Galloway v. State

332 Ga.App. 389

772 S.E.2d 832

GALLOWAY

v.The STATE.

No. A15A0603.

Court of Appeals of Georgia.

May 20, 2015.

Sean Justin Lowe, for Appellant.

Alan Christopher Norton, Asst. Dist. Atty., Herbert E. Franklin, Dist. Atty., Carla Deanna Brock, Asst. Dist. Atty., for Appellee.

Opinion

McMILLIAN, Judge.

Appellant Terry Nelson Galloway was charged with possession of oxycodone with intent to distribute (Count 1), possession of dihydrocodeinone (hydrocodone) with intent to distribute (Count 2), and possession of clonazepam with intent to distribute (Count 3). The trial court granted his motion for directed verdict on Count 3, and a jury convicted him of Count 2 and found him not guilty of Count 1.¹ After sentencing, he filed a motion for new trial, which was denied. He appeals, arguing in his sole enumeration of error that the trial court erred by denying his motion to suppress the evidence of contraband discovered in his apartment during the execution of a search warrant because the warrant was based upon information provided by a confidential informant whose reliability was not properly demonstrated.²

In Georgia, our law is clear that a magistrate may issue a search warrant only upon facts sufficient to support probable cause that a crime is being committed or has been committed. OCGA § 17–5–21(a) ; State v. Palmer, 285 Ga. 75, 77, 673 S.E.2d 237 (2009).

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. Our duty in reviewing the magistrate's decision in this case is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrants. 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. Even doubtful cases should be resolved in favor of upholding a magistrate's determination that a warrant is proper. Sullivan v. State, 284 Ga. 358, 361, 667 S.E.2d 32 (2008).

(Punctuation omitted.) Prince v. State, 295 Ga. 788, 792(2)(a), 764 S.E.2d 362 (2014) ; Palmer, 285 Ga. at 78, 673 S.E.2d 237.

The State has the burden of proving that a search and seizure conducted pursuant to a warrant was lawful, including the burden of proving the reliability of an informant if the application for the warrant is based upon information supplied by an informant. Sutton v. State, 319 Ga.App. 597, 737 S.E.2d 706 (2013) ; Dearing v. State, 233 Ga.App. 630, 632, 505 S.E.2d 485 (1998) (in response to a motion to suppress evidence seized pursuant to a search warrant, the State has the burden of proving that an informant who provided information to the affiant applying for the search warrant was reliable); OCGA § 17–5–30(b). However, “the sufficiency of information obtained from an informant is not to be judged by any rigid test.” (Citation and punctuation omitted.) Zorn v. State, 291 Ga.App. 613, 615(2), 662 S.E.2d 370 (2008). Rather, as a general matter, “probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant's knowledge and (2) the informant's veracity or reliability.” (Citation omitted.) Bryant v. State, 288 Ga. 876, 893(13)(a), 708 S.E.2d 362 (2011). However, “[a] deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” (Citation omitted.) Id.

The record shows that the commanding officer of the Lookout Mountain Judicial Circuit Drug Task Force applied for a warrant to search the apartment where Galloway lived with a roommate based on information he obtained from a confidential informant. In support of his application, the officer presented an affidavit to the magistrate averring that on July 6, 2009, he had received information from a confidential source who had entered the apartment of Terry Nelson Galloway and a certain other individual within the past five days and that while the informant was there he observed white powder and a number of straws, which are commonly used to ingest illegal drugs, as well as a silver handgun. The affidavit went on to state that the informant had also observed a small child, three to four years old, inside the residence and also a three to four-month-old female infant. The informant also provided the additional information that a maroon Jeep Cherokee was parked outside the building.

The affidavit went on to contain averments that on that same date, the affiant had contacted the Georgia State Probation offices and confirmed that the other occupant of the apartment is a convicted sexual offender and on active probation until February 2019. Further, the officer averred that the State Probation officer confirmed that Galloway was on parole and scheduled for probation on September 1, 2009.

The affidavit also averred that on July 7, 2009, the affiant contacted a certain Fort Oglethorpe Police Department (“FOPD”) detective regarding this investigation, and that the FOPD detective told him that in May 2009, he had also received information from a confidential source that Galloway was illegally selling and distributing the controlled substances Hydrocodone and Valium from the same address. And lastly, the affidavit contained information that on July 7, 2009, the FOPD detective had personally observed and confirmed that a maroon Jeep Cherokee was parked in front of the apartment at that address.

At the motion to suppress hearing, the officer testified that he disclosed additional information to the magistrate which was not contained in the affidavit, explaining that the failure to include this additional information was at least in part because he was trying to protect the identity of his source. “Testimony from a motion to suppress may supplement the four corners of an affidavit in order for a trial court to determine what the magistrate knew at the time of the issuance of the warrant [.]” Pailette v. State, 232 Ga.App. 274, 277, 501 S.E.2d 603 (1998). And “[i]t is well established that the trial court may consider oral testimony presented to a magistrate in support of the issuance of a warrant. [³ Further, i]t is also clear that our courts have, on occasion recognized the affiant's desire to protect the identity of a confidential informant by omitting certain details from the affidavit.” Pettus v. State, 237 Ga.App. 143, 144(2), 514 S.E.2d 901 (1999). E.g., Browner v. State, 265 Ga.App. 788, 791(1), 595 S.E.2d 610 (2004) (same); Roberson v. State, 246 Ga.App. 534, 537(1), 540 S.E.2d 688 (2000) (“oral testimony may be considered in support of the issuance of a warrant in addition to information presented by affidavit”); York v. State, 242 Ga.App. 281, 293(7), 528 S.E.2d 823 (2000) (“based on the totality of the circumstances, ... the information in the affidavit—as well as that presented to the magistrate orally—provided a sufficient basis for finding probable cause”); Gibson v. State, 223 Ga.App. 103, 104(2), 476 S.E.2d 863 (1996) (...