Probable Cause Standard for Informant-Based Warrants
Search warrant requirements under O.C.G.A. Section 17-5-21 (governing search warrant applications) and the framework from State v. Stephens, 252 Ga. 181 (1984), search warrants based on confidential informant tips must satisfy the probable cause requirement of both the Fourth Amendment and Article I, Section I, Paragraph XIII of the Georgia Constitution. Georgia follows the totality of the circumstances test established by the United States Supreme Court in Illinois v. Gates (1983). This requires the magistrate to evaluate the overall reliability of the information presented in the affidavit rather than applying rigid tests for the informant’s veracity and basis of knowledge.
Affidavit Requirements
The affidavit supporting a search warrant based on informant information must provide sufficient detail to allow the magistrate to make an independent probable cause determination. The affidavit should describe the informant’s basis of knowledge, meaning how the informant obtained the information, and the informant’s reliability, meaning whether the informant has provided accurate information in the past. A bare conclusory statement that an informant provided information about drug activity at a particular location, without more, is generally insufficient. The affidavit should describe prior instances in which the informant provided information that was independently verified by law enforcement.
Corroboration Requirements
When an informant’s track record is limited or unknown, the affidavit must demonstrate that law enforcement independently corroborated the informant’s information. Corroboration may include surveillance of the target location, controlled purchases conducted with the informant, observation of activity consistent with the informant’s description, records checks confirming the suspect’s identity and criminal history, and verification of details about the location or activities that only someone with direct knowledge would know. The degree of corroboration required increases as the informant’s reliability decreases.
Controlled Buy as Corroboration
The most common and effective corroboration method in drug cases is a controlled buy, in which the informant, under law enforcement supervision, purchases drugs from the target. A properly conducted controlled buy typically involves searching the informant before and after the transaction, providing marked funds, maintaining visual or electronic surveillance of the transaction, and recovering the purchased substance for field testing. Your attorney can scrutinize the procedures used during the controlled buy, because gaps in surveillance, failure to search the informant, or breaks in the chain of custody may undermine the buy’s evidentiary value.
Staleness of Information
Information in a warrant affidavit must be current enough to support a finding that probable cause exists at the time the warrant is issued. Stale information does not establish probable cause. Georgia courts evaluate staleness based on the nature of the crime, the character of the items sought, the tendency of the items to be moved, and whether the criminal activity is ongoing. Drug distribution operations tend to be ongoing activities, which extends the shelf life of the information. However, a single observation of drug activity weeks or months before the warrant application may be insufficient without evidence of continued activity.
Challenging the Warrant at a Franks Hearing
Under Franks v. Delaware (1978), a defendant may challenge the veracity of statements in a search warrant affidavit. If the defendant makes a substantial preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for the truth, included false statements in the affidavit, the court must conduct a Franks hearing. If the court finds that false statements were included and that the remaining content of the affidavit does not support probable cause, the warrant is voided and the evidence must be suppressed. Your attorney’s priority is to examine the affidavit for inconsistencies with police reports, body camera footage, and other documentation.
Informant Identity and Disclosure
The state generally has a privilege to protect the identity of confidential informants under the informer’s privilege doctrine. The counterpoint: when the informant’s identity is relevant and helpful to the defense, or essential to a fair determination of the defendant’s guilt, the court may order disclosure under Roviaro v. United States (1957). Georgia courts balance the public interest in protecting informants against the defendant’s right to a fair trial. Experienced criminal defense attorneys file a motion for disclosure of the informant’s identity when the informant was a participant in or witness to the charged offense, not merely a tipster.
Attacking Informant-Based Warrants
Effective defense of warrant-based drug cases includes filing a motion to suppress challenging the sufficiency of the affidavit, requesting a Franks hearing when there are indications of false statements, challenging the staleness of the information, challenging the scope of the search if officers exceeded what the warrant authorized, and seeking disclosure of the informant’s identity. Each of these challenges, if successful, can result in suppression of the drug evidence and dismissal of the charges.