Wiggins v. the State ( 2015 )

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, JJ.
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.
http://www.gaappeals.us/rules/
March 23, 2015
In the Court of Appeals of Georgia
A14A1545. WIGGINS v. THE STATE.
DILLARD, Judge.
We granted Jack Wiggins’s application for interlocutory review of the trial
court’s denial of his motion to suppress evidence discovered during a search of his
home. On appeal, Wiggins argues that the search was invalid because there was
insufficient probable cause to support the issuance of the search warrant. We agree,
and for the reasons set forth infra, reverse.
Viewed in the light most favorable to the trial court’s ruling,1 the evidence
shows that, on June 22, 2012, Samone Burnes, an undercover narcotics agent with the
Kennesaw Police Department (“KPD”), received a written complaint from Lieutenant
1
See, e.g., Christian v. State, 329 Ga. App. 244, 245 (1) (764 SE2d 573)
(2014).
Graden, also with the KPD, conveying that an anonymous informant had given him
information about Wiggins “selling narcotics at his residence and storing narcotics
[there].” Agent Burnes later spoke with Lt. Graden regarding the complaint, but he
did not tell her “anything about [the informant] or who he [was].” About a week later,
Agent Burnes had a telephone conversation with the anonymous informant, who told
her that Wiggins had an “indoor mushroom grow,” that he was selling “approximately
50 pounds of marijuana from [his] residence” each week, that the informant had seen
the drugs in Wiggins’s home, and that there were cameras on the exterior of the
house. But the informant did not advise Agent Burnes of when this alleged criminal
activity occurred, and Burnes testified that she did not know if it occurred “five years
ago or one week before [she] received the complaint.” Agent Burnes also did not
learn anything about the informant during the call.
On June 27, 2012, Agent Burnes went to Wiggins’s residence to begin a
surveillance operation. Approximately ten minutes after she arrived, Agent Burnes
observed a male, later identified as Wiggins, and a female leave the house and drive
away in Wiggins’s truck. Agent Burnes followed them, and she noticed that Wiggins
was “driving pretty fast.” At her request, another KPD agent arrived, and after he
observed Wiggins commit a traffic violation, he initiated a traffic stop. And while
2
conducting the stop, the agent searched Wiggins’s truck because he smelled the odor
of marijuana emanating from the vehicle. In doing so, the agent discovered a bag of
marijuana, which weighed 19.7 grams (including the packaging), and a revolver in
the glove box. Agent Burnes averred that the bag was “marked 17 (commonly marked
for weight by drug dealers).”
Wiggins was arrested and issued citations for possession of marijuana2 and
failure to maintain lane. Immediately thereafter, KPD agents went to Wiggins’s
residence, where they observed cameras on the outside of his house. They also spoke
with Wiggins’s female passenger, who told them that she had smoked marijuana at
Wiggins’s house on “multiple occasions.” Ultimately, Agent Burnes requested and
obtained a search warrant for Wiggins’s home, and in executing the warrant, KPD
agents discovered numerous controlled substances and related paraphernalia.
In a twelve-count indictment, Wiggins was charged with possession of
marijuana, possession with intent to distribute marijuana, possession of stanozolol,
possession of methamphetamine, possession of methylenedioxymethamphetamine
2
Because Wiggins was found in possession of less than an ounce of marijuana,
he was subject only to a misdemeanor possession charge. See OCGA § 16-13-2 (b)
(“Notwithstanding any law to the contrary, any person who is charged with
possession of marijuana, which possession is of one ounce or less, shall be guilty of
a misdemeanor . . . .”).
3
(MDMA), possession of boldenone undecylenate, possession of alprazolam,
possession of oxycodone, possession of lysergic acid diethylamide (LSD), possession
of zolpidem, possession of estazolam, and possession of ketamine.
