AWare County grand jury returned an indictment against Loren Hall for the offenses of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), and possession of marijuana with intent to distribute, OCGA§ 16-13-30 (b). Following a hearing, the trial court granted Hall’s motion to suppress evidence seized during police officers’ search of Hall’s residence. The State appeals and contends that, although the affidavit which supported the issuance of the search warrant may have contained information which was false or unlawfully obtained, the remaining, untainted information justified the issuance of the search warrant. We agree and reverse.
‘When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.)
State v. Mauerberger,
Viewed most favorably to uphold the trial court’s judgment, which contained no factual findings, the evidence adduced at the hearing on Hall’s motion to suppress shows the following. On April 14, 2004, Hall telephoned his landlord, Greg Bennett, to report that the oven in Hall’s apartment did not work. The next morning at 8:15 a.m., Bennett sent two maintenance workers to Hall’s apartment. Shortly thereafter, Bennett received a telephone call from one of the workers. Bennett went to the apartment and saw a plate in the oven compartment holding baggies filled with what Bennett believed to be crack cocaine. Bennett and the two workers went outside, leaving at least one door to Hall’s apartment open, and Bennett called the police.
Bennett took the responding officer inside Hall’s apartment to within a couple of feet from the stove, where the officer looked at the *770 baggies. The responding officer called her sergeant to inform him that there appeared to be crack cocaine in Hall’s oven broiler. The sergeant told the responding officer to begin the process for securing a search warrant, but not to enter the apartment. Then the sergeant drove to Hall’s apartment. After the sergeant arrived, he went up the stairs to the balcony at the rear of the apartment. The door to the apartment was open, and the sergeant could see the oven, which was less than five feet from the door. The sergeant observed a plate in the oven broiler containing what appeared to be crack cocaine. The sergeant called a police detective, who came to the scene and also observed the suspected cocaine through the open door. The detective left at around 10:00 a.m. to get a search warrant.
The detective prepared an application for a search warrant of Hall’s apartment along with a supporting affidavit, and the magistrate issued the warrant based solely on the information contained in the affidavit. The search warrant showed that it was issued at 12:06 p.m., but the detective testified that the warrant was actually issued an hour earlier, and that the search warrant was executed at approximately 11:16 a.m. 1
The affidavit provided, in pertinent part:
[O]n 04/15/2004 at 9:00 a.m. w/male Greg Bennett, the owner of the apartment house received 2 calls from [Hall], the tenant of 605 Nichols Street, apartment # 4 reference to the stove needed repairs. Bennett stated upon arrival at said apartment, he entered said apartment to fix the stove. Bennett stated when he pulled open the bottom broiler drawer of the stove he noticed a white ceramic type plate on the rack which contained at least 11 small blue zip lock baggies. Each baggie contained several [off white chunky] solids. Bennett called [the police sergeant]. [The sergeant] sent [the responding officer] to check on the report. [The officer] arrived on the scene and saw the off white chunky *771 solids. Upon [Affiant’s] arrival at the apartment house Affiant looked at the off white chunky solids which [he] tentatively identified as Crack Cocaine. The Crack Cocaine was packaged in a [manner] for distribution. Bennett stated [that Hall] had moved in the apartment house on April 1, 2004. During an independent investigation, [the sergeant] checked the Waycross Police Report files and noticed a incident report where [Hall] was charged on 10/01/1998 for VGCSA [(violating the Georgia Controlled Substances Act)] Possession of Marijuana, VGCSA Trafficking in Cocaine, VGCSA Possession of Cocaine within 1000 feet of Housing Authorities.
As presented to the magistrate, the affidavit shows a fair probability that contraband would be found, since it shows the alleged contraband was seen by Bennett, the affiant, and another officer. See
Christopher v. State,
In determining probable cause for a search warrant, the magistrate is merely to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before the magistrate, 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. Ultimately, this Court’s role on review is to determine if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant.
(Citations and punctuation omitted.)
State v. Graddy,
Hall contends that even if the affidavit as presented to the magistrate showed probable cause for issuance of a search warrant, the affidavit was nevertheless insufficient because it contained false and illegally obtained information.
*772 Under Franks v. Delaware,438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), if a defendant can show by a preponderance of the evidence that a false statement was made knowingly and intentionally, or with reckless disregard for the truth, by an affiant in the warrant affidavit, then the affidavit’s false material must be set to one side, and if the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
(Citations and punctuation omitted.)
Evans v. State,
the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue. If the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is admissible.
(Citation omitted.)
Bius v. State,
Hall contends that the officers who observed the suspected cocaine performed an illegal search. The responding officer admitted to entering Hall’s apartment before seeing the contraband, and we agree that the responding officer was not entitled to enter Hall’s residence under the circumstances shown here. See
Kirsche v. State,
Without the information gathered from the allegedly unlawful police action, the material portion of the affidavit contained the information relayed to the police by Bennett. Hall contends that some of this information was false because evidence from the hearing showed that the maintenance workers, not Bennett, pulled out the oven rack and discovered the suspected cocaine, that Bennett did not go to the apartment to fix the stove but in response to a call from his maintenance workers, and that Bennett did not telephone the officer named in the affidavit but telephoned instead another officer.
2
Even if false, however, information must be excised from the affidavit for purposes of our review only if the false information was included by the affiant with knowing or reckless disregard for the truth. See
Evans v. State,
The issue becomes whether the affidavit’s untainted information, which is Bennett’s uncorroborated hearsay, was nevertheless sufficient to justify the issuance of the warrant. See, e.g.,
Miller v. State,
[T]he sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.
(Citation omitted.)
Kelly v. State,
Applying this test to the affidavit’s untainted information, we note the following. The grounds for Bennett’s knowledge was strong because he was in the apartment with Hall’s permission
3
when he personally observed the suspicious material in the oven immediately before he contacted the police. See
State v. McKendree,
Judgment reversed.
Notes
Hall argues on appeal that the search of his apartment occurred before the warrant was issued because the warrant showed that it was issued at 12:06 p.m., which was after the time stamp of the photographs taken during the search. However, testimony showed the detective left Hall’s apartment to get the warrant at around 10:00 a.m., the warrant was issued at approximately 11:06 a.m., the detective took the first photograph at approximately 11:19 a.m., and he took the last photograph at 11:46 a.m. Furthermore, Hall failed to make an argument as to the timing of the search of his apartment and the issuance of the warrant in the court below, and there is nothing in the record to suggest that the trial court granted the motion to suppress based upon a factual finding that the police conducted their search and seizure before the warrant was issued.
Hall also contends that the portion of the affidavit in which the detective states that there was “now located” at Hall’s apartment currency, strongboxes, safes, records, computers, software, and ledgers pertaining to drug activity was an intentional or reckless misrepresentation because the detective had not found any of those things in Hall’s apartment at the time he prepared the affidavit. According to the detective, however, he included this standard language in the affidavit because such items are commonly used to facilitate illegal drug sales and he believed such items were present in Hall’s apartment. In any case, we have not considered the statement in determining whether the affidavit contained sufficient untainted information to justify the issuance of the warrant.
Although Hall argues that Bennett was acting as an agent of the State when he showed the responding officer the suspected cocaine, there is no evidence to support a finding that Bennett was acting as a State’s agent when he first discovered the suspected cocaine and reported the discovery to the police.