Beasley v. State, 8 Div. 491

Decision Date06 October 1981
Docket Number8 Div. 491
PartiesJohn Robert BEASLEY, alias v. STATE.
CourtAlabama Court of Criminal Appeals

John Mark McDaniel, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Trafficking in cannabis, § 20-2-80, Code of Ala. 1975; sentence: imprisonment for twenty years and one day and $25,000 fine.

On September 19, 1980, following a "rolling surveillance" spanning several months, Huntsville law enforcement officers executed a probable cause search warrant at the home of the appellant. Pursuant to the search, they discovered marijuana piled on the kitchen table, a marijuana cigarette in a purse belonging to appellant's wife, and marijuana residue in three pipes located in various rooms throughout the residence. The amount of marijuana found totaled 2.4 pounds. The appellant was present during the early morning search, and police officers seized a utility bill addressed to appellant's wife at the address described in the warrant and the residence being searched.

I

At the pretrial hearing on appellant's motion to suppress the evidence obtained during the search, appellant's attorney established that the warrant magistrate who issued the search warrant in the instant case was not licensed to practice law in Alabama. The trial judge, however, questioned the warrant magistrate and ascertained that he was a full-time magistrate on September 1, 1976, and had continued in such capacity as a merit system employee in the district court. Appellant maintains that, while the provisions of § 12-17-251(c)(1) were thus met, the 1980 amended act continues to be an invalid local law and, therefore, the warrant magistrate lacked legal authority to issue the search warrant here. We disagree.

The 1980 amendment to § 12-17-251(c)(1) reads:

"(c) The powers of a magistrate shall be limited to:

"(1) Issuance of arrest warrants and, where such magistrate is licensed to practice law in Alabama or was serving as a full-time magistrate or warrant clerk on September 1, 1976, and who continued in such capacity as a merit system employee in the district court, search warrants...."

Appellant argues that this amendment merely combines the 1977 amendment to § 12-17-251(c)(1) and Act No. 407, Acts 1975, page 1005, in a local act attempting to include the non-attorney magistrates of Tuscaloosa and Madison counties in the statute authorizing only magistrates who are licensed attorneys to issue search warrants.

We held that the 1977 amendment to § 12-17-251(c)(1) was a local act and consequently invalid in Newton v. State, 375 So.2d 1245 (on rehearing) (Ala.Cr.App.), cert. denied, 375 So.2d 1250 (Ala.1979). The 1977 amendment (Act No. 551, Acts 1977, page 740) added to the statute authorizing magistrates to issue arrest warrants and, if licensed to practice law in Alabama, search warrants, the following:

"provided however, any person who was serving as a full-time magistrate, ex-officio judge, or assistant ex-officio judge of any county court of this state, six months prior to the effective date of the implementation of this act by the creation of a District Court in Tuscaloosa County, and is continuing to serve as a magistrate of a District Court, may issue arrest warrants and search warrants." (Emphasis added.)

We determined in Newton that the 1977 amendment conflicted with Rule 18 II(A) (3)(a), Alabama Rules of Judicial Administration, which established the rule that only magistrates licensed to practice law in Alabama may issue search warrants. Since § 6.11 of the Judicial Article (Amendment 328 of the Constitution of Alabama of 1901) provides that "(t)hese rules may be changed by a general act of statewide application," or by the Supreme Court of Alabama, we held the 1977 amended act invalid as an attempt to change rule 18 II(A)(3)(a) by a local act.

Likewise, we held that Act No. 407, Acts 1975, page 1005, was an invalid local act in Ringer v. State, 394 So.2d 69 (Ala.Cr.App.), cert. denied, 394 So.2d 72 (Ala.1980), appeal after remand, 394 So.2d 72 (Ala.Cr.App.1981), based on the authority of Newton, supra. Act No. 407 amended Act No. 790, Acts 1973, page 1203, creating the office of warrant magistrate in Madison County and provides:

" 'Section 5. Duties. The duties of the warrant magistrate or any duly authorized assistant warrant magistrate shall be as follows:

....

" '(b) To take evidence and affidavits in support of search warrants and to issue warrants....' "

The warrant magistrate who issued the search warrant in Ringer is the same magistrate issuing the search warrant in the case at bar.

