Allen v. State

• Decision Date: 22 January 1980
• Docket Number: 3 Div. 35
• Citation: 382 So.2d 1147
• Parties: Suzette ALLEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1147

382 So.2d 1147

Suzette ALLEN v. STATE.

3 Div. 35.

Court of Criminal Appeals of Alabama.

Jan. 22, 1980.

Rehearing Denied Feb. 26, 1980.

Calvin M. Whitesell, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

Appellant was put to trial upon a two-count indictment which, omitting the formal parts, reads as follows:

"Count I: The Grand Jury of said County charge that, before the finding of this indictment, Suzette Allen, whose name is to the Grand Jury otherwise unknown, did, unlawfully, wilfully and feloniously possess cocaine contrary to the provisions of Act 1407, Section 401(a), Regular Session of the Legislature of Alabama, 1971.

"Count II: The Grand Jury of said County further charge that, before the finding of this indictment, Suzette Allen, whose name is to the Grand Jury otherwise unknown, did, unlawfully, wilfully and feloniously possess marijuana contrary to the provisions of Act 1407, Section 401(a), Regular Session of the Legislature of Alabama, 1971, against the peace and dignity of the State of Alabama."

Throughout the trial proceedings appellant was represented by counsel of her choice and at arraignment pleaded not guilty. The jury found her guilty under both counts of the indictment. In finding her guilty under Count II of the indictment the verdict reads: "We, the jury, find the defendant guilty of possession of marijuana for her personal use and refuse to assess a fine."

The trial court sentenced appellant to two years imprisonment in the penitentiary, suspended the sentence and placed her on five years probation conditioned upon her future good behavior. The Court further ordered that she serve three months in the County jail and pay a $1,000.00 fine and court costs. Another condition of her probation was that upon release from the jail sentence that she find a full time job. After sentence was imposed appellant gave notice of appeal and she is represented on this appeal by trial counsel.

The evidence was in sharp conflict and only a jury could unscramble the conflicting testimony and arrive at a verdict.

At the conclusion of the State's case appellant made a motion to exclude the evidence on the ground the State had failed to make out a case against the defendant on reliable, relevant, admissible evidence. The motion to exclude the State's evidence was overruled and denied by the trial court.

This is a search warrant case and appellant made a motion to suppress the evidence obtained pursuant to the search on the ground that the search warrant was not properly executed, was not properly served, and was not properly carried out, and that the fruits thereof would not be admissible. The Court overruled the motion to suppress after a lengthy hearing out of the presence of the jury.

The affidavit leading to the issuance of the search warrant reads as follows:

"State of Alabama )

City of Montgomery ) Affidavit in Support

Montgomery County ) of a Search Warrant

"Before me, the honorable Newman C. Sankey, Judge of the District Court of Montgomery County, Montgomery, Alabama, the undersigned being first duly sworn deposes and says:

"That they are Police Officers in and for the City of Montgomery, Alabama and that they have reason to believe, probable cause to believe, and in fact do believe that Cocaine, a controlled substance, or any compound mixture or substance containing Cocaine is being kept, stored, and concealed in the residence of Suzette Allen located at 2409 East Sixth Street in Oak Park Montgomery, Alabama. This is in violation of the Alabama Uniform Controlled Substance Act of 1971.

"And the facts tending to establish the foregoing grounds for issuance of a day time search warrant are as follows:

"On or about March 31, 1978, Affiants C. M. Armstrong and J. A. Dorrill met in person with a confidential and reliable source hereinafter referred to as 'A'. 'A' stated to the affiants in person that he had personally observed a quantity of Cocaine within the residence of Suzette Allen located at 2409 East Sixth Street in Oak Park, Montgomery, Alabama within the past two days. Upon checking the February, 1978 edition of the Montgomery Telephone Directory, Affiant Armstrong found a Suzette Allen listed with the address 2409 East Sixth Street and telephone number 265-3736. Upon checking with Alabama Power Company, Affiant Armstrong found that the power for the residence of 2409 East Sixth Street in Oak Park in Montgomery, Alabama is listed in the name of Suzette Allen.

"Further probable cause being that within the past two weeks, the affiants C. M. Armstrong and J. A. Dorrill have personally observed on more than one occasion numerous persons going and coming from the residence of Suzette Allen located at 2409 East Sixth Street Oak Park, Montgomery, Alabama. Those people would only stay for short time and then leave that residence.