Prior to trial, Wiggins filed a motion to suppress the drug evidence found in his
home. The trial court held a hearing on the motion, at which Agent Burnes and other
KPD agents testified. And at its conclusion, the trial court noted that it was not
“impressed with [Agent Burnes’s] conduct or her investigation, because there was
none.” The court also indicated that it was “very concerned” about Agent Burnes’s
failure to provide the magistrate with a time frame of when the reported drug sales
occurred. Lastly, the court indicated that it did not consider ten minutes to be an
adequate amount of surveillance. Nevertheless, in a summary order, the trial court
denied Wiggins’s motion to suppress. Wiggins then filed a petition for a certificate
of immediate review, which the trial court granted. We then granted his application
for an interlocutory appeal .
On appeal, Wiggins contends that the search warrant was invalid because the
supporting affidavit—which relied solely on an uncorroborated tip from an
anonymous informant, Wiggins’s possession of a personal-use amount of marijuana,
and a statement from an acquaintance of Wiggins that she had smoked marijuana at
4
his home numerous times—did not give rise to sufficient probable cause to suggest
that he was running a drug-distribution operation out of his home. We agree.
We begin by noting that, in considering a trial court’s denial of a motion to
suppress, we construe the evidence in favor of the court’s ruling, “and we review de
novo the trial court’s application of the law to undisputed facts.”3 Moreover, in
accordance with the Fourth Amendment to the United States Constitution,4 a search
warrant in Georgia may issue only upon “facts sufficient to show probable cause that
a crime is being committed or has been committed . . . .”5 And in determining whether
probable cause exists, the issuing judge is required 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 evidence of a crime will be found
3
Christian, 329 Ga. App. at 245 (1) (punctuation omitted); accord Reid v.
State, 321 Ga. App. 653, 653 (742 SE2d 166) (2013).
4
See U.S. CONST. amend IV (“The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.”).
5
OCGA § 17-5-21 (a); see also Sullivan v. State, 284 Ga. 358, 360 (2) (667
SE2d 32) (2008); Manzione v. State, 312 Ga. App. 638, 639 (719 SE2d 533) (2011).
5
in a particular place.”6 Finally, in reviewing the validity of a search warrant, this
Court is charged with “ensuring—considering the totality of the circumstances and
giving substantial deference to the issuing judge’s decision—that the judge had a
‘substantial basis’ for concluding that probable cause existed.”7 Bearing these guiding
principles in mind, we turn now to Wiggins’s claim that the search warrant for his
residence was invalid.
In the case sub judice, Agent Burnes sought to establish probable cause for the
search warrant by averring that (1) an anonymous tipster reported that Wiggins was
selling 50 pounds of marijuana out of his home per week, that his home contained a
“mushroom grow,” that the informant had seen these drugs, and that there were
surveillance cameras outside of Wiggins’s house; (2) during a traffic stop, Wiggins
was found in possession of 19.7 grams of marijuana (including the packaging), which
was “inside a plastic bag labeled 17 (commonly marked for weight by drug dealers),”
and a revolver, which was located in his glove box; and (3) the female passenger in
6
Cochran v. State, 281 Ga. 4, 5 (635 SE2d 701) (2006) (punctuation omitted);
accord Manzione, 312 Ga. App. at 639-40.
7
Manzione, 312 Ga. App. at 640; see Lemon v. State, 279 Ga. 618, 620 (1)
(619 SE2d 613) (2005); Jones v. State, 313 Ga. App. 590, 593 (2) (722 SE2d 202)
(2012).
6
Wiggins’s truck reported that she had smoked marijuana at Wiggins’s house on
“multiple occasions.”8
Regarding anonymous informants, we have previously held that an
“uncorroborated telephone call from an anonymous tipster is not alone sufficient to
base a finding of probable cause.”9 We must also determine, among other things,
8
Although Wiggins does not argue that the alleged probable cause in this case
had gone stale by the time the warrant was issued, it is noteworthy that Agent
Burnes’s affidavit provided no indication of when the alleged criminal activity
occurred. See Banks v. State, 277 Ga. 543, 546 (2) (592 SE2d 668) (2004)
(recognizing that “[t]he time of the occurrence of the facts relied upon is a prime
element in the concept of probable cause” (punctuation omitted)); Land v. State, 259
Ga. App. 860, 862 (1) (578 SE2d 551) (2003) (noting that the search-warrant affidavit
suffered from numerous deficiencies, the most fatal of which was the element of
time); State v. Brantley, 264 Ga. App. 152, 154 (589 SE2d 716) (2003) (explaining
that “[i]f the prior circumstances relied on to establish probable cause have grown
stale with time, they are unlikely to provide a reliable barometer of present criminal
conduct” (punctuation omitted)).
