                                  FIFTH DIVISION
                                 MCFADDEN, P. J.,
                               RAY and RICKMAN, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                   September 19, 2018




In the Court of Appeals of Georgia
 A18A1144. WINGATE v. THE STATE.

       MCFADDEN, Presiding Judge.

       Tad David Wingate appeals his convictions of possession of more than an

ounce of marijuana, manufacture of marijuana, possession of methamphetamine, and

possession of the controlled substance carisoprodol. He argues that the trial court

erred by denying his motion to suppress evidence obtained in two searches because

law enforcement officers illegally entered the curtilage of the first searched residence

without a warrant and because the warrants they eventually obtained were not

supported by probable cause.

       As a preliminary matter, we reject the state’s argument that Wingate waived the

search warrant issue by failing to raise it in the trial court. As for the merits, we agree

with Wingate that the search warrants were not supported by probable cause. So we
reverse. We do not reach Wingate’s argument that law enforcement officers

improperly entered the curtilage of the property.

      1. Waiver.

      We reject the state’s argument that Wingate waived his challenge to the

sufficiency of the search warrant applications because he did not raise the issue in his

motion to suppress. The appellate record shows that at the end of the March 24, 2015,

hearing on the motion to suppress, the trial court stated that it would allow Wingate

to submit a brief with his argument and would allow the state to respond. About two

weeks later, Wingate submitted his brief raising the search warrant argument and

citing State v. Kazmierczak, 331 Ga. App. 817 (771 SE2d 473) (2015), the March 30,

2015, opinion upon which Wingate bases his argument to this court. So Wingate did

not waive the argument for appellate review. Cf. Stanley v. State, 206 Ga. App. 125

(1) (424 SE2d 90) (1992) (issue raised in a brief filed with motion to suppress could

be considered as part of the motion).

      2. Sufficiency of the affidavits supporting the search warrants.

      Wingate’s prosecution arose from the execution of search warrants at two

locations, one on Long Branch Road and the other on Miller McElreath Road. He

argues that the affidavit supporting the issuance of the search warrant for the Long

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Branch Road location did not establish probable cause, and without the evidence

obtained during the execution of that warrant, the warrant for the Miller McElreath

Road property is not supported by probable cause. We agree.

       When determining whether to issue a search warrant, the magistrate simply

must

       make 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 contraband or evidence of a crime will be found
       in a particular place. And the duty of a reviewing court is simply to
       ensure that the magistrate had a substantial basis for concluding that
       probable cause existed.


State v. Stephens, 252 Ga. 181, 182, 311 SE2d 823, 824 (1984) (citation and

punctuation omitted). In this case, we “focus on the information set forth within the

four corners of the affidavit[s],” Coleman v. State, 337 Ga. App. 304, 306 (1) (787

SE2d 274) (2016), because both affiants testified that they gave the magistrates no

sworn, oral testimony.




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      Wingate argues that the warrant affidavit for the Long Branch Road location,

which is set out in the margin,1 did not establish probable cause because the only

relevant information it contained was the officers’ detection of the odor of marijuana,



      1
       The search warrant affidavit for the Long Branch Road location was obtained
by a narcotics investigator with the Madison County Sheriff’s Office. In the affidavit,
the investigator testified as follows:

      The affiant was contacted by FBI Agent [M. S.] in reference to a
      possible marijuana grow at the residence of 501 Long Branch Road.
      Agent [M. S.] relayed the information to the affiant via telephone.
      Affiant then traveled to the residence and met with Agent [M. S.] along
      with agents [J. H.], [M. P.], and [G. M.] who are agents with the FBI
      Task Force. Agents explained to affiant that they had come to the
      residence to make contact with Tad Wingate. Upon arrival they
      attempted to go to the front door but were unable to because of several
      boards missing from the deck. As they went around the back of the
      house they heard a radio playing in the out building behind the house.
      As they approached the out building they smelled a strong odor of
      marijuana coming from the building. The door to the out building was
      padlocked from the outside and they heard the noise of a fan. They then
      made contact with the affiant by telephone. Affiant verified everything
      they had said and left the agents and [two investigators] to secure the
      residence while affiant typed [a] search warrant for the property.