"Further probable cause being that on March 15, 1978, affiant C. M. Armstrong went to the residence of Suzette Allen located at 2409 East Sixth Street Oak Park Montgomery, Alabama, in an attempt to make an undercover buy of one gram of Cocaine from Suzette Allen. Upon arriving, affiant Armstrong talked with a white female who identified herself as Suzette Allen. The white female who identified herself as Suzette Allen agreed to sell affiant Armstrong one gram of Cocaine for ninety (90) dollars. This sale was set to be made one hour after affiant Armstrong's first contact with the white female. During that one hour period, Suzette Allen learned that Armstrong was a police officer and did not sell to him.

"Further probable cause being that there are numerous reports on file in the office of the Narcotics and Dangerous Drugs Detail of the Montgomery Police Department regarding the drug activities of Suzette Allen.

"Source 'A' has proven reliable in the past in that on or about December 10, 1977 affiant Armstrong received information from 'A' in person that resulted in the arrest of Bobby Lee Reynolds for sale of amphetamine and possession of amphetamine and Connie Marie Blackwell for Felony Possession of Marihuana and Possession of amphetamine. Both Reynolds and Blackwell have been indicted by the Montgomery County Grand Jury and are currently awaiting trial in Montgomery County Circuit Court.

"Source 'A' has further proven reliable in that 'A' has given affiants Armstrong and Dorrill information on other drug activity that is currently under investigation with arrest pending.

"This affidavit is based upon facts and personal observations of the affiants C. M. Armstrong and J. A. Dorrill and is made for the purpose of securing a day time search warrant for the residence of Suzette Allen located at 2409 East Sixth Street Oak Park in Montgomery, Alabama.

"Sworn to before me this the 1st day of April 1978.

"/s/ C. M. Armstrong /s/ J. A. Dorrill

------------------------ -----------------------

C. M. Armstrong, Police J. A. Dorrill, Police

Officer Officer

Narcotics and Dangerous Narcotics and Dangerous

Drugs Detail Drugs Detail

Montgomery Police Montgomery Police

Department Department

/s/ Newman C. Sankey

--------------------

Newman C. Sankey, Judge

District Court

Montgomery County, Alabama" This identical affidavit was approved by this court in a unanimous opinion written by Judge Bowen in Francis E. Travis v. State, 381 So.2d 97, which was released on December 4, 1979. In this opinion Judge Bowen held:

"This affidavit is sufficient to support a finding of probable cause to search the described residence despite the defendant's several grounds of objection. The affidavit satisfies both the basis of knowledge test and the veracity test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

"The affidavit contains an express statement of time of the occurrence of the facts relied upon, i. e., within the past two days from March 31, 1978. A statement by the affiant that his informant observed the alleged offense 'within' a certain period of time is sufficiently clear and definite. 100 A.L.R.2d 525, Section 5(c) (1965). The affidavit need not state the exact time the informant observed the events relied upon to show probable cause.

"The informant observed cocaine in the house 'within the past two days' from March 31, 1978. The search warrant was obtained and executed on April 1, 1978. The information contained in the affidavit is not too remote.

" 'The requirement that an affidavit for a search warrant state the time of the occurrence of the facts relied upon is based on the necessity that there exist at the time the warrant is issued probable cause for believing that the facts relied upon still continue to exist. Simultaneity is, of course, normally impossible, but just how long a time may be permitted to elapse without destroying the basis for a reasonable belief as to the continuance of the situation set forth in the affidavit will vary according to the facts of the individual case. About all that may be stated by way of a general rule is that the courts will require that no more than a "reasonable" time have elapsed, the nearer the time at which the facts occurred is to the time when the affidavit was made, the more probable it being that the affidavit will be held to justify a conclusion of probable cause.' 100 A.L.R.2d 525, Section 6."

"The informant need not state the quantity of controlled substance he observed. '(A)n assertion by an informant that he saw illegal drugs or the like at a certain place is regularly accepted without any showing as to how the informant was able to identify the substance.' W. LaFave, 1 Search and Seizure 539 (1978).

"The affidavit contains a sufficient statement of facts from which either the inherent credibility of the informant or the reliability of his information on this particular occasion could be determined. Aguilar. While a bare statement by an affiant that he believed the informant to be...