Coleman v. the State , 337 Ga. App. 304 ( 2016 )

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, 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
June 7, 2016
In the Court of Appeals of Georgia
A16A0517. COLEMAN v. THE STATE.
PHIPPS, Presiding Judge.
On December 8, 2011, law enforcement officers executed a search warrant at
an apartment being leased by Corey Ronqueze Coleman and discovered therein
cocaine, marijuana, marijuana plants, and various drug paraphernalia such as boxes
of plastic baggies, digital scales, and a notebook of instructions on cultivating
marijuana plants. Coleman was indicted for possession of cocaine, manufacturing
marijuana, and possession of marijuana with the intent to distribute. A jury found
Coleman guilty as charged, and he was convicted thereon. Coleman filed a motion for
new trial claiming ineffective assistance of trial counsel, but the trial court denied the
motion. In this appeal, Coleman challenges the rejection of his ineffectiveness claim.
We affirm.
Pursuant to Strickland v. Washington,1
[i]n order to succeed on [a] claim of ineffective assistance, [a defendant]
must prove both that his trial counsel’s performance was deficient and
that there is a reasonable probability that the trial result would have been
different if not for the deficient performance. If [the defendant] fails to
meet his or her burden of proving either prong of the Strickland test, the
reviewing court does not have to examine the other prong. In reviewing
the trial court’s decision, we accept the trial court’s factual findings and
credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.2
1. Coleman complains that his trial lawyer failed to pursue a motion to suppress
the drug evidence, arguing that the underlying search warrant was issued without the
requisite showing of probable cause. At the hearing on Coleman’s motion for new
trial, Coleman’s trial lawyer testified that he had not pursued a suppression motion
because he had determined that such motion would not be granted. The lawyer further
testified that he and Coleman had decided to pursue a defense that another individual
was the sole resident of the apartment, which defense did not hinge upon suppressing
the drug evidence.
1
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
2
Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012) (citations and
punctuation omitted).
2
“Where, as here, trial counsel’s failure to [pursue] a motion to suppress is the
basis for a claim for ineffective assistance, the burden is on the appellant to make a
strong showing that the damaging evidence would have been suppressed had counsel
[pursued] the motion.”3 As explained below, Coleman has failed to meet his burden.
We first reiterate the standards applicable to the various levels of judicial
scrutiny involved in the warrant process.
A search warrant will only issue upon facts sufficient to show probable
cause that a crime is being committed or has been committed.[4] 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. The trial court
may then examine the issue as a first level of review, guided by the
Fourth Amendment’s strong preference for searches conducted pursuant
to a warrant, and the principle that substantial deference must be
accorded a magistrate’s decision to issue a search warrant based on a
finding of probable cause. A deferential standard of review is
appropriate to further the Fourth Amendment’s strong preference for
3
Smith v. State, 296 Ga. 731, 733 (2) (a) (770 SE2d 610) (2015) (citation
omitted).
4
OCGA § 17-5-21 (a).
3
searches conducted pursuant to a warrant. Although in a particular case
it may not be easy to determine when an affidavit demonstrates the
existence of probable cause, the resolution of doubtful or marginal cases
in this area should be largely determined by the preference to be
accorded to warrants. Our appellate courts will review the search
warrant to determine the existence of probable cause using the totality
of the circumstances analysis set forth in Illinois v. Gates.[5] The duty
of the appellate courts is to determine if the magistrate had a “substantial
basis” for concluding that probable cause existed to issue the search
warrant. The Fourth Amendment requires no more.6
Next, we turn to the circumstances presented by the instant case. On December
8, 2011, a narcotics officer with the Gwinnett County Police Department filed with
the Magistrate Court of Gwinnett County an application seeking a warrant to search
a specified apartment for marijuana and associated contraband. In support of the
application, the officer presented the magistrate with his affidavit.
Coleman asserts, and the record supports, that no oral testimony was
considered by the magistrate as part of the warrant application process. Coleman
therefore posits that the magistrate’s finding of probable cause was based solely upon
5
462 U. S. 213 (103 SCt 2317, 76 LE2d 527) (1983).
6
State v. Palmer, 285 Ga. 75, 77-78 (673 SE2d 237) (2009) (citations and
punctuation omitted).
