Ex parte Parker

• Decision Date: 17 January 2003
• Citation: 858 So.2d 941
• Parties: Ex parte Charlie Mae PARKER. (In re Charlie Mae Parker v. State of Alabama).
• Court: Alabama Supreme Court

858 So.2d 941

Ex parte Charlie Mae PARKER.

(In re Charlie Mae Parker v. State of Alabama).

1010487.

Supreme Court of Alabama.

January 17, 2003.

Robert G. Poole of Whittelsey & Whittelsey, P.C., Opelika, for petitioner.

William H. Pryor, Jr., atty. gen., and E. Vincent Carroll, asst. atty. gen., for respondent.

JOHNSTONE, Justice.

Charlie Mae Parker pleaded guilty to unlawful possession of marijuana in the first degree. The trial court sentenced her to three years in prison. Before pleading guilty, Parker preserved her right to appeal the denial of her motion to suppress marijuana seized at her residence pursuant to a search warrant. The ground of her motion to suppress was that the search warrant was based on a deficient affidavit.

Upon Parker's appeal, the Court of Criminal Appeals affirmed her conviction in an unpublished memorandum. Parker v. State, (No. CR-00-1762, October 19, 2001) 851 So.2d 636 (Ala.Crim.App.2001) (table). The Court of Criminal Appeals also overruled Parker's application for rehearing. Parker then petitioned this Court for a writ of certiorari, which we granted to determine whether the content of the affidavit submitted as support for the issuance of the warrant to search Parker's residence was sufficient to constitute probable cause for the issuance of the warrant. We reverse and remand.

At the time of the search, Parker resided with one Tabitha Hutchinson at 8895 Lee Road 72, Waverly, Lee County, Alabama. On May 10, 1999, Investigator Van Jackson of the Lee County Sheriff's Department obtained a warrant to search Parker's and Hutchinson's residence. This search warrant was not executed. On May 18, 1999, Investigator Jackson obtained a second warrant to search this residence. To obtain this second search warrant, Investigator Jackson submitted his affidavit stating:

"Within the past 72 hours, undercover Officer Jimmy Martin purchased approximately $100.00 in crack cocaine from Tabitha Hutchinson at her residence.

"The Lee County Sheriff's Department has received information over the past few years that Tabitha Hutchinson has been selling crack cocaine out of her residence which is located at 8895 Lee Road 72, Waverly, Lee County, Alabama. The Lee County Sheriff's Department began conducted [sic] an undercover drug operation targeting Hutchinson's residence. This investigation has been going on since November of 1998; anonymous tips, confidential informants, and undercover officers have all provided information supporting that drugs are being sold out of this residence. Undercover Officer Martin has purchased crack cocaine from several different subjects and Hutchinson while at/or near this residence. Officer Martin was able to purchase crack cocaine approximately seven different times from Hutchinson and/or someone near her residence. The quantity of crack cocaine purchased has ranged from Twenty Dollars to One Hundred Dollars worth. These purchase has [sic] been monitored and some recorded by law enforcement surveillance teams. The crack purchased in these cases has been submitted to the Department of Forensics [sic] Sciences for drug analysis. The result revealed that all of the compressed substances submitted had the presence of Cocaine, a Schedule II controlled substance. The Lee County Sheriff's Department has received information that Hutchinson always keeps a quantity of crack cocaine inside her residence."

In Parker's motion to suppress the marijuana seized during the execution of this second search warrant, she contended that Investigator Jackson's affidavit was false in its statement that, "[w]ithin the past 72 hours, undercover Officer Jimmy Martin purchased approximately $100.00 in crack cocaine from Tabitha Hutchinson at her residence." Parker contended further that Investigator Jackson did not testify to any other information that would supply probable cause to issue the search warrant.

