George Conrad v. State

• Court: Court of Appeals of Georgia
• Decided: June 8, 2012
• Docket: A12A0070
• Status: Published

Opinion

FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and DILLARD, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

June 8, 2012

In the Court of Appeals of Georgia A12A0070. CONRAD et al. v. THE STATE.

P HIPPS, Presiding Judge.

George Conrad and Joseph William Presnal were charged with violating the

Georgia Controlled Substances Act1 after drugs were discovered in each of their

bedrooms during the execution of a search warrant. Conrad and Presnal moved to

suppress the drug evidence. They contended that, given the inner partitioning of the

residential structure, the warrant and the search failed to comply with the Fourth

Amendment. The trial court conducted a hearing, summarily denied their motion, then

proceeded to a stipulated bench trial. Convicted as charged, Conrad and Presnal filed

1 OCGA § 16-13-20 et seq. a joint notice of appeal. 2 They challenge the denial of their suppression motion, but

have demonstrated no error. We affirm their judgments of conviction.

“In a ruling on a motion to suppress, a trial court’s findings as to disputed facts

will be reviewed under a clearly erroneous standard and the trial court’s application

of the law to undisputed facts is subject to de novo appellate review.” 3

Construed to support the judgment, 4 the evidence adduced at the suppression

hearing and the bench trial showed the following.5 After receiving reports that Presnal

was selling illegal drugs in a particular area, a special agent of a police department’s

narcotics unit launched an investigation, including conducting several “trash pulls”6

2 OCGA § 5-6-44 (a) (allowing for joint appeals). 3 Canty v. State, 286 Ga. 608 (690 SE2d 609) (2010) (citation and punctuation omitted). 4 See Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (a guiding principle for a court reviewing a suppression ruling is that evidence must be construed most favorably to the upholding of the trial court’s findings and judgment); see also Miller v. State, 288 Ga. 286-289 (1) (702 SE2d 888) (2010) (reaffirming Tate, supra). 5 See White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993) (suppression hearing transcript and trial transcript may be considered on review of suppression ruling); Arnold v. State, 304 Ga. App. 90, n. 2 (695 SE2d 402) (2010) (same). 6 The special agent explained that a “trash pull” is retrieving trash after it has been abandoned by the resident(s) – e.g., the trash has been “put . . . out for a professional sanitation company to pick up” – and then searching through the trash for signs of narcotics or sales of narcotics.

2 at Presnal’s residence, which had a street address of “53 West James Circle.” Each

“trash pull” yielded narcotics and related paraphernalia. Based upon his training and

experience, along with the drug reports and the totality of his investigation thereof, the

special agent submitted to a magistrate an application, accompanied by his affidavit,

for a warrant to search the residence for controlled substances and related

paraphernalia. The magistrate issued a warrant to search therefor at “the residence

located at 53 West James Circle.”

The warrant was executed on July 9, 2010. The dwelling had an outward

appearance of a single-family ranch-style house. There was a single mailbox out front,

which displayed “53,” without any subunit delineation; a single driveway that led to

the house; and a single set of adjacent double doors at the sole front entrance. The

property was owned by Presnal’s mother, who lived there, as did Conrad and Presnal.

The inside of the dwelling was divided by a wall, except that a common area

across the front of the house allowed access between the two sides without going

outside. There were bedrooms on both sides; one side had a kitchen, and the other side

had a kitchenette that appeared to be under renovation.

The common area across the front of the house was described by the special

agent: “It was an interior area . . . it appeared that it had been uncovered at one point.

3 It looked like it was an addition, but it was completely enclosed from the exterior and

it connected the two sides of the residence.” The common area had interior doors

leading to either side of the house, and it had a set of adjacent exterior doors that

opened to the front yard. Non-adjacent exterior doors were at the back of the

residential structure.

Presnal also testified about those two interior doors of the common area:

“[T]here’s a door on the left side, which if you enter there that’s my mother’s area.

And then there’s a door on the right side. If you enter there, that was the area that I

was staying in.” When asked how he would access his mother’s area from his area,

Presnal answered, “I would either have to go outside the back and enter in her side of

the door or I could go through the front door of mine, cross the [common area] and

enter the front door over there on her side.”

The residential structure had been Presnal’s childhood home, and he confirmed

that the enclosed common area “used to be an open porch”; that the two sides of the

house had previously carried an address with subunit designations, “A” and “B”; and

that there had once been two water meters for the residential structure. But his mother

had since made changes, and the property no longer carried subunit designations; by

4 (at least) the date of the search, the property had only one water meter, one mailbox,

and even one common garbage can that was used by all the residents.

During the execution of the search warrant, methamphetamine and clorazephate

were discovered in Presnal’s bedroom. Four hydrocodone (“Lortab”) pills were

discovered in Conrad’s bedroom, which was located – using Presnal’s terminology –

in “[Presnal’s] mother’s area” of the house.7

In this appeal, Conrad and Presnal continue to challenge the validity of the

search warrant, as well as its execution.