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but the affidavit failed to include information about the officers’ qualifications to

identify the odor. Wingate argues that the warrant affidavit for the Miller McElreath

Road location, which is also set out in the margin,2 did not establish probable cause


      2
       The search warrant affidavit for the Miller McElreath location was obtained
by the chief investigator with the Madison County Sheriff’s Office. In the affidavit,
the chief investigator testified as follows:

      On December, 2013, agents and task force officers with the Federal
      Bureau of Investigation went to 501 Long Branch Road to attempt to
      make contact with a male subject named Tad David Wingate in
      reference to an investigation. The FBI had this location listed as the
      residence of Tad David Wingate. When they arrived at this location they
      heard music coming from an outbuilding behind the residence. The
      agents went to this outbuilding to attempt to make contact with Wingate.
      When they approached the outbuilding they noticed a strong odor of
      marijuana coming from inside the outbuilding. The FBI contacted
      Investigator [S. P.] of the Madison County Sheriff’s Office in reference
      to their observations at 501 Long Branch Road. The FBI and members
      of the Madison County Sheriff’s Office held the residence for a search
      warrant to be obtained. Investigator [S. P.] obtained a search warrant
      from the Madison County Magistrate’s Court for the location.
      Approximately, at 1800 hours this search warrant was served. Once
      entry was made into the outbuilding, law enforcement officers found
      green leafy plants that appeared to be marijuana in various stages of
      growth. Additionally, law enforcement officers located items used in the
      manufacturing of marijuana. The residence was also searched and

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because, among other things, it was based on the evidence seized in the impermissible

first search.

       In State v. Kazmierczak, 331 Ga. App. 817 (771 SE2d 473) (2015), we held that

an officer’s detection of the odor of marijuana may support the issuance of a search

warrant “if the affidavit for the search warrant contains sufficient information for a

magistrate to determine that the officer who detected the odor of marijuana emanating

from a specified location is qualified to recognize the odor[.]” Id. at 823. Neither




       additional plants were located inside. A member of the Madison County
       Sheriff’s Office conducted a search for contacts with Tad David
       Wingate in the internal database. It was discovered Wingate was
       arrested in October 2013 and booked into the Madison County jail. At
       the time of booking, Wingate gave Sheriff’s Office staff the address of
       829 Miller McElreath Road, Danielsville, Georgia, as being his place of
       residence. Sgt. [K. S.] and Deputy [K. E.] were sent to Wingate’s
       residence on Miller McElreath Road to attempt to make contact with
       Wingate. Upon their arrival they made contact with Wingate and placed
       him into custody. Upon making contact with Wingate the law
       enforcement officers noticed a strong odor of marijuana coming from
       the residence. The residence was secured until a search warrant could be
       obtained.




                                          6
affidavit in this case included any “information [that would allow] a magistrate to

determine that the officer who detected the odor of marijuana [was] qualified to

recognize the odor. . . .” Id.

       The state argues that the magistrate could have concluded that the affiants and

the FBI agents had the necessary training and experience to identify the odor of

marijuana because the magistrate could have inferred that federal law enforcement

officers and investigators with sheriff’s offices have such training and experience.

Such an inference, however, would render the holding in Kazmierczak meaningless.

       Absent the detection of the odor of marijuana, the state argues, the magistrate

could have found probable cause to issue the Long Branch Road search warrant

because the affidavit “noted that FBI agents believed there to be a marijuana grow

operation at the location, [and] the afffiant observed that the outbuilding was

padlocked from the outside and that there was the sound of a fan blowing within the

building.” But the statement in the affidavit that an FBI agent contacted the affiant

“in reference to a possible marijuana grow at the residence of 501 Long Branch

Road,” contains no information to support such conclusion. And the affidavit

contains no information that would allow the magistrate to determine that the

presence of a padlock and the sound of a fan blowing are indicative of a criminal

                                          7
offense. “A search warrant will only issue upon facts sufficient to show probable

cause that a crime is being committed or has been committed. OCGA § 17-5-21 (a).”

Willoughby v. State, 315 Ga. App. 401, 403 (727 SE2d 194) (2012).

      The search warrant affidavit for the Long Branch Road property failed to

establish probable cause. And without the evidence obtained in the search of the Long

Branch Road property, the search warrant affidavit for the Miller McElreath Road

property also failed to establish probable cause. For these reasons, the trial court erred

by denying the motion to suppress and we reverse. So we do not reach Wingate’s

argument that law enforcement officers illegally intruded into the curtilage of the

Long Branch Road property.

      Judgment reversed. Ray and Rickman, JJ., concur.




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