Ex parte State ex rel. Attorney General

• Decision Date: 11 June 1970
• Docket Number: 3 Div. 448
• Citation: 237 So.2d 640,286 Ala. 117
• Parties: Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. In re Horace E. DAVIS, alias v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 640

237 So.2d 640

286 Ala. 117

Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.

In re Horace E. DAVIS, alias v. STATE of Alabama.

3 Div. 448.

Supreme Court of Alabama.

June 11, 1970.

MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for petitioner.

Hill, Hill, Whiting & Harris, Montgomery, opposed.

MERRILL, Justice.

Horace E. Davis was convicted for possessing certain narcotics and was sentenced to two years in the penitentiary. The Court of Criminal Appeals reversed because the only evidence came as a result of a search and the appellate court held that the search warrant was not based upon an adequate showing of probable cause for believing that the narcotics were on Davis' premises.

The Attorney General petitioned this court for writ of certiorari, basing the petition on the ground that the opinion was in conflict with a prior decision of this court, properly setting out excerpts from the opinion of the Court of Criminal Appeals and from the opinion of this court which appeared to be conflicting. We granted the writ, and the cause was argued May 12, 1970.

At the present time, and when we granted the writ, we do and did agree that the result reached by the Court of Criminal Appeals was correct under the recent decisions of the Supreme Court of the United States relating to search warrants, but we think the opinion put an unnecessary and heretofore unrequired additional burden on the affiant requesting the search warrant, which is contrary to our recent case of Clenney v. State, 281 Ala. 9, 198 So.2d 293.

The full affidavit made by a narcotic agent for the State of Alabama is set out in the opinion of the Criminal Court of Appeals, and we quote here only the first paragraph:

'Information from a person whose record of reliability for correctness has been good that at 331 Restaurant Possum Davis has had illicit narcotics, narcotic derivatives, marijuana, amphetamines and/or barbiturates including McNeils. That Davis stated he had a supply at his restaurant building, in his car and in a small out building. This information given me in several conversations over a period of about one month in person and over telephone.'

The Attorney General, in setting out the conflicting opinion, stated in the State's petition for writ of certiorari:

'* * * In its opinion, the Court of Criminal Appeals stated:

"* * * Wise or unwise, the founders have inserted in our organic law the requirement that no search warrant be issued except upon an oath denoting probable cause.

"The effect of this constitutional command is to require that the affiant (e.g. a police officer swearing out for a search warrant), who relies upon an informer, must do at least two things: (a) furnish the magistrate with information to support the credibility of the informer and (b) to furnish some observation of the officer himself of some fact or conduct perceived by him (or perhaps by another law enforcement officer) which admits of the same inference as does the statement of the informer.

"The occasions of prior information (as detailed in the instant affidavit) should have been stated in the informer's 'batting average' and would have given the magistrate something to consider in determining the weight of the hearsay. * * *'

'In the case of Clenney v. State, 281 Ala. 9, 198 So.2d 293, this Honorable Court stated: "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. (257) at page 272, 80 S.Ct. (725) at page 736, (4 L.Ed.2d 697).

"There is one difference between Draper (Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327) and the instant case. In Draper, the informer had given information on prior occasions and the prior information had been found to be accurate and reliable. The opinion does not show how many times the Draper informer had been accurate prior to the Draper arrest. Neither does the Draper opinion say how many prior times the informer must have been accurate in order to be classed as reliable. Must he be tested more than once before he can be relied on? If such a test is a constitutional requirement, then the caller in the case at bar cannot be considered reliable. We do not think, however, that such is the rule. * * *"

Disposing of the informer's 'batting average,' first, we agree that Clenney says that no 'batting average' is required to establish the reliability of the informer. If the affiant so desires, he may cite prior instances of proven reliability, but it is not a requirement.

Clenney says that the hearsay of the informer, which the affiant relies upon, must be supported by facts showing a substantial basis for crediting the hearsay. And Clenney adopts the methods required in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), to show such a substantial basis. These requirements are that the magistrate be informed of (a) some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (b) some of the circumstances from which the officer concluded that the informant was 'credible' or his information 'reliable.' The Court of Criminal Appeals did not reach the question of the informer's basis for his information but decided the case partially on the ground that the informer's reliability was not shown.

However, we think that the affidavit did adequately show the basis for the officer's conclusion that the informer was reliable. The United States Supreme Court has considered affidavits presenting information from informants. In Aguilar, the officers said, 'Affiants have received reliable information from a credible person.' In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the affidavit said that the FBI 'has been informed by a confidential reliable informant.' In the instant case, the officer said, 'Information from a person whose record of reliability for correctness has been good.'

The showing here is more than the showings disapproved in Aguilar and Spinelli. We have been cited to no United States...