4
the officer’s affidavit. We thus focus on the information set forth within the four
corners of the affidavit.
At the beginning of the affidavit, the officer set forth as background that, on
December 8, 2011, two other police officers – Officer Copeland and Officer Nassery
– approached a male who was walking within the apartment complex because those
officers had discerned that the male was engaging in suspicious behavior. The
affidavit, as Coleman particularly recites on appeal, went on to state:
Officer[s] Copeland and Nassery then made contact with the suspect
who was identified as William Wilborn. Once Officer Copeland made
contact with Wilborn he noticed a small white chunky substance in the
males [sic] hand which based on his training and experience he
recognized to be crack cocaine[.] Officer Copeland NIK tested the white
chunky substance and received a positive response indicating the
presence of cocaine. Officer Copeland then tried to retrieve the crack
cocaine from Wilborn, where Wilburn [sic] in return attempted to flee.
A brief struggle between officers and Wilborn occurred, where Wilborns
[sic] shirt came up and revealed that he has [sic] a small hand gun in his
possession. Officers finally placed Wilborn in custody. Officer
Copeland then read Wilborn his Miranda rights which he stated he
understood and wished to answer some questions. Officer Copeland
asked Wilborn if he had anymore contraband in his possession and
Wilborn stated he had some marijuana in his groin area. Officer
Copeland NIK tested the marijuana and received a positive response
5
indicating the presence [sic] marijuana. Wilborn stated he purchased the
marijuana from a black male in an apartment located within the
complex. He went on to state he and three other males were at the
location to rob the individuals at the apartment for their illegal narcotics.
Sgt. Tonelli . . . then spoke to Wilborn. Wilborn gave Sgt Tonelli
detailed directions to the apartment where he purchased the marijuana.
The apartment in question turned out to be [the specific apartment leased
by Coleman]. Wilburn [sic] stated while he was in the apartment
purchasing the marijuana he saw what he believed to be two pounds of
marijuana. He also stated there was a black female and black male
inside. Wilborn stated the black male had a black handgun located on
him. Wilborn stated he also saw two shotguns while in the apartment
next tot [sic] the front door. Sgt. J. Morales . . . and Officer Nassery
attempted to make contact with the occupants of the apartment and
received no answer. While at the door both officers were able to smell
the overwhelming smell of unburned marijuana coming from the door.
Affiant believes there is enough probable cause to believe there will be
more marijuana located at [the apartment specified] based on the
following facts. First, the statement from William Wilborn where he
stated he purchased marijuana from the apartment where [sic] stated he
saw additional marijuana inside. And the fact that two officers smelled
fresh unburned marijuana coming from the apartment. Affiant therefore
requests a search warrant be issued for [the specified apartment].
Coleman maintains on appeal that the affidavit failed to supply an adequate
basis for determining that probable cause existed because: the affidavit did not set
6
forth sufficient facts from which the magistrate could ascertain the veracity of
Wilborn, who had served as a key informant; the officers’ detection of the odor of
marijuana at the apartment door was insufficient as a sole basis for establishing
probable cause; the officers’ conduct at the apartment door amounted to an unlawful
search; and the averring officer failed to apprise the magistrate of Wilborn’s prior
convictions. According to Coleman, had his trial lawyer cited these “insufficiencies”
in pursuing a suppression motion, the trial court would have been required to grant
the motion. We cannot agree.
(a) Any deficiency in the affidavit with respect to Wilborn’s veracity was not
fatal. Under the Gates analysis, an informant’s veracity, reliability, and basis of
knowledge are neither “independently dispositive, [nor] irrelevant. They are instead
several of a number of relevant factors, which we must review giving great deference
to the magistrate’s determination of probable cause, keeping in mind that ‘affidavits
are normally drafted by nonlawyers in the midst and haste of a criminal
investigation.’”7 Here, Wilborn’s tip that marijuana was being sold out of a particular
apartment was sufficiently corroborated by: his own attempt to flee and brief struggle
7
Curry v. State, 255 Ga. 215, 217 (1) (336 SE2d 762) (1985), citing Gates,
supra, 103 U. S. at 235 (103 SCt at 2329-31); see Palmer, supra at 79.
