State v. Palmer

BERNES, Judge,

dissenting.

In light of the substantial deference that must be accorded a magistrate’s finding of probable cause, and given the evidence of a controlled buy supporting the issuance of the search warrant, I believe the trial court erred in granting Palmer’s motion to suppress. I further believe the majority has unjustifiably assumed that the trial court predicated its decision on a finding that the affiant officer was not credible. Therefore, I respectfully dissent.

It is not necessary that a police officer’s affidavit submitted as part of a search warrant application “show the existence of the [accused’s] guilt beyond a reasonable doubt.” Dale v. State, 198 Ga. App. 479, 480 (3) (402 SE2d 90) (1991). Rather, -in determining whether probable cause exists for the issuance of a search warrant, “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, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Citation and punctuation omitted.) State v. Davis, 288 Ga. App. 164, 165 (653 SE2d 311) (2007). In turn, the trial court’s duty in reviewing the magistrate’s issuance of a search warrant is limited to deciding whether “the magistrate had a substantial basis for concluding that probable cause existed.” Houston v. State, 242 Ga. App. 114, 115 (1) (527 SE2d 619) (2000). In doing so, the trial court’s review of the magistrate’s decision is not de novo; instead, “the trial *162court must pay substantial deference to the magistrate’s finding of probable cause” and interpret all inferences in favor of the magistrate’s decision. (Footnote omitted.) Id. See Illinois v. Gates, 462 U. S. 213, 236 (III) (103 SC 2317, 76 LE2d 527) (1983); Roberson v. State, 246 Ga. App. 534, 537 (1) (540 SE2d 688) (2000). Furthermore, as a reviewing court of the magistrate’s finding of probable cause, the trial court must pay special heed to the following admonition:

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.) State v. Henderson, 271 Ga. 264, 269-270 (4) (517 SE2d 61) (1999).

Based on these principles, I believe that the trial court failed to show proper deference to the magistrate’s finding of probable cause and thus erred in concluding that the magistrate court lacked a substantial basis for the issuance of the search warrant for Palmer’s residence. It is true that Officer Ries omitted from his affidavit certain information that went to the informant’s reliability.18 “We have held, however, that the omission of information does not automatically warrant [the] suppression of evidence.” (Citation and footnote omitted.) Clemons v. State, 257 Ga. App. 96, 100 (1) (574 SE2d 535) (2002). When there is an omission, the proper test is whether, even if the information had been included in the affidavit, “there was still sufficient evidence for the magistrate to determine that the informant was reliable and that probable cause existed.” Kessler v. State, 221 Ga. App. 368, 371 (471 SE2d 313) (1996). See also Starks v. State, 240 Ga. App. 346, 348 (1) (523 SE2d 397) (1999); Gremillion v. State, 233 Ga. App. 393, 395 (1) (504 SE2d 265) (1998). There clearly was in this case.

As noted by the majority, Officer Ries’ affidavit described a *163controlled buy that was conducted at Palmer’s residence using the informant. And, we have repeatedly held that where a magistrate is presented with an affidavit in which a police officer describes his observations of a controlled buy involving an informant — where the officer avers that the informant was searched before and after the buy, that the informant’s entry into and exit from the purchase site was constantly observed, and that the informant returned with drug contraband19 — the officer’s observations, standing alone, authorize the magistrate to find that the informant is reliable and that probable cause exists for issuance of the search warrant.20 See, e.g., Ibekilo v. State, 277 Ga. App. 384, 385 (1) (626 SE2d 592) (2006); Browner v. State, 265 Ga. App. 788, 790-791 (1) (595 SE2d 610) (2004); Turner v. State, 247 Ga. App. 775, 779 (4) (544 SE2d 765) (2001); Brown v. State, 244 Ga. App. 440, 441-442 (1) (535 SE2d 785) (2000); Starks, 240 Ga. App. at 347-348 (1); Lewis v. State, 234 Ga. App. 873, 875 (1) (a) (508 SE2d 218) (1998); Dale, 198 Ga. App. at 480 (3). Here, moreover, the informant’s reliability was further corroborated by the officers’ surveillance of Palmer’s residence the day following the controlled buy, when they observed a “constant rotation” of individuals entering and exiting the residence for less than a minute apiece. Under these circumstances, despite the omissions from Officer Ries’ affidavit, there still was sufficient evidence for the magistrate “to reach the practical, common-sense conclusion that there was a fair probability” of drugs being bought and sold at Palmer’s residence, particularly since all possible inferences must be interpreted in the light most favorable to the magistrate’s decision. (Citation omitted.) Lyons v. State, 282 Ga. 588, 593 (2) (652 SE2d 525) (2007).

