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GA Court of Appeals: Informant Insufficient to Establish Probable Cause

January 30, 2013

In Sutton v. State, the Georgia Court of Appeals held that information from an unidentified informant amounted to an anonymous tip and was insufficient to establish probable cause to support the issuance of a search warrant for the defendant’s residence.

In late 2010, the Flowery Branch Police Department received information from an unidentified individual alleging the defendant, Eric Sutton, was both using and selling marijuana. The informant, identified by an officer as “It,” claimed to have received this information from someone identified as “Source A”—a person who allegedly had a relationship with Sutton and was concerned for both his health and the safety of the community. “It” did not have a personal relationship with Sutton nor had “It” personally observed Sutton using or selling drugs. To ensure his reliability, “It” provided officers with information about Sutton’s home address, vehicle, and business. Once officers confirmed “It” had this information correct, they applied for and received a warrant to search Sutton’s home. After officers executed the warrant, Sutton was arrested and charged with possession of marijuana with the intent to distribute.

Sutton filed a motion to suppress the evidence obtained by the officers. Finding that there was probable cause to issue the search warrant, the trial court denied the motion. On appeal, Sutton argued that the trial court erred when it found that the information provided to the police was legally sufficient to establish probable cause. The Georgia Court of Appeals agreed.

In Sutton’s case, the officer attempted to characterize “It” as a concerned citizen who was worried about the welfare of both Sutton and the general public. Unlike an anonymous tipster, a concerned citizen can be found to be sufficiently reliable when the officer can establish who the informant is, that the informant is a law-abiding citizen, and that he or she has personal knowledge of the information that is being provided. Concerned citizens are afforded a preferred status when determining the credibility of their information.

When defending the reliability of “It,” the officer simply stated he was unable to detect any motive for “It” to lie. He also stated that “It” is a “mature person” with no criminal history and significant ties to the community. The Court of Appeals deemed such conclusory statements insufficient to elevate “It” from the status of an anonymous tipster to that of a concerned citizen. The officer did not state how he received the information from “It,” either over the phone or in person, or what led the officer to conclude that “It” was a law-abiding citizen, whether he confirmed those facts independently or whether “It” had acted as a reliable informant previously. Based on the utter lack of information about either “It” or “Source A,” the Court found that the warrant obtained based on the statements of these individuals was legally insufficient to establish probable cause.

Georgia criminal defense attorneys would be well served in reading this opinion. Although this case deals with an area of the law that has been settled for quite some time, the opinion itself provides a thorough analysis of the relevant Georgia case law and the factors that the Court of Appeals has relied upon in distinguishing concerned citizens from mere anonymous tips.

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