State v. Brown
State v. Brown
Opinion of the Court
Following the execution of a warrant to search their home, appel
The trial court ordered suppression of the evidence after concluding that the affidavit executed in support of the application of the warrant did not set forth sufficient facts to establish probable cause to believe that marijuana and cocaine were being kept at the Brown residence. In the affidavit the trial court found deficient, the affiant officer averred that he and another member of the Narcotics Squad of the Augusta Police Department “received information from a concerned citizen that a large quantity of Marihuana and some Cocaine is being kept in [the Browns’] dwelling. During the past two days these officers have had this dwelling under observation during the day and night, mostly at night, and have observed numerous black males and females go to this dwelling staying only two to three minutes. The officers also have observed Carmella Brown meet some of these individuals at the front door and give them small manila [envelopes] suspected of containing marihuana, for unknown amount of cash which has been seen exchanged. Some of these individuals have been identified by the officers as being known drug users and abusers. Officers have also seen some individuals leaving this dwelling enter their vehicles and open what appeared [to be] a manila envelope which was in their hand upon leaving the dwelling and after a few minutes light what is suspected of being a handrolled marihuana cigarette and then depart the area.”
1. The magistrate had as his task “to make a practical, commonsense 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.” Illinois v. Gates, 462 U. S. 213, 238 (103 SC 2317, 76 LE2d 527) (1984); State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). We begin our review of the issues presented by this case with the acknowledgment that we “should apply a deferential standard of review [of the magistrate’s determination of probable cause] in order to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” State v. Fultz, 171 Ga. App. 886, 888 (321 SE2d 381) (1984). However, the fact that a warrant was issued and the search conducted pursuant thereto does not cause us to terminate our review. We must determine, among other things, whether the hearsay information supplied to the affiant, coupled with the affiant’s personal observations, presented a fair probability that contraband would be found at the Brown residence.
3. The trial court also concluded that the affiant’s statements concerning the independent investigation conducted by him “were conclusory statements at best” that did not set forth sufficient facts to establish probable cause to believe that marijuana and cocaine were present at appellees’ home.
The affiant officer and his partner observed “numerous” people, some of whom were described as known drug users and abusers, visiting appellee’s residence for short periods of time during which appellee Carmella Brown gave them small manila envelopes in exchange for cash. Some of the visitors, upon re-entering their vehicles, appeared to open the manila envelopes and, several minutes later, light a cigarette and leave. The observation of activity that fits a “drug traffic pattern” raises at most a mere suspicion that contraband is being kept on the premises, and does not amount to probable cause to search the home. State v. Porter, 167 Ga. App. 293 (306 SE2d 377) (1983); McGuire v. State, 136 Ga. App. 271 (2) (220 SE2d 769) (1975); Maxwell v. State, 127 Ga. App. 168, 170 (193 SE2d 14) (1972). Compare Borders v. State, 173 Ga. App. 110 (1) (325 SE2d 626) (1984) (where the affidavit contained “specific drug-related information concerning those who lived on the premises.”) At the hearing, the affiant officer admitted he did not know the names of the “known drug abus-. ers” and had never seen them before, and then described them as people his partner had seen previously “in drug areas.”
In sum, we concur with the trial court that the affidavit presented to the magistrate did not contain sufficient information to conclude that there was a fair probability that contraband would be found on appellees’ premises.
Judgment affirmed.
Concurring Opinion
concurring specially.
The trial judge’s decision to grant the motion to suppress was based, in part, on the following finding of fact: “[The affiant’s] testimony is not credible in that he was unable to corroborate, in any manner, his testimony of when and where the surveillance took place and the number of individuals who were allegedly seen going to and from [the defendant’s residence].”
The trial judge sits as the ultimate trier of fact at a hearing on a motion to suppress, and his findings will not be disturbed if there is any evidence to support them. State v. Swift, 232 Ga. 535, 536 (207 SE2d 459) (1974). “Credibility of witnesses, resolution of any conflict or inconsistency, and weight to be accorded testimony [are] solely the province of the judge on a motion to suppress.” Rogers v. State, 155 Ga. App. 685, 686 (272 SE2d 549) (1980). Consequently, I agree that the grant of the motion to suppress should be affirmed.
I am authorized to state that Judge Carley joins in this special concurrence.
Reference
- Full Case Name
- The STATE v. BROWN Et Al.
- Cited By
- 24 cases
- Status
- Published