Bolden v. State

• Decision Date: 18 September 2015
• Docket Number: CR–14–0657.
• Citation: 205 So.3d 739
• Parties: Richard Lamar BOLDEN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

205 So.3d 739

Richard Lamar BOLDEN

v.STATE of Alabama.

CR–14–0657.

Court of Criminal Appeals of Alabama.

Sept. 18, 2015.

Special writings of Judge Joiner and Judge Welch substituted on denial of rehearing Dec. 18, 2015.

Certiorari Denied April 22, 2016

Alabama Supreme Court 1150333.

Rebecca Denean McCorkel, Dothan, for appellant.

Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.

KELLUM, Judge.

The appellant, Richard Lamar Bolden, was convicted of trafficking in marijuana, a violation of § 13A–12–231, Ala.Code 1975. The circuit court sentenced Bolden as a habitual felony offender with one prior felony conviction to life imprisonment. The circuit court ordered Bolden to pay a $25,000 fine; $10,000 to the crime victims compensation fund; a drug-demand-reduction fee of $2,000; a $200 fee to the Forensic Science Trust Fund; and court costs.

Bolden does not challenge on appeal the sufficiency of the evidence. Therefore, only a brief recitation of the facts is necessary in this case. Bolden was convicted of trafficking in marijuana based on evidence seized from a search of a residence on Eddins Road. Before trial, Bolden moved to suppress evidence seized from the Eddins Road residence, and the circuit court held a suppression hearing. Bolden argued that the affidavit for a search warrant provided "no basis for Judge Mendheim to reasonably conclude that any criminal activity was likely occurring" at that time and that no probable-cause determination could have been made. (C. 62.) At the suppression hearing, the circuit court relied on the following evidence.

Officer Ray Mock, a police officer with the Dothan Police Department, testified that he obtained a search warrant based on information gathered from a two-day investigation. On August 12, 2011, Officer Mock executed a search warrant for a residence on Bruce Street and discovered a large quantity of cocaine and marijuana, over $1,500 in cash, and a pistol. Bolden's live-in girlfriend was arrested at the scene. Although Bolden was not arrested at that time, officers obtained an arrest warrant for him. Officers began conducting surveillance on the Eddins Road residence after learning that it was Bolden's second residence.

On August 11, 2011, Officer Mock received information that Bolden was seen driving a green Chevrolet Impala automobile. Officer Mock also learned that Bolden possessed a high-capacity assault rifle; he testified that he learned this information within 24 hours of obtaining the search warrant. On that day, Jason Adkins, a sergeant with the Dothan Police Department, was conducting surveillance on the Eddins Road residence and observed a green Chevrolet Impala arrive at the residence followed by a black Ford Focus automobile. Later, Bolden and the driver of the Ford Focus, Shawnda Owens, exited the residence and left in the black Ford Focus. Officers performed a traffic stop and arrested Bolden. No drugs or weapons were found during a search of the vehicle and its passengers.

After Bolden was arrested, Officer Mock submitted an affidavit and application for a search warrant of the Eddins Road residence. The affidavit stated that Officer Mock believed that there was illegal drug activity and weapons at the Eddins Road residence. Officer Mock supported this contention with the following information:

"On 8–10–2011, at approximately 1945 hours, I along with other members of the Dothan Vice Unit executed a search warrant at ____ Bruce Street. The warrant obtained from information given by a reliable and confidential informant that Richard Bolden, a.k.a. ‘Gambino’, was keeping Cocaine in that residence. During the search of the residence, I recovered over 28 grams of off white powder and compressed off white powder, which field tested positive for the presence of Cocaine. I also recovered 1 7/8 ounces of green plant material I believed to be marihuana, $1,554.00 in U.S. currency, a Hi–Point Semi-automatic pistol, and other packaging materials.

"Bolden's live-in girlfriend, Tabitha Walker, was charged with Trafficking in Cocaine and Possession of Marijuana, 1st degree. Bolden was not at the residence at the time of the search warrant and did not return. I obtained arrest warrants for him on today's date, 8–11–2011, charging him with Trafficking in Cocaine, and Possession of Marihuana, 1st degree.

"At about 1600 hours today I spoke with a confidential source who told me that Bolden was seen driving a dark green Chevrolet Impala. The source did not have any other information on Bolden's whereabouts.

