*1 knowledge, placed Grier then himself so it could be closed without his position position injured. to be That was so contorted that himself he stood with his over the body facing right the door and his foot backward, threshold, degrees but with his face turned almost loudly, of nine heavily descended over an interval while the door seconds, to eleven onto toes. certainly ultimately caused the possible
It is who However, assuming negligence even of negligent. door to close was avoided re- person, completely injury Grier could have descent, during by stopping moving his foot the door’s downward using Although wearing earplugs the door the outside switch. he was perceived closing, that made it difficult to hear the door he could have admitted, He looking descent the door had he been at the door. however, looking.” my opinion, that he In not the “wasn’t ordinary safety. exercise of care for his own Georgia presumes every ordinary possesses law adult such intelligence, judgment, appreciate him discretion as will enable obvious danger. point danger “At some and likelihood of self-in- jury knowledge plaintiff becomes so obvious that actual is un- necessary.” Holton, Corp. Union Carbide “If plaintiff by ordinary care could have consequences avoided the negli- to himself caused the defendant’s gence, view, my is not entitled to OCGA In recover.” 51-11-7. § recover, Grier is I not entitled to and would affirm the trial court’s
grant summary judgment to Kanon.
I am Judge Beasley, Presiding authorized to state that Chief Judge Birdsong Judge join Andrews this dissent.
Decided March
Reconsideration denied March Stolz, Stolz, Jr., Bowen, ap- Gambrell & Charles N. Irwin W. pellant.
Webb, Carlock, Stair, Stair, Copeland, Semler & Kent T. Robert Browning, W. appellee.
A94A2449. CLARK v. THE STATE. Judge. Chief
Beasley, trafficking Dallas Clark was in cocaine. OCGA 16- convicted of § (a). possession 13-31 He of 64 times the knowingly was found to be statutory appeals from the denial of his grams. minimum of 28 He suppress grocery in his residence and
motion evidence found store. upon
1. Clark contends the affidavit which the warrant search all was based did not establish cause. We consider his home transcript. Perry record, including of the evidence addition, we sup there is evidence to accept findings, the trial court’s where *2 port them. Biffle Department engaged in an undercover
The Vidalia Police A drug operation placed Ricky’s and Car Wash under surveillance. (“Cl”) buy employed drug informant to make a confidential watched, got informant into a the car wash. While the officers the premises. white car with an unknown and left the This was not in- part plan not follow the informant. The and officers did thirty reported police formant later and to that he returned minutes home, had been taken to where he remained the car while purchased the driver went inside and over one-half ounce of cocaine. The informant told the officers that he did not enter the residence driver, purchase. police, the to the left witness The who was unknown appre- depositing after the informant at the car wash and was never hended. transpired
Based on related what had and what had been informant, Bobby shortly for Young Officer swore out an affidavit warrant, part: police search “The is a officer stating relevant affiant City with the as the State of Ga. He Vidalia and certified such years. employed City past has been of Vidalia for the six The patrolman drug past affiant has worked related cases as a and department as currently assigned investigations is now to the criminal specialized a narcotics detective. The affiant has attended several drug arrest and responsible schools and seminars. He has been for the He has also convictions of numerous controlled substance offenders. responsible money, guns property. been and drugs, for the seizure of begs The affiant the court for a search warrant for the address known Grady Lyons as 629 East St. The is under the control of residence that made a Dallas Clark. The affiant had a confidential informant (Vfc) for buy paid controlled from this residence. Cl cash $750.00 proved very past to reliable in the ounce of cocaine. This Cl has be deputies and used of the Toombs Co. Sheriffs this officer and The Vz Dept. The Cl was searched before and after the transaction. positive for cocaine. The proved ounce of cocaine was field tested and money therefore has pre-recorded. had the serial numbers The affiant (sic) being concealed reason to believe that this residence is Substances Act.” which is violation of Ga. Controlled hearing The on the motion judge trial who conducted witnesses, conflicts, press evidence heard resolved the and con- magistrate cluded that there was for the issue Factwise, question search warrant. is whether the evidence before supported finding her cause existed to believe the contained contraband. previously