9
McRae v. State, 204 Ga. App. 234, 235 (1) (418 SE2d 796) (1992); see also
Harper v. State, 283 Ga. 102, 105-06 (2) (657 SE2d 213) (2008) (holding that an
uncorroborated report from an anonymous informant, alleging that he learned from
a relative of the defendant that the defendant had confessed to murder, was
insufficient probable cause to support the issuance of a search warrant when the
affidavit failed to provide any reason to believe that the information was from a
credible source); Wood v. State, 214 Ga. App. 848, 849 (1) (449 SE2d 308) (1994)
(finding that “the uncorroborated statement of an unnamed third-party source, as
filtered through a reliable informant to a police affiant, did not give rise to probable
cause sufficient to support the issuance of a search warrant”); Stola v. State, 182 Ga.
App. 502, 503 (1) (356 SE2d 222) (1987) (“An uncorroborated telephone call from
an anonymous tipster, standing alone, is insufficient upon which to base probable
7
whether “the hearsay information supplied to the affiant, coupled with the affiant’s
personal observations, presented a fair probability that contraband would be found
at [Wiggins’s] residence.”10 Here, Agent Burnes did not identify any actions that she
took to determine the reliability of the anonymous informant, who she admittedly
knew nothing about. And because she took no such actions, her affidavit provided no
information whatsoever regarding the informant, much less any indicia of his
reliability. Thus, given the complete lack of information regarding the anonymous
informant, his motives, or the basis for his knowledge, his allegations, standing alone,
were insufficient to establish probable cause for the search of Wiggins’s home.11
cause to arrest”).
10
McRae, 204 Ga. App. at 235 (1) (punctuation omitted); see Fair v. State, 284
Ga. 165, 171 (3) (b) (664 SE2d 227) (2008); State v. Brown, 186 Ga. App. 155, 156
(1) (366 SE2d 816) (1988).
11
See supra note 9; State v. LeJeune, 276 Ga. 179, 181 (1) (576 SE2d 888)
(2003) (emphasizing that, in determining whether probable cause exists to issue a
search warrant, a magistrate should consider all the circumstances set forth in the
affidavit, “including the ‘veracity’ and ‘basis of knowledge’ of the person supplying
hearsay information” (emphasis in original)); Copeland v. State, 273 Ga. App. 850,
851 (1) (a) (616 SE2d 189) (2005) (explaining that “[w]here the State seeks to
establish probable cause with information from an unidentified source, the
informant’s veracity and basis of knowledge are major considerations in the probable
cause analysis” (punctuation omitted)); Lyons v. State, 258 Ga. App. 9, 12 (1) (572
SE2d 632) (2002) (“An unvarnished statement that the informant has seen drugs in
someone’s house cannot establish probable cause to search.”); Langford v. State, 213
8
Nevertheless, we have acknowledged that a deficiency created by the fact that
the reliability of a source has not been established can “be corrected by the
corroboration of the information, thereby providing a substantial basis for finding
probable cause.”12 And for the corroboration to be meaningful, the corroborating
information must “include a range of details relating to future actions of third parties
not easily predicted or similar information not available to the general public.”13
Regarding corroboration, Agent Burnes testified that she surveilled Wiggins’s
residence—where he was allegedly distributing 50 pounds of marijuana every
week—for only ten minutes, an amount of surveillance that the trial court found to be
Ga. App. 232, 233 (1) (444 SE2d 153) (1994) (holding that there was insufficient
probable cause for the issuance of a warrant when the magistrate was not provided
with any information regarding the informant’s veracity or basis of knowledge, and
the affiant testified at the suppression hearing that he had no knowledge of the
informant).