7
with the officers he encountered in the apartment complex’s parking lot; the police
seizure of suspected illegal drugs and a handgun from Wilborn’s person; the results
of immediate field testing by police indicating that the seized substances were cocaine
and marijuana; and the police officers’ detection of a strong odor of unburned
marijuana emanating from the exact apartment that Wilborn had identified. Indeed,
case law prevailing at the relevant time8 – i.e., State v. Pando,9 State v. Charles,10
Shivers v. State,11 State v. Fossett,12 and Patman v. State13 – recognized that the odor
8
Coleman’s trial was conducted in January 2013.
9
284 Ga. App. 70 (643 SE2d 342) (2007), overruled to the extent stated in
State v. Kazmierczak, 331 Ga. App. 817, 823 (771 SE2d 473) (2015). The
Kazmierczak decision, as expressed in State v. Camp, 335 Ga. App. 730, 731, n. 1
(782 SE2d 819) (2016), “modified the doctrine in Georgia law that had previously
held that evidence regarding the odor of marijuana alone was insufficient to establish
probable cause for a warrant.”
10
264 Ga. App. 874 (592 SE2d 518) (2003), disapproved to the extent stated
in Kazmierczak, supra.
11
258 Ga. App. 253 (573 SE2d 494) (2002), disapproved to the extent stated
in Kazmierczak, supra.
12
253 Ga. App. 791 (560 SE2d 351) (2002), disapproved to the extent stated
in Kazmierczak, supra.
13
244 Ga. App. 833 (537 SE2d 118) (2000).
8
of marijuana could be considered in determining whether, under the totality of the
circumstances, probable cause existed to authorize the issuance of a search warrant.14
In light of all the circumstances set forth in the affidavit, the magistrate had a
substantial basis for concluding that probable cause existed to issue the search
warrant.15 Thus, contrary to Coleman’s claim on appeal, the trial court – bound to
14
Pondo, supra at 76-77 (2) (a) (“[T]he odor of marijuana may be considered
as part of the totality of circumstances in determining whether there is sufficient
probable cause to support a search warrant.”) (citation omitted); Charles, supra at 876
(2) (“[T]he odor of marijuana is one factor that may be considered in determining
whether, under the totality of the circumstances, probable cause exists to authorize
the issuance of a search warrant.”) (citations and punctuation omitted); Shivers, supra
at 257 (“The odor of marijuana is one factor that may be considered in determining
whether, under the totality of the circumstances, probable cause exists to authorize
the issuance of a search warrant.”) (footnote omitted); Patman, supra at 835 (“The
odor of marijuana is one factor that may be considered in determining whether, under
the totality of the circumstances, an officer had probable cause to institute a search.”)
(footnote omitted); Fossett, supra at 793 (1) (“The odor of marijuana is one factor that
may be considered in determining whether, under the totality of the circumstances,
an officer had probable cause to institute a search.”) (citation and punctuation
omitted).
15
See Cochran v. State, 281 Ga. 4, 5-6 (635 SE2d 701) (2006) (rejecting claim
that warrant was invalid because the underlying affidavit contained information from
a third party then unknown to police, where the affidavit otherwise informed the
magistrate “of some of the underlying circumstances supporting the affiant’s
underlying conclusions,” and therefore “the warrant did not rest solely on the
reliability of [the third party]”); Martinez-Vargas v. State, 317 Ga. App. 232, 236-239
(1) (730 SE2d 633) (2012) (concluding that affidavit showed probable cause to search
residence, where information in affidavit reflected that a compressed marijuana bud
had been found in trash of the residence; that, based upon the averring officer’s
9
accord deference to the magistrate’s decision to issue a search warrant based on a
finding of probable cause – would not have been required to grant a motion to
suppress the drug evidence.16 We conclude, therefore, that Coleman has failed to
demonstrate that his trial counsel performed deficiently by failing to pursue a
suppression motion.17
(b) In so concluding, we have determined that State v. Kazmierczak,18 relied
upon by Coleman, does not control this case to an outcome in his favor.
