Hatton v. State
| Decision Date | 15 November 1977 |
| Docket Number | 8 Div. 941 |
| Citation | 359 So.2d 822 |
| Parties | Harold Otis HATTON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Stanley E. Munsey of Heflin, Rosser & Munsey, Tuscumbia, for appellant.
William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State.
The appellant was charged and convicted of possession of Phentermine contrary to and in violation of the Alabama Controlled Substances Act (Act No. 1407, 1971 Regular Session). The jury fixed his fine at $15,000.00 and the trial judge added a ten year term of imprisonment.
The issues on appeal concern the propriety of the warrantless search of the appellant's automobile, the nondisclosure of the identity of an informant and the admission into evidence of the results of an inventory conducted after the date of the crime charged revealing substantial shortages of drugs.
On Thursday evening, May 27, 1976, around 10:00 o'clock, an informant went to the home of Colbert County Sheriff John Aldridge and asked Sheriff Aldridge "if (he) wanted to catch Mr. Hatton (appellant) with drugs". Sheriff Aldridge, who personally knew the informant, as well as appellant, stated that he was interested in learning whatever information the informant had concerning this matter, and his informant related the following:
(1) That appellant was purchasing pills ". . . on a lot of Friday afternoons at a drugstore on Main Street in Tuscumbia.";
(2) That, he wasn't sure of the name of the drugstore, but when Sheriff Aldridge asked if it was the one run by "Luke Chesteen", informant replied, " 'that's the one, that's the one he goes to.' ";
(3) That appellant didn't purchase drugs "every Friday, but some Fridays. . . .";
(4) That appellant drove a Lincoln automobile, but that he had access to other vehicles and could possibly be driving an automobile other than a Lincoln;
(5) That appellant purchased a large quantity on each occasion and that he "got them for truckers . . . and carried them back to his (service) station.";
(6) That upon learning additional information concerning future drug activities, he would contact Sheriff Aldridge.
Sheriff Aldridge stated at the suppression hearing that his informant had, on two previous occasions, supplied him with reliable information, and that upon his asking the informant how he knew of appellant's activity, the informant merely stated, ". . . he was in a position to know"; a "position" Sheriff Aldridge stated he knew of.
The next day, Friday, May 28, around 12:00 noon, the informant tried to contact Sheriff Aldridge again, but the Sheriff was out of his office. Sheriff Aldridge had instructed his informant that in case of his absence from the office further information concerning appellant's activities could be relayed through his secretary. The informant communicated to the secretary the following message:
". . . (W)hat we talked (about) the night before was going to take place at 4:00 (PM) and that he would be driving a Lincoln."
Sheriff Aldridge did not return to his office until 4:15 P. M. At that time he discovered the message among other telephone "call-backs" on his desk. The Sheriff The appellant denied any knowledge of the presence of the drugs in the sack and testified that he only discovered the pills found in his pocket when they rolled out from under the seat of his automobile after he returned from the drugstore. According to the appellant, someone had "planted" these drugs in his car. The appellant had a regular account at Chesteen's Drugs. Melvin Jeffreys the suspected informant, was an employee of the appellant who had recently been fired. The appellant proved that Jeffreys had the opportunity to plant the drugs in his automobile.
stated that he immediately called in Chief Deputy Aycock, briefed him on appellant's activity, and instructed him to take Investigators Conley and May and stake out Tuscumbia Drugs (Chesteen's Drugs). The officers proceeded to the drugstore and strategically positioned themselves on the streets in the drugstore area. Sheriff Aldridge joined the "stake out" about 45 minutes later (5:15 P. M.). Around 6:00 P. M., the appellant arrived in a Lincoln automobile being driven by a man subsequently identified as Ray Willburn. The appellant got out of the car and went inside the drugstore; Deputy Aycock alerted the other officers of appellant's presence by radio communication. Minutes later the appellant exited the drugstore carrying a white paper sack, got into the automobile and left. The appellant's automobile was stopped; four officers were at the scene. The appellant and Willburn were removed from the car, and the warrantless search for the drugs ensued. The white bag containing the controlled substance was found on the floorboard of the passenger (appellant's) side of the automobile. The bag contained two bottles marked "IONAMIN" (Phentermine, 800 capsules total). The appellant was arrested, and a search of his person produced two smaller bottles of Ionamin, each containing 50 capsules.
The basis of the appellant's first argument is that the trial judge improperly denied his motion to suppress evidence obtained through an allegedly unlawful and warrantless search of his automobile.
The legality of the warrantless stop and search of the appellant's automobile turns on whether the Sheriff and his deputies had probable cause to believe that it contained contraband. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Almeida-Sanchez v. United States,413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Chambers v. Maroney,399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Probable cause exists where the facts and circumstances within the knowledge of the officers and of which they had reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Brinegar v. United, States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).
Probable cause may be based solely upon information obtained from a reliable informant hearsay information. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). A tip may supply the basis for probable cause in and of itself where it discloses (1) some of the underlying circumstances which justify a conclusion that the informer is credible or his information is reliable, and (2) some of the underlying circumstances tending to demonstrate that, in the specific instance in question, he has drawn his conclusion of criminality in a reliable manner. Aguilar, supra. These two tests are the dual "prongs" of Aguilar, the veracity prong and the basis of knowledge prong. They constitute the initial standard to be applied in assessing the probative value of an informant's information. If the tip fails one of these prongs, the informant's report may still constitute the sole basis for a finding of probable cause if the information provided is in such detail and minute particularity that a "magistrate, when confronted with In United States v. Squella-Avendano, 447 F.2d 575, 580 (C.A. 5 1971), the United States Fifth Circuit Court of Appeals commented on the composite test of Aguilar, supra and Spinelli, supra, which is applied where the tip fails to meet the requirements of Aguilar.
such detail, could reasonably infer that the informant had gained his information in a reliable way". This is the self-verifying tip. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Less detailed information from a reliable source may also be used as grounds for a finding of probable cause where the key elements of the tip are verified or corroborated. Ex Parte State ex rel. Attorney General v. State, 286 Ala. 117, 237 So.2d 640 (1970); Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). Finally a tip that will not meet any of these standards may still be used in conjunction with a number of other factors of "further support" to show probable cause.
Aguilar's veracity prong is not in issue here. The record reveals that the informer had supplied information on at least two occasions in the past and one "case" had been made. The Sheriff testified that he had talked with the informer before in some official capacity as a law enforcement officer and had no reason to doubt the informer. This was sufficient to satisfy the veracity prong of Aguilar. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). Ex parte State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970); Moore v....
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