Channell v. State, 6 Div. 447

• Decision Date: 23 July 1985
• Docket Number: 6 Div. 447
• Parties: Elbert Patton CHANNELL III, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 522

477 So.2d 522

Elbert Patton CHANNELL III, alias v. STATE.

6 Div. 447.

Court of Criminal Appeals of Alabama.

July 23, 1985.

Rehearing Denied Aug. 20, 1985.

Certiorari Denied Nov. 1, 1985

Alabama Supreme Court 84-1256.

David Cromwell Johnson of Johnson & Cory, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

Elbert Patton Channell, III was indicted and convicted for trafficking in cannabis in violation of Ala.Code 1975 § 20-2-80. Sentence was three years' imprisonment and a fine of $25,000. Four issues are raised on appeal.

I

Channell argues that he was improperly stopped because the police did not have probable cause and that the subsequent search of his automobile was improper because of the lack of exigent circumstances.

Tuscaloosa Police Officer John Samaniego, assigned to the West Alabama Narcotics Unit, received a telephone call from an informant on May 29, 1983, shortly before 8:00 a.m. Officer Samaniego testified:

"I received information from a confidential reliable informant that a white 1969 Chevrolet displaying Texas tags of 536 BFC would be en route from Birmingham on I-59 and when it would get to Tuscaloosa it would go to the Alpine Hills area of the city; would be driven by a white male and would have a black male passenger. This vehicle would be transporting a large quantity of marijuana."

The informant stated that the car would arrive in Tuscaloosa between 8:00 and 9:00 that morning.

Officer Samaniego knew that the informant resided in Tuscaloosa and testified that he had been reliable in the past by providing information that had led to an arrest and conviction. Defense counsel was not allowed to prove that "in an earlier hearing ... Officer Samaniego indicated that there were some arrests involved but never any convictions as a result of this particular informant."

Acting on the informant's telephone call, officers of the West Alabama Narcotics Unit established surveillance. They spotted the car described by the informant traveling on I-59 and followed it into Tuscaloosa where they stopped it at the entrance to Alpine Hills sometime after 8:00 a.m. and before 8:45 a.m.

Channell was driving the car. Porter Lee Blakeney, a black male, was the passenger. Both men were ordered out of the car. Officer William B. Wilkins testified "just instantaneous" with Blakeney getting out of the car he observed "a small manila envelope" on the front seat and a torn "paper bag in the front floorboard that had a set of [postal] scales in it."

An officer removed the keys from the vehicle and opened the trunk. A package and a pasteboard box containing plastic bags of marijuana were discovered. A little over ten pounds of marijuana was found in the car.

Channell contends that there was no probable cause to search his car because the police did not know the factual basis of the informant's knowledge--that is, the police did not know how the informant obtained his information.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the two- pronged 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), for determining whether an informant's tip established probable cause was emphatically rejected as hypertechnical and unrealistic. Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Gates holds that an informant's " 'veracity,' 'reliability' and 'basis of knowledge' ... should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is 'probable case'...." 103 S.Ct. at 2327-28. "[T]hey are better understood as relevant considerations in the totality of circumstances analysis ...: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." 103 S.Ct. at 2329. "The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." 103 S.Ct. at 2332. "Although an informant's 'veracity' and 'basis of knowledge' are no longer to be 'understood as entirely separate and independent requirements to be rigidly exacted in every case,' they are still 'highly relevant' in determining whether probable cause existed. Gates, 103 S.Ct. at 2327." United States v. Phillips, 727 F.2d 392, 395 (5th Cir.1984).

In our judgment, the informant's tip here provided probable cause for the vehicle stop, even under the stringent Aguilar-Spinelli standard, and it was certainly justified under the more flexible "totality of the circumstances" analysis of Gates.

Using the Aguilar-Spinelli test, there is no question about the first prong, or the informant's veracity. Regardless whether the tipster's past information had led to arrests and convictions, or only arrests, his reliability was established by Officer Samaniego's testimony. See Hatton v. State, 359 So.2d 822, 827 (Ala.Cr.App.1977), cert. quashed, 359 So.2d 832 (Ala.1978), and authorities cited therein.

