Motion to suppress. Cobb Superior Court. Before Judge Cox, pro hac vice.
Lawrence J. Zimmerman, for appellant.
D. Victor Reynolds, District Attorney, Samuel W. Lengen, Daniel J. Quinn, Assistant District Attorneys, for appellee.
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, 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 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 Lieutenant 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 [331 Ga.App. 448] 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 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 marijuana 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 (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 [331 Ga.App. 449] 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 his home numerous times--did not give rise to sufficient ...