Gary v. State
422 S.E.2d 426
Ga.
1992
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GARY et al. v. THE STATE

S92G0225

Supreme Court of Georgia

DECIDED DECEMBER 1, 1992

422 SE2d 426

BENHAM, Justice

lrid,

(1b), and Browning is inapposite.

4. Fоr the foregoing reasons, we find that appellants’ arguments state no meritorious reason for holding that § 9-3-73 (b) is unconstitutional as applied to Krista Smith. We therefore affirm the judgment of the trial court.

Judgment affirmed. All the Justices concur; Hunstеin, J., not participating.

Freeman & Hawkins, Paul M. Hawkins, Lawrence J. Myers, William G. Scoggin, for appellants.

Alston & Bird, Kenneth B. Pollock, Robert D. McCallum, Jr., Judson Graves, Downey, Cleveland, Parker, Williams & Davis, Y. Kevin Williams, Houston D. Smith III, Barnes, Browning, Tanksley & Casurella, Benny C. Priest, for appellee.

BENHAM, Justice.

We granted certiorari to dеtermine a question of first impression in Georgia: whether the “good faith” exception to the exclusionary rule enunciated in

is applicable as a matter of state law in Georgia.1

After their home was searched pursuant to a search warrant, appellants Ronald and Alma Gary were indicted for possession of mari-juana with intent to distribute.2 The trial court granted appellees’ motion to suppress the evidence seized during the search. The Court of Appeals relied on the “good-faith exception” to the exclusionary rule adopted by the U. S. Supreme Court in

, and reversed the trial court.
.

The exclusionary rule had its inception in 1914 when the U. S. Supreme Court held that the Fourth Amendment to the United ‍‌‌‌​​‌‌​​​​​​‌​‌‌​​‌​​​‌​‌​‌​​​‌​‌‌​​​‌​‌​​‌​​​​‍States Constitution barred the use in federal prosecutions of evidence seсured through an illegal search and seizure.

. It was not until its decision in
, that the U. S. Supreme Court determined that the sanction of exclusion was enforceable against the states through the operation of the Fourth and Fourteenth Amendments to the United Statеs Constitution. In
, the Court observed that the exclusionary rule was a judicially-created remedy to safeguard Fourth Amendment rights, and modified the rule to permit the introduction of evidence obtained by officers reasonably relying on a warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.3 For the reasons that follow, we conclude that Georgia law precludes adoption of the
“good-faith exception” to the exclusionary rule as part of the jurisprudence of Georgia.

“[A] State is free as a matter of its own law to impose greater restrictions on police activity than those [the Supreme] Court holds to be necessary upon federal constitutional standards.”

. Thus, “the State [has] power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so.”
. By passage in 1966 of an act “to provide for searches and seizures and for suppression of evidence illegally seized” (Ga. L. 1966, p. 567), the State of Georgia has chosen to impose greater requirements upon its law enforcement officers than that required by the United States Constitution, as interpreted by the U. S. Supreme Court.4

OCGA § 17-5-30, the codified version of Ga. L. 1966, p. 567, § 13, provides that

(a) A defendant aggrieved by an unlawful search and seizure may move the court ... to suppress as evidence anything so obtained on the grounds that: ... (2) [t]he search and seizure with a warrant was illegal because ... there was not probable cause for the issuance of the warrant.... (b) ... If the motion is granted the property ... shall not be admissible in evidenсe against the movant in any trial.

The State recognizes that the

good-faith exception is the result of the federal judiciary modifying a judicially-created exclusionary rule, while the Georgia exclusionary ‍‌‌‌​​‌‌​​​​​​‌​‌‌​​‌​​​‌​‌​‌​​​‌​‌‌​​​‌​‌​​‌​​​​‍rule had its inception in the legislature. Nonetheless, the State suggests we exercise our judicial power to construe statutes and interpret OCGA § 17-5-30 so as to except the good-faith execution of a warrant from the meaning of an illegal search and seizure. However, OCGA § 17-5-30 is the lеgislature‘s unequivocal expression of its desire that evidence seized by means of a warrant that is not supported by probable cause be suppressed. The legislature enacted this statute to protect against gоvernmental disregard for constitutionally-protected rights5 by requiring the integral actors in the warrant-issuing process — the law enforcement officers who seek warrants and the members of the judiciary who issue warrants — to respect the probable cause requirements of the Georgia Constitution, Art. I, Sec. I, Par. XIII, and to carefully prepare and scrutinize applications for warrants.6 In light of the unequivocal language of OCGA § 17-5-30, infusion of the
good-faith exception into the statute would be tantamount to judicial legislation.7 We de-cline to enter the realm of the legislature and, instead, turn to the judicial task at hand: to determine whether the warrant used to search the Gary home was supported by probable cause. If, as the trial court сoncluded, there was no probable cause to support issuance of the warrant, the evidence seized pursuant to that warrant must be suppressed pursuant to OCGA § 17-5-30.8

The affidavit submitted in support of the application for search warrant reads as follows:

Affidavit for a Jackson County, Georgia magistrate‘s search warrant for the entire premises of 555 Belmont Ave., Commerce, Ga. Premises being occupied by a white male known as Ronald Gary. Said premises are described as follows: white, single-story dwelling with paved drive. Said dwelling is located in Jackson Co., Ga. within the city limits of Commerce.

O[n] Thursday, March 30, 1989, affiant was contacted by an informant, which to affiant‘s knowledge has never given information to law enforcement officers in the past. Said informant stated to affiant that within the past three [3] days it had personally been in above-described premised and observed Ronald Gary in possession of a quantity оf marijuana. Said informant stated that said marijuana was stored at the above-described premises by Ronald Gary.

Said informant has never given information to law enforcement officers in the past but is believed to be truthful. Informant demonstrated a truthful demeanor when relating information by giving detailed descriptions which indicated a personal knowledge. The informant has a personal connection with the suspect. Informant is a mature person. Informant is emрloyed.

Independent investigation by affiant revealed that a white male ‍‌‌‌​​‌‌​​​​​​‌​‌‌​​‌​​​‌​‌​‌​​​‌​‌‌​​​‌​‌​​‌​​​​‍known as Ronald Gary does occupy the above-described premises.

For the above reasons, affiant has probable cause to believe that at the above-described premises there is now con-tained marijuana in violation of Georgia criminal law.

In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the “totality of the circumstаnces” analysis enunciated in

, and adopted by this court in
, with the admonition that “[p]rudence counsels that Gates be considered as the outer limit of probable cause.”
. Under that analysis,

[t]he task of the issuing magistrate is 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 contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... conclud[ing]” that probable cause existed. [Cit.]

. In addition, this court has cautioned attesting officers and magistrates to “make every effort to see that supporting affidavits reflect the maximum indication of reliability....”
.

We conclude, as did the trial court, that the magistrate did not have a substantial basis for concluding that probable cause existed. The affiant rеlied on information given him by a person who had never supplied information before, and concluded the informant was being truthful because he/she gave “detailed descriptions which indicated a personal knowledge.” Yet none of the facts that formed the basis for the affiant‘s conclusion that the informant was being truthful were ever revealed to the magistrate. The independent investigation done in an effort to corroborate the unproven infоrmant‘s information established only that appellants lived where the informant said they did. The trial court did not err when it concluded that the “bare-bones” affidavit submitted to the magistrate,9 was not sufficient to establish that there was a “fair prоbability” that contraband would be found at the Gary residence.

In sum, we hold that the good-faith exception to the exclusionary rule enunciated by the U. S. Supreme Court in

, is not applicable in Georgia in light of our legislatively-mandated exclusionary rule found in OCGA § 17-5-30, and that the trial court did not err when it ordered suppression of the contraband seized in a search of appellants’ ‍‌‌‌​​‌‌​​​​​​‌​‌‌​​‌​​​‌​‌​‌​​​‌​‌‌​​​‌​‌​​‌​​​​‍home because the warrant authorizing the search was not supported by probable cause.

Judgment reversed. Clarke, C. J., Bell, P. J., Hunt, Fletcher and Sears-Collins, JJ., concur.

CLARKE, Chief Justice, concurring.

I concur with the majority opinion. I write only to emphasize that the extension of the exclusionary rule to the facts in this case rests not on a constitutional right. It simply rests on the statute passed by the legislature and we simply hold that the courts are bound by that statute.

H. Bradford Morris, Jr., Davidson & Hopkins, Jack S. Davidson, for appellants.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, Michael J. Bowers, Attorney General, Harrison W. Kohler, Senior Assistant Attorney Gеneral, for appellee.

Notes

2
Ronald Gary was also charged with possession of a firearm during the commission of a crime (the possession of marijuana with intent to distribute).
3
The Court held that suppression remained “an appropriate remedy” if the warrant was issued pursuant to an affidavit containing information the affiant knew was false оr would have known was false except for his reckless disregard for the truth; if the issuing magistrate wholly abandoned his judicial role; if the affidavit so lacked indicia of probable cause as to render official belief in its existence entirely unreasonable; or if the warrant issued were so facially deficient that the executing officers could not reasonably presume it to be valid.
.
4
Our decision in this case is based on our construction of OCGA § 17-5-30. See
.
5
The rights against self-incrimination and to be free from unreasonable search and seizure were described in
as the sacred civil jewels which have come down to us from an English ancestry, forced from the unwilling hand of tyranny by the apostles of personal liberty and рersonal security. They are hallowed by the blood of a thousand struggles, and were stored away for safe-keeping in the casket ‍‌‌‌​​‌‌​​​​​​‌​‌‌​​‌​​​‌​‌​‌​​​‌​‌‌​​​‌​‌​​‌​​​​‍of the constitution. It is infidelity to forget them; it is sacrilege to disregard them; it is despotic to trample upon them. They are given as a sacred trust into the keeping of the courts, who should with sleepless vigilance guard these priceless gifts of a free government.
6
In several instances, appellate courts have used the Leon good-faith exception to avoid a determination of whether probable cause existed for the issuance of the search warrant. See, e.g.,
;
;
;
;
;
.
7
The Leon good-faith exception has been rejected by the appellate courts of other states which have statutory exclusionary rules. See
;
;
;
.
8
By holding that the Leon good-faith exception was applicable to the case at bar, the Court of Appeals did not have to address the issue of whether the search warrant was supported by probable cause.
9
At the hearing on the motion to suppress, the trial court described the affidavit in question as “the weakest one I have ever seen.”