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State v. New

Court of Appeals of Georgia, Second Division

March 12, 2015

THE STATE
v.
NEW

Cert. applied for.

Motion to suppress. Hall Superior Court. Before Judge Oliver.

Lee Darragh, District Attorney, Zachary H. Smith, Assistant District Attorney, for appellant.

Summer & Summer, Daniel A. Summer, for appellee.

RAY, Judge. Andrews, P. J., and McFadden, J., concur in judgment only.

OPINION

Page 240

Ray, Judge.

The State appeals from the grant of a motion to suppress filed by Kevin Charles New after he was indicted for his alleged possession of methamphetamine with intent to distribute, possession of methamphetamine,

Page 241

and possession of marijuana, all pursuant to OCGA § 16-13-30; theft by receiving, in violation of OCGA § 16-8-7; and possession of a drug-related object under OCGA § 16-13-32.2. The State contends that the trial court erred in granting the motion because law enforcement acted reasonably under the totality of the circumstances and OCGA § 17-5-30 only requires suppression of evidence seized during an unlawful search; law enforcement acted in good faith; and the purposes of the exclusionary rule are not served in this case by suppressing the evidence. For the reasons that follow, we are constrained to affirm.

[T]hree fundamental principles ... must be followed when conducting appellate review of a trial court's ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and [her] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. These [331 Ga.App. 140] principles apply equally whether the trial court ruled in favor of the State or the defendant.

( Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 S.E.2d 148) (2013). To the extent that " the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of the law to the undisputed facts." (Citation omitted.) Jones v. State, 291 Ga. 35, 36-37 (1) (727 S.E.2d 456) (2012).

The undisputed evidence adduced at the motion to suppress hearing shows that on or about November 15, 2012, law enforcement officers with Hall County's Multi-Agency Narcotics Squad (" MANS Unit" ) learned from a Gwinnett County police officer that New possessed or was selling drugs. An officer with the MANS Unit at the time of the search testified that he did not know the source of the Gwinnett officer's information, and that he could not have gotten a search warrant because " [w]e didn't have any probable cause" and because " [t]here was no ... evidence to back up that [New] was actually selling" drugs.

Prior to initiating the search, Agent Casey Ivey, who was working with the MANS Unit, contacted the Gainesville Probation Office to verify New's probation status. He was given a copy of New's sentence, which included a waiver of New's Fourth Amendment rights against search and seizure. Officers then went to New's address. He walked out from the area near his detached garage to meet them, but when the officers told him they were there to search him pursuant to his Fourth Amendment waiver, New told them his probation had been terminated early. Agent Ivey showed New the copy of his sentence, which said he had waived his Fourth Amendment rights through the remainder of his probation. According to those documents, his probation was not scheduled to end for another three years. New told officers at least three times that he was no longer on probation, so prior to initiating any search, two other officers each separately verified New's probation status. One officer called Hall County Dispatch, which checked both the National Crime Information Center (" NCIC" ) and the ...


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