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Wiggins v. State

Court of Appeals of Georgia

March 23, 2015

WIGGINS
v.
THE STATE

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.

OPINION

Page 136

Dillard, Judge.

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,[1] 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

Page 137

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[2] 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 probable cause to suggest that he was running a drug-distribution operation out of his home. We agree.

We begin by noting that, in considering a trial court's denial of a motion to suppress, we construe the evidence in favor of the court's ruling, " and we review de novo the trial court's application of the law to undisputed facts." [3] Moreover, in accordance with the Fourth Amendment to the United States Constitution,[4] a search warrant in Georgia may issue only upon " facts sufficient to show probable cause that a crime is being committed or has been committed ... ." [5] And

Page 138

in determining whether probable cause exists, the issuing judge is required 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 evidence of a crime will be found in a particular place." [6] Finally, in reviewing the validity of a search warrant, this Court is charged with " ensuring--considering the totality of the circumstances and giving substantial deference to the issuing judge's decision--that the judge had a 'substantial basis' for concluding that probable cause existed." [7] Bearing these guiding [331 Ga.App. 450] principles in mind, we turn now to Wiggins's claim that the search warrant for his residence was invalid.

In the case sub judice, Agent Burnes sought to establish probable cause for the search warrant by averring that (1) an anonymous tipster reported that Wiggins was selling 50 pounds of marijuana out of his home per week, that his home contained a " mushroom grow," that the informant had seen these drugs, and that there were surveillance cameras outside of Wiggins's house; (2) during a traffic stop, Wiggins was found in possession of 19.7 grams of marijuana (including the packaging), which was " inside a plastic bag marked 17 (commonly marked for weight by drug dealers)," and a revolver, which was located in his glove box; and (3) the female passenger in Wiggins's truck reported that she had smoked marijuana at Wiggins's house on " multiple occasions." [8]

Regarding anonymous informants, we have previously held that an " uncorroborated telephone call from an anonymous tipster is not alone sufficient to base a finding of probable cause." [9] We must also determine, among other things, whether " the hearsay information supplied to the affiant, coupled with the affiant's personal observations, presented a fair probability that contraband would be found at [Wiggins's] residence." [10] Here, Agent Burnes did not identify any actions that she took to determine the reliability of the anonymous informant, whom she admittedly knew nothing about. And because she took no such actions, her affidavit provided no information whatsoever [331 Ga.App. 451] regarding the informant, much less any indicia of his reliability. Thus, given the complete lack of information regarding the anonymous informant, his motives, or the basis for his knowledge, his allegations, standing alone,

Page 139

were insufficient to establish probable cause for the search of Wiggins's home.[11]

Nevertheless, we have acknowledged that a deficiency created by the fact that the reliability of a source has not been established can " be corrected by the corroboration of the information, thereby providing a substantial basis for finding probable cause." [12] And for the corroboration to be meaningful, the corroborating information must " include a range of details relating to future actions of third parties not easily predicted or similar information not available to the general public." [13]

Regarding corroboration, Agent Burnes testified that she surveilled Wiggins's residence--where he was allegedly distributing 50 pounds of marijuana every week --for only ten minutes, an amount of surveillance that the trial court found to be insufficient. And rightly so. As the record makes clear, there was essentially no investigation to determine the anonymous informant's reliability or to corroborate his claims. Nevertheless, the State contends that the informant's claim that there were cameras outside of Wiggins's residence was corroborated when KPD officers confirmed the existence of those cameras. But this is not meaningful corroboration because the cameras were on the exterior of Wiggins's residence and visible to the [331 Ga.App. 452] general public. Indeed, KPD agents observed the cameras outside of the house before obtaining the search warrant and entering Wiggins's residence.[14]

The State also contends that the anonymous tip was corroborated by Wiggins's possession of marijuana contained inside a bag with a marking commonly used by drug dealers. And while we agree that this evidence reasonably supports an inference that Wiggins is a marijuana user, it strains credulity to suggest that his possession of less than one ounce of marijuana in a single bag with this marking is sufficient to demonstrate his possible involvement in a high volume drug-distribution operation.[15] Indeed, with the exception

Page 140

of the revolver, the KPD agent who searched Wiggins's truck did not discover any items commonly used in drug distribution, such as a large amount of cash, a substantial amount of drugs, scales, drugs portioned for sale in separate baggies, drug-packaging materials, or any other drug paraphernalia.[16]

As for the revolver, Wiggins appeared to have lawfully possessed it,[17] and it was not discovered in close proximity to any other signs of drug dealing (such as a significant amount of drugs).[18] More importantly, it bears repeating that the magistrate was not given any [331 Ga.App. 453] information regarding how much time had passed between Wiggins's alleged drug trafficking and his possession of the firearm, so it is unclear whether the two are in any way related.[19] Simply put, Wiggins's possession of a relatively small amount of marijuana and a legally owned firearm during a traffic stop, with no other indicia of drug distribution, was insufficient corroboration for the anonymous informant's claim that, at some unknown time, Wiggins was trafficking in a substantial amount of marijuana every week out of his home.[20]

Finally, the State asserts that the female passenger in Wiggins's truck, who told police that she had smoked marijuana at his house on multiple occasions, corroborated the informant's allegations. However, his passenger's claim that she previously smoked marijuana at Wiggins's house does not suggest that he was currently involved in drug trafficking. Indeed, she did not indicate whether she ever purchased marijuana from Wiggins, whether she ever observed him selling it to others, whether she had seen the alleged mushroom grow, or whether she had witnessed any other indicia of drug trafficking in his home. Furthermore, she did not specify how recently she had smoked marijuana at Wiggins's house.[21] Under these particular circumstances, the acquaintance's admission that she used drugs at Wiggins's house on unspecified occasions does not create a fair probability that evidence of drug trafficking

Page 141

would be found there at the time the warrant was issued.[22]

[331 Ga.App. 454] In sum, the Supreme Court of Georgia has " cautioned attesting officers and magistrates to make every effort to see that supporting affidavits reflect the maximum indication of reliability," [23] and as recognized by the trial court during the suppression hearing, such efforts were simply not made in this case. Although we are mindful that " the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants," [24] we nevertheless conclude that the anonymous informant's wholly uncorroborated allegations that Wiggins was selling drugs at some undisclosed time--even combined with evidence that Wiggins legally possessed a firearm during a traffic stop and that he and his friend had previously used marijuana--did not provide a substantial basis for determining that probable cause existed to search Wiggins's residence at the time when the warrant was issued.[25] The fact that Wiggins appears to have actually been engaged in drug trafficking is ultimately of no consequence for purposes of our analysis, which is grounded in the safeguards afforded by the Fourth Amendment.[26]

Page 142

[331 Ga.App. 455] For all of the foregoing reasons, we reverse the trial court's denial of Wiggins's motion to suppress evidence.

Judgment reversed.

Doyle, P. J., concurs. Miller, J., concurs in judgment only.


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