The prior issuance of a search warrant by a neutral magistrate changes the applicable framework of review. When information reflecting negatively on the credibility and reliability of an informant is omitted from the affidavit submitted to a magistrate, the role of the trial court, as a reviewing court, is to answer the deferential question of whether, in light of the omitted evidence, the magistrate still could have found that the informant was reliable and that *164probable cause existed. See Kessler, 221 Ga. App. at 371. It follows that if there is conflicting evidence concerning the informant’s reliability, the trial court should resolve the conflict in favor of the magistrate’s issuance of the warrant. See, e.g., Lyons, 282 Ga. at 592 (2) (reviewing courts must resolve “even doubtful cases ... in favor of upholding [the] warrant”) (citation omitted); Roberson, 246 Ga. App. at 537 (1) (noting that “all inferences [should be drawn] in favor of supporting the magistrate’s decision rather than undoing it”). Under this deferential standard, and given the case law discussed above, it is clear that the magistrate in the present case still was entitled to find that the informant was reliable and that probable cause existed, despite the omissions from Officer Ries’ affidavit. The trial court therefore erred in granting Palmer’s motion to suppress.

In reaching the opposite result, the majority assumes that the trial court found that Officer Ries, the affiant, was not credible and deems this alleged conclusion “outcome-determinative.” However, given the presumption that a warrant affidavit is valid, and where, as here, the state introduces the warrant and affidavit at the suppression hearing, the veracity of the affiant can be successfully impeached only if the defendant alleges and produces evidence that the affiant deliberately misled the magistrate or acted with reckless disregard for the truth. See Franks v. Delaware, 438 U. S. 154, 171 (IV) (98 SC 2674, 57 LE2d 667) (1978); Davis v. State of Ga., 256 Ga. App. 299, 303 (1) (568 SE2d 161) (2002).21 Yet, in his motion to suppress and brief in support, in his motion for reconsideration, and in oral argument at the hearings on the two motions, Palmer never once alleged that Officer Ries deliberately misled the magistrate or acted with reckless disregard for the truth. Rather, his exclusive focus in all of the pleadings and during oral argument was on the reliability of the informant. The trial court is not entitled to grant a motion to suppress on a ground never urged by the defendant and we should not presume that it did so. See Young v. State, 282 Ga. 735, 736 (653 SE2d 725) (2007); State v. Conley, 273 Ga. App. 855 (616 SE2d 174) (2005). Accordingly, I can only conclude that the trial court failed to appropriately defer to the magistrate’s finding of probable cause and erred in granting Palmer’s motion to suppress. See State v. Hunter, 282 Ga. 278 (646 SE2d 465) (2007).

I am authorized to state that Presiding Judge Andrews and Presiding Judge Smith join in this dissent.

*165Decided March 13, 2008 Reconsideration denied April 14, 2008 Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant. Thomas J. Ford III, for appellee.

Officer Ries omitted both the fact that he had used the informant on prior occasions and the fact that the informant had a criminal history.

Officer Ries’ affidavit contained these averments. At the suppression hearing, Officer Ries elaborated that the search of the informant was a “complete search of his person,” which included going through the informant’s clothes and shoes and searching underneath his underwear and in between his buttocks. Officer Ries also noted that the informant was inside Palmer’s residence, and thus out of sight, for only 15 to 30 seconds.

The fact that the officers, of course, do not actually observe the informant making the drug purchase inside the accused’s residence does not change the fact that probable cause exists. See McKenzie v. State, 208 Ga. App. 683, 685 (1) (431 SE2d 715) (1993). Indeed, that is why a controlled buy is conducted in the first place, since the officers cannot otherwise gain access to the accused’s alleged place of sale.

While the burden of persuasion always remains with the state to prove the lawfulness of the warrant, the burden of production shifts to the defendant once the state introduces the warrant and supporting affidavit. See Watts v. State, 274 Ga. 373, 375-376 (2) (552 SE2d 823) (2001); Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996); Davis, 256 Ga. App. at 303 (1).