In Re Az

687 S.E.2d 887
CourtCourt of Appeals of Georgia
DecidedNovember 20, 2009
DocketA09A1356
StatusPublished

This text of 687 S.E.2d 887 (In Re Az) 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
In Re Az, 687 S.E.2d 887 (Ga. Ct. App. 2009).

Opinion

687 S.E.2d 887 (2009)

In the Interest of A.Z., a child.

No. A09A1356.

Court of Appeals of Georgia.

November 20, 2009.
Reconsideration Denied December 10, 2009.

*888 James N. Finkelstein, Albany, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

PHIPPS, Judge.

The juvenile court adjudicated 16-year-old A.Z. delinquent for possession of firearms by a person under the age of 18 and for aggravated assault, and it entered an order of commitment placing him in restrictive custody for these actions. The court also adjudicated A.Z. a designated felon.[1] On appeal, A.Z. asserts that the juvenile court erred in denying his motion to suppress evidence seized from his home. He also contends that there was insufficient evidence to prove he committed the acts for which he was adjudicated delinquent, and that thus the juvenile court erred in denying his motion to dismiss.

For reasons set forth below, we find that the court did not err in denying the motion to suppress. We further find that there was sufficient evidence to prove that A.Z. was in possession of firearms, supporting his adjudication of delinquency on that ground. But we find that the court did not make the necessary factual finding to conclude, based on the testimony of a single witness, that A.Z. had committed acts constituting aggravated assault.[2] Thus, we affirm the adjudication of delinquency but vacate the adjudication of A.Z. as a designated felon and the dispositional order of commitment. Because we find the evidence sufficient to support a factual finding that would allow the witness's uncorroborated testimony, and because the witness's testimony was sufficient to support a finding that A.Z. had committed acts constituting aggravated assault, the juvenile court may conduct another hearing on the aggravated assault issue.[3] Accordingly, we remand for proceedings not inconsistent with this opinion.

The case arose from a shooting into an occupied house. H.C., a teenaged girl who was at the scene of the shooting, told police that A.Z. was the shooter. Based on her statement and other information obtained through investigation, police obtained a warrant to search A.Z.'s home, where they found, among other things, two firearms, neither of which was related to the shooting. The state filed a petition alleging that A.Z. was delinquent for acts constituting aggravated assault and for possession of firearms by a person under the age of 18.

1. A.Z. contends that the court erred in denying his motion to suppress because the affidavit upon which the search warrant was issued failed to show probable cause. The state counters that A.Z.'s motion was deficient because it did not allege that the affidavit contained a deliberate falsehood or that it showed a reckless disregard for the truth. The Supreme Court of Georgia has overruled the line of cases requiring such specific allegations in a motion to suppress.[4]*889 Nevertheless, we find that the juvenile court did not err in denying the motion.

In State v. Palmer,[5] the Supreme Court of Georgia reiterated the standards applicable to the various levels of judicial scrutiny involved in the warrant process:

A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed. The magistrate's task in determining if probable cause exists to issue a search warrant 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. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate's decision to issue a search warrant based on a finding of probable cause.... [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.[6]

On appeal, we "determine if the magistrate had a `substantial basis' for concluding that probable cause existed to issue the search warrant."[7]

In reviewing the trial court's grant or denial of a motion to suppress, we apply the well-established principles that the trial court's findings as to disputed facts will be upheld unless clearly erroneous and the trial court's application of law to undisputed facts is subject to de novo review, keeping in mind that a magistrate's decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.[8]

The search warrant in this case was issued based on the affidavit of the investigating officer who had taken H.C.'s statement. In the affidavit, the officer stated that she had reason to believe that there was then being concealed at a particular address "[g]ang paraphernalia, which consist[ed] of writing, papers, signs, pocket rags, and firearms." The affidavit further provided:

Affiant ... has been investigating an Aggravated Assault and Participation in criminal street gang activity. [On] February 22, 2008[,] [four others] and [A.Z.,] who are member[s] of [a] street gang, went to [an address] with the intent to kill [a particular person]. Prior to going to this location, the subjects gathered at [one person's] home and planned out this assault. [A.Z.] then got an unknown type firearm from a [particular person]. They all then walked to the ... residence, where [A.Z.] then shot into the front door of the residence five times. There were four occupants inside the residence at the time of this assault. Based on the evidence in this case, we asked that the residence of [A.Z.] be searched.... Through the water, gas, and lights files, a [particular person] resides at this location. [A.Z.] lives at [the address for which the warrant was sought]. Surveillance verified [the address] as the structure being described.

The affidavit did not mention the officer's interview with H.C. or describe specific statements made by the girl.

(a) A.Z. contends that the affidavit did not provide a substantial basis for the magistrate's finding of probable cause that evidence of the shooting could be found at his house because it was based on the statement of an informant, H.C., who initially identified the shooter only by a nickname and never told the officer that the gun was in his house. But an affidavit in support of a search warrant request may include information obtained from an officer's investigation as well as from an informant.[9] Although the officer *890 did not indicate in the affidavit that she had received some of the information contained therein from an informant, she informed the magistrate of this fact through oral testimony.[10] Moreover, the Supreme Court of Georgia has held that a magistrate had probable cause to issue a search warrant of a defendant's house based on an affidavit indicating that a suspect committed a crime and providing the suspect's address, citing the "practical, common-sense conclusion that there was a fair probability that evidence of [the] crime could be found at [the suspect's] residence."[11] Similarly, the affidavit at issue here stated that A.Z. had committed a crime and it provided A.Z.'s address.

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Carruthers v. State
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Lemon v. State
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State v. Palmer
673 S.E.2d 237 (Supreme Court of Georgia, 2009)
Bundren v. State
274 S.E.2d 455 (Supreme Court of Georgia, 1981)
State v. Brantley
589 S.E.2d 716 (Court of Appeals of Georgia, 2003)
Flewelling v. State
685 S.E.2d 758 (Court of Appeals of Georgia, 2009)
State v. Lejeune
594 S.E.2d 637 (Supreme Court of Georgia, 2004)
Coney v. State
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Selvidge v. State
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Bluebook (online)
687 S.E.2d 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-az-gactapp-2009.