12
Sutton v. State, 319 Ga. App. 597, 607 (1) (c) (737 SE2d 706) (2013)
(punctuation omitted); see St. Fleur v. State, 286 Ga. App. 564, 566 (1) (649 SE2d
817) (2007) (“[E]ven if an officer cannot provide information regarding the veracity
of an informant or the basis of his knowledge, a tip may be proven reliable if portions
of the tip are sufficiently corroborated.” (punctuation omitted)); cf Banks, 277 Ga. at
546 (2) (holding that insufficient evidence supported the issuance of a search warrant
when there were no objective facts to corroborate the hearsay information provided
by unidentified informants).
13
Sutton, 319 Ga. App. at 607 (1) (c) (emphasis in original); accord Land, 259
Ga. App. at 863 (1); Shivers v. State, 258 Ga. App. 253, 255 (573 SE2d 494) (2002).
9
insufficient. And rightly so. As the record makes clear, there was essentially no
investigation to determine the anonymous informant’s reliability or to corroborate his
claims. Nevertheless, the State contends that the informant’s claim that there were
cameras outside of Wiggins’s residence was corroborated when KPD officers
confirmed the existence of those cameras. But this is not meaningful corroboration
because the cameras were on the exterior of Wiggins’s residence and visible to the
general public. Indeed, KPD agents observed the cameras outside of the house before
obtaining the search warrant and entering Wiggins’s residence.14
The State also contends that the anonymous tip was corroborated by Wiggins’s
possession of marijuana contained inside a bag with a marking commonly used by
drug dealers. And while we agree that this evidence reasonably supports an inference
that Wiggins is a marijuana user, it strains credulity to suggest that his possession of
less than one ounce of marijuana in a single bag with this marking is sufficient to
14
See Land, 259 Ga. App. at 863 (1) (holding that informant’s knowledge of
defendant’s home address, telephone number, and living arrangements did not make
the informant reliable because the “same information was available to the general
public”); State v. Bryant, 210 Ga. App. 319, 321 (436 SE2d 57) (1993) (holding that
corroboration of an informant’s description of defendant’s appearance, residence, car,
and bank was public information and not sufficiently meaningful to show reliability).
10
demonstrate his possible involvement in a high volume drug-distribution operation.15
Indeed, with the exception of the revolver, the KPD agent who searched Wiggins’s
truck did not discover any items commonly used in drug distribution, such as a large
amount of cash, a substantial amount of drugs, scales, drugs portioned for sale in
separate baggies, drug-packaging materials, or any other drug paraphernalia.16
15
The State makes much of the fact that the bag was marked with the weight
of the marijuana, which, according to Agent Burnes, is a common marking used by
drug dealers. But this evidence merely creates an inference that, at some point, a drug
dealer marked the bag with its weight. Agent Burnes did not aver that such markings
are removed before sale or otherwise suggest that only a drug dealer would be in
possession of a bag marked with the drug’s weight. Absent more information about
this marking, we fail to see how Wiggins’s possession of a single bag of less than an
ounce of marijuana bearing such a marking corroborates the informant’s allegation
that he was engaged in drug dealing.
16
See Clark v. State, 245 Ga. App. 267, 268-69 (537 SE2d 742) (2000)
(distinguishing, in the context of a sufficiency-of-the-evidence challenge, the
possession of marijuana for personal use from possession with intent to distribute,
and concluding that the evidence was insufficient to show drug sales or distribution
when the State produced no evidence that the defendant had scales, guns, cash, drug
packaging materials, a large quantity of marijuana, or had conducted prior drug
sales); Compare Macias v. State, 292 Ga. App. 225, 229 (2) (a) (664 SE2d 265)
(2008) (holding that there was sufficient probable cause for a search of defendant’s
residence when, during a search of his car, police discovered 17.5 grams of
methamphetamine, portions of which were packaged in smaller baggies, and $3,700
in cash).