1. Conrad and Presnal maintain that the warrant was insufficient in that it failed

to satisfy the particularity requirement of the Fourth Amendment, which requires that

the warrant “particularly describ[e] the place to be searched.” Conrad and Presnal

characterize the residential structure as a “duplex,” thus comprised of subunits.

Because the warrant did not specifically grant permission to search any particular

subunit, but instead described the place to be searched as “the residence located at 53

West James Circle,” Conrad and Presnal argue that the warrant was not sufficiently

particular.

7 The record does not disclose the relationship between Conrad and either Presnal or Presnal’s mother.

5 The test for evaluating the particularity of a warrant’s premises description is

“whether the description is sufficient to enable a prudent officer executing the warrant

to locate [the place to be searched] definitely and with reasonable certainty.” 8

“Furthermore, the degree of the description’s specificity is flexible and will vary with

the circumstances involved.” 9 “While a description of the place to be searched must

be particular enough to guide the executing officer as to where the warrant is to be

executed, there is in addition the requirement that the description be sufficiently

narrow in the sense of not outrunning the probable cause showing.” 10

Under the particularity requirement of the Fourth Amendment,

the general rule is that a search warrant for an apartment house or hotel or other multiple-occupancy building will usually be held invalid if it

8 Fair v. State, 284 Ga. 165, 170 (3) (a) (664 SE2d 227) (2008) (citation and punctuation omitted); see Anderson v. State, 249 Ga. 132, 135 (5) (287 SE2d 195) (1982) (same). 9 Fair, supra (citation and punctuation omitted). 10 2 LaFave, Search and Seizure, § 4.5 (a) at p. 578 (4th ed. 2004); see Maryland v. Garrison, 480 U. S. 79, 84 (I) (107 SC 1013, 94 LE2d 72) (1987) (explaining that the Fourth Amendment’s particularity requirement “ensures that the search will be carefully tailored to its justifications and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit”); see generally Fair, supra at 171-172 (3) (b) (evaluating whether there was probable cause that evidence of crime would be found upon the premises specified by the search warrant).

6 fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of one or more subunits indiscriminately. There are, however, exceptions to this general rule. “The warrant of a multi-unit structure will be valid where (1) there is probable cause to search each unit; (2) the targets of the investigation have access to the entire structure; or (3) the officers reasonably believed that the premises had only a single unit.” 11

In this case, the first and second exceptions are applicable.

In determining if probable cause exists to issue a search warrant, a magistrate must evaluate all the circumstances set forth in the affidavit before him or her and make a practical, common-sense decision whether there is a fair probability that evidence of a crime will be found in a particular place. On review, this Court is limited to determining if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant, and must afford substantial deference to the magistrate’s decision.12

11 Fletcher v. State, 284 Ga. 653, 655 (3) (670 SE2d 411) (2008), quoting United States v. Perez, 484 F3d 735, 741 (4) (5th Cir. 2007) (noting also that “[w]hen a building is divided into more than one residential unit, a distinct probable cause determination must be made for each unit”). 12 Fletcher, supra at 655-656 (3) (punctuation and footnotes omitted).

7 “Even doubtful cases should be resolved in favor of upholding a magistrate’s

determination that a warrant is proper.” 13

The affidavit accompanying the search warrant application informed the

magistrate of the following. In April 2010, the narcotics unit had received an

anonymous complaint that “Joseph William Presnal” was selling methamphetamine,

prescription pills, and cocaine and that “Billy” lived with his parents at the residence

with street address “53 West James Circle.” That same month, a confidential

informant reported to two special agents of the narcotics unit that Presnal sold

methamphetamine from that address and that he lived there. Afterward, the

investigating special agent consulted various databases and determined that Presnal

and others, including Conrad, were current residents at that address.

The affidavit further apprised the magistrate that in May 2010, the special agent

found inside a trash can, which he determined had been left for pickup by a

professional sanitation company and thus abandoned by its owner(s): “a clear ziploc

baggie containing methamphetamine residue; a mango flavored blunt wrapper; an

empty clear green ziploc baggie; a torn plastic corner; and a tied plastic sandwich

13 Sullivan v. State, 284 Ga. 358, 361 (2) (667 SE2d 32) (2008) (citation omitted).

8 baggie which was torn open.” Later that month, the special agent again found inside

the similarly abandoned trash can: “three small baggies containing methamphetamine

residue, a ‘FW ’ digital scale, a partially smoked marijuana cigarette, marijuana stems,

a plastic sandwich baggie with a torn corner, a torn plastic corner, and two small

empty ziploc baggies.” In June 2010, the special agent found in the similarly

abandoned trash can: “a clear green ziploc baggie containing methamphetamine; a

torn plastic corner with white residue; ten small plastic ziploc baggies with

methamphetamine residue; five pieces of paper with names and dollar amounts listed

(drug ledgers). . . .” In early July 2010, the special agent found in a similarly

abandoned trash can: “thirteen sm all ziploc-style baggies containing

methamphetamine residue; three torn plastic baggie corners containing

methamphetamine residue; . . . a tied piece of plastic containing marijuana; an open

piece of plastic containing a marijuana bud; two empty ‘Glass Rose’ boxes, which are

commonly used to smoke methamphetamine; and numerous empty blunt wrappers,

which are commonly used to smoke marijuana.”