knowledge, training, and experience, the bud was from a large bale of marijuana; and
that a lieutenant had smelled raw marijuana while standing near the garage,
notwithstanding the lack of facts in the affidavit reflecting that the lieutenant had
knowledge, training, or experience to identify that specific odor because “when a
police officer supplies information to another officer that the latter then includes in
a search warrant affidavit, the reliability of the officer informant can be presumed
when assessing whether probable cause exists for issuance of the warrant”) (citations
omitted), disapproved to the extent stated in Kazmierczak, supra; see generally Bigby
v. State, 250 Ga. App. 529-530 (1) (552 SE2d 129) (2001) (probable cause arose from
“odor of marijuana, together with [suspect’s] flight”).
16
See Palmer, supra; Martinez-Vargas, supra; see generally Bigby, supra.
17
See Hampton v. State, 295 Ga. 665, 670 (2) (763 SE2d 467) (2014) (“[T]he
failure to make a meritless motion or objection does not provide a basis upon which
to find ineffective assistance of counsel.”).
18
Supra.
10
Coleman points out that Kazmierczak overruled/disapproved (to the extent
therein stated)19 cases including Pando, Charles, Shivers, Fossett, and Patman.
Notwithstanding, Coleman’s “trial counsel was not ineffective for failing to predict
[the 2015 decision].”20 And, at any rate, Kazmierczak is inapposite because it
addressed the extent to which the odor of marijuana emanating from a specified
location could be “the sole basis for the issuance of a search warrant for that
location.”21 Here, as detailed above, the odor of marijuana emanating from the
apartment was not the sole basis for the issuance of the search warrant.22
(c) We have also found no merit in Coleman’s argument that the requisite
showing of probable cause was not demonstrated because the officers’ detection of
the odor of marijuana at the apartment door constituted an illegal search.
19
See id. at 823 (disapproving a line of cases to the extent stated therein).
20
Hill v. State, 290 Ga. 493, 499 (7) (722 SE2d 708) (2012) (citation and
punctuation omitted); Deleon-Alvarez v. State, 324 Ga. App. 694, 708 (7) (751 SE2d
497) (2013) (same); see Rickman v. State, 277 Ga. 277, 280 (2) (587 SE2d 596)
(2003) (noting that “in making litigation decisions, there is no general duty on the
part of defense counsel to anticipate changes in the law”) (punctuation and footnote
omitted).
21
Kazmierczak, supra at 823 (emphasis supplied).
22
See Division 1 (a), supra.
11
To support that argument, Coleman has relied upon Florida v. Jardines.23 In
that case, the United State Supreme Court considered whether police use of “a drug-
sniffing dog on a homeowner’s porch to investigate the contents of the home is a
‘search’ within the meaning of the Fourth Amendment.”24 The Court answered that
question in the affirmative,25 and thus affirmed the decision invaliding a warrant that
had been issued based upon information gathered as a result of that impermissible
“search.”26
Here, no drug-sniffing dog was employed to investigate the contents of the
apartment. As set out in the affidavit, after Wilborn disclosed to police the apartment
where he had purchased the marijuana seized from his person, two officers “attempted
to make contact with the occupants of the apartment and received no answer. While
at that door both officers were able to smell the overwhelming smell of unburned
marijuana coming from the door.” Even Jardines reaffirmed the principle that “a
police officer not armed with a warrant may approach a home and knock, precisely
23
133 SCt 1409 (185 LEd2d 495) (2013).
24
Id. at 1413 (emphasis supplied).
25
Id. at 1417-1418 (III).
26
See id. at 1414 (I).
12
because that is no more than any private citizen might do.”27 Accordingly, Coleman’s
reliance upon Jardines is misplaced, and this challenge to the existence of probable
cause is unavailing.28
(d) Equally unavailing is Coleman’s assertion that the trial court would have
granted a motion to suppress that pointed out that the affidavit contained no
information about Wilborn’s prior convictions. According to Coleman, had the
magistrate been so apprised, the magistrate would have found that Wilborn lacked
veracity and thereupon refused to issue the warrant for want of a showing of probable
cause.