At the suppression hearing, Investigator Jackson admitted that the last controlled buy made by police at Parker's residence was on May 7, 1999 and was not "within the past 72 hours" of his application for the May 18, 1999 search warrant. He said that the "within the past 72 hours" language was an "administrative error." Investigator Jackson testified that he had obtained a few other warrants against Hutchinson on the bases of controlled buys made at or near her residence before May 7, but that he had not told the judge who issued the May 18, 1999 search warrant about the specific dates and circumstances of these controlled buys. Investigator Jackson admitted that his affidavit contained the only information that he had supplied to the judge to support issuance of the search warrant. The trial court summarily denied Parker's motion to suppress the marijuana.

Parker argues that, because Investigator Jackson knowingly gave false information to the judge issuing the search warrant and gave insufficient other information to the judge to establish probable cause for the issuance of the search warrant, it was invalid. Therefore, Parker contends that the evidence seized pursuant to that warrant should have been suppressed and that the conviction based on that evidence should be reversed.

The United States Supreme Court has said:

"[an] officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.

"Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth."

United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citations and footnotes omitted; emphasis added).

In Lewis v. State, 589 So.2d 758 (Ala. Crim.App.1991), the Court of Criminal Appeals addressed an issue not materially distinguishable from the one raised by Parker, and reversed that defendant's conviction based on evidence that should have been suppressed pursuant to the defendant's motion to suppress. The Lewis court stated:

"The appellant's residence was searched and the diazepam was seized pursuant to a search warrant. The affidavit on which the warrant was based stated: `That within the last seventy-two hours, a reliable, confidential informant advised this affiant that said informant had been at the above-described residence and observed a quantity of powder cocaine.' ...

"The appellant contends that the affidavit on which the search warrant was based is deficient because it does not state when the cocaine was seen at the appellant's residence by the informant. She contends that a search under a warrant issued on an affidavit alleging an undated observation is unreasonable.

"The State argues that the statement of the affiant is a typographical error to which the `good faith' exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), should apply. The State contends that the assumption that the issuing judge was made aware of all information establishing probable cause should suffice to invoke the good faith exception. The State also argues that the oral testimony of the affiant is sufficient to cure the defective [affidavit]. The arguments of the State are without merit. The error in the affidavit was not merely clerical because it was an omission that resulted in the issuance of a warrant not reasonably supported by the record. There was no evidence to support a presumption that the trial judge inquired about or was informed of any information about the time of the affiant's alleged observation of cocaine. There also is no evidence that the affiant's oral testimony in the suppression hearing had been presented to the issuing magistrate.

"This Court in Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990), found that an affidavit supporting the warrant issued for the search of Nelms' residence was deficient for failing to state when the drugs were seen by the informant at the appellant's residence. The Nelms affidavit stated `... that within the last seventy-two hours a confidential police informant ... stated to the affiant that they had seen crack cocaine in the residence of Tommie Lee Nelms ....' The almost identically-worded affidavit in the present case is likewise deficient, because it fails to refer to the date when the informant allegedly observed cocaine at the appellant's residence. Moreover, the officer in Nelms testified that in drafting the warrant, he intended the seventy-two hours to refer to the time period in which he had spoken to the informant, id. at 386, but also to include the time since the informant had observed the drugs. Id. at 387. However, the officer in Nelms testified that he did not recall exactly what he had told the issuing magistrate about how long it had been since the informant had observed the drugs. Id. at 386-87. Thus, this court held that because `we cannot assume that this information was conveyed to the ... judge, ... the affidavit did not support a finding of probable cause and there was not sufficient oral testimony to cure the problem with the affidavit.' Id. at 387. Similarly, in the instant case, although the officer testified that the 72 hours was intended to include the time that the informant observed the drugs, there is no indication that this information was conveyed to the issuing magistrate."

Lewis, 589 So.2d at 759-60 (emphasis added).

Likewise, in Thomas v. State, 353 So.2d 54 (Ala.Crim.App.1977), the Court of Criminal Appeals reversed a conviction based on evidence validly challenged by a motion to suppress grounded on the staleness of the information in the affidavit submitted to support the issuance of the warrant for the search that resulted in the seizure of the evidence. The Thom...