11
As for the revolver, Wiggins appeared to have lawfully possessed it,17 and it
was not discovered in close proximity to any other signs of drug dealing (such as a
significant amount of drugs).18 More importantly, it bears repeating that the
magistrate was not given any information regarding how much time had passed
between Wiggins’s alleged drug trafficking and his possession of the firearm, so it
is unclear whether the two are in any way related.19 Simply put, Wiggins’s possession
of a relatively small amount of marijuana and a legally owned firearm during a traffic
stop, with no other indicia of drug distribution, was insufficient corroboration for the
anonymous informant’s claim that, at some unknown time, Wiggins was trafficking
in a substantial amount of marijuana every week out of his home.20
17
Wiggins was not charged with unlawful possession of a firearm, KPD
officers allowed his passenger to leave with the gun, and the search-warrant affidavit
made no mention of the gun possession being unlawful.
18
Compare, e.g., Wright v. State, 272 Ga. App. 423, 426, 428 (3) (612 SE2d
576) (2005) (holding that drugs and an illegal weapon in the defendant’s vehicle gave
the officer probable cause to arrest the defendant and conduct a more thorough search
of her vehicle, when the firearm was discovered next to “a large quantity of what
appeared to be packaged methamphetamine”).
19
See supra note 8.
20
See supra note 16; see, e.g. United States v. Underwood, 725 F3d 1076,
1082-83 (III) (A) (9th Cir. 2013) (affirming the grant of a motion to suppress and
holding that the observation of a personal-use amount of marijuana in the defendant’s
12
Finally, the State asserts that the female passenger in Wiggins’s truck, who told
police that she had smoked marijuana at his house on multiple occasions,
corroborated the informant’s allegations. However, his passenger’s claim that she
previously smoked marijuana at Wiggins’s house does not suggest that he was
currently involved in drug trafficking. Indeed, she did not indicate whether she ever
purchased marijuana from Wiggins, whether she ever observed him selling it to
others, whether she had seen the alleged mushroom grow, or whether she had
witnessed any other indicia of drug trafficking in his home. Furthermore, she did not
specify how recently she had smoked marijuana at Wiggins’s house.21 Under these
particular circumstances, the acquaintance’s admission that she used drugs at
Wiggins’s house on unspecified occasions does not create a fair probability that
home supported only the inference that the defendant was a marijuana user, not that
he was a courier in an ecstasy-trafficking organization or that evidence of such
trafficking would be found in his home); United States v. McPhearson, 469 F3d 518,
527 (IV) (C) (6th Cir. 2006) (holding that there was insufficient probable cause to
support a search warrant when none of the “hallmarks of drug dealing” had been
witnessed in defendant’s home and the affidavit did not allege “any criminal activity
other than personal possession of crack cocaine”); State v. Cash, 316 Ga. App. 324,
327 (728 SE2d 918) (2012) (affirming the grant of a motion to suppress when “the
averments in the affidavit were sufficient to indicate that the drug suspect was
involved in personal drug use, [but] they were insufficient to indicate that the drug
suspect had been selling, distributing, or trafficking drugs”).
21
See supra note 8.
13
evidence of drug trafficking would be found there at the time the warrant was
issued.22
In sum, the Supreme Court of Georgia has “cautioned attesting officers and
magistrates to make every effort to see that supporting affidavits reflect the maximum
indication of reliability,”23 and as recognized by the trial court during the suppression
hearing, such efforts were simply not made in this case. Although we are mindful that
“the resolution of doubtful or marginal cases in this area should be largely determined
22
See Manzione, 312 Ga. App. at 639-40 (a) (explaining that, to issue a search
warrant, a magistrate must determine, given all of the information provided in the
supporting affidavit, that there is a fair probability that evidence of criminal conduct
will be found at a particular place); State v. Charles, 264 Ga. App. 874, 876 (2) (592
SE2d 518) (2003) (holding that evidence that police smelled the “slight odor of
burned marijuana” outside of the defendant’s room combined with the defendant’s
admission that he had used marijuana earlier in the day was insufficient probable
cause to suggest marijuana was currently on the premises); State v. Suddeth, 207 Ga.
