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State v. Lopez-Chavez

Court of Appeals of Georgia

February 10, 2015

THE STATE
v.
LOPEZ-CHAVEZ

Motion to suppress. Columbia Superior Court. Before Judge Roper.

Ashley Wright, District Attorney, Joshua B. Smith, Robert T. Homlar, Assistant District Attorneys, for appellant.

David R. Brunk, for appellee.

OPINION

Page 817

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

Page 818

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 [330 Ga.App. 645] 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 [330 Ga.App. 646] 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 ...


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