State v. Palmer

661 S.E.2d 146, 291 Ga. App. 157, 2008 Fulton County D. Rep. 979, 2008 Ga. App. LEXIS 296
Court of Appeals of Georgia·Decided March 13, 2008·No. A07A2332·Published·Cited by 4 cases

Opinions

Ruffin, Judge.

The State appeals the trial court’s grant of David Palmer’s motion to suppress drugs and other evidence seized during the execution of a search warrant at Palmer’s residence. For reasons that follow, we affirm.

The State contends that we should apply a de novo standard of review. But “where, as here, the credibility of the officer is outcome-determinative,” we are required to apply the following principles:

[flirst, the judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to . . . upholding . . . the trial court’s findings and judgment.1

Viewed in this light, the evidence shows that a confidential informant advised the City of Atlanta Police Department that two males, one of whom was possibly in a wheelchair, were selling crack cocaine out of a particular apartment. The informant — who had a criminal record, had assisted police with drug arrests on three or four previous occasions, but had never participated in a controlled buy — offered to purchase cocaine from the individuals while under surveillance.

After searching the informant to make sure he did not have any drugs, the police gave him city-issued funds to buy cocaine. The [158] police then watched the informant approach the building, enter Palmer’s apartment, and then exit after 15 to 30 seconds. The police recovered approximately one gram of cocaine from the informant, who advised that he had purchased it from a man in a wheelchair in the apartment. While conducting surveillance the following day, the authorities observed multiple people enter the apartment and then leave after less than a minute.

In his affidavit provided in support of a search warrant application, Officer Ries stated that a “reliable informant advised that there is a . . . male that goes by the nickname of ‘Pop’ and ‘Cowboy’ inside [the] apartment that may be in a wheelchair and has medium to dark skin. This individual is the possible renter of the apartment.”2 The affidavit did not disclose that the informant had a criminal record or his history of assisting the police in drug arrests, but merely stated that he was “reliable,” without any facts to support the characterization.3 The affidavit then described the controlled buy, including the cocaine seized, and the surveillance the following day. The magistrate signed a no-knock warrant, the police executed it, seizing crack cocaine, marijuana, electronic scales, bags, and $2,905 in cash from the apartment, and Palmer was arrested.

Palmer moved to suppress the evidence seized, arguing that the information provided to the magistrate lacked reliability, and thus did not provide sufficient probable cause to support the search warrant. At the suppression hearing, the State presented the testimony of Officer Ries. Following the hearing, the trial court denied the motion, stating that

[t]he lack of evidence of the reliability of the informant does cause the [c]ourt concern; however, as the evidence shows, the basis of the search was also based on a controlled buy from the residence. The controlled buy supports the issuance of the warrant and causes this [c]ourt to deny the [m]otion to [sjuppress.

Thereafter, Palmer filed a motion for reconsideration, and after hearing additional oral argument, the trial court reversed its earlier ruling and granted the motion to suppress.4

Palmer argued before the trial court that suppression of the evidence was required because Ries did not provide sufficient infor[159] mation in his affidavit to permit the magistrate to determine the reliability of the confidential informant. Specifically, he alleges that Ries omitted relevant information, including that the informant had a criminal history, that Ries had no personal knowledge regarding the informant’s previous assistance to the police, and that the informant had never participated in a controlled buy. “Veracity and basis of knowledge are still major considerations in the probable cause analysis, and ... an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.”5 Thus, “officers seeking warrants should provide the magistrate with any information they have relevant to a . . . confidential informant’s . . . reliability or motivation, including criminal records.”6 The omission of such information can, in certain circumstances, warrant suppression of evidence, unless there is sufficient independent corroboration of criminal activity to support the magistrate’s finding of probable cause.7

On appeal, the State contends that notwithstanding Ries’s omissions regarding the informant’s reliability, the controlled buy and resulting physical evidence provided independent corroboration sufficient to establish probable cause. But while such evidence may have authorized a finding of probable cause, the trial court did not err in concluding to the contrary.

In reviewing a ruling on a motion to suppress, “[.o]ur standard of review is highly deferential.”8 It is well settled that

[t]he credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony. The factfinder may accept part of a witness’ testimony and reject another part, and in the absence of evidence of record demanding a finding contrary to the judge’s determination, [we] will not reverse the ruling sustaining a motion to suppress.9

When a defendant moves to suppress evidence based on an illegal search, the State bears the burden of proving that the search was lawful.10 Having reviewed the evidence presented at the suppression [160] hearing, we cannot say that it demanded a conclusion that the search warrant was supported by probable cause.

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State v. Palmer, 661 S.E.2d 146, 291 Ga. App. 157, 2008 Fulton County D. Rep. 979, 2008 Ga. App. LEXIS 296 (Ga. Ct. App. 2008).

661 S.E.2d 146 (State v. Palmer) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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State v. Palmer
673 S.E.2d 237 (Supreme Court of Georgia, 2009)
Spaeth v. State
667 S.E.2d 449 (Court of Appeals of Georgia, 2008)
State v. Palmer
661 S.E.2d 146 (Court of Appeals of Georgia, 2008)