347 Ga. App. 341
Ga. Ct. App.2018Background
- Tad David Wingate was convicted after searches at two properties: 501 Long Branch Road and 829 Miller McElreath Road, yielding marijuana plants, manufacturing equipment, methamphetamine, and carisoprodol.
- Law enforcement (FBI task force and Madison County officers) approached 501 Long Branch Road, heard music from an outbuilding, smelled a strong odor of marijuana, found a padlocked outbuilding with a fan running, and secured the residence until a warrant could be obtained.
- A Madison County narcotics investigator applied for a search warrant for Long Branch Road based on information relayed by an FBI agent and the officers’ observations (including the odor of marijuana); the warrant was issued and executed, yielding marijuana plants and related items.
- A separate affidavit for a warrant at Wingate’s listed residence on Miller McElreath Road relied in part on the evidence seized at Long Branch Road and officers’ observation of a strong odor of marijuana when Wingate was contacted at that address.
- Wingate moved to suppress evidence from both searches, arguing (1) illegal entry into the curtilage at Long Branch Road and (2) lack of probable cause supporting both warrants; the trial court denied the motion and Wingate appealed.
Issues
| Issue | Wingate's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Wingate waived challenge to sufficiency of warrant affidavits | He did not waive; he raised the warrant sufficiency in a brief after the suppression hearing | He contended Wingate waived by not raising issue at suppression hearing | Court: No waiver; appellate review allowed |
| Whether Long Branch Road affidavit established probable cause | Affidavit relied mainly on officers’ detection of marijuana odor but lacked facts establishing officers’ qualifications to identify the odor | Magistrate could infer agents/officers were qualified; other facts (padlock, fan, FBI tip) supported probable cause | Court: Affidavit insufficient; odor allegation without officer qualifications and other facts inadequate |
| Whether Miller McElreath Road affidavit established probable cause | Miller McElreath affidavit depended on evidence seized at Long Branch; without that evidence it lacked probable cause | Argued independent observations (odor at Miller McElreath, Wingate’s address) supported probable cause | Court: Lacked probable cause absent the Long Branch evidence |
| Whether evidence should be suppressed and convictions upheld | Evidence obtained via warrants should be suppressed due to lack of probable cause | State urged warrants valid and suppression denied | Court: Suppression warranted; convictions reversed |
Key Cases Cited
- State v. Kazmierczak, 331 Ga. App. 817 (officer’s detection of marijuana odor may support probable cause only if affidavit shows officer qualified to recognize odor)
- State v. Stephens, 252 Ga. 181 (magistrate must make common-sense probable cause decision considering veracity and basis of hearsay)
- Coleman v. State, 337 Ga. App. 304 (review focuses on the four corners of the affidavit)
- Willoughby v. State, 315 Ga. App. 401 (search warrant must be supported by facts showing probable cause that a crime is occurring)
- Stanley v. State, 206 Ga. App. 125 (issues raised in a brief filed with a suppression motion may be considered part of the motion)