Collins v. State

• Decision Date: 28 October 1980
• Docket Number: 4 Div. 808
• Citation: 391 So.2d 1078
• Parties: Frank COLLINS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1078

391 So.2d 1078

Frank COLLINS v. STATE.

4 Div. 808.

Court of Criminal Appeals of Alabama.

Oct. 28, 1980.

Rehearing Denied Nov. 25, 1980.

Randy C. Brackin, of Martin & Brackin, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and Cynthia D. Welch, Asst. Atty. Gen., for appellee.

CLARK, Retired Circuit Judge.

Appellant-defendant was indicted for possession of marijuana and was found guilty of possession of marijuana for his personal use. The one is a felony, the other a misdemeanor. Code of Alabama 1975, § 20-2-70. The jury fixed his punishment at a fine of $200.00; the court imposed additional punishment of imprisonment in the county jail for twelve months and sentenced him accordingly.

On October 25, 1979, officers obtained a search warrant to search 215 West North Street, Dothan. When they arrived Cathy Russaw and a couple of small children were there. After a short time from the commencement of the search, the defendant came to the house. The building at 215 West North Street was owned by and was physically connected to Hawk's Funeral Home, which apparently had an address on another street. There was some testimony that a girl by the name of Dorothy Poke was living at the house. Pursuant to the warrant, the officers conducted the search about 3:30 P.M. on the day the warrant was obtained. In the course of the search, marijuana was discovered and seized. There was evidence, in addition to that narrated above, pertinent to the question of the validity of the search warrant which need not be stated, as the only point made by appellant as to the validity of the warrant and the search made pursuant to it is to the effect that, under the circumstances in the case, the description of the building or place to be searched as 215 West North Street, Dothan, Alabama, was insufficient. Pursuing the point, he stresses the fact that the particular building was physically connected with Hawk's Funeral Home and relies upon United States v. Hinton, 219 F.2d 324 (7 Cir. 1955) and Hutto v. State, 50 Ala.App. 636, 282 So.2d 75. In Hinton the property was described by street number, at which described place was a building with four separate residential units. In Hutto the premises were described by a number on a named street in Auburn, Alabama, and as a white block building on the southeast corner of the intersection of the named street and a named avenue in the same city. The court said at 282 So.2d 81-82:

"It is apparent that the premises in question were being occupied by both commercial and residential tenants. The officers seeking the search warrant and the Inferior Court Judge issuing the warrant were aware of this. It is equally clear that the building in question was not being used as a 'one family residence' and that the person named in the affidavit and warrant was the 'original lessee' who no longer occupied any of the premises, and in fact such had been subleased. It is therefore clear that the affidavit and warrant are both invalid as failing to provide a more definite description of the subunit of the building sought to be searched, or of the room number within the said premises sought to be searched. Moreover, neither the affidavit nor warrant identifies the premises as being under the control of either the appellant or of the sublessee who in fact had control of the whole premises. Because of these deficiencies, we are of the opinion that the trial court committed error in not granting the motion to suppress the affidavit and warrant. See Annotation, 11 ALR3d 1330, et seq."

The building and premises searched and described in the affidavit and warrant in the instant case cannot be likened to the building and premises involved in either Hinton, supra, or Hutto, supra. On the contrary, in the instant case the only physical connection between the building that housed the funeral home and the building searched and described as 215 West North Street, Dothan, Alabama, was the outside structure or connecting wall between the two buildings. There was no inside hall, stair, or other passageway between the two buildings. The building searched was not a plural-unit building. The evidence shows that it was designed and used as a single-unit residence, even though there is evidence to the effect that it had been used for traffic in drugs. The trial court was correct in overruling defendant's motion to suppress the evidence of the fruits of the search.

A more difficult question is presented by appellant's only other insistence on a reversal in which he urges that the trial court erred in overruling defendant's motion to exclude the State's evidence that he submitted when the State rested, in refusing defendant's affirmative charge written after all evidence had been introduced, and in overruling defendant's motion for a new trial. There was hardly any dispute in the evidence; some of it has already been summarized. Appellant does not contend that marijuana was not found in the building at 215 West North Street; he contends that he did not possess it.

