Bates v. State

• Decision Date: 28 September 1973
• Docket Number: 8 Div. 282
• Citation: 51 Ala.App. 338,285 So.2d 501
• Parties: Paul Warren BATES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 501

285 So.2d 501

51 Ala.App. 338

Paul Warren BATES v. STATE.

8 Div. 282.

Court of Criminal Appeals of Alabama.

Sept. 28, 1973.

Rehearing Denied Oct. 16, 1973.

Sullins & King, Huntsville, for appellant

No brief for appellee.

DeCARLO, Judge.

Paul Warren Bates was indicted on a charge of buying, receiving, concealing or aiding in concealing a stolen money order machine. He was found guilty in the Circuit Court of Madison County and sentenced to eight years.

The relevant facts are not in dispute. On April 27, 1971, Detective Bragg of the Huntsville Police Department investigated a burglary at Roy Jack's Grocery. He went to the scene and was told by Mr. Campbell, the owner, that ninety cartons of cigarettes, a Consumer Money Order Machine, and forty-four money orders were missing. The owner stated that taped to the machine was the name 'Max Gray' and a telephone number. Detective Bragg saw one burglary suspect, Joe Dean Bryant, sitting in a patrol car at the scene. That same night, after the burglary, Detective Bragg saw a small black English Ford in front of the B. & B. Cafe. The automobile was unoccupied at the time. He went to Judge Dave Archer on May 5, 1971, and applied for a warrant to search the cafe. Deputy Sheriff Bob Eddy accompanied him when the warrant was executed. In a room adjoining the cafe dining room, the money order machine was found in a cardboard box at the foot of a cot. Taped to the machine was the name 'Max Gray' and the number 63.54.

The State introduced the search warrant and its supporting affidavit, which were identified by Detective Bragg. Appellant questioned the validity of the warrant and asked to take this witness on voir dire. The examination was conducted in the presence of the jury, without objection. Subsequently the Court overruled appellant's objection that the affidavit was based on hearsay evidence.

The most important question presented in this appeal is whether sufficient evidence establishing probable cause was before the issuing magistrate. The sole evidence upon which the warrant was issued is contained in the following affidavit:

'COPY OF STATE'S EXHIBIT 1

'STATE OF ALABAMA

'COUNTY OF MADISON

CIRCUIT COURT

'AFFIDAVIT FOR SEARCH WARRANT

'Comes Nolan Bragg an officer of the law of the State of Alabama, now holding the position of Detective with the: (agency or department) Huntsville Police Department before the Honorable _ _, Judge or Magistrate of the _ _ Court of Madison County, Huntsville, Alabama; and being duly sworn, on oath deposes and says that he is informed and believes and upon such information and belief verily states that the following statement of facts presented to the Court, as probable cause for the issuance of a search warrant, are true and correct:

'I have been personally informed by Confidential informer a reliable informant that certain personal property, more particularly described as follows, to wit: Consumer Money Order, bearing the name Max Gray, bearing the number 63.54 is concealed in or about the premises of: Paul Bates, located at the B & B Cafe, 122 Abington Avenue, N.W., Huntsville, Alabama Madison County, Alabama, I further depose and say that the reasons for my belief that the above information is reliable and for my belief in the reliability of the aforenamed informer are as follows: Last night about 11:45 P.M. a confidential informer told officers that he was to go with Joe Dean Bryant & Wm. O. Smith and others to break into Roy Jacks Grocery and that he did not but that these boys went to Jacks Grocery in Black English Ford and that they talked to him about the burglary and told him they had broken in and stolen cigarettes and money order machine and went back to get meat and got caught. They told him they took items to Paul Bates at the B & B Cafe and sold them. This confidential informer went to Paul Bates B & B Cafe and saw a money order machine at the cafe two days ago. This informer has given information on other occassions (sic) that has proven correct and has resulted in some arrests. Further, on the night of the burglary of Jacks Grocery, this detective saw a black English Ford parked at the B & B Cafe after the approximate time of the burglary, and also, both Bryant and Smith have been arrested for this Burglary of Jacks Grocery and were in a black English Ford. Affiant further believes that the aforesaid personal property, goods, wares, or merchandise is concealed or held illegally, by the aforementioned owner or person in possession of the above described premises, due to the following fact, that said property:

'X is property that has been stolen or embezzled, or

'x was used as the means of committing a felony, or

'_ _ it is now on said premises in the possession of a person or persons with the intent to use it as a means of committing a public offense, or

'_ _ it is in the possession of a person or persons to whom it was delivered unlawfully for the purpose of concealing it or preventing its discovery.

'/s/ Nolan R. Bragg

'Sworn to and subscribed before me this 5th day of May, 1971

'/s/ David R. Archer.'

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the U.S. Supreme Court stated:

'An evaluation of the constitutionality of a search warrant should begin with the rule that 'the informed and deliberate determinations of magistrates empowered to issue warrants * * * are to be preferred over the hurried action of officers * * * who may happen to make arrests.' United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877: The reasons for this rule go to the foundations of the Fourth Amendment.'

In order for a search warrant to be sufficient and satisfy the constitutional requirement of probable cause, the affidavit upon which it is based must contain competent evidence to support the magistrate's finding. Skelton v. Superior Court of Orange County, 1 Cal.3d 144, 81 Cal.Rptr. 613, 460 P.2d 485. The sufficiency of an affidavit is determined by whether it meets the stipulations for probable cause as laid down in Aguilar, supra.

That test is two-fold and sets the following requirements:

'. . . (T)he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825 (11 L.Ed.2d 887), was 'credible' or his information 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires . . .'

The appellant Bates contends that this affidavit was based on hearsay, thus insufficient for the issuance of a search warrant. He argues that Detective Bragg's affidavit is deficient as the allegation that stolen goods were delivered to Bates or were recently observed on the B. & B. Cafe premises is not corroborated. Neither Aguilar, supra nor Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, required 'corroboration' or independent evidence of the reliability of information contained in an affidavit. Skelton, supra.

The appellant here questions whether the affidavit which sets out personal observations of one...