State v. Lopez-Chavez

330 Ga.App. 644

768 S.E.2d 816

The STATE

v.LOPEZ–CHAVEZ.

No. A14A1834.

Court of Appeals of Georgia.

Feb. 10, 2015.

Rebecca Ashley Wright, Dist. Atty., Augusta, Joshua Bradley Smith, Robert Thomas Homlar, Asst. Dist. Attys., for Appellant.

David Ryan Brunk, Augusta, for Appellee.

Opinion

McMILLIAN, Judge.

Pursuant to OCGA § 5–7–1(a)(4), the State appeals the grant of Alexandra E. Lopez–Chavez's motion to suppress evidence of contraband seized during the execution of a “no-knock” search warrant at her home.¹ Because the trial court properly concluded that the no-knock provision was unsupported by particular facts and circumstances set out in the warrant and the record does not disclose any exigent circumstances authorizing an unannounced entry into the premises, we affirm.

The record shows that on May 22, 2013, Investigator Marquis Hagans with the Columbia County Sheriff's Office applied for and obtained a warrant to search a residence and curtilage located at 484 White Road in Columbia County, Georgia, for the purpose of locating marijuana, drug paraphernalia, financial records, electronic devices and other evidence that might support a marijuana distribution operation. The affidavit presented to the magistrate court recited that in 2006, a sheriff's department investigator received information that people were selling guns and marijuana from 484 White Road, and in 2009, another investigator received information that Julian Lopez Chavez was transporting marijuana from Texas to the White Road address. Four years later, on May 21, 2013, a trash pull was conducted from 484 White Road, and a pill bottle was found. During surveillance the next day, a gray van was observed arriving at the residence, a large box was loaded into the van, and the van left. A short time later, a red Cadillac arrived at 484 White Road, and the driver, later identified as Jeffery Martin, retrieved an item from the passenger side of the vehicle, walked to the right side of the residence, and returned with a white plastic bag. The vehicle was stopped for a seatbelt violation, and a search was conducted after a strong odor of marijuana was detected emitting from the vehicle. The search of the vehicle yielded approximately one pound of marijuana.

In addition, the warrant contained a request to allow officers to execute the warrant without giving verbal notice of their presence “since [forewarning] would increase the risk of injury to the executing officers and possible destruction of evidence.”²

During the motion to suppress hearing, which occurred over the course of two days,³ Investigator Hagans testified that police had been conducting a surveillance operation of the premises based on information that had been received from other law enforcement agencies concerning drug activity occurring on the premises; however, this information was not included in the warrant, and Hagans testified that he did not inform the magistrate that other law enforcement agencies were also suspicious of possible drug activity on the premises.

Hagans also testified that Jeffrey Martin was unknown to local Columbia County law enforcement prior to his arrest on May 22, 2013. Further, Martin was not actually observed going into the house located on the premises, and there is no indication that Martin provided the officers any information about a drug or weapons distribution operation being carried out on the premises, other than the information he provided about buying the marijuana which was seized when he was stopped.⁴

Hagans also testified concerning the 2006 and 2009 calls to police. Hagans acknowledged that he had not had any interactions with either of the individuals who made these calls, he did not have any information concerning their reliability, and he did not provide the magistrate with any information concerning the reliability of these individuals.⁵ Hagans further testified that at the time he presented the affidavit, he did not have any additional information concerning weapons on the premises, and he did not recall providing any information to the magistrate that was not included in the affidavit.

Concerning execution of the warrant, testimony was presented that officers entered the residence with their weapons drawn in a SWAT type formation after one of the officers kicked in the door. Although the officers repeatedly identified themselves and announced their presence after they were inside the house, they did nothing to signal their presence prior to entering the residence.

Following the hearing, the trial court found probable cause to support the issuance of the warrant, but determined the request for a no-knock entry was based on generalizations and stale, unsubstantiated information, unsupported by “any credible particularized facts and circumstances.” Accordingly, the trial court found the warrant was illegally executed and suppressed all evidence seized as a result of the search. The State challenges the trial court's findings concerning the no-knock provision, arguing that the averments in the affidavit were sufficient to justify the no-knock entry and that even if they were not, the evidence should not have been suppressed for other reasons.

When we review the 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 the law to undisputed facts is subject to de novo review. However, in cases of this type, we also keep 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. State v. Palmer, 285 Ga. 75, 78, 673 S.E.2d 237 (2009) ; State v. Barnett, 314 Ga.App. 17, 18, 722 S.E.2d 865 (2012).

In reviewing whether a no-knock provision was properly included in a warrant, we start with OCGA § 17–5–27, which provides that police must make a good faith attempt to verbally announce their authority and purpose before entering a building to execute a search warrant. But where the State demonstrates a reasonable suspicion that knocking and announcing the officers' presence would be dangerous or futile under the particular circumstances, or that it would hinder the effective investigation of the crime by, for example, allowing the destruction of evidence, a no-knock entry may be authorized. State v. Cash, 316 Ga.App. 324, 326, 728 S.E.2d 918 (2012). “Nonetheless, the standard for establishing the reasonable suspicion necessary to justify a no-knock entry, as opposed to the standard for establishing probable cause, is not high.” (Citation and punctuation omitted.) Braun v. State, 324 Ga.App. 242, 243(1), 747 S.E.2d 872 (2013). Importantly here, “[t]he staleness of specific evidence supplied is a factor to be considered by the trial court; the exact date is not the focus of the inquiry, but rather whether factual statements in the affidavit are sufficient to create a reasonable belief that the information offered in the affidavit will be present at the time the warrant is executed.” Barnett, 314 Ga.App. at 19, 722 S.E.2d 865. With these tenets in mind, we turn to the State's arguments on appeal.

1. (a) The State first argues that the magistrate was authorized to reasonably conclude that a no-knock intrusion was warranted because evidence showing the existence of co-conspirators in a large-scale drug operation, such as financial papers, electronic equipment, computers and cell phones, could have been easily destroyed if officers executing the warrant had announced their presence before entering the residence. This contention is unavailing for several reasons. Most significantly, the State did not make this argument before the trial court and thus has waived the right to make this assertion on appeal. State v. McCarthy, 288 Ga.App. 426, 428 –429(2), 654 S.E.2d 239 (2007).

And, in any event, this argument fails on the merits. The affidavit merely contained a generalized statement that unspecified evidence might be destroyed if the police announced their presence before entering, and it does not appear that the officer who presented the affidavit pointed to any specific items or data that might be destroyed if the no-knock intrusion was not allowed. Thus, the magistrate was not provided with underlying details that...