At the time the motion to exclude the State's evidence was submitted, the only evidence, if any, tending to connect defendant with the possession of the marijuana, consisted of the testimony of Officer Lamar Hadden, an experienced employee of the Alabama Beverage Control Board. He testified that he and Agent Blount arrived at 215 West North Street about 3:30 P.M., October 25, 1979, and served the search warrant on Cathy Russaw. Defendant was not there at the time but the witness saw him "across the street, in front of the Capri Club." After serving the search warrant, the witness went to the living room, "checked all the rooms first to see if anybody else was there," came "back up into the back bedroom and looked in it and couldn't find anything" and then "went to the front bedroom." While making the search in the front bedroom, he found "a woman's purse or just a tote bag" and in the purse he found some "Middleton Cherry Pipe Tobacco, a five dollar bag of marijuana" and "some keys." Defendant had come into the house about "ten or fifteen minutes" after the officers arrived at the house, but he stayed in the living room while Officer Hadden conducted the search in the bedrooms. After fully warning and advising defendant and Cathy Russaw as to their constitutional rights, they interrogated defendant as to the contents of the purse or "tote bag." The witness further testified:

"A. The purse in one hand and all the contents were still in the little bag. And I pulled the tobacco out and asked whose it was and Frank (defendant) said it was his tobacco. And I pulled the brown paper sack out of there, the brown bag, envelope (which contained marijuana) and asked him whose that was. And he said I don't know.

"Q. Did you ask Cathy Russaw?

"A. Yes.

"Q. Did you ask either one of them whose purse it was?

"A. No. I don't think I did."

Officer Hadden further testified that after confronting defendant with the purse and its contents, he left defendant and went to the back part of the house, searched in the kitchen and found four small bags and their contents like the bag and contents found in the purse or "tote bag," in the top part of a "hot-water heater." The heater was about three feet high; the lid of the heater was loose, and he found the bags and their contents underneath the lid when he lifted it. Upon asking Cathy Russaw and Frank Collins about what he found in the heater, they "denied knowing anything about it."

According to further testimony of Officer Hadden, he had watched the particular house for about two weeks before it was searched. During that time he saw defendant "go to and from the house" several times. He also saw "a lot" of "other people come and go from this house." Men's clothing, as well as women's clothing and children's clothing, was in the house. A .22 caliber sawed-off rifle was in the house. There was no marijuana smoke or odor in the house that the witness could detect. Defendant was asked if he "stayed" at the house, and his response was that he did. Before the officers left the house, they placed defendant and Cathy Russaw under arrest. As they were all leaving the house, the defendant stated that "he had to get the keys if they were going to lock the house up." Thereupon he went to the purse or "tote bag" and obtained the keys that were in the bag, put the keys in his pocket and locked the front door. It was a padlock on a hasp, for which no key was needed to close the lock.

At the time the State rested, there was some evidence that either Cathy Russaw or defendant knowingly possessed the bag of marijuana found in the purse. The two had been indicted jointly, but the instant case was severed from the case against Cathy Russaw. It seems that if the two defendants had been tried jointly, neither would have been entitled to a favorable ruling on a motion to exclude the evidence. A prima facie case would have been presented against both, even though the evidence would have been weak and inconclusive as to each. Similar reasoning leads to a belief that the court was not in error in overruling defendant's motion to exclude the evidence.

Defendant did not rest his case until after he, his mother and Cathy Russaw had testified. Whether true or not, their testimony was undisputed and shed light not previously seen on the question of the identity of the person or persons who possessed the marijuana.

The defendant testified that on the afternoon of October 25, 1979, he was at a club across the street from 215 West North Street when his attention was called to two men entering the house. He said he lived there "every now and then, you know." Someone told him that one of the men that entered the house was a narcotics officer. In about five minutes, he went over to the house. He denied knowing that there was any marijuana in the house at the time. He admitted having smoked marijuana at times with Cathy Russaw. He said that one of the...