The issued a search warrant Ricky’s Car Wash based on information from the CI. of- same buy by they ficers had set in motion CI another controlled before they executed that surveilling were the car wash $1,200 transpire. given the transaction to The CI had been $100 drugs. buy bills and had been searched beforehand for did wash; instead, anticipated occur as at the car a car with an unidenti- in, up, got fied driver came the CI and it drove off. about a half returned, off, hour it the CI exited the car drove and the CI lights signal complete flicked his car they should enter and execute the search warrant. They did so and found one of the bills in the car $100 wash control, explaining paid up owner’s the CI he had to be to set gave elsewhere. The owner was arrested. The CI what tested as explained cocaine to the officer and that he had been taken to the issue; driver, gave residence whose search is now at $750 who went into the residence and came out with the cocaine which the *3 CI delivered to in the officers. The CI was made to wait the car. officer, magistrate hurry
The in testified that the who was a get back, the government’s money told her under oath the source of i.e., CI, his the unnamed that the CI “or someone” had just bought CI, drugs by at the location described and that the sheriff waiting explained at the warrant. The officer house for the to her how the need for this second search warrant stemmed from the execution of the first one she had issued. The officer did not tell her CI, prior name but she that the information from the knew CI led ato successful search the car wash. description buy
The trial court found that as “con- misleading trolled” was not it in the sense because was “controlled” officers, pre-planned by accomplished that it was it was with CI, government money purchase by marked through a and the CI was searched both in before and after to assure that the CI was not possession drug money. just otherwise or It not of the marked did wash, occur at the car where the officers were located. fact; in trial court was error one there is no evidence about
that the CI sought entered the residence to be searched. The affidavit residence, magistrate does not state that the CI did went into the so, testify testi- that the officer told her the CI did and the officer fied that he did went into the not tell the the CI testify go house. He did the CI did not explain that he did not buy into the house when the Cl made the at the residence and an- — yes” “I question: you swered “Did make her believe that your informant is the one in that made the hand to hand Lyons?”
The trial court found that the information from the Cl was cor- production trip, roborated the Cl’s of cocaine after the half-hour $750, the absence of the and the before-and-after search. It also Ricky’s corroborated the successful search of and his arrest a short before, time based on information from the same CL The officers defendant; knew that the location described the Cl was that of defendant, sheriff knew and he was named the search warrant as person in control of the residence. The Cl would know that great jeopardy own interests would be in if he wrong identified the location as the from which the one-half ounce of cocaine had which, consequently, come and at the marked bills could be found. Had the officer made clear to the the Cl did not ingo directly person residence and the cocaine from the residence, present probable control of the there would still be cause to believe that pre-recorded cocaine came from that house and the funds more cocaine would be there to evidence it as the source and/or of the controlled substance. See Williams v. reliability immaterial, of the car’s driver is and there is no anything
evidence of said which was relied on in issuing the warrant. It is reasonable to infer that the driver did fact obtain the cocaine buyer/CI from the residence to which he drove with the purchase money which he went and from which he came with the buyer/CI cocaine delivered to the who was the car. Although possible it is that he went to the residence as a decoy and possession had the cocaine along, likely; all it is not appears event, no reason for such a scenario. In the driver was purchaser not the merely but go-between; he obtained funds for the transaction from the Cl purchased and delivered the item to the CI.
The affidavit itself should have reflected more of what was re- lated to the magistrate so that there was a clear record instead of *4 incomplete recalled and memory; tape-re- or it should have been corded or Supreme memorialized in some other manner. The Court of Georgia plain, has made this stating attesting at least twice that officers and magistrates every should “make effort to see that porting affidavits reliability. reflect the maximum indication of ...” State v. Stephens, 823) (1984); Gary v. 262 Ga. Valid searches should not be set at risk because of the lack of a record. Those who are duties, trained to seek part professional warrants as of their and those them, responsible deny issue or are who authorized law to validity prove legal of their actions making a record which will accuracy completeness. with
Nevertheless, known to the considering all of the circumstances resi- magistrate, go as well as the fact that the Cl did not into the money provided drugs dence witness the of the for the exchange obtained, that evidence of the sale there was believe (the money) money drugs, if not would be both the additional premises. Stephens, supra. found
We erred as a matter of law judge cannot conclude that concluding supplied that affidavit additional by way prior passed to the or known to her of the probability” federal muster. There was at least a “fair constitutional persons at being sought the items and would be found there. Id. 182.
