Clenney v. State

• Decision Date: 04 August 1966
• Docket Number: 1 Div. 387
• Citation: 281 Ala. 9,198 So.2d 293
• Parties: Bobby Ray CLENNEY v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 293

198 So.2d 293

281 Ala. 9

Bobby Ray CLENNEY v. STATE of Alabama.

1 Div. 387.

Supreme Court of Alabama.

Aug. 4, 1966.

Richmond M. Flowers, Atty. Gen., and Robert F. Miller, Asst. Atty. Gen., for petitioner.

Michael J. Salmon, Mobile, opposed.

COLEMAN, Justice.

Defendant was convicted for illegal possession of narcotics; Title 22, Chapter 8, Code 1940. He appealed to the Court of Appeals where the judgment of conviction was reversed. 198 So.2d 289. The state applied for certiorari to the Court of Appeals and we granted the writ.

The Court of Appeals reversed on the ground that the trial court erred in admitting, over defendant's objection, certain evidence, to wit, narcotics found in an automobile, in which defendant was sitting under the wheel, while the automobile was parked at Bienville Square in the City of Mobile.

The narcotics had been obtained by police officers as the result of a search of the automobile. The search was made under the authority of a search warrant. The Court of Appeals held that the affidavit on which the warrant was issued, made by Detective Mayo, was, on its face, insufficient to support a finding by the issuing magistrate that Mayo had probable cause for believing that narcotics were in the automobile, and, therefore, the warrant was void, the search was illegal, and the evidence obtained by the search was not admissible.

The Court of Appeals set out the contents of the affidavit as follows:

"Before me, Frank A. Massa, Recorder of the City of Mobile, Alabama, personally appeared Robert T. Mayo, who being duly sworn deposes and says: That he has reason to believe that in the automobile in the City of Mobile, Alabama, there is now being concealed certain property, namely (here describe property) Narcotics, to-wit, anphetamines, barbiturates, herion, marijuana and/or opium derivatives which are (here give alleged grounds for search and seizure) 1. Received information from a caller that Guy Gibson, a known dope addict, along with a subject by the name of George, last name unknown were to pass some dope in the

at 12:30 P.M. on Tuesday, January 12, 1965. They are suppose to be in a blue Chrysler bearing Fla. Tag Number 3WW, rest of numerals unknown. (OVER) These subjects are suppose to pass this dope and leave town today. Guy Gibson has a record for dope offenses in this city. At 12:30 P.M., Tuesday, January 12, 1965, officers Mayo and Romagnano arrested Guy Gibson and Bernie Heil in the square, at approximately 12:45 P.M. Tuesday, January 12, 1965 officer Romagnano saw this 1957 Blue Chrysler come up to the corner of St. Francis and St. Joseph St. bearing Fla. Tag #3WW--2407. And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

'Same as Above."

The opinion indicates that the word 'square' is omitted from the sentence immediately following the numeral '1.' That sentence is to be understood as concluding: 'were to pass some dope in the Square at 12:30 P.M. on Tuesday, January 12, 1965.'

The question for decision is whether the affidavit is sufficient to support a finding of probable cause. We hold the affidavit sufficient.

The rule seems to be that the magistrate must have sufficient evidence to support a finding of probable cause. Apparently, it is not necessary that all the evidence before the magistrate shall be stated in the affidavit, but, since the Court of Appeals holds the affidavit insufficient on its face, we limit consideration to matters stated in the affidavit.

We conclude therefore that hearsay may be the basis for a warrant.' Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 78 A.L.R.2d 233. We do not think, however, that hearsay alone can be sufficient basis for a warrant.

The affiant must state evidence, other than hearsay, to justify a conclusion that the article to be searched for is where he says it is. The affiant must state evidence, other than hearsay, to justify a conclusion that the hearsay is reliable. Such seems to be the rule stated in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

Another statement of the rule seems to be that the magistrate need not require that the informant or his affidavit be produced, and need not require that affiant have personal knowledge about the place to be searched, 'so long as there was a substantial basis for crediting the hearsay.' Jones v. United States, supra, 362 U.S. at page 272, 80 S.Ct. at page 736.

So the question is, do the facts stated in the instant affidavit furnish a substantial basis for crediting the 'hearsay' that Gibson and another were supposed to pass dope in the square at the indicated hour and would be in the blue Chrysler with Florida tag No. 3WW--. . ..?

If there were no substantial basis for crediting the caller's story, there could scarcely be any substantial basis for believing that narcotics were in the automobile. On the other hand, if Gibson was a known dope addict with a record for dope offenses in Mobile, and Gibson did appear in the square almost precisely at the predicted hour, and fifteen minutes later a blue Chrysler with Florida tag No. 3WW--2407 did appear at the southwest corner of the square, can it reasonably be said there was no substantial basis for crediting the caller's story? In the latter set of circumstances, can it be fairly said that there is no evidence, other than hearsay, to support the conclusion that narcotics were in the blue Chrysler or that the hearsay received from the informer was not reliable?

We are of opinion that the facts stated in the affidavit by Detective Mayo, other than the information given to him by the caller, were sufficient to corroborate in several particulars the hearsay information upon which affiant relied to support his conclusion that the automobile contained narcotics.

The hearsay stated in the affidavit is:

1. At 12:30 p.m. on Tuesday, January 12, 1965, Gibson and another were to pass dope in the square.

2. They would be in a blue Chrysler with Florida tag No. 3WW, other numerals unknown.

The corroborating facts stated in the affidavit are:

1. At 12:30 p.m. on Tuesday, January 12, 1965, Gibson and another were present in the square, and were arrested by affiant and another.

2. Fifteen minutes later, a blue Chrysler with Florida tag No. 3WW--2407 appeared at the southwest corner of the square.

3. Gibson was a known dope addict and had a record for dope offenses in this city.

These corroborating facts are not stated on information and belief. As we understand the affidavit, affiant states that the corroborating facts are true of his own knowledge.

Here, the caller's story is not corroborated by other sources or by the fact that he has previously given accurate information, but the story is corroborated by other facts stated by affiant as true of his own knowledge. The other corroborating facts are that events predicted by the caller have happened almost precisely as foretold. Indeed, it is difficult not to believe that Gibson and another would have in actuality 'passed dope' except for Gibson's arrest by affiant and the action of the officers in taking custody of the blue Chrysler with Florida tag No. 3WW--2407. The predicted drama was enacted as scheduled, except that the dope was not passed. Surely, reason does not require that affiant swear that he had seen the narcotics in order to furnish reasonable cause for belief that narcotics were in the blue Chrysler.

In any event, we are of opinion that the affidavit did state facts which show probable cause and was sufficient to authorize the issuance of the search warrant.

We think this affidavit is different from the affidavit in Knox v. State, 42 Ala.App. 578, 172 So.2d 787. In Knox, the affidavit was held insufficient because 'it went upon the affiant's belief of the matters contained therein, without facts or...