Swan v. State

572 S.E.2d 64 (2002) 257 Ga. App. 704

SWAN
v.
The STATE.

No. A02A0759.

Court of Appeals of Georgia.

October 3, 2002. Certiorari Denied January 13, 2002.

Charles G. Harbin, Jr., Marietta, for appellant.

Garry T. Moss, Dist. Atty., Scott T. Poole, Asst. Dist. Atty., for appellee.

MILLER, Judge.

Based on evidence police obtained in a search of her residence, Virginia Louise Swan was convicted of possessing methamphetamine with intent to distribute. She moved to suppress the evidence, which motion the court denied. She appealed to this Court, which affirmed. Swan v. State, 255 Ga.App. 368, 565 S.E.2d 488 (2002). Swan then petitioned the Supreme Court of Georgia for writ of certiorari. In an order, the Supreme Court granted the petition and reversed this Court's opinion, holding that this Court applied the wrong standard of review to the undisputed facts in this case. See Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994) (trial court's application of law to undisputed facts is subject to de novo appellate review). The Supreme Court remanded the case to this Court for application of the proper standard of review. We hereby vacate our previous opinion and, applying a de novo standard of review, issue a new opinion in the case.

When reviewing a trial court's order on a motion to suppress where the facts are undisputed, we apply a de novo standard of review to the trial court's application of the law to the facts. Vansant, supra, 264 Ga. at 320(1), 443 S.E.2d 474. Here the undisputed evidence showed that a person arrested for a drug offense told police that two days earlier he had purchased methamphetamine from "Jeannie" (Swan's nickname), and that he had been making such purchases from her for the past two years. He led police to the house where the transactions had taken place, indicating that he had seen methamphetamine at the house during the recent purchase transaction. He also stated that Swan drove a white Chevrolet Camaro, which police observed at the house. Citing this information and identifying the informant, police applied for a search warrant, describing the location of the house by naming the county and state and by giving specific street directions and distances to the location. The house's color and curtilage were also described. A warrant issued.

Two days later police executed the warrant. Police surrounded the house, in which a party was going on, and two officers approached the front door, knocked, and announced "Sheriff's Department." The door had no handle and was unlocked. After waiting three to five seconds and receiving no response, police opened the door and entered, announcing "Sheriff's Office, Search Warrant." The search produced firearms, drug sale-related paraphernalia, and large quantities of methamphetamine. Swan admitted to police at the site that she owned the home and possessed the methamphetamine.

Swan was indicted for possessing methamphetamine with intent to distribute and for possessing a firearm during the commission of certain crimes. Swan moved to suppress the evidence obtained during the search, which motion the court denied after an evidentiary hearing. Acquitting her of the firearm charge, the jury found her guilty of the drug possession charge. She appeals, citing as error the denial of her motion to suppress.

1. Swan claims that police did not show probable cause to support the warrant where the affiant relied on the word of a named informant who had reason to lie in order to receive lighter treatment for his pending drug offense. Georgia law is to the contrary: "When a named informant makes a declaration against penal interest and based on personal observation, that in itself provides a substantial basis for the magistrate to credit that statement." (Punctuation and footnote omitted; emphasis in original.) Tomlinson v. State, 242 Ga.App. 117, 119, 527 S.E.2d 626 (2000); see State v. Wesson, 237 Ga.App. 789, 791, 516 S.E.2d 826 (1999); Sosebee v. State, 227 Ga.App. 21, 23-24, 488 S.E.2d 102 (1997). Swan's citation to Robertson v. State, 236 Ga.App. 68, 510 S.E.2d 914 (1999), is inapplicable, as the informant in that case was not named to the magistrate. See Wesson, supra, 237 Ga.App. at 791, 516 S.E.2d 826 (naming of informant to magistrate is key distinction).

Here the informant, who was named to the magistrate, reported to police that he personally observed and purchased methamphetamine at the house in question, which clearly was against his penal interest. As credible evidence supported a finding of probable cause, we uphold the trial court's ruling in favor of the warrant.

2. Citing Vaughn v. State, 141 Ga. App. 453, 454(1), 233 S.E.2d 848 (1977), Swan alleges that the warrant was defective for failing to identify the county and state when describing the location of the house to be searched. Unlike the affidavit in Vaughn, however, the affidavit in support of the warrant here stated that the described property was in a specified county (Cherokee County). The description of the property's location by giving specific directions and distances along identified highways and intersections in the county, and by giving a physical description of the house, allowed police to ascertain with reasonable certainty the identity of the place intended. See, e.g., Landers v. State, 183 Ga.App. 691 692(1), 359 S.E.2d 748 (1987); Miller v. State, 155 Ga.App. 399, 401(I)(B), 270 S.E.2d 822 (1980).

3. Swan contends that the manner in which police executed the warrant invalidated the search. Specifically, Swan argues that police allowed only three to five seconds between the knock/announcement and entering the home, which interval was too short to allow the occupants to respond. The warrant did not have a "no knock" provision. Compare Jones v. State, 127 Ga.App. 137(1), 193 S.E.2d 38 (1972).

"A law enforcement officer entering an occupied residence for the purpose of executing a search warrant is required to give or attempt to give verbal notice of his authority and purpose. See OCGA § 17-5-27; [cits.]" State v. Smith, 219 Ga.App. 905, 906, 467 S.E.2d 221 (1996). Here police knocked and announced their authority, and upon receiving no response after three to five seconds, they nonforcibly entered the unlocked residence, repeating their authority and specifying they were executing a search warrant. We hold that the three-to five-second interval was sufficient, particularly in light of the "judicially recognized [fact] that firearms are tools of the drug trade. [Cit.]" Felix v. State, 241 Ga.App. 323, 326(4), 526 S.E.2d 637 (1999) (five-to ten-second interval in drug raid sufficient). Indeed, as in Felix, guns were discovered in the residence, with police here having to subdue one of the occupants who was reaching for a gun. Swan even admitted to attempts to hide the firearms and drugs once she heard the knocking. The three-to-five-second interval between the knock/announcement and the nonviolent opening of the unlocked door (after no one inside responded) was not manifestly unreasonable. Id.; compare Smith, supra, 219 Ga.App. at 906, 467 S.E.2d 221 (police did not knock nor announce their authority or purpose when approaching and entering house; search invalid); Barclay v. State, 142 Ga. App. 657, 236 S.E.2d 901 (1977) (using pas key, police entered motel room without knocking or giving notice of their authority or purpose; search invalid).

Judgment affirmed.

BLACKBURN, C.J., and JOHNSON, P.J., concur.