We find that the 1980 amendment to § 12-17-251(c)(1) is a general act of statewide application. Amendment No. 375 of the Constitution of Alabama of 1901, Art. IV, § 110, defines both general and local laws as follows:

"A general law is a law which in its terms and effect applies either to the whole state, or to one or more municipalities of the state less than the whole in a class....

....

"A special or private law is one which applies to an individual, association or corporation. A local law is a law which is not a general law or a special or private law."

A careful study of legislative acts demonstrates that the language of the 1980 amendment does not purport to limit its application to any particular subdivisions of this state, but rather encompasses the entire state. Therefore, appellant's contention is without merit.

II

During the pretrial hearing on his motion to suppress, the appellant also insisted that there was no probable cause to issue the search warrant. He contends that the dual "prongs" of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), applying to warrants based on hearsay information supplied by unidentified confidential informants, were not shown here. We believe that they were clearly established in the affidavit signed by Officer D. Della-Calce and were later reaffirmed by the testimony elicited at the hearing.

This two-pronged test provides that a tip may supply the basis for probable cause in and of itself where it discloses: (1) some of the underlying circumstances which justify a conclusion that the informer is credible or his information is reliable (the "veracity prong"); and (2) some of the underlying circumstances tending to demonstrate that in the specific instance in question he has drawn his conclusions of criminality in a reliable manner (the "basis of knowledge prong"). Aguilar, supra; Hatton v. State, 359 So.2d 822 (Ala.Cr.App.), cert. quashed, 359 So.2d 832 (Ala.1977); Murray v. State, 396 So.2d 125 (Ala.Cr.App.1980), cert. denied, 396 So.2d 132 (Ala.1981).

Officer Della-Calce, the subscribing affiant, spoke with an informant on September 17, 1980, the date the warrant was issued. The confidential informant had given him substantiated information on at least ten previous occasions and on one occasion had been directly involved with the confiscation and seizure of illicit drugs. On September 17 Officer Della-Calce watched the informant enter appellant's residence. When he came out he told Della-Calce that he had observed a large quantity of marijuana inside. This information was consistent with direct observations of Della-Calce pursuant to the "rolling surveillance" he kept on appellant's residence for several months prior to that date. Della-Calce observed constant suspected drug activity and participated in two "set-ups" by informants sent by narcotics agents to purchase contraband from the appellant. Obviously, probable cause was clearly established.

III

At 7:20 a. m. on September 19, 1980, following a telephone call to ascertain that the home was occupied, Officer Della-Calce, four other narcotics agents, and one deputy sheriff arrived with the search warrant and converged upon appellant's home at 4801 Blue Haven Drive, Huntsville, Alabama. After the other agents positioned themselves at the rear of the house, Officer Della-Calce and the deputy sheriff approached the front door and the deputy knocked and announced he had a search warrant. Della-Calce testified that he "heard some movement inside" and "kicked the door open." He admitted that the time span between the moment the deputy knocked and when he kicked in the door was only "a matter of seconds." This estimation was repeated in the testimonies of the accompanying officers.

Appellant urges this court to determine whether these law enforcement officers complied with § 15-5-9, Code of Ala. 1975, Alabama's "knock and announce" statute, when they forced entrance into his residence before he refused to admit them. We decline to make such a determination because that specific issue was never presented to the trial court. Giles v. State, 382 So.2d 1177 (Ala.Cr.App.1980). While we do not condone the conduct of the police as described here, the record does not reveal any objection either at trial or in pretrial motions focusing on the officers' obvious disregard of Alabama's "knock and announce" statute.

Appellant merely stated in his motions to dismiss the indictment and suppress the evidence that "the police officer's conduct violated the Defendant's constitutional rights to be free from unreasonable searches and seizures, U.S.Const.Amend. IV, U.S.Const.Amend. XIV." Such a casual reference to constitutional guarantees did not direct the trial court's attention to a potential violation of § 15-5-9. It is a well-settled rule in Alabama that appellate review is limited to matters properly raised in the trial court. Dailey v. State, 374 So.2d 414 (Ala.Cr.App.1979). A silent claim cannot be noisily resurrected on appeal. Brown v. State, 392 So.2d 1248 (Ala.Cr.App.), cert. denied, 392 So.2d 1266 (Ala.1980); Gunn v. State, 387 So.2d 280 (Ala.Cr.App.), cert. denied, 387 So.2d 283 (Ala.1980). Therefore, without some express objection or ruling adverse to the appellant in the trial...

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