At the hearing on his motion for new trial, Coleman showed that in 2008,
Wilborn was convicted in Gwinnett County Superior Court for: (i) possessing cocaine
in April 2007; and (ii) possessing marijuana and cocaine in June 2007.
27
Id. at 1416 (II) (B) (citation and punctuation omitted).
28
See id.; State v. Schwartz, 261 Ga. App. 742, 744 (1) (583 SE2d 573) (2003)
(“Undoubtedly, an officer may knock on the outside door of a home without
implicating the Fourth Amendment.”) (footnote omitted); Strozier v. State, 244 Ga.
App. 514, 515 (535 SE2d 847) (2000) (“[W]hen a police officer enters private
property only to the extent of knocking on outer doors, the Fourth Amendment is not
violated. After all, such an officer is merely taking the same route as would any guest
or other caller.”) (citation and punctuation omitted).
13
“While attesting officers and magistrates should make every effort to see that
supporting affidavits reflect the maximum indication of reliability, the absence of
certain information, standing alone, such as the informant’s felony history . . . is not
determinative.”29 Here, the affidavit did not include Wilborn’s prior convictions for
illegal marijuana and cocaine possession,30 but it plainly recounted that police had
just seized from Wilborn what officers had field-tested and thereby believed to be
cocaine; that quickly thereafter, police had discovered a handgun concealed under his
clothing; that Wilborn had then revealed to police that he was also in possession of
marijuana; that officers had thereupon seized from Wilborn a substance that they had
field-tested and thereby believed to be marijuana; and that during their encounter with
Wilborn, he had struggled with the officers and attempted to flee.31 Hence, in light of
29
Bussey v. State, 263 Ga. App. 56, 62 (3) (587 SE2d 134) (2003) (punctuation
and footnote omitted).
30
“If information is knowingly or recklessly omitted, . . . suppression could
result.” Id. (footnote omitted). But Coleman makes no assertion that the cited
omission was knowingly or recklessly made.
31
See Palmer, supra at 78 (“If 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.”) (punctuation omitted).
Accord Cochran, supra at 6 (rejecting argument that the confidential drug informant
was unreliable because such CI had admittedly participated in the commission of a
drug crime, reasoning that if CI told police that “he was participating in . . . illegal
14
all the circumstances set forth in the affidavit, and guided by the standards applicable
to the various levels of judicial scrutiny involved in the warrant process,32 we disagree
with Coleman that the trial court would have granted a motion to suppress that urged
the ground that the averring officer had not informed the magistrate of Coleman’s
drug possession convictions.33
2. Coleman complains that his trial lawyer did not object at trial to the
admission of the drug evidence obtained during the search. Again, Coleman asserts
that the underlying warrant was not supported by probable cause. Because the trial
activity, CI would be making a statement against his penal interest, which elevates
the reliability of that statement”) (emphasis supplied).
32
See Palmer, supra at 77-78.
33
See id. at 78 (reasoning that, although the appellant argued that the search
warrant was deficient because the attesting officer “offered no information to the
magistrate as to reliability of the unnamed CI and he failed to disclose that the CI had
a criminal background, these uncontroverted omissions [did] not necessarily warrant
suppression of the evidence”); Bussey, supra (rejecting argument that, because the
affidavit omitted information about the informant’s paid status, the search warrant
was invalid, where the omission was adequately “offset” by other facts provided to
the magistrate); Roberson v. State, 246 Ga. App. 534, 537 (1) (540 SE2d 688) (2000)
(rejecting argument that, because the attesting investigator did not disclose to the
magistrate “the charges pending against the informant or the favorable treatment he
received in exchange for his cooperation,” the magistrate could not determine the
informant’s reliability, where the omissions were offset by other facts provided to the
magistrate).
15
court would have correctly overruled an objection lodged on that basis,34 this
complaint fails to show any deficiency in trial counsel’s performance.35
Judgment affirmed. Dillard and Peterson, JJ., concur.
34
See Division 1, supra.
35
See Hampton, supra.
16