The affidavit also described the residential structure as “a ranch style home,”

with a single mailbox and a single driveway. The affidavit informed the magistrate

that, because the county tax assessors’ records had designated the structure upon the

9 property as a “duplex,” the special agent had followed up with additional research. He

had spoken to a representative from the county water and sewage authority, who

reported that only one water meter was installed at the property. Additionally, the

special agent had spoken with a representative from the tax assessors’ office, who

reported that the property owner had recently submitted a petition requesting that “the

two property lots she owns be combined into one.” The affidavit stated that, in June

2010, the property owner had informed the office that her residence was a single-

family residence, and not a duplex as described in the tax assessors’ records. Further,

the affidavit stated:

While describing the interior of the residence to the Tax Assessors Office, [the property owner] advised there is a mother-in-law suite inside the residence, but there are no interior separation walls and it is accessible from the main living area. Finally, [the property owner] advised that all areas of the residence are accessible from anywhere else in the residence.14

We conclude that the affidavit provided the magistrate with enough information

to come to the “practical, common-sense” conclusion that illicit drugs were being used

in and/or sold from the residence located at 53 West James Circle; that Presnal was

14 (Emphasis supplied.)

10 a target of the drug investigation and lived at that location with at least one of his

parents; that the residence located at 53 West James Circle contained a mother-in-law

suite that was accessible from a common area; that Presnal (and other residents) had

access to the entire residential premises; and that there was a fair probability that

evidence of drug crimes could be found in either the mother-in-law’s suite or the main

part of the residential structure. “Because the application for the search warrant

established probable cause to search [the mother-in-law’s suite, where Presnal’s

bedroom was located] and [Presnal’s mother’s side of the house, where Conrad’s

bedroom was located], we conclude the trial court properly denied [the] motion to

suppress the evidence.” 15

15 Fletcher, supra at 656 (3); State v. Capps, 256 Ga. 14, 15-16 (3) (342 SE2d 676) (1986) (warrant was not invalid for failure to specify which of the two residential units in two-story “single family dwelling” was to be searched; although there were separate kitchen facilities upstairs and downstairs, and the elderly aunt who was the downstairs resident paid separate gas, electric and telephone bills, there was no evidence that the use of the dwelling by any family member, the defendants or the aunt, was restricted to only part of the dwelling); Bing v. State, 178 Ga. App. 288, 289-290 (1) (342 SE2d 762) (1986) (physical precedent only) (cited in Fletcher, supra).

11 2. Conrad and Presnal contend that execution of the warrant was unlawful,

citing Jones v. State 16 and Miller v. State 17 for the proposition that probable cause for

the issuance of a warrant may disappear if the warrant was issued on information that

proves to be materially inaccurate.18 Conrad and Presnal assert that the affidavit

contained “inaccuracies in the structure of the building.” In addition, they claim that

the “four lortab borrowed from an acquaintance for back pain by occupant/defendant

Conrad do not come close to describing the depth of ‘drug trafficking’ described in

the search warrant affidavit.”

Conrad and Presnal have misplaced their reliance on Jones and Miller; the

supporting affidavit, detailed in pertinent part above, did not contain material

inaccuracies, but adequately took into account the inner partitioning of the residential

structure.19 Furthermore, the drugs underlying Conrad’s and Presnal’s charges,

16 126 Ga. App. 841 (192 SE2d 171) (1972). 17 126 Ga. App. 847 (191 SE2d 883) (1972). 18 See Miller, supra at 849 (2) (“The total of the inaccuracies between the affidavit and the true state of affairs [was] so material as to go to the integrity of the affidavit and warrant, destroying the probable cause for the search.”); Jones, supra at 843 (recognizing that, where search warrant was issued based on information that proved to be materially unreliable and inaccurate, “the probable cause for issuance of the warrant disappear[ed]”). 19 See Division 1, supra.

12 suppression motion, and convictions were discovered in places that the warrant

authorized to be searched specifically for controlled substances. 20 Because there is no

merit in this contention, the trial court correctly determined that it supplied no ground

to suppress the drug evidence.

Judgments affirmed. Ellington, C. J., and Dillard, J., concur.

20 See Teal v. State, 282 Ga. 319, 322-323 (2) (647 SE2d 15) (2007) (exclusionary rule prohibits introduction into evidence seized during an unlawful search).