Borders v. State

325 S.E.2d 626, 173 Ga. App. 110, 1984 Ga. App. LEXIS 3102
CourtCourt of Appeals of Georgia
DecidedDecember 3, 1984
Docket68768
StatusPublished
Cited by12 cases

This text of 325 S.E.2d 626 (Borders v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borders v. State, 325 S.E.2d 626, 173 Ga. App. 110, 1984 Ga. App. LEXIS 3102 (Ga. Ct. App. 1984).

Opinion

Carley, Judge.

Appellants Borders and Ford were tried and found guilty of three counts of violating the Georgia Controlled Substances Act. They appeal from the judgments of conviction and sentences entered on the guilty verdict.

1. Asserting the inadequacy of the affidavit upon which a warrant was issued to search their apartment, appellants enumerate as error the denial of their motion to suppress. During the search of appellants’ apartment pursuant to the challenged warrant, approximately 6.6 pounds of marijuana, 121 grams of cocaine, and a quantity of LSD were seized.

The affidavit at issue was made on May 3, 1983, by investigator Smith of the Atlanta Narcotics Squad. The affiant stated that, within the past several weeks, he had received certain information from concerned neighbors of appellants. According to the affiant, the informants were over thirty years old, had never been arrested, were gainfully employed, and had good reputations. The information given by appellant’s neighbors was as follows: that appellants lived together at a certain named address and had lived there for at least one year; that “[m]arijuana and a white powder substance (suspected cocaine) have been observed to be in the possession of either [appellants Bor *111 ders or Ford] or jointly”; that “[o]ver the past year, vehicles have been driven in front of [appellants’ apartment], park, and usually the driver would exit the vehicle and go to the apartment, stay only two or three minutes, and then leave.” The affiant also stated that appellants’ neighbors reported that “[t]his activity usually takes place from 6 p.m. in the evening until late at night. The subjects are mostly white males in their twenties or early thirties. On occasion, a few black males frequent said location.” The neighbors further reported that both appellants “have boasted of having large sums of cash.”

The affiant also related that he had personally been able to ascertain the following: that a white male and female presently occupy the named address; that a certain car registered to appellant Borders is parked in the driveway; that on April 29,1983, he had observed that a white male and a female were at the address, when “two white males, 20 to 30 years old arrived separately and both did the same, both entered the apartment alone, stayed two or three minutes and then left.” The affiant also stated that appellants’ neighbors had provided him with a list of tag numbers from the automobiles of appellants’ visitors from which he had established that the visitors, who were staying several minutes, were from different areas of the city and from other states. From the information he had received and observed, the affiant concluded that a pattern had been exhibited which was consistent with a drug operation. The affiant also stated his belief that appellants were in the drug trafficking business and were, at the time, concealing and selling cocaine and marijuana at the given address.

Appellants first attack the affidavit on the ground that it was insufficient to demonstrate probable cause to believe that contraband was located at their residence.

In Illinois v. Gates, _ U. S. _ (103 SC 2317, 76 LE2d 527) (1983) the United States Supreme Court held that the existence of probable cause for the issuance of a warrant is to be determined, not according to the “two-pronged test” established in Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723) (1964) and Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637) (1969), but rather in the light of the “totality of the circumstances” made known to the magistrate. Subsequently, in Massachusetts v. Upton, _ U. S. _ (104 SC 2085, 80 LE2d 721) (1984), the Supreme Court reaffirmed its holding in Gates, and emphasized the rejection of an “after-the-fact, de novo [probable cause] scrutiny” by reviewing courts. Instead, the Court held that reviewing courts must decide only whether the information, viewed as a whole, provided a substantial basis for the magistrate’s finding of probable cause. “ ‘A grudging or negative attitude by reviewing courts toward warrants,’ [cit.], is inconsistent both with the desire to encourage use of the warrant pro *112 cess 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. [Cit.] A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant.” Massachusetts v. Upton, supra at _.

Utilizing this standard of review, which was adopted by the Georgia Supreme Court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), we find that the information, viewed as a whole, provided a substantial basis for the magistrate’s finding of probable cause to believe that contraband was located on the premises. “ ‘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.’ [Cit.]” State v. Hockman, 171 Ga. App. 504, 506 (320 SE2d 241) (1984).

In so holding, we find distinguishable our decision in State v. Porter, 167 Ga. App. 293 (306 SE2d 377) (1983). In Porter, probable cause was purportedly based solely upon an affiant officer’s statement that “he had observed for five consecutive afternoons and evenings that numerous vehicles visited the dwelling for short periods of time in which a person came out of the dwelling, passed a package through the window of each vehicle and received what appeared to be money in return. Based on his and another officer’s 10 years experience as law enforcement officers, the affiant was of the opinion that the activity observed was drug related.” State v. Porter, supra at 293. We held that there was no probable cause to believe that drugs were located on the premises.

In contrast to Porter, the affidavit in the case at bar contains substantially more information than an affiant officer’s conclusory opinion that the suspicious activity he observed constituted “drug traffic patterns.” The affidavit here contained information that appellants had been seen in the possession of marijuana and suspected cocaine, and had boasted of having large sums of cash. Thus, unlike the situation in Porter, the affidavit contained specific drug-related information concerning those “who lived on the premises . . .” State v. Porter, supra at 293. Also of particular importance is the affiant’s statement that appellants’ neighbors had reported that activity indicative of “drug trafficking patterns” had existed at appellants’ residence for an entire year, the specific details and continued existence of which were corroborated by the affiant. Application of the “totality of circumstances” analysis has “consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” Illinois v. Gates, supra at__Therefore, we find that, unlike

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Bluebook (online)
325 S.E.2d 626, 173 Ga. App. 110, 1984 Ga. App. LEXIS 3102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borders-v-state-gactapp-1984.