By the same token, under the Aguilar-Spinelli test, it is equally clear that the tip failed the second prong, or basis-of-knowledge test. That is, the tip contained none of the underlying circumstances demonstrating how the informant gained his knowledge. This deficiency can, however, be cured if the tip "describe[s] the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli v. United States, 393 U.S. at 416, 89 S.Ct. at 589. In other words, if there is enough "self-verifying detail" in the tip it will permit the inference that the informant spoke from firsthand knowledge. Stanley v. State, 19 Md.App. 507, 313 A.2d 847 (1974). Based on the analysis of Stanley, supra, a much-cited opinion whose facts are almost directly in point with the present case, we believe the tip here was sufficiently detailed so that it cured the defect in the basis-of-knowledge prong.

In Stanley the tipster, whose veracity was not at issue--as it is not in issue here--gave the following information:

"[H]e stated at this time, one David Stanley would be operating a 1964 yellow Chevrolet and he would have in his possession Cocaine and Heroin. The informant stated the Stanley subject would be in the Dundalk area near the pool hall between the hours of eight o'clock and 8:30. At this time he would also be accompanied by another white male subject by the name of Walter Holak."

313 A.2d at 851. Following receipt of the tip, the police officers went to the Dundalk area, set up surveillance across the street from the pool hall, and saw the accused, along with the passenger Holak, drive up in a yellow Chevrolet at 8:20. The Stanley court concluded that the detail in the tip itself "provide[d] a reasonable assurance that [the informant] was speaking from firsthand observation." 313 A.2d at 863. It held that "the initially inadequate satisfaction of Aguilar's 'basis of knowledge' prong ... is repaired." Id. The court also went to great lengths to explain that police corroboration of the details of the tip did nothing to bolster the defective basis-of-knowledge prong; corroboration, the court explained, cures only a weakness in the informant's veracity.

We have virtually identical facts in the case before us. The reliable informant here provided Tuscaloosa authorities with the color and year model of the subject automobile, as the tipster had done in Stanley. In addition, the tipster in the present case also added the vehicle's license tag number. Both tips included the auto's destination, time of arrival, and the description of its driver and passenger. Finally, although the Stanley court found it unnecessary to the holding, both tips were corroborated by independent police observation. In short, we find no material distinction between the facts of Stanley and those of the case at bar and, therefore, hold that even under the rigid Aguilar-Spinelli test, the Tuscaloosa authorities had probable cause to stop Channell's vehicle. Under the more flexible Gates test for probable cause, the result is the same.

Like the appellant in our recent case of David Nicholas Frederick Cooper v. State, 480 So.2d 8 (Ala.Cr.App.1985), Channell argues that because his vehicle was no longer mobile after he and Blakeney were handcuffed and the car keys in possession of the police, there were no "exigent circumstances" to justify a warrantless search. Writing for the Court in Cooper v. State, supra, Judge Taylor answered this contention as follows:

" '[A]n individual's expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband.' United States v. Ross, 456 U.S. 798, 823 [102 S.Ct. 2157, 2172, 72 L.Ed.2d 572] (1982).... The law is 'clear that the justification to conduct such a warrantless search does not vanish once the car has been immobilized.' Michigan v. Thomas, 458 U.S. 259, 261 [102 S.Ct. 3079, 3080-3081, 73 L.Ed.2d 750] (1982). See also Florida v. Meyers, 466 U.S. , 104 S.Ct. 1852 (1984), United States v. Ross, supra, Texas v. White, 423 U.S. at 67 [96 S.Ct. 304, 46 L.Ed.2d 209] (1975), and Chambers v. Maroney, 399 U.S. 42 [90 S.Ct. 1975, 26 L.Ed.2d 419] (1970). In fact, '[t]here is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure.' United...