Brantley v. State, 4 Div. 277

Decision Date28 June 1974
Docket Number4 Div. 277
PartiesJerry Dean BRANTLEY v. STATE.
CourtAlabama Court of Criminal Appeals

J. Paul Lowery, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Leon Ashford, Asst. Atty Gen., for the State.

TYSON, Judge.

The Grand Jury of Pike County, Alabama, charged the appellant with the unlawful possession of Marijuana.

The appellant filed pretrial motions to suppress the evidence and to quash the indictment, each of which were heard and denied in a joint hearing. Thereafter, the cause came on for trial, the jury found the appellant 'guilty of possession of Marijuana for his personal use only,' and assessed a fine of.$1000.00. The trial court then entered its judgment in accordance with the verdict, and in addition ordered the appellant imprisoned in the county jail for eight months.

Corporal J. D. Hobby testified that on July 13, 1973, he was working as an undercover agent for the Department of Public Safety, in Pike County, Alabama, and had been so engaged for several months. He stated that at about 2:25 in the afternoon, he, accompanied by Investigator George Donald Smith, also of the State Department of Public Safety, went to the trailer home of the appellant and knocked on the door. He stated that the appellant opened the door and he asked, 'Do you remember me,' to which the appellant replied, 'Yes, come on in.' He stated that he was then seated in the living room of the trailer, and that the appellant's wife and daughter were also present at this time. He stated that he noticed a plastic bag with 'brownish vegetable material in it lying on a coffee table.' He stated that he asked the appellant, 'What's been going on,' to which the appellant replied, 'Oh, nothing much, man. Things have been happening around here and the heat is on.' (R. 75) He stated that the 'narcs' were in Troy and everybody was scared, that he was not holding anything then. Corporal Hobby stated that later in the conversation the appellant stated, '. . . What I had I got rid of and they can't dig up all the ground around my trailer. They will never find it. I am not holding anything. The only thing I am holding is what you see there on the table.' (R. 76)

Officer Hobby further stated that following this conversation, he asked the appellant if he could invite his friend inside, to which the appellant replied, 'It is hot outside, ask him to come on in.' After Officer Smith came in, Corporal Hobby asked the appellant if he could sell him a lid, to which the appellant replied, 'No. All I can do is roll you a number.' He stated that the appellant then rolled a cigarette, and as he started to hand it to him he produced his badge and handed it to the appellant. He stated to him that he was an officer with the State Department of Public Safety, and that he was under arrest for the possession of Marijuana. (R. 78) The appellant then replied, 'Oh, man, you are . . . me aren't you.' Officer Hobby answered, 'No, sir, I am not.'

At this point, Officer Smith went outside, and, over the police radio, requested the assistance of other officers. Within approximately five minutes, two additional cars arrived, which included Chief John Lee of the Troy Police Department and two detectives, McLendon and Sutton in one car, in the other car were Deputy Phillips and Investigator Doug Nelson. He stated that the officers came inside, they were in civilian clothes, except Deputy Phillips, who was in his sheriff's uniform. He stated that the officers then read to the appellant a Miranda type warning and asked him if he fully understood his rights, to which the appellant replied, 'Yes, I do.'

Officer Hobby further testified that he had a warrant for appellant's arrest on another charge when he entered the trailer, that after Chief Lee came in he showed the appellant a warrant for his arrest for the sale of Marijuana and placed him under arrest.

The officers then asked the appellant if they had his permission to search the trailer, to which the appellant replied that he understood about the necessity of getting a warrant, but for them to go ahead and search as he was not holding anything. (R. 81)

Officer Hobby further testified that Investigator Nelson then prepared a consent to search statement, written in longhand, that the two of them read it to the appellant, that the appellant said that he would sign it because he knew they could go ahead and get a warrant anyway. (R. 82) Officer Nelson again advised the appellant of his rights and of the necessity for getting consent before the appellant signed the consent to search statement. The officers then asked his wife if she too would sign it, after explaining her rights, and the wife joined in, signing the statement. (R. 82)

On cross-examination, Officer Hobby testified that the appellant had just lit the Marijuana cigarette, which he had rolled, and handed it to him when he placed him under arrest for possession of the Marijuana which he observed in a clear plastic bag lying on the coffee table. (R. 84--86)

Officer Hobby further stated that he had met the appellant on some two or three other occasions while doing undercover work in the Troy area.

