Harrelson v. State

• Decision Date: 28 May 2004
• Citation: 897 So.2d 1237
• Parties: Charles Hollis HARRELSON III v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

897 So.2d 1237

Charles Hollis HARRELSON III v. STATE of Alabama.

CR-02-1813.

Court of Criminal Appeals of Alabama.

May 28, 2004.

Rehearing Denied July 2, 2004.

Phillip Allen Thompson, Auburn, for appellant.

William H. Pryor, Jr., atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.

COBB, Judge.

On May 23, 2003, Charles Hollis Harrelson III pleaded guilty to first-degree theft of property, a violation of § 13A-8-3(a), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to 10 years, but suspended his sentence pending the completion of community service and took under advisement his application for probation. See § 13A-5-9(a)(2), Ala.Code 1975. This appeal followed. Before pleading guilty, Harrelson filed a motion to suppress the evidence of the stolen goods found on his property; he argued that the affidavit underlying the search warrant executed on his property was "deficient on its face" and "entirely devoid of any evidence of probable cause for the issuance of a search warrant." (R. 14.) The trial court conducted a hearing, during which Harrelson argued, among other things, that there was "[a]bsolutely no evidence[ ] given today or in this affidavit ... about when the items were seen [by the informant]." (R. 35.) On May 7, 2003, the trial court denied the motion in a detailed written order. On May 23, 2003, before entering his plea of guilty, Harrelson reserved this argument for appellate review. (R. 45.)

On appeal, Harrelson argues that, although the affidavit contained several dates, it is deficient because it does not refer to the exact time and day the informant saw the stolen goods on Harrelson's property.¹ Because the evidence presented at the hearing on the motion to suppress consisted of undisputed testimony, we review de novo the trial court's decision to deny the motion to suppress. See Vinson v. State, 843 So.2d 229, 231-32 (Ala.2001).

The "Application and Affidavit for Search Warrant" contained the following passages:

"THE FOLLOWING PERSON/PLACE: The residence of Charles Hollis Harrelson III, alias, a wood-sided mobile home located at 918 Bufford Rd. Lot 5 Macon County, Alabama to include the curtilage and any outbuildings contained therein and the open-faced barn structure located east of the residence.

"FOR THE FOLLOWING PROPERTY: Any and all property belonging to Auburn University i.e. tools, tires, construction equipment, air conditioning units, etc. Any documentation pertaining to the sale of said stolen property."

(C. 17-1.)

"On 07.11-02 at 0730 hours[,] officers with the Auburn University Police Department received a report of several vehicle tires that were stolen from a locked parking area at the Auburn University Facilities Division. Supervisory personnel named Charles Harrelson as a possible suspect. Mr. Harrelson is an employee of the Facilities Division for Auburn University and often works the midnight shift on some weekends. Surveillance was established on days when Mr. Harrelson was scheduled to work. Officers conducting surveillance on July 20, 2003, observed Mr. Harrelson use the gas pumps designated for University vehicles only to put gas in his personal vehicle. A misdemeanor warrant for Theft of Property Third Degree is currently pending for this incident. On August 9, 2002, information was received from a confidential informant indicating that Mr. Harrelson was responsible for the aforementioned tire thefts. The informant advised that Mr. Harrelson had `tens of thousands of dollars worth' of Auburn University property at his residence. The informant also advised that he would drive to his residence in an Auburn University Facilities truck during his working hours and drop off items possibly belonging to Auburn University. The informant admitted having personal knowledge Mr. Harrelson had sold tires to individuals that were known to be stolen from Auburn University. The informant stated that Mr. Harrelson had air-conditioning units, ladders, tools, and other property at his residence that were thought to be stolen from Auburn University. Information was also received from the informant indicating that the suspect stored some of the stolen property in an open-faced barn structure located approximately 1/4 mile east of the suspect's residence on the left side of the road. The barn is described as a brown wooden structure with an open area facing north. The credibility of the informant has been verified by Lt. Alex Smith of the Alabama Marine Police. Lt. Smith was previously employed with the Auburn Police Department and advised that this individual provided credible information on several criminal matters which established reliability."