"At about 1700 hours today, SGT Jason Adkins spoke with a reliable and confidential informant (CI) who has given information in the past that proved to be true and correct. The CI told SGT Adkins that Bolden had another residence on Eddins Road in Cowarts, Alabama. The CI gave SGT Adkins directions to the residence which the CI stated was a mobile home. SGT Adkins drove to Eddins Road and located the mobile home at ____ Eddins Road, lot __. He also observed a dark green Chevrolet Impala parked in the yard with a Georgia licence plate. SGT Adkins, Investigator David Saxon, Investigator Jon Givens, Investigator Taiwan Truitt, and I began surveillance of the home and the car.

"At about 1800 hours a black 2001 Ford Focus stopped at the residence and Shawnda Owens (d.o.b. 8–2–1977) exited the car. She walked inside the mobile home and closed the door behind her.

"At about 2000 hours, SGT Adkins observed Bolden and Owens exit the mobile home and get into the Ford Focus. Bolden sat in the front passenger seat and the female sat in the driver's seat. SGT Adkins followed the car away from the residence and initiated a traffic stop in the 700 block of Falcon Drive. The car stopped and Bolden got out of the car and attempted to run away. After a short foot pursuit Bolden was apprehended.

"Investigator Givens and CPL Jeff Arnold responded back to the mobile home and attempted to make contact with anyone on the inside. No one would respond to the officers. CPL Arnold ran the tag on the Impala through dispatch and found it registered to Kamaliah Bolden of Blakely Georgia. Investigator Givens told me that the tax stamp on the mobile home had the serial number, ____.

"... I know that illegal drug traffickers take many steps to disguise their business and to hide their drugs and cash proceeds. It is common for drug traffickers to keep their money and drugs separated, many times at different residences. It is also common for drug traffickers to keep written records of their transactions (drug ledgers).

"I believe that Richard Bolden is keeping illegal drugs, U.S. currency, and drug ledgers at the mobile home located at ___ Eddins Road, lot __, Cowarts Alabama, with tax stamp serial number ______.

"I have also spoken with a reliable and confidential informant (CI) who has given information in the past that proved to be true and correct. Today, this CI told me that Bolden possesses an assault rifle with a high capacity drum magazine. This rifle was not found in the residence at ____ Bruce Street. I believe this rifle is inside the residence at ___ Eddins Road, lot ___, Cowarts Alabama, with tax stamp serial number ____."

(C. 73–74.)

The circuit court granted the search warrant of the Eddins Road residence. In a search of the Eddins Road residence, officers discovered approximately two and a half pounds of marijuana.

Following Officer Mock's testimony at the suppression hearing, the circuit court denied Bolden's motion to suppress. Bolden was subsequently tried and convicted of trafficking in marijuana. This appeal followed.

Bolden's sole contention on appeal is that the circuit court erred when it denied his motion to suppress. Specifically, Bolden argues that "the affidavit underlying the search warrant was constitutionally deficient on the grounds that it did not include information that specified when the confidential informant learned the information that he/she reported to Officer Ray Mock with the Dothan Police Department." (Bolden's brief, p. 14.)

In State v. Landrum, 18 So.3d 424 (Ala.Crim.App.2009), this Court explained:

" ‘This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996) ; State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).’ State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004)."

Because the evidence presented at the suppression hearing is not in dispute, the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the circuit court's ruling.

"When determining probable cause, ‘[a]n 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.Crim.App.1991), quoting United States v. Pike, 523 F.2d 734 (5th Cir.1975), cert. denied, 426 U.S. 906, 96 S.Ct. 2226, 48 L.Ed.2d 830 (1976), and a reviewing court need determine only that a magistrate or judge had a ‘substantial basis' for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238–39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) ; Sullivan v. State, 651 So.2d 1138 (Ala.Crim.App.1994) ; McCray v. State, 501 So.2d 532 (Ala.Crim.App.1986). This court has previously stated:

" ‘The present test for determining whether an informant's tip establishes probable cause is the flexible totality-of-the-circumstances test of Illinois v. Gates, [462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ]. The two prongs of the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), involving the informant's veracity or reliability and his basis of knowledge, "are better understood as relevant considerations in the

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