App. 103, 105 (427 SE2d 76) (1993) (finding that probable cause did not exist for the
issuance of a search warrant for defendant’s residence when, inter alia, no evidence
linked the defendant to her husband’s illegal possession of drugs).
23
Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992) (punctuation
omitted); accord Clemons v. State, 257 Ga. App. 96, 99 (1) (574 SE2d 535) (2002);
see State v. Luck, 252 Ga. 347, 348 (312 SE2d 791) (1984) (reiterating the
“importance of the submission, by affidavit, to the issuing magistrate of the maximum
quantum of reliable information within the knowledge of the affiant, and the
demonstration of the reliability thereof—including indicia of timeliness”).
14
by the preference to be accorded to warrants,”24 we nevertheless conclude that the
anonymous informant’s wholly uncorroborated allegations that Wiggins was selling
drugs at some undisclosed time—even combined with evidence that Wiggins legally
possessed a firearm during a traffic stop and that he and his friend had previously
used marijuana—did not provide a substantial basis for determining that probable
cause existed to search Wiggins’s residence at the time when the warrant was
issued.25 The fact that Wiggins appears to have actually been engaged in drug
24
State v. Palmer, 285 Ga. 75, 77-78 (673 SE2d 237) (2009) (punctuation
omitted).
25
See Harper, 283 Ga. at 105-06 (2) (holding that an uncorroborated report
from an anonymous informant, alleging that he learned from a relative of the
defendant that the defendant had confessed to murder, was insufficient probable cause
to support the issuance of a search warrant when the affidavit failed to provide any
reason to believe that the information was from a credible source); Sutton, 319 Ga.
App. at 606 (1) (b) (holding that the “complete lack of information” about two
anonymous sources meant that they were “merely anonymous tipsters, which
relegated the information they supplied to the status of rumor” (punctuation
omitted)); Land, 259 Ga. App. at 862-63 (1) (holding that there was insufficient
probable cause to support the issuance of a search warrant when, inter alia, a
confidential informant reported seeing the defendant engage in a single, isolated drug
transaction, but did not indicate when the transaction occurred); Shivers, 258 Ga.
App. at 257 (reversing the denial of a motion to suppress when numerous reports
from unnamed informants amounted to mere rumors of criminal activity from sources
who were not shown to be reliable and probable cause was not established by police
observations of the residence); see also Maxwell v. State, 127 Ga. App. 168, 169 (193
SE2d 14) (1972) (reversing the denial of a motion to suppress when no time element
was shown as to when illegal contraband was present); Latten v. State, 127 Ga. App.
15trafficking is ultimately of no consequence for purposes of our analysis, which is
grounded in the safeguards afforded by the Fourth Amendment.26
For all of the foregoing reasons, we reverse the trial court’s denial of Wiggins’s
motion to suppress evidence.
Judgment reversed. Doyle, P. J., concurs. Miller, J., concurs in judgment only.
75, 75 (192 SE2d 562) (1972) (“Absent the time of the occurrence of the facts relied
upon, probable cause for issuance of the search warrant is not established.”).
26
See Kyllo v. State, 533 U.S. 27, 31 (II) (121 SCt 2038, 150 LEd2d 94) (2001)
(“At the very core of the Fourth Amendment stands the right of a man to retreat into
his own home and there be free from unreasonable governmental intrusion.”
(punctuation and citation omitted)); Ker v. State of Cal., 374 U.S. 23, 32 (I) (83 SCt
1623, 10 LEd2d 726) (1963) (“Implicit in the Fourth Amendment’s protection from
unreasonable searches and seizures is its recognition of individual freedom. That
safeguard has been declared to be ‘as of the very essence of constitutional liberty’ the
guaranty of which ‘is as important and as imperative as are the guaranties of the other
fundamental rights of the individual citizen.’”); Doe v. Heck, 327 F3d 492, 509
(2003) (noting that “the basic purpose of the Fourth Amendment is to safeguard the
privacy and security of individuals against arbitrary invasions by governmental
officials . . . .” (punctuation and citation omitted)).
16