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Briscoe v. State

Court of Appeals of Georgia, Fifth Division

February 20, 2018

BRISCOE
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          MCFADDEN, PRESIDING JUDGE.

         After a jury trial, Derrick Briscoe was convicted of possession of cocaine with intent to distribute as a lesser included offense of cocaine trafficking. He appeals, arguing that the trial court erred in denying his motion to suppress. We disagree because the search warrant affidavit was corroborated by a controlled buy, the information in the warrant affidavit provided a sufficient nexus to Briscoe's apartment, and the information was not impermissibly stale. Briscoe also argues that he received ineffective assistance of counsel. But he has not shown both deficient performance and prejudice. So we affirm.

         1. Facts.

         Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the evidence shows that law enforcement officers executed a search warrant on Briscoe's apartment and found a large bag of cocaine, more than a dozen bags of cocaine packaged into small amounts for sale, thousands of dollars of cash, a digital scale with cocaine residue on its surface, packaging material, "cut material" used to dilute the drug, and "tally sheets" used to keep track of money owed. The officers found Briscoe in a bedroom closet. After he was handcuffed, Briscoe asked, "Did I sell to an undercover?" When a detective asked if the cocaine was his, Briscoe responded affirmatively.

         Briscoe was charged with cocaine trafficking and obstruction of an officer for his behavior during the execution of the search warrant. A jury found him guilty of possession of cocaine with intent to distribute as a lesser included offense and not guilty of obstruction of an officer; he was sentenced on the possession charge. Briscoe now appeals the denial of his motion for new trial.

         2. Motion to suppress.

         Briscoe argues that the trial court erred by denying his motion to suppress items seized from his apartment for three reasons: the detective who obtained the search warrant did not sufficiently corroborate the confidential informant's information; the information did not provide probable cause to search Briscoe's apartment; and the information was stale. We disagree with all three arguments.

         The only information before the magistrate court judge who issued the search warrant was the affidavit of the police detective who sought the warrant. The detective made the following assertions in the affidavit: The detective met with a confidential informant whose veracity was unknown to the detective. The informant told the detective that a black man who goes by the name of "Briscoe" and who has short dreadlocks was distributing cocaine from his white Ford Explorer. The informant gave the detective Briscoe's phone number, which the detective traced to defendant Derrick Briscoe at a particular address in Athens. At the detective's request, the informant arranged to purchase cocaine from Briscoe in a Publix parking lot.

         The detective had another law enforcement officer conduct surveillance of Briscoe's apartment before the scheduled controlled buy. That officer told the detective that a black male with short dreadlocks entered the apartment about ten minutes before the controlled buy, exited the apartment, and got into a white Ford Explorer. The surveillance officer followed the white Ford Explorer to the Publix parking lot, where the detective was waiting and watching.

         The detective saw the Explorer pull up. The detective saw that the driver was a black male with short dreadlocks. The informant purchased cocaine and identified the seller as Briscoe. The detective watched the entire transaction and monitored the conversation between Briscoe and the informant via a transmitter worn by the informant.

         The magistrate court issued a search warrant based on the affidavit, and law enforcement officers executed the warrant.

         (a) The confidential informant's information was sufficiently corroborated.

         Briscoe argues that the detective who obtained the search warrant did not sufficiently corroborate the confidential informant's description of Briscoe's physical appearance. Specifically, Briscoe points to the fact that the detective stated in the search warrant affidavit that he had seen a black male with short dreadlocks in the Ford Explorer that drove up to the controlled buy. Yet at the motion to suppress hearing and at trial, the detective testified that he could not see whether the black male in the Ford Explorer had dreadlocks. In fact, Briscoe did not have dreadlocks. Briscoe argues that the detective's false ...


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