dangerous Drug Act, two counts of theft by receiving stolen property, and one count of criminal use of an article with an altered identification mark. He pled not guilty and filed a motion to suppress the seized items, alleging that the affidavit, the issuance and return of the warrant, and the seizure violated his rights “under the Constitution of these United States and of the sovereign State of Georgia.” Following a hearing, the trial court found the affidavit insufficient to support the application for a search warrant, and granted the defendant’s motion. This appeal by the state followed. Held:

In Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the Supreme Court discarded the strict two-pronged, AguilarSpinelli requirement of (a) demonstrating an informant’s reliability and (b) providing the source of the informant’s tip in an affidavit to support issuance of a search warrant, and adopted the “totality of the circumstances” test. “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 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.” Id. at 238-239. See also State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).

In Illinois v. Gates, where the affidavit in support of the search warrant was technically deficient under the Aguilar-Spinelli test, the Supreme Court considered all of the circumstances and found that the affiant officer’s corroboration of the informant’s tip, by independent investigation, provided sufficient reliability and thus a substantial basis for concluding that probable cause existed. In effect, the police officer’s corroboration of the informant’s tip substituted for the previously required showing of an informant’s reliability and basis of knowledge. Illinois v. Gates, however, certainly did not establish a requirement of such corroboration, and the dissenting opinion’s contrary suggestion “is pregnant with innovation, but barren of law.” Minor v. State, 63 Ga. 318, 321 (1879).

The affidavit in this case certainly was sufficient to support issuance of a search warrant under the Aguilar-Spinelli test. See Pressel v. State, 163 Ga. App. 188, 190 (292 SE2d 553) (1982). The dissenting opinion is unduly concerned about “what led the informant to his conclusion that he saw cocaine”; a fair probability that the informant recognized controlled substances when he or she saw them was suffi*20ciently demonstrated, for purposes of obtaining a search warrant, by the statement that previous tips given by the informant had resulted in three other arrests on drug charges. Because the totality of the circumstances analysis under Illinois v. Gates actually is a more lenient test (supposedly a practical, common-sense approach) than the Aguilar-Spinelli test, it logically follows that the affidavit in this case provided sufficient basis for finding probable cause. The trial court thus erred in granting the defendant’s motion to suppress.

Judgment reversed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., and Carley, J., concur. Sognier, J., concurs in the judgment only. Pope, Benham and Beasley, JJ., dissent.