Horzempa v. State

• Decision Date: 14 August 1973
• Docket Number: 5 Div. 148
• Parties: John J. HORZEMPA, Jr., alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 217

290 So.2d 217

52 Ala.App. 153

John J. HORZEMPA, Jr., alias v. STATE.

5 Div. 148.

Court of Criminal Appeals of Alabama.

Aug. 14, 1973.

Rehearing Denied Sept. 25, 1973.

Jacob A. Walker, Jr., Opelika, for appellant. William J. Baxley, Atty. Gen., and Charles R. Hare, Jr., Sp. Asst. Atty. Gen., for the State.

CATES, Presiding Judge.

Possession of marijuana on or about January 23, 1971: sentence, five years in the penitentiary.

I

The affirmance or reversal of this appeal rests on the constitutional validity of a search warrant. The affidavit on which the issuing magistrate, Judge of the Court of Common Pleas of Lee County, relied, was in pertinent part as follows:

'Affiant has received information from two different reliable informants that they have been in the above described residence on several occasions recently and there have been drugs that are above described in the residence of John Thomas Walding. Both informants have made numerous drug buys for affiant in the past two weeks and their reliability has been established. The last buy was made three days ