Sutton v. State (2013) – Georgia Court of Appeals
In late 2010, an informant by the alias “It” contacted the Flowery Branch Police Department with allegations that Eric Sutton was using and distributing illegal drugs. “It” claimed to have received his information from “Source A” as identified in the affidavit. “It” had a personal relationship with “Source A,” but not with Eric Sutton. “It” informed the affiant that “Source A” had claimed to have seen Sutton use drugs, most likely marijuana, but never sell marijuana. “It” did not report he or she had seen the defendant use or sell drugs. The affiant confirmed “It”’s statements that Sutton lived at a certain address, drove a certain truck, and owned a certain business, but did not perform any further investigation into confirming that Sutton sold drugs. Based solely on hearsay statements, the officer executed an affidavit and applied for a search warrant which was granted. Sutton was then arrested for possession of marijuana and alprazolam with intent to distribute.
At trial, Sutton filed a motion to suppress the evidence seized via the warrant. The trial court denied the motion on the grounds that the affidavit provided enough information to prove that “It” was a “concerned citizen,” as defined and elaborated on in Miller v. State, 155 Ga. App. 399, 400 (1) (A) (270 SE2d 822) (1980), Dearing v. State, 233 Ga. App. 630, 632 (505 SE2d 485) (1998), and Davis v. State, 214 Ga. App. 36, 37 (447 SE2d 68) (1994). Essentially, a “concerned citizen” holds privileged status when providing anonymous information, but it is the burden of the affiant to qualify that a tipster deserves such status. On appeal, Sutton was unable to provide evidence that “It” was unreliable because his or her identity remained anonymous. Instead, Sutton appealed that the evidence to prove “It’s” status as a “concerned citizen” was insufficient. Agreeing, the Court of Appeals reversed the trial court’s ruling.
The Court notes that although the affiant made broad statements contending that “’It’ was a mature person firmly established and with a significant connection to ‘It’s’ community,” and “gainfully employed with no criminal record,” he provided no specific evidence to confirm that information. The affiant, for instance, did not say if he received the information in person or by phone or email, did not confirm if “It” was who he or she claimed to be, did not provide evidence to support his claim of “It’s” maturity, or provide evidence that he confirmed “It’s” employment and criminal history. Though the State and Magistrate Court cited many cases in support of the initial ruling, they each held a caveat, respectively. Informants either provided information “pursuant to their statutory duty,” met personally with the affiant, or personally witnessed the evidence of the illegal act in question. Finally, in cases where informants were deemed reliable, but only superficially, like the instant case, the Georgia Supreme Court has ruled that evidence supporting a warrant was legally insufficient. Simply put, in the instant case, it’s not that “It” is unreliable, but that he or she can’t be proven to be reliable.
This appeal is interesting because it highlights two very important aspects of legal practice: legwork and gamesmanship. It is unclear if the officer simply didn’t provide enough information concerning “Its” credibility or if he purposefully made his affidavit vague, considering the possibility that “It” would be deemed unreliable. Regardless, the warrant was issued, executed, and its validity upheld in the trial even though it should never have been issued. It was the job of the defense to force the issue and ensure that the infringement of Sutton’s rights did not pass without argument, just as it was the job of the prosecution to try to exploit the infringement. Here, the defense’s hustle-play overrode the prosecution’s steadfast offense. Game over, pending an appeal to the Georgia Supreme Court.