Scott v. State

444 S.E.2d 96, 213 Ga. App. 84, 94 Fulton County D. Rep. 1571, 1994 Ga. App. LEXIS 461
CourtCourt of Appeals of Georgia
DecidedApril 12, 1994
DocketA94A0319
StatusPublished
Cited by14 cases

This text of 444 S.E.2d 96 (Scott 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
Scott v. State, 444 S.E.2d 96, 213 Ga. App. 84, 94 Fulton County D. Rep. 1571, 1994 Ga. App. LEXIS 461 (Ga. Ct. App. 1994).

Opinion

Blackburn, Judge.

Following a trial by jury, the appellant, Carolyn Scott, was found guilty of possession of cocaine and sentenced to three years in prison. This appeal followed.

1. Initially, Scott asserts that the trial court erred in denying her motion to suppress. Specifically, she maintains that the search warrant was defective because the affidavit did not state sufficient facts to show that criminal activity occurred at the residence and the warrant failed to describe the persons and place to be searched with reasonable particularity. She further contends that the search exceeded any search of her person authorized under OCGA § 17-5-28, was intrusive, and was conducted by male officers in violation of official police policy.

At the motion to suppress hearing, Officer Sean Thacker with the Garden City Police Department testified that he applied for the *85 search warrant on Scott’s home on the evening of July 31, 1992, based primarily upon information provided by a confidential informant. The officer met with the informant within the preceding 72-hour period, at which time the informant reported that he had observed several known drug users enter Scott’s residence and purchase cocaine. The informant also indicated that cocaine was being prepared at the residence. The informant had previously furnished information to an officer assisting in the investigation, and the information had proven to be reliable. An inquiry made by the officer to a utilities company confirmed that service at the residence was listed in Scott’s name. A municipal court judge signed the warrant at 11:46 p.m., and the warrant was served on Scott at the residence within 30 minutes.

The search of Scott’s home did not reveal any contraband, and Scott denied having any drugs on her person. Scott and other female occupants were subsequently asked to open their shirts in a bedroom. When Scott opened her shirt, the officer saw a plastic bag containing cocaine residue in the front of her bra. The officer also looked in the top of Scott’s pants in search of contraband, but did not find any. Pat-down searches were conducted on the male occupants of the house.

Based upon the evidence produced at the motion to suppress hearing, we find that the affidavit sufficiently stated that criminal activity was occurring at the residence. Not only did the affiant state therein that cocaine was being sold at the residence, he further averred that cocaine was being prepared at the residence, indicating an ongoing criminal enterprise. While the affidavit does not indicate when the observations were made by the confidential informant, and time is an element of the concept of probable cause, the absence of the precise time of the occurrences is not dispositive of the issue. State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984). “Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. [Cit.] When the affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case with a single, isolated transaction. [Cit.]” Id. See also Sims v. State, 207 Ga. App. 353, 354 (427 SE2d 842) (1993); Betha v. State, 192 Ga. App. 789, 790 (386 SE2d 515) (1989).

We reject Scott’s challenge to the reliability of the informant. The affidavit specifically stated that the informant had supplied reliable information in the past to an officer with the Westside Task Force who assisted Thacker in the present investigation. Bryan v. State, 137 Ga. App. 169 (223 SE2d 219) (1976). Moreover, the information supplied by the informant was corroborated in part by the officer’s independent investigation which revealed that Scott resided at the resi *86 dence. Munson v. State, 211 Ga. App. 80 (438 SE2d 123) (1993).

Next, Scott maintains that the search of Scott’s person exceeded the scope of any lawful search under OCGA § 17-5-28. This section provides in pertinent part that “[i]n the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time ... (2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.” The search warrant at issue authorized the search for “Controlled Substances, (COCAINE) and items commonly used in the manufacturing, delivery, or sales of Controlled Substances,” and of “all persons present at the time of Warrant execution, who may reasonably be involved in the crime of possession of illegal drugs or narcotics.” The search of Scott’s person was conducted to prevent concealment of contraband sought pursuant to the search warrant, and hence, was lawful.

Although Scott additionally asserts that the warrant was defective because it did not describe with particularity the persons to be searched and did not specifically name her as a person to be searched, “[t]he failure to name a person in the search warrant is not fatal. ‘Search warrants are not directed at persons; they authorize the search of “places” and the seizure of “things,” and as a constitutional matter they need not even name the person from whom the things will be seized. (Cit.)’ [Cit.]” Bing v. State, 178 Ga. App. 288, 289 (342 SE2d 762) (1986).

Scott further contends that her search was unlawful because it was conducted by a male officer, contrary to the policy of the police department. However, she did not raise this issue for consideration in her motion to suppress or at the hearing on the motion. “Enumerations of error which raise questions for the first time on appeal present nothing for decision.” (Citations and punctuation omitted.) Williams v. State, 208 Ga. App. 716, 717 (3) (431 SE2d 469) (1993). Scott additionally argues that the warrant was defective because of a typographical error in the affidavit concerning the name of the street of the residence, although both the affidavit and the warrant stated the correct address and the warrant was authorized for and served on the correct address. See Bing, supra at 289. Again, Scott did not raise this issue below, and accordingly, it is not appropriate for appellate review. Williams, supra. In any event, the scrivener’s error was not so material as to destroy the integrity of the affidavit or validity of the warrant. Kelly v. State, 184 Ga. App. 337 (361 SE2d 659) (1987).

2. Scott also asserts that the trial court erred in admitting her 1990 guilty plea to possession of cocaine as a similar transaction to show bent of mind. Specifically, she asserts that the transactions were not substantially similar and the testimony offered by the officer in support of the admission of the prior occurrence was inadmissible *87 hearsay.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Michael Brahnan Lovell v. State
Court of Appeals of Georgia, 2024
Anthony Ellis v. State
Court of Appeals of Georgia, 2012
Ellis v. State
729 S.E.2d 492 (Court of Appeals of Georgia, 2012)
Young v. State
721 S.E.2d 855 (Supreme Court of Georgia, 2012)
Walker v. State
695 S.E.2d 375 (Court of Appeals of Georgia, 2010)
Ferguson v. State
663 S.E.2d 760 (Court of Appeals of Georgia, 2008)
State v. Hicks
605 S.E.2d 34 (Court of Appeals of Georgia, 2004)
Totino v. State
596 S.E.2d 749 (Court of Appeals of Georgia, 2004)
Terry v. State
586 S.E.2d 357 (Court of Appeals of Georgia, 2003)
Carr v. State
586 S.E.2d 337 (Court of Appeals of Georgia, 2003)
Moore v. State
561 S.E.2d 819 (Supreme Court of Georgia, 2002)
Cunrod v. State
526 S.E.2d 900 (Court of Appeals of Georgia, 1999)
State v. Dills
514 S.E.2d 917 (Court of Appeals of Georgia, 1999)
Jordan v. State
477 S.E.2d 583 (Court of Appeals of Georgia, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
444 S.E.2d 96, 213 Ga. App. 84, 94 Fulton County D. Rep. 1571, 1994 Ga. App. LEXIS 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-state-gactapp-1994.