Also on cross-examination, Officer Hobby testified that, after the officers began searching the trailer, and upon finding several items of contraband and the three bags of Marijuana in the bedroom, the appellant said, 'Hell, I forgot about that.' (R. 110)

Officer Doug Nelson testified that he was an Investigator for the State Department of Public Safety, and, in the company of Sheriff's Deputy Carl Phillips, went to the trailer home of the appellant on the afternoon of July 13, 1973. He stated that they were summoned there by a police radio. Upon arrival, he stated that the appellant, his wife and child, and Officers Smith and Hobby were inside the trailer. He stated that he sat down in the living room and talked with the appellant, reading him a Miranda card warning before beginning has conversation with him. He stated that Corporal Hobby had a warrant in his pocket for the arrest of the appellant on another charge, and that Chief Lee of the Troy Police Department came in with two detectives; that after explaining the appellant's rights to him, he stated to them, 'Go ahead and search, I am not holding anything. I know that you could go ahead and get a search warrant anyway.' (R. 114) He stated that he conversed further with the appellant and his wife, and that he prepared a consent to search form, which each of them signed after having their rights again explained to them. (R. 114--115) He stated that he then assisted in the search of the home and found a 'Set of Ohause scales,' which measure up to 3,210 grams, and that near the scales were vegetable material and seeds. He stated that in the bedroom he found several suitcases; that he opened one of these and found three kilos of green vegetable material and a plastic bag containing 3,456 double scored purple tablets. (R. 117) He stated that he later delivered this material, that evening, to the State Department of Toxicology for examination. (R. 118) He stated that the Marijuana in the suitcase approximated six pounds. (R. 124).

Troy Police Officer Charles Sutton testified that he participated in the search of the appellant's trailer home on the afternoon of July 13, 1973, and upon removal of some drawers, which had been built into the wall in the bedroom, he found three bricks he believed to be Marijuana. He turned these over to Investigator Doug Nelson at that point. (R. 126--127)

Officer Sutton, on cross-examination, stated that he did not know a man named 'Fudd,' but that the appellant stated, 'Fudd's the guy. I didn't know they were there. I thought the fat son of a bitch got them.' (R. 131)

Troy Police Officer James McLendon testified that he participated in the search of appellant's trailer home on the afternoon of July 13, 1973. He stated that he found and seized a 'hashish pipe, and a green cigarette case that had one red capsule and a half a white tablet in it.' He stated that he also found three partially smoked roches in an ash tray. (R. 134--135)

George Donald Smith testified that he was a narcotics investigator for the State Department of Public Safety. He testified that on the afternoon of July 13, 1973, he accompanied J. D. Hobby to the trailer home of the appellant, near Troy, Alabama. He stated that after Corporal Hobby went inside, he emerged about five minutes later and asked him to come in, which he did. He stated that he was seated on the couch beside the appellant when Officer Hobby asked him if he had anything to sell, and he replied that all he had was a lid of Marijuana lying on the coffee table, that the best he could do was to roll him a number. Officer Smith stated that after the appellant rolled the cigarette and lit it, Officer Hobby handed him his identification paper and advised him that he was under arrest for the possession of Marijuana.

Officer Smith further testified that later in the afternoon he assisted in the search of the trailer home and found eight yellow tablets in a plastic bag, and subsequently four purple tablets on a night stand in a back bedroom. (R. 137--139)

Troy Police Chief John Lee testified that he arrived at the home of the appellant on the afternoon of July 13, 1973, accompanied by two Troy police officers; that he was present in the trailer when the appellant and his wife signed the consent to search form, and that each of them were given the Miranda type warning before signing this. He stated that in his search he found several burned roches or 'ends of cigarettes' in an ash tray, which he believed to be Marijuana. (R. 141--142)

Dale Carter, an employee of the State Department of Toxicology, verified that Officer Hobby and Officer Nelson delivered to him several items at about 9:00 in the evening of July 13, 1973, at the Crime Laboratory at...

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  • Moore v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 17, 1984
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