Bailey v. City of Vestavia Hills
| Decision Date | 02 September 2022 |
| Docket Number | CR-21-0080 |
| Parties | Patrick Jack Bailey v. City of Vestavia Hills |
| Court | Alabama Court of Criminal Appeals |
Patrick Jack Bailey
v.
City of Vestavia Hills
No. CR-21-0080
Alabama Court of Criminal Appeals
September 2, 2022
Appeal from Jefferson Circuit Court (CC-18-4095)
MINOR, JUDGE
This appeal from a bench trial in the Jefferson Circuit Court convicting Patrick Jack Bailey of criminal surveillance, see § 13A-11-32, Ala. Code 1975, and his resulting sentence of 6 months in jail, which was split so that he would serve 15 days in jail followed by 1 year of
unsupervised probation requires us to determine (1) whether the circuit court erred in denying Bailey's motion to dismiss based on an alleged defect in the complaint and (2) whether the circuit court erred in denying Bailey's motion to suppress the identification of Bailey as the suspect. We hold that there is no merit to Bailey's arguments, but, because Bailey's split sentence for a misdemeanor offense was unauthorized under the version of the Split-Sentence Act, see § 15-18-8, Ala. Code 1975, in effect when Bailey committed the offense, we must remand this case for the circuit court to resentence Bailey.
Bailey does not challenge the sufficiency of the evidence, so a brief recitation of the facts will suffice. One evening in May 2018, Tyler Byrd saw a man standing outside the window of the guest bathroom of his house while his wife, Brittany Byrd ("Brittany"), was using the toilet. Byrd had been walking through his yard when he heard "rustling in the bushes" and encountered "this guy standing, with a kind of shocked look on his face" (R. 26) who was quickly "buttoning up his pants." (R. 29.) Byrd chased the man through his neighborhood but ultimately lost sight of him. Brittany and Byrd reported the incident and the man's
description to the Vestavia Hills Police Department ("VHPD"), but officers were also unable to locate the man that evening.
In the days following the incident, Byrd tried to identify the man. Byrd determined through Internet searches and publicly available records that Bailey, who was around the same age as the man Byrd had seen, may have lived at a particular house in his neighborhood. Byrd asked VHPD Lt. Chuck Nagle to determine whether anyone matching the man's description lived at the house. Lt. Nagle went to the house, spoke to Bailey, and determined that Bailey did, in fact, live there. Byrd testified that, after he viewed a still image of Bailey that Lt. Nagle had captured on his body camera, he had "no question" that Bailey was the man he saw outside his house that night. (R. 40.)
After Byrd positively identified Bailey, Brittany appeared before a magistrate at the City of Vestavia Hills Municipal Court where she swore a complaint against Bailey and provided a sworn deposition detailing the facts of the offense. The magistrate then issued an arrest warrant for Bailey for criminal surveillance. Bailey was convicted in municipal court and appealed his conviction to the circuit court. The circuit court found Bailey guilty, and he timely appealed.
I. Motion to Dismiss
Bailey argues that the circuit court erred when it denied his motion to dismiss because, he says, neither the complaint nor the deposition included "sufficient factual information based upon personal knowledge to provide probable cause" to issue the arrest warrant. (Bailey's brief, p. 16.) Bailey's argument lacks merit.
The complaint against Bailey stated, in pertinent part, that "Patrick Jack Bailey did intentionally engage in surveillance while trespassing on the private place of --- Haviland Drive and watched Brittany Byrd through a bathroom window." (C. 160.) The deposition included these facts:
"On 3 May 2018, my husband and I were in our home at [redacted] Vestavia, AL. At approximately 8:30 p.m. my husband Tyler Byrd went outside. I was in our bathroom on the front of the house using the toilet. The bathroom has a window with blinds, which were closed. I heard my husband say, 'What the fuck are you doing?' I peaked [sic] through the blinds and saw my husband chasing someone. When Tyler came back to our house, he stated that a man was 'beating off' looking at me in our bathroom. We verified that when standing right up against the house one can in fact see into the bathroom even though the blinds were closed. I called 911 while Tyler drove around the neighborhood searching for the man. Although I did not see the man, Tyler's stated description was a white male in his twenties or thirties, dark hair, blue t-shirt, and jeans."
(C. 157-58.) The deposition also listed Byrd as a witness.
