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Martinez-Vargas v. State

Evidence that police obtained during an unconstitutional protective sweep of a residence was nevertheless admissible because, once the false and illegally obtained information was deleted from affidavit, the search warrant was still valid as the remaining information supported a finding of probable cause.

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Following the denial of his motion to suppress, Geovany Martinez-Vargas was convicted of possession of marijuana with intent to distribute in a stipulated bench trial. On appeal from his conviction, he contends that the trial court erred in denying his motion to suppress because the affidavit supporting the search warrant application was legally insufficient to support a finding of probable cause. Martinez-Vargas further contends that he received ineffective assistance of trial counsel and that we should remand the case for a hearing on the issue of his trial counsel’s ineffectiveness, as this is his first opportunity to raise the issue. For the reasons discussed below, we are constrained to affirm the trial court’s denial of the motion to suppress. However, we remand the case to the trial court for a determination of Martinez-Vargas’s ineffectiveness claim.

1. The standards that apply to the different levels of judicial scrutiny involved in the warrant process are well-established. A magistrate may issue a search warrant only if the affidavit supporting the warrant application sets forth “facts sufficient to show probable cause that a crime is being committed or has been committed.” OCGA § 17-5-21 a.

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