(C. 17.) The affidavit was sworn on August 9, 2002. The warrant was issued the same day.

As his only legal ground, Harrelson cites Nelms v. State, 568 So.2d 384 (Ala.Crim.App.1990), in support of his argument. In Nelms, the Court held a search warrant to be invalid based on the following facially deficient affidavit:

"`And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: That within the last seventy-two hours a confidential police informant, who has provided information to the affiant in the past that led to an arrest, stated to the affiant that they have seen Crack-Cocaine in the residence of Tommie Lee Nelms, alias, located at 625 Westview Drive, Auburn, Lee County, Alabama.' (State's and Defendant's Exhibit # 1.)"

568 So.2d at 385 (emphasis in original). The Court held, "There is absolutely no reference to the date or time when the narcotics were observed by the informant. Thus, the affidavit was defective and was insufficient to support the issuance of the search warrant in this case." Id. at 386 (emphasis added). See also Lewis v. State, 589 So.2d 758 (Ala.Crim.App.1991). In Nelms, as in Lewis, the affidavit provided that the informant said that he had at some time seen drugs at the defendant's home, that is, the presence of drugs had been a fleeting, one-time occurrence.

"Whether the circumstances recited in an affidavit offered in support of an application for a search warrant are such that the probable cause that might once have been demonstrated by them has grown `stale' is a matter that `must be determined by the circumstances of each case.' Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932).

"`Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.'

"United States v. Johnson, 461 F.2d 285, 287 (10th Cir.1972)."

Vinson v. State, 843 So.2d 229, 233 (Ala.2001). In this case, the affidavit provides that the informant said that Harrelson, at the time of the execution of the affidavit, had stolen goods stored in a building on his property, that is, the presence of the stolen goods was ongoing at the time of the execution of the affidavit. As opposed to absolutely no reference to the date or time, as was the problem in Nelms and Lewis, the affidavit in this case contained not only a general time frame, but also it provided that at the moment of the execution of the affidavit Harrelson was in possession of the stolen goods.

In Vinson, the Alabama Supreme Court evaluated the warrant issued in that case and the supporting affidavit according to the circumstances of that case. An explanation for the genesis of that "totality of the circumstances" approach can be found in McBride v. State, 492 So.2d 654 (Ala.Crim.App.1986). The affidavit underlying the warrant in McBride, in terms of staleness, contained only the statement that the informant "has in the past observed" contraband in McBride's home. 492 So.2d at 656. The Court, applying a "totality of the circumstances" test, held the affidavit to be sufficient, reasoning:

"In Thomas v. State, 353 So.2d 54, 56 (Ala.Cr.App.), cert. denied, 353 So.2d 59 (Ala.1977), this court condemned the use of such vague language as that the informant `has in the past observed contraband,' commenting that the phrase '"[h]ad observed" could have been any time in the past.' (quoting Walker v. State, 49 Ala.App. 741, 743, 275 So.2d 724, 725-26, cert. denied, 290 Ala. 371, 275 So.2d 732 (1973)). A `stale' affidavit which does not pinpoint the time of the informant's observation fails the test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Thomas, supra.

"However, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court rejected the Aguilar-Spinelli test and substituted a `totality of the circumstances' analysis for search warrant affidavits.

"`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.'

"462 U.S. at 238-39, 103 S.Ct. at 2332.

"Although the Aguilar-Spinelli two-pronged test has been abandoned and not merely refined or qualified, Massachusetts v. Upton, 466 U.S. 727, 732, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984), `an informant's "veracity," "reliability" and "basis of knowledge" are all highly relevant in determining the value of his report.' Gates, 462 U.S. at 230,103 S.Ct. at 2327; United States v. Sorrells, 714 F.2d 1522, 1529 (11th Cir.1983); United States v. Phillips, 727 F.2d 392, 395 (5th

...