Ex parte State

• Citation: 494 So.2d 719
• Parties: Ex parte STATE of Alabama. (Re Rodney SPANN and Brenda Spann v. STATE of Alabama). 84-1168.
• Decision Date: 11 July 1986
• Court: Supreme Court of Alabama

Page 719

494 So.2d 719

Ex parte STATE of Alabama.

(Re Rodney SPANN and Brenda Spann v. STATE of Alabama).

84-1168.

Supreme Court of Alabama.

July 11, 1986.

Rehearing Denied Sept. 12, 1986.

Charles A. Graddick, Atty. Gen. and Jean Alexandra Webb, Asst. Atty. Gen., for petitioner.

James D. Farmer of Farmer, Baxley, Ramsey, Farmer & McDougle, Dothan, for respondent Rodney Spann.

John E. Byrd, Dothan, for respondent Brenda J. Spann.

ADAMS, Justice.

We granted certiorari in this case to address the State's contention that the judgment of the Court of Criminal Appeals, --- So.2d ---- is in conflict with the United States Supreme Court's decision in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Briefly stated, the facts in the case are that Rodney and Brenda Spann were arrested on October 18, 1983, for possession of marijuana. It is undisputed that the two arresting officers, Jerry Hunt and Jimmy Maddox, received a radio dispatch stating that there was a marijuana sale taking place in a red Chevrolet Camaro automobile in the parking lot of the Red Barn Lounge and Package Store. The officers arrived at the scene in their separate cars and, after having blocked the Camaro's exit from the parking lot, Officer Maddox noticed that the car had an improper tag. Officer Hunt testified that, while he was questioning Rodney Spann about the improper tag, he noticed on the floor board of the car, in plain view, a cassette tape case, partially closed, containing what was later identified as marijuana. He seized the marijuana and arrested the occupants of the automobile. Finally, although both officers initially testified that the Camaro was stopped to investigate the improper tag, they later admitted that the car was stopped solely on the basis of the radio dispatch.

Rodney and Brenda Spann were convicted of possession of marijuana and received $1,000.00 fines and prison sentences of ten and two years, respectively. They appealed, and the Court of Criminal Appeals reversed their convictions, stating that there was insufficient probable cause upon which to base a warrantless search. In its petition for certiorari, the State asserts that, under the rigid, two-pronged test for probable cause set forth in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968), and Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the arresting officers in this case before us would not have been able to prove probable cause; however, the State argues that under the "totality of the circumstances" test adopted in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 761 L.Ed.2d 527 (1983), probable cause existed and the Court of Criminal Appeals should have affirmed the convictions. Since it is not absolutely clear which test the Court of Criminal Appeals used when it considered this case, we granted certiorari to review the facts under the "totality of the circumstances" test.

In Illinois v. Gates, supra, the United States Supreme Court addressed the issue of which test should be used to determine the existence of probable cause, stating:

For all these reasons, we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aquilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations. 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. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aquilar and Spinelli.

462 U.S. at 238-39, 103 S.Ct. at 2332 (Citations omitted.)

The State's sole argument in its petition is that by using the totality-of-the-circumstances test, a reasonable person would be justified in believing that the information provided by the anonymous informant was reliable because the radio dispatch stated that a red Camaro was at the Red Barn parking lot, and, when the officers arrived, a red Camaro was found at the Red Barn parking lot. We cannot agree.

According to Illinois v. Gates, the veracity and basis of knowledge of the informant are still two factors which are to be considered, along with all the other circumstances, when trying to determine if probable cause exists. In the case before us, there was a complete lack of proof at trial, either documentary or through testimony, of the reliability or the basis of knowledge of the informant. This Court was presented with a case similar to the one sub judice, dealing with the warrantless search of an automobile, in Paschal v. State, 365 So.2d 681 (Ala.1978). In holding that no probable cause existed, the Court stated:

Therefore, in effect, the Court of Criminal Appeals held in the present case that the requirement of probable cause--which is necessary in any search, warrantless or not, see United States v. Brennan, 538 F.2d 711 (5th Cir.1976), was satisfied by the radio dispatch, and the radio dispatch alone. Such a holding, however, is contrary to that Court's earlier decision in Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied 291 Ala. 794, 282 So.2d 417 (1973).

In Owens, supra, an officer observed a man getting into an automobile near the scene of a burglary. He radioed headquarters with a description of the automobile. An all points bulletin (A.P.B.) was then put out by the radio operator. Law enforcement officers in another town heard the radio report, stopped the automobile and then searched it. The Court of Criminal Appeals held that:

[T]he [arresting] officers at Town Creek could rely on the radio broadcast but the subsequent determination by any court as to probable cause must necessarily turn on all the circumstances giving rise to the police dispatch.... (emphasis added).

The court went on to find that on the facts of that case there was no probable cause to search the automobile. In the present case there is no evidence of the underlying circumstances which gave rise to the dispatch; there is merely the naked fact that a radio dispatch had described an automobile that fit the description of the defendant's automobile. As Owens clearly shows, this is insufficient to establish probable cause, and therefore the search was unreasonable under Coolidge, [v. New Hamapshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ], Kinard [v. State, 335 So.2d 924 (Ala.1976) ] and Owens. If the law were otherwise, then mere suspicions insufficient to obtain a search warrant, nevertheless could be routed through a radio operator to the field and through that mechanical process gain legal credibility; in fact, if the broadcast were enough in itself to justify a search, as the court below appears to hold, then the State would never need to enter into evidence the suspicions behind the broadcast. As we have shown, that is not the law in this state. Hence, the majority of the Court of Criminal Appeals erred in holding that probable cause was established by the radio dispatch alone.

365 So.2d at 682.

Even considering these facts under a totality-of-the-circumstances test, we see no reason why they justify a different result than the one reached in Paschal v. State. Therefore, the judgment of the Court of Criminal Appeals is due to be, and it hereby is, affirmed.

AFFIRMED.

JONES, ALMON, SHORE...