Bailey moved to dismiss the charge and argued that the complaint and deposition were defective because, he said:
"Mrs. Byrd has no personal knowledge of any person looking into her home and has no personal knowledge of the identity of the personal [sic] who purportedly looked into her home as she admits that she did not see the man. Accordingly, the affidavit/deposition and complaint by Mrs. Byrd did not provide sufficient factual information based upon personal knowledge to provide probable cause for the issuance of a warrant of arrest for Patrick Bailey."
(C. 155.) Before trial, the circuit court held a hearing in which Bailey essentially reiterated the argument set out in his written motion to dismiss. At the end of the hearing, the circuit court denied the motion, finding: "[T]he complaint is statutorily effective and sufficient based upon the content of the complaint, [Brittany] seeing someone standing outside the bathroom, she looked, the identification was the same as her husband, and her relying on reliable hearsay in [Byrd's] investigation and identification of [Bailey]." (R. 10.)
On appeal, Bailey argues that "affidavits … which consist solely of the affiant's conclusion that the named individual committed an offense, without setting forth the facts [on] which the conclusion is based, are fatally defective." State v. Crittenden, 476 So.2d 632, 634 (Ala. 1985)
(citing Malone v. State, 51 Ala.App. 19, 282 So.2d 367, writ quashed, 291 Ala. 789, 282 So.2d 371 (1973)).
"This Court has held that affidavits for arrest warrants may not be based on mere conclusions that the offense has been committed, but, rather, must contain the factual basis for such a conclusion. Crittenden v. State, 476 So.2d 632 (Ala. 1985). Under § 15-7-2, Code of Alabama 1975, a judge or magistrate is authorized to question a complainant who testifies that 'in his opinion' an offense has been committed. This section further provides that the depositions taken by the judge or magistrate 'must set forth the facts … tending to establish the commission of the offense and the guilt of the defendant.'"
Professional Check Serv, Inc. v. Dutton, 560 So.2d 755, 757 (Ala. 1990).
"To cope with the problem of conclusory affidavits, we have adopted the rule that the court may look beyond the affidavit to ascertain what other information may have been furnished the magistrate. If the additional information, together with the affidavit information, supports issuance of the warrant, then it is saved. Mayes v. State, 47 Ala.App. 672, 260 So.2d 403 (1972); Neugent v. State, 340 So.2d 43 (Ala. Cr. App. 1975), rev'd on other grounds, 340 So.2d 52 (Ala. 1976). We view the evidence from the position of the magistrate who issues the warrant, and attempt to determine what information was in that official's possession at the time of the issuance of the warrant. Then the decision-whether or not probable cause existed for the issuance of the warrant- is made."
Crittenden v. State, 476 So.2d 626, 631 (Ala.Crim.App.1983). "[T]he issuance of … an arrest warrant is a matter left within the discretion of
the issuing judge or magistrate." Hunter v. State, 867 So.2d 361, 364 (Ala.Crim.App.2003).
"In Jones v. State, 719 So.2d 249 (Ala.Crim.App.1996), this Court stated:
"'A finding of probable cause may be based completely on hearsay evidence, "provided that there is a substantial basis for believing the evidence under the totality of the circumstances." Rule 3.9(b), Ala. R. Crim. P. "An issuing judge's determination that sufficient probable cause existed to support the warrant 'is entitled to great deference and is conclusive in the absence of arbitrariness.'" Wamble v. State, 593 So.2d 109, 110 (Ala. Cr. App. 1991), citing United States v. Pike, 523 F.2d 734 (5th Cir. 1975), reh'g denied, 525 F.2d 1407, cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976). We must determine whether the issuing judge had a "substantial basis" for concluding that probable cause existed. Wamble v. State; Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983).'
"Jones v. State, 719 So.2d at 254. (Emphasis added.) 'An affidavit need not reflect the direct personal observations of the affiant and may be based on hearsay.' Swain v. State, 504 So.2d 347, 351 (Ala.Crim.App.1986), citing Illinois v. Gates, supra."
Doggett v. State, 791 So.2d 1043, 1060-61 (Ala.Crim.App.2000) (emphasis added).
Although the complaint against Bailey merely tracks the language of § 13A-11-32, Ala. Code 1975-the statute codifying the offense of
criminal surveillance-the accompanying deposition sets out the facts on which Brittany based her conclusion that Bailey committed the offense. The deposition provides Brittany's account of hearing Byrd confront a man standing outside the bathroom window while she was using the toilet. Brittany looked outside to see Byrd chasing a man and, even though she did not see the man, Byrd provided his description included in...
To continue reading
Request your trial