In Glispie v. State,
As found by the Court of Appeals, the record in this case shows the following:
[0]n February 7, 2013, at about 2:00 a.m., Nathan Watts, a Rockdale County sheriff’s deputy, was on patrol in a marked patrol cruiser on Flat Shoals Road when he observed a vehicle without a working headlight in the left turning lane of Salem Road. As Watts continued to travel on Flat Shoals Road, he crossed Salem Road and peered into the vehicle. Watts did not observe any of the driver’s facial features, but he did observe that the driver, the sole occupant of the vehicle, was a black male wearing a “bright red[-] like sweater shirt.” Watts turned his patrol cruiser around and follоwed the vehicle, which had turned onto Flat Shoals Road in the opposite direction in which Watts had been traveling.
Watts got behind the vehicle and activated his cruiser’s emergency lights and siren to initiate a stop of the vehicle, which thenturned onto a side street and stopрed. Watts testified that he “aired [his] situation over the radio,” reporting his location and giving “a short description of the vehicle,” including the tag number and color and body type of the vehicle. Watts then exited his patrol cruiser. As Watts “started moving [toward the vehicle], the vehicle stаrted moving too,” and was driven away “in a hurry” before Watts could make contact with the driver. Watts returned to his cruiser, pursued the vehicle, and announced his pursuit over the radio, giving a description of the vehicle and the direction in which it was being driven. When the vehicle procеeded through an intersection without stopping at the stop sign, Watts stopped his cruiser, deactivated its emergency lights, and in the interest of safety, ended his pursuit.
On his computer, Watts obtained the address associated with the driver’s license of the registered owner of the vehiclе. The address was in Rockdale County, not far from Watts’s location, and Watts drove to the residence; approximately seven minutes passed from the time he stopped pursuing the vehicle to the time he arrived at the residence. Deputy Curtis Thompson, who had heard Watts’s brоadcast, arrived at the residence before Watts. Thompson exited his cruiser and started walking toward the home. The vehicle that Watts had pursued was parked in the driveway, and two black men were in front of the residence. One man wore a white t-shirt and flannel plaid-looking pajama pants. The other man, who wore jeans and a red and black shirt, ducked into some bushes as Thompson’s cruiser approached. Thompson testified that as he walked past the vehicle, he could “smell the brakes still burning on the car from it having been in the chase, applying the brakes.”
Thompson ordered both men to approach him. The man wearing the white t-shirt complied, but the man wearing the red and black shirt, later identified as [Jaylend] Glispie, did not. It appeared that Glispie was “about to run,” but Watts approached from behind Thompson at “a different angle in case something happened,” and Thompson was able to handcuff Glispie. As Thompson “reached up to start to pat him down[,] . . . [Glispie] tried to take off.” Thompson testified that Glispie “stood on his left foot. Picked his right leg up and tried to kick my knee cаp out.” Thompson stepped to the side, and Glispie’s “heel grazed from [Thompson’s] knee cap all the way down the side of [Thompson’s] leg to [Thompson’s] ankle,” leaving a red mark. Glispie then “went hopping across the yard with [Thompson] hanging on to the handcuffs.” Thompson рulled the handcuffs, “[l]eg swept” Glispie, knocking his feet out from underneath him, and sat down on top of Glispie. Watts positively identified the shirt that Glispie wore in the photograph as the shirt he had seen the driver of the pursued vehicle wearing.
Thompson searched Glispie’s pockеts. Located therein was one plastic bag containing fourteen rocks of suspected crack cocaine; another plastic bag contained five clear capsules, each filled with a white powder; a “couple of lighters”; two cell phones; some cash; and a razor or box cutter. The rocks had a total net weight of 2.07 grams and later tested positive for cocaine. The capsules had a total weight of less than one gram and later tested positive for 3, 4-methylene-dioxymethcathinone, commonly knоwn as methylone or “Molly”
At trial, Thompson opined that the amount of drugs recovered and the manner in which the drugs were packaged were consistent with an intent to sell or distribute, rather than for personal use. A third law enforcement officer, Sergeant Jason Welch, testified that text messages were extracted from one of the cell phones found on Glispie’s person, and the texts indicated that Glispie used the cell phone to sell drugs. Welch testified that part of one text message appearing on January 25, 2013, read, “Kristy, this Jaylend.” A text message sent from the phone on February 1, 2013, read, “what is good, babe. This is the dude. I got your number. Everybody calls me Sane or Insane but my real name is Jaylend.” Welch was asked whether there were conversations he had seen (in the text messages) which were “particularizedtoward the distribution оr sale of either Mollies or cocaine,” and he testified as follows.
A: Absolutely. Molly is mentioned numerous times within these pages. I just flip through at random.
Q: Can you give an example of one of those times?
A: Yes. For instance, you mentioned cocaine. Just flip through a random page. I see this right here. I got some concrete you might like. Hit me when you are ready That’s text number 2433 on January 26th, 2013, at 21:30. That text message was sent to this phone. Basically, someone trying to order up and another one on text message 2479. This was sent to the phone on January 27th, 2013, at 23:59 hours. It states you say a G. which is slang for a gram was 80. And then again from the same number, I need a G. of Molly What’s the move. Basically, I need a gram of Molly and what are you going to do for me.
Q: Are there any other ones that you found that kind of caught your attention primarily?
A: This individual time, they are talking about a dime. Another one from — now the cell phone dаta that we use to pull this information, we pull contacts too. Some of the numbers are just numbers, random customers ordering up to the phone but other people are listed as contacts. This was sent from an individual they have as Little Rod. It’s 2599 sent to the phone and it plainly reаds, you got Mollies? Asking if the individual has Mollies.
Welch also testified as to other text messages “about the drug trade.” On cross-examination, Welch testified that based on his knowledge, training, and experience, “[ajnyone in possession of narcotics, especially in a manner of intеnt to sell and has a cell phone in his possession typically uses that cell phone to conduct trades.” When asked whether he had any information prior to the issuance of the search warrant that the particular cell phone he sought to search was used in аrranging the purchase or sale of drugs, Welch replied, “No. I was not on the scene.”
Glispie was convicted on all counts.
(Footnotes omitted.) Id. at 178-181. Based on these facts, the Court of Appeals affirmed Glispie’s convictions.
1. Both below and on appeal, Glispie has contended that all of the text mеssages from his cellphone constitute inadmissible hearsay. In its opinion, the Court of Appeals held that “[pjretermitting whether the text messages constituted hearsay, they were admissible as an admission by a party-opponent.” Glispie, supra at 185 (1) (b) (ii). This holding is only half accurate. OCGA § 24-8-801 (d) (2) (A) provides that “[ajdmissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is . . . [t]he party’s own statement.” (Emphasis supplied.) Therefore, the outgoing text messages on the cell phone may be considered Glispie’s own statements, as the facts of this case indicatе that Glispie sent the messages. The incoming text messages, however, are not statements by Glispie. As such, they do not fall under this hearsay exception.
Assuming that the incoming messages were, in fact, hearsay, any error in their admission was ultimately harmless in light of the other evidence agаinst Glispie. “The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.” (Citation and punctuation omitted.) Peoples v. State,
2. Glispie next contends that the Court of Appeals erred in affirming the trial court’s denial of his motion in limine to exclude the text messages because the search warrant application for his cell phone failed to provide probable cause sufficient to justify issuing the warrant. See OCGA § 17-5-30 (a) (2). More specifically, Glispie argues the warrant application failed to show whether Glispie or anyone else had used the cell phones, whether drug-related communications ever occurred, or whether any such communications would be on the cell phones, and, thus, there was not probable cause to issue the warrant. The Court of Appeals hеld that the trial court did not so err after “[cjonsidering the specific evidence .. . and giving the magistrate the requisite substantial deference . . . notwithstanding that police had no specific knowledge of Glispie’s use of the phone.” Glispie, supra at 183 (1) (a). We agree with the Court of Appeals.
In determining whether probable cause exists tо issue a warrant, a magistrate makes 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 cоntraband or evidence of a crime will be found in a particular place.” (Citations and punctuation omitted.) State v. Palmer,
Here, the magistrate had a substantial basis for concluding that probable cause existed to issue the seаrch warrant for Glispie’s cell phone. The warrant application was written by Welch, a Rockdale County police officer with over eight years of experience, whose duties, in part, included investigating narcotics crimes. Welch stated he had reason to believe the cell phone contained information related to a violation of OCGA § 16-13-30 (b) in light of the various circumstances listed in the warrant application, including descriptions of a man matching Glispie’s description fleeing after a traffic stop, Glispie’s physical resistance to arrest, and Glispie’s arrest. More importantly, the warrant application stated that police recovered a large amount of crack cocaine, some capsules containing a white powdery substance, $165 in small cash denominations, twо cell phones, and a “razor blade with white powdery residue” from Glispie’s possession as part of a lawful search incident to arrest. “[T]he test for probable cause is not a hypertechnical one to be employed by legal technicians, but is based on the factual and practical considerations of everyday life on which reasonable and prudent men act.” (Citation and punctuation omitted.) Smith v. State,
Notes
We note that this case is distinguishable from and does not controvert Riley v. California, 573 U. S._(