Gray v. State, 1 Div. 348

• Decision Date: 13 January 1987
• Docket Number: 1 Div. 348
• Parties: Charles GRAY, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1026

507 So.2d 1026

Charles GRAY, Jr. v. STATE.

1 Div. 348.

Court of Criminal Appeals of Alabama.

Jan. 13, 1987.

Rehearing Denied Feb. 10, 1987.

Certiorari Denied May 22, 1987

Alabama Supreme Court 86-699.

James M. Byrd and Thomas M. Haas, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Charles Gray was convicted for the unlawful possession of cocaine and sentenced to five years' imprisonment. Three issues are raised on appeal.

I

The admission of the hearsay testimony at the hearing on the motion to suppress the cocaine did not deny Gray his constitutional right to confront and cross-examine his accusers.

At the hearing, the State's evidence showed that on October 24, 1985, Tommy Barlow, employed at a Federal Express office in Memphis, Tennessee, noticed a package which had been damaged in shipment and suspected that it contained "some type of drugs." The package was from Mary Young in Los Angeles, California, and addressed to Robert Watson, 1508 Plover Street, Mobile, Alabama.

Barlow contacted Joseph Bettner, a special agent with the Federal Narcotics Drug Enforcement Administration in Memphis. Agent Bettner went to the Federal Express office and inspected the package which contained 92 "glassine envelopes." Bettner, based on his experience, suspected that these packets contained L.S.D. The package also contained one glassine packet containing white powder which tested positive for cocaine.

Agent Bettner contacted Mobile Deputy Sheriff John Pigott and a controlled delivery was arranged. The package was forwarded to Mobile, where Deputy Pigott, disguised as a Federal Express delivery man, delivered the package to the address on Plover Street. Gray accepted the package and signed as "R. Watson."

Later, Gray, who was under police surveillance, left the package at a residence on Marine Street. Mobile Deputy Sheriff James Long went to the Marine Street address and obtained a consent to search from the female resident, who, upon request, removed the package from a closet and gave it to Deputy Long. The deputy then obtained a search warrant and opened the package.

Federal Express employee Barlow did not testify at the hearing on the motion to suppress. Agent Bettner was allowed to testify to what Barlow had told him and to Barlow's actions in connection with the package over the objection that it deprived the defendant of his "right to confront and cross-examine." The trial judge overruled the motion to suppress despite his expressed "concern" about this issue.

"There is a large difference between [what is required to prove guilt in a criminal case and what is required to show probable cause], ... and therefore a like difference in the quanta and modes of proof required to establish them." Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879 (1949). "[I]nformation which would be inadmissible at trial on hearsay grounds may be used to show probable cause." W. LaFave, 1 Search and Seizure at p. 469 (1978). "[C]ertainly there should be no automatic rule against the reception of hearsay evidence" in proceedings where the judge himself is considering the admissibility of evidence. United States v. Matlock, 415 U.S. 164, 175, 94 S.Ct. 988, 995, 39 L.Ed.2d 242 (1974).

" 'Should the exclusionary law of evidence, "the child of the jury system" in Thayer's phrase, be applied to this hearing before the judge? Sound sense backs the view that it should not, and that the judge should be empowered to hear any relevant evidence, such as affidavits or other reliable hearsay.' C. McCormick, Evidence § 53, p. 122, n. 91 (2d ed.1972)." Matlock, 415 U.S. at 175, n. 12, 94 S.Ct. at 995.

See also 3 Search and Seizure at § 11.2(d).

The hearsay in this case is reliable because Barlow was a citizen-witness whose information carried "indicia of reliability." 1 Search and Seizure at p. 591. The "most sound position on the matter" is that " 'if the citizen or victim informant is an eyewitness this will be enough to support probable cause even without specific corroboration of reliability.' " 1 Search and Seizure at p. 592, quoting from Allison v. State, 62 Wis.2d 14, 214 N.W.2d 437 (1974). See also Mauldin v. State, 402 So.2d 1106, 1108 (Ala.Cr.App.1981). "[I]nformation provided by a businessman regarding his business, where there is no showing of any possible motive to fabricate, is inherently reliable." United States v. Spach, 518 F.2d 866, 871 (7th Cir.1975).

II

Gray contends that the affidavit in support of the search warrant was made in reckless disregard of the truth and contained false information.

The affidavit of Deputy Long asserted that Deputy Pigott received information from Agent Bettner that the package "contain[ed] 92 hits of LSD and one gram of cocaine." At the hearing, Deputy Long testified that Deputy Pigott gave him that information. The affidavit also stated that Deputy Pigott would deliver "said package to address on same packages." (Emphasis added.)

Agent Bettner testified that he did not tell Deputy Pigott the weight of the packet of cocaine. Bettner testified, "I told him it was 92 small packets and a larger packet containing a small amount of white powder that I tested for cocaine."

Deputy Pigott testified that Agent Bettner told him that the larger package contained cocaine and that "the other 92 packets that he suspected to contain LSD, but he didn't know; he was afraid to touch it."

The State stipulated that there was no LSD in the packets and that one packet contained .29 grams of cocaine. The State argued that the reference in the affidavit to packages was a typographical error. The trial judge found that the use of the word "packages, plural ... could have easily come about from the fact that there were 93 packages in the large package."

Within the circumstances of this case, the false allegations in the affidavit appear to be the result of negligence and carelessness rather than deliberate falsity or reckless disregard. However, even if the misstatements were intentionally or recklessly made, the cocaine found in the package is not due to be suppressed because the misstatements were not necessary to the finding of probable cause. 2 Search and Seizure at p. 66. Suppression is required only when it appears that "with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause." Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). See also United States v. Coronel, 750 F.2d 1482, 1485-86 (11th Cir.1985).

III

Gray's statement was not obtained in violation of the rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), that when an accused expresses a desire to cooperate with the police only through counsel, no further interrogation is permitted until counsel is made available.

Upon his arrest, Gray was initially advised of his Miranda rights by officers who did not testify at the hearing on the motion to suppress. At that hearing, Gray did testify and stated that, in response to "those Miranda rights, he replied, 'Where's the counselor?' "

"THE COURT: Did you tell them you wanted a counselor?

"THE WITNESS: I told them I wanted a counselor, but I don't know which officer it was. It wasn't Mr. Pigott. Mr. Pigott came up after I was sitting there on Marine Street--Mr. Pigott came up about five minutes later, and I had been sitting there ten minutes on Marine Street when he went in and got the package out of the house. Mr. Pigott came up ten minutes later, I had been sitting there. I don't know what officer."

After Gray asked this question, he was taken to an office of the Drug Enforcement Administration in Mobile where he was advised of his Miranda rights by Deputy Pigott, after which the following occurred:

"[Gray] A. 'Yes. I understand...