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Mincey v. State

Court of Appeals of Georgia

July 1, 2015

MINCEY
v.
THE STATE

Motion to suppress. DeKalb Superior Court. Before Judge Flake.

Michael W. Tarleton, Brandon A. Bullard, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Lenny I. Krick, Assistant District Attorneys, for appellee.

PHIPPS, Presiding Judge. Doyle, C. J., and Boggs, J., concur.

OPINION

Phipps, Presiding Judge.

Gary Mincey appeals from his convictions for rape (three counts), armed robbery (three counts), aggravated sexual battery, aggravated sodomy, aggravated assault (two counts), false imprisonment (five counts), robbery by force, and burglary, in connection with offenses

Page 753

committed against five women; one of the rape convictions and the aggravated sexual battery conviction (along with other convictions) involved offenses committed against H. W. Mincey contends that the trial court erred by denying his motion to suppress DNA evidence[1] obtained from him pursuant to a search warrant, because the affidavit submitted in support of the warrant was insufficient.[2] Finding no error, we affirm.

Mincey asserts that the magistrate lacked probable cause to issue the search warrant to obtain a sample of his saliva because the incident described in the affidavit (which incident involved H. W.) submitted in support of the warrant did not show a fair probability that law enforcement officials had obtained any biological evidence from H. W. to which his DNA sample could be compared.[3]

" In determining probable cause, the magistrate's task is to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." [4]

The [appellate court's duty] is to determine if there was a substantial basis for concluding that probable cause existed to issue the search warrant. Doubtful cases should be resolved in favor of upholding the determination that issuance of a warrant was proper, reflecting both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon [332 Ga.App. 691] interests protected by the Fourth Amendment is less severe than otherwise may be the case.[5]

The evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings as to disputed facts and credibility will be upheld unless clearly erroneous; and the trial court's application of the law to undisputed facts is subject to de novo review.[6] We afford substantial deference to a magistrate's decision to issue a search warrant based upon a finding of probable cause.[7]

Construed most favorably to uphold the findings and judgment of the trial court, the evidence shows that on November 29, 2011, H. W. was at home when a man entered her house, robbed her at gunpoint of various items, and forced her to have sexual intercourse with him. The assailant then ordered H. W. to take a shower, which she did, and he left. H. W. also left the house, contacted and gave a statement to police, then went to a hospital, where a sexual assault kit was completed.

On November 30, 2011, police officers attempted to initiate a stop of a vehicle they suspected was connected to a series of reported rapes. After an ensuing vehicle chase and foot chase, officers apprehended the driver, Mincey, in a retention pond. Officers found in the pond, near Mincey, a striped pillowcase he had been carrying. The pillowcase and some of its contents had been ...


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