2. challenges ground Clark also the search warrant on the issuing magistrate was not neutral because her son was a Vidalia po- officer. The affiant was a narcotics detective with the same department lice and had been such for about seven months at the time the warrant was issued. not contest the at- Defendant did State torney’s statement that the magistrate’s son “was not involved particular any way case in whatsoever.” It is adjudicator fundamental who determines whether “
probable cause exists to issue a search warrant must be ‘neutral and ” Vaughn detached.’ (1981), and presented by cases cited therein. The fact defendant does not, does, standing disqualify alone as it either because family relationship consequent or because of her connection department government. executive There is not shown per disqualification se based on lack of disinterestedness or on viola- Vaughn separation tion of the powers. Compare supra. 3. The final challenge to the warrant is that it was insufficient specificity because it failed to state with the address of address, Grady to be searched. The State concedes that the “629 East Lyons, St. curtilage,” mag- and to include the was incorrect. The istrate testified that although the address was not on the warrant at her, presented time the officer the house it to “he told where [her] located,. house, . get standing by . how to to the . . . who was the house in- get for the warrant there . . . where he received the located, formation for this search. ... He the house was knew where given but him the information could not tell [who] him the address of the house.” She understood that the location was premises, obtained just purchased from the Cl who had cocaine at the gone sheriff had the Cl and was residence described there, and that it was the residence of Dallas Clark. *5 118 place sufficiently authorized to be searched was described. Lastly,
4. suppressed Clark contends that the court should have the items from of business because consent to search the involuntary by business was rendered the fact that it was the result of illegal an arrest. He maintains that him detaining sheriff’s of at his residence to await the search warrant constituted an arrest and illegal probable because it lacked cause.
The trial court found that the sheriff’s detention of the residents until the search warrant was issued but a “brief (362 State, App. seizure” as defined in Mixon v. 184 Ga. 623 SE2d 111) (1987). However, if even the detention was found to constitute arrest, probable an it was not without cause. “The basis for issuance by magistrate of a warrant is almost identical to the basis for a arrest, i.e., warrantless probable ‘facts sufficient to show cause that a being crime is committed has been committed. . . .’ OCGA 17-5- § (a). 21 Supreme The U. S. Court and this court have held [cit.] [cit.] Banks, (365 they 760, State v. same.” 185 Ga. 762 855) (1988). SE2d probable supported cause that issuance of the search war-
rant for supported Clark’s home would likewise have his warrantless 1, supra. arrest. See Division Judgment J., J., McMurray, Birdsong, Pope, P. P. affirmed. J., Andrews, J., Johnson, Blackburn, P. concur. Smith Ruf- JJ.,
fin, dissent. Judge, dissenting.
