THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, 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. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules).
April 16, 2020
In the Court of Appeals of Georgia A20A0190. FERGUSON v. THE STATE.
MCFADDEN, Chief Judge.
Tyrin L. Ferguson appeals from his convictions for various offenses, including
possession of more than an ounce of marijuana, possession of a firearm in the
commission of a felony, and possession of a firearm by a convicted felon. He argues
that he received ineffective assistance of trial counsel because his trial counsel did not
pursue a motion to suppress evidence that Ferguson contends was obtained during a
search pursuant to a warrant issued without probable cause. Because Ferguson has not
“ma[d]e a strong showing that the damaging evidence would have been suppressed
had counsel [pursued] the motion,” Mosley v. State, __ Ga. __, __ (4) (a) (__ SE2d
__) (Case No. S19A1301, decided Jan. 27, 2020) (citation and punctuation omitted),
we affirm. 1. Procedural background.
On the day he entered an appearance, Ferguson’s trial counsel filed a
preliminary motion seeking to suppress “[a]ny and all evidence which was unlawfully
seized from or about [Ferguson], his property, or his person in violation of the United
States Constitution, and the Constitution of the State of Georgia[.]” The motion stated
that Ferguson “reserve[d] the right and opportunity to particularize this [m]otion
based on details of this specific case which are yet to be determined.”
Trial counsel ultimately opted not to further pursue the motion, and the trial
court did not conduct a hearing or rule on it. At trial, the state presented evidence of
marijuana and a firearm found on Ferguson’s person when he fled from a house
during the execution of a search warrant.
Ferguson filed a motion for new trial in which he argued that his trial counsel
was ineffective in failing to pursue a motion to suppress. He argued that the evidence
found on his person should have been excluded because it was the fruit of a search
pursuant to a search warrant that was not valid because the magistrate lacked
probable cause to issue it. The trial court denied the motion for new trial, concluding
that Ferguson had not shown that he received ineffective assistance of counsel
because he had not shown that a motion to suppress would have succeeded.
2 2. Ineffective assistance of counsel.
Although Ferguson phrases his enumerations of error as challenges to the trial
court’s determination that a suppression motion would have lacked merit, it is readily
apparent that he seeks to assert as error the trial court’s denial of his motion for new
trial based on his claim of ineffective assistance of counsel. See generally Felix v.
State, 271 Ga. 534, 538 (523 SE2d 1) (1999) (under OCGA § 5-6-58 (f), appellate
courts have duty to discern the errors an appellant is attempting to articulate in the
enumeration of errors). To prevail on this claim, Ferguson “must show both that his
trial counsel’s performance was deficient and that he suffered prejudice as a result of
counsel’s deficient performance.” Mosley, __ Ga. at __ (4). And “[w]hen trial
counsel’s failure to file [or, as here, failure to pursue] a motion to suppress is the basis
for a claim of ineffective assistance, the defendant must make a strong showing that
the damaging evidence would have been suppressed had counsel made [or pursued]
the motion.” Id. at __ (4) (a) (citation and punctuation omitted). If the defendant fails
to do so, he “has failed to establish deficient performance by his trial counsel.” Id.
(citation and punctuation omitted).
Ferguson has not made a strong showing that, had his trial counsel pursued a
motion to suppress, the challenged evidence would have been suppressed. Because
3 the contested evidence was obtained during the execution of a search warrant, to
prevail on a motion to suppress trial counsel would have been required to show that
the warrant was not valid. See Stephens v. State, 346 Ga. App. 686, 692 (2) (816
SE2d 748) (2018) (information obtained through execution of valid search warrant
was not subject to motion to suppress).
Ferguson argues that the search warrant was not valid because the magistrate
issued it without probable cause. “OCGA § 17-5-21 (a) provides that a search warrant
may be issued only upon an affidavit ‘which states facts sufficient to show probable
cause that a crime is being committed or has been committed.’” Mizell v. State, 304
Ga. 723, 726 (2) (822 SE2d 211) (2018). “The magistrate’s task in determining if
probable causes 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 [her], . . . there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237)
(2009) (citation omitted). A trial court ruling on a motion to suppress must accord the
magistrate’s decision substantial deference. Id.
The affidavit in this case included the following pertinent assertions by the
affiant law enforcement officer:
4 Within the past (72) seventy two hours, a confidential informant, hereinafter known as source “A”, had the occasion to be at [a particular address] and did observe a black male known to me as “Todd” in possession and control of a quantity of marijuana within the curtilage of the property. Source “A” then passed this information on to the affiant within the same seventy-two hour time period. The occasion for source “A” to be at the location was in conducting a controlled buy at this residence as directed by the affiant. The buy was controlled in that source “A” was acting in accordance with the instructions of the affiant, source “A” was monitored using an electronic recording device, and source “A” was surveilled throughout the incident.
Ferguson argues that the facts contained in the affidavit were not sufficient to
permit the magistrate to independently determine the reliability of both the unnamed
confidential informant and the information provided by him. It is true that
[w]here the [s]tate seeks to establish probable cause through information provided by an unidentified informant, the informant’s veracity and basis of knowledge are major considerations in the probable cause analysis. 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.
Lyons v. State, 258 Ga. App. 9, 11 (1) (572 SE2d 632) (2002) (citations, punctuation,
and emphasis omitted). And Ferguson correctly notes that the affidavit in this case
5 offered the magistrate no information about the confidential informant’s reliability.
But
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THIRD DIVISION MCFADDEN, C. J., DOYLE, P. J., and HODGES, 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. Please refer to the Supreme Court of Georgia Judicial Emergency Order of March 14, 2020 for further information at (https://www.gaappeals.us/rules).
April 16, 2020
In the Court of Appeals of Georgia A20A0190. FERGUSON v. THE STATE.
MCFADDEN, Chief Judge.
Tyrin L. Ferguson appeals from his convictions for various offenses, including
possession of more than an ounce of marijuana, possession of a firearm in the
commission of a felony, and possession of a firearm by a convicted felon. He argues
that he received ineffective assistance of trial counsel because his trial counsel did not
pursue a motion to suppress evidence that Ferguson contends was obtained during a
search pursuant to a warrant issued without probable cause. Because Ferguson has not
“ma[d]e a strong showing that the damaging evidence would have been suppressed
had counsel [pursued] the motion,” Mosley v. State, __ Ga. __, __ (4) (a) (__ SE2d
__) (Case No. S19A1301, decided Jan. 27, 2020) (citation and punctuation omitted),
we affirm. 1. Procedural background.
On the day he entered an appearance, Ferguson’s trial counsel filed a
preliminary motion seeking to suppress “[a]ny and all evidence which was unlawfully
seized from or about [Ferguson], his property, or his person in violation of the United
States Constitution, and the Constitution of the State of Georgia[.]” The motion stated
that Ferguson “reserve[d] the right and opportunity to particularize this [m]otion
based on details of this specific case which are yet to be determined.”
Trial counsel ultimately opted not to further pursue the motion, and the trial
court did not conduct a hearing or rule on it. At trial, the state presented evidence of
marijuana and a firearm found on Ferguson’s person when he fled from a house
during the execution of a search warrant.
Ferguson filed a motion for new trial in which he argued that his trial counsel
was ineffective in failing to pursue a motion to suppress. He argued that the evidence
found on his person should have been excluded because it was the fruit of a search
pursuant to a search warrant that was not valid because the magistrate lacked
probable cause to issue it. The trial court denied the motion for new trial, concluding
that Ferguson had not shown that he received ineffective assistance of counsel
because he had not shown that a motion to suppress would have succeeded.
2 2. Ineffective assistance of counsel.
Although Ferguson phrases his enumerations of error as challenges to the trial
court’s determination that a suppression motion would have lacked merit, it is readily
apparent that he seeks to assert as error the trial court’s denial of his motion for new
trial based on his claim of ineffective assistance of counsel. See generally Felix v.
State, 271 Ga. 534, 538 (523 SE2d 1) (1999) (under OCGA § 5-6-58 (f), appellate
courts have duty to discern the errors an appellant is attempting to articulate in the
enumeration of errors). To prevail on this claim, Ferguson “must show both that his
trial counsel’s performance was deficient and that he suffered prejudice as a result of
counsel’s deficient performance.” Mosley, __ Ga. at __ (4). And “[w]hen trial
counsel’s failure to file [or, as here, failure to pursue] a motion to suppress is the basis
for a claim of ineffective assistance, the defendant must make a strong showing that
the damaging evidence would have been suppressed had counsel made [or pursued]
the motion.” Id. at __ (4) (a) (citation and punctuation omitted). If the defendant fails
to do so, he “has failed to establish deficient performance by his trial counsel.” Id.
(citation and punctuation omitted).
Ferguson has not made a strong showing that, had his trial counsel pursued a
motion to suppress, the challenged evidence would have been suppressed. Because
3 the contested evidence was obtained during the execution of a search warrant, to
prevail on a motion to suppress trial counsel would have been required to show that
the warrant was not valid. See Stephens v. State, 346 Ga. App. 686, 692 (2) (816
SE2d 748) (2018) (information obtained through execution of valid search warrant
was not subject to motion to suppress).
Ferguson argues that the search warrant was not valid because the magistrate
issued it without probable cause. “OCGA § 17-5-21 (a) provides that a search warrant
may be issued only upon an affidavit ‘which states facts sufficient to show probable
cause that a crime is being committed or has been committed.’” Mizell v. State, 304
Ga. 723, 726 (2) (822 SE2d 211) (2018). “The magistrate’s task in determining if
probable causes 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 [her], . . . there is a fair probability that contraband or evidence of a crime will
be found in a particular place.” State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237)
(2009) (citation omitted). A trial court ruling on a motion to suppress must accord the
magistrate’s decision substantial deference. Id.
The affidavit in this case included the following pertinent assertions by the
affiant law enforcement officer:
4 Within the past (72) seventy two hours, a confidential informant, hereinafter known as source “A”, had the occasion to be at [a particular address] and did observe a black male known to me as “Todd” in possession and control of a quantity of marijuana within the curtilage of the property. Source “A” then passed this information on to the affiant within the same seventy-two hour time period. The occasion for source “A” to be at the location was in conducting a controlled buy at this residence as directed by the affiant. The buy was controlled in that source “A” was acting in accordance with the instructions of the affiant, source “A” was monitored using an electronic recording device, and source “A” was surveilled throughout the incident.
Ferguson argues that the facts contained in the affidavit were not sufficient to
permit the magistrate to independently determine the reliability of both the unnamed
confidential informant and the information provided by him. It is true that
[w]here the [s]tate seeks to establish probable cause through information provided by an unidentified informant, the informant’s veracity and basis of knowledge are major considerations in the probable cause analysis. 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.
Lyons v. State, 258 Ga. App. 9, 11 (1) (572 SE2d 632) (2002) (citations, punctuation,
and emphasis omitted). And Ferguson correctly notes that the affidavit in this case
5 offered the magistrate no information about the confidential informant’s reliability.
But
[i]f any omissions on the part of the officer are offset by independent corroboration of criminal activity, then the magistrate may still have sufficient information to find that probable cause exists. Under the “common sense” approach to search warrants, a controlled buy strongly corroborates the reliability of the informant and shows a fair probability that contraband would be found in the [residence].
Palmer, 285 Ga. at 78 (citation and punctuation omitted).
The officer stated in his affidavit that the confidential informant was
“conducting a controlled buy” when he observed the person named “Todd” with
marijuana. The officer further stated that the confidential informant was under
surveillance at the time and was being monitored with a recording device “throughout
the incident.” Compare Burgess v. State, 349 Ga. App. 635, 639 (2) (824 SE2d 99)
(2019) (probable cause where detective used confidential informant outfitted with
audio transmitter to buy narcotics) and Woods v. State, 346 Ga. App. 323, 326 (816
SE2d 156) (2018) (probable cause where officer watched confidential informant “go
into the residence and come back out” but did not himself see drugs) with Fiallo v.
State, 240 Ga. App. 278, 279 (523 SE2d 355) (1999) (no probable cause where there
6 was no indication that officer either heard or was able to view drug transaction of
untested informant).
Ferguson argues that this information did not corroborate the confidential
informant’s reliability because the officer did not state that contraband was actually
exchanged or that the controlled buy was “successful.” But the magistrate could
reasonably infer from the language of the affidavit that a controlled buy occurred. See
Taylor v. State, 303 Ga. 57, 61 (2) (810 SE2d 113) (2018) (“in making the probable
cause determination, a magistrate may draw reasonable inferences from the material
supplied to him by applicants for a warrant”) (citation and punctuation omitted). In
“giving ‘great deference’ to the magistrate’s determination of probable cause, [we
must] keep[ ] in mind that affidavits are normally drafted by non-lawyers in the midst
and haste of a criminal investigation.” Palmer, 285 Ga. at 79 (citations and
punctuation omitted). Under these circumstances, the magistrate was authorized to
determine that probable cause existed for the issuance of the search warrant.
Separately, Ferguson asserts that the affiant officer admitted at trial to
providing untrue information to the magistrate in the warrant affidavit. We have
reviewed the officer’s trial testimony and do not agree with Ferguson’s
characterization of it. He challenges the officer’s statement in the affidavit that the
7 person the confidential informant saw with drugs was “known to me as ‘Todd,’”
arguing that the statement was untrue because at trial the officer testified that he did
not know that person but merely was told his name by the confidential informant. But
the officer further explained: “At the time that the confidential informant told me that
the person named was Todd, that person was known to me as Todd.” This explanation
supports the trial court’s conclusion, in his order denying Ferguson’s motion for new
trial, that there was “nothing inaccurate or misleading” about the officer’s statement
in his affidavit.
Because Ferguson has not made a strong showing that his trial counsel would
have succeeded in suppressing the evidence had he pursued a motion, Ferguson has
not shown that his trial counsel rendered deficient performance.1 Mosely, __ Ga. at
__ (4) (a). So he has not shown that the trial court erred in denying him a new trial on
the ground that he received ineffective assistance of trial counsel. Given this
conclusion, we do not address the state’s alternative arguments that officers did not
1 Ferguson argues that the “strong showing” requirement conflicts with the requirements to show prejudice set forth in Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). But our analysis in this case pertains only to the deficiency prong, not the prejudice prong, of the test for ineffective assistance of trial counsel. See Mosely, __ Ga. at __ (4) (a) (applying “strong showing” requirement in analysis of deficiency prong in case involving motion to suppress).
8 need a warrant to search Ferguson and that Ferguson lacked standing to challenge the
search pursuant to the warrant.
Judgment affirmed. Doyle, P. J., and Hodges, J., concur.