Johnson, I do agree upon that the affidavit which the warrant to search probable home was based established Young’s cause. Officer affidavit omitted critical information and contained false statements. Young admitted on in obtaining cross-examination that the warrant led the to believe that the informant made the “hand to hand” reality Clark’s residence when in the informant never Young gave went inside. no only indication the affidavit that the unknown driver entered Clark’s home. Young also admitted at the suppression hearing that because officers did not continue their sur- wash, veillance of the informant once he left the car not, affidavit, case contrary his assertion a controlled See, 769, (344 e.g., State, one. Sullivan v. Delaware, authority Under the of Franks v. 438 U. S. 2674, 667) (1978), SC testimony LE2d the false cannot be used to State, establish Peters v. cause. 290) (1994); see Daniels v. Once a court determines an affidavit contains false Franks,
statements or omissions as set out the false statements deleted, included, must be the omitted truthful material and the affi- probable cause exists to issue davit reexamined to determine whether a warrant. supra determining Peters, an affida at 489-490. whether necessary sufficiently establishes the issuance vit the circumstances forth in the reformed affida all of set including veracity knowledge considered, vit be and basis hearsay Gary persons supplying See information. 426) (1992); State, 214 Wood v. ‘totality analysis applies “The the circumstances’ also situations which there are two informers.” Munson v. *6 (438 123) (1993). App. 80, case, 211 Ga. In SE2d the informa only tion that there cocaine inside residence could have provided by undisputed It his been unidentified driver. is reliability deficiency is unknown. A created the fact that the relia bility of either source has been established can be corrected thereby providing the basis for ration corroboration substantial finding probable Here, cause. Id. at 82. there was no corrobo being the claim that from sold Clark’s residence. matter “No how truthful or sincere the information from reliable question third-party’s source, the crucial is the unidentified reliabil ity, simply supra Wood, in and is not established the affidavit.” my opinion, In at 849. false set to affidavit’s material one previously included, and side ing supra. Compare 328) (1992). omitted material the affidavit’s remain Daniels, content is insufficient to establish See cause. Thomas, 623, State v. 203 Ga. SE2d denying Therefore, I believe the trial court erred suppress Clark’s motion to his Tal evidence found residence. See (3) 463) ley (d) 442, Similarly, holding I must from 4.1 dissent Division believe denying suppress trial court erred Clark’s motion to evidence place found of business because his consent stemmed from an illegal arrest and search of his unauthorized residence. Sheriff Charles Clark in Durst detained for residence one-and-one-half hours Young while for Officer to obtain search warrant. Durst testified that Clark was not free to rested and have leave would been ar- attempted Young to do so. When did arrive with the warrant, Clark if was asked he would consent to a search of his business, However, which he did. if consent is not valid it is the product illegal generally of an See VonLinsowe v. detention. 371) (1994). 619, I realize that officers may occupants being detain of a residence while the se- pursuant cured ato search warrant. Harrison v. Here, however, I do not believe there prolonged Moreover, valid was a search warrant. detention in this sup- and, lawful, case an amounted to arrest to be have been ported by probable Corbett, cause. State v. See not exist Clark did to arrest Probable cause prior izing author- had no valid warrant the officers search. Because him, arrest cause to and no home a search of Clark’s illegal store tainted. to search the his consent his detention denying my opinion, Clark’s motion court erred press his business. search of obtained evidence am authorized Judge Judge Smith, Blackburn, I to state that join Judge in this dissent. Ruffin
Decided March 30, 1995 denied March Reconsideration Layne, Edgar, II, Alan P. Theodore Solomon & M. Solomon appellant. Hayward Attorney, Altman, As- Malone, S. A. District Richard Attorney, appellee.
sistant District THE STATE. A94A2498.RAMIREZ v. Judge. Presiding McMurray, (defendant) Jorge 12, 1987, Ramirez Guillermo On December pounds over four after discovered
I. Moreno were arrested substance an automobile defendant *7 percent pure containing $55,000 in cash 79 driving. Defendant was subse
had been trafficking quently along Moreno with co-defendant indicted gave jury resulting prosecutions and six rise to four trials cocaine. judice. appeals, including State, v. See Ramirez the case sub 323) (1989); State, 11 Ga. Ramirez v. 735); 315); State, Moreno v. 3); State, v. Ramirez Ramirez 4). Ga. trial, defendant § 17-7-170 demand for Pursuant to an OCGA jury and convicted were tried before and co-defendant Moreno Appeals trafficking reversed defendant’s in cocaine. After the Court of (be- (2), supra App. 889, in Ramirez v. conviction instruction), granted jury co-defend- the trial court cause of a flawed App. 463, Moreno ant Moreno’s motion for new trial. supra. during of court trial the term When the case was called for Appeals following the Court of the remittitur from the term which court), (and judgment defendant of the trial was filed pressed made the statutory acquittal pursuant discharge to his a motion for appeal brought to trial after demand for trial because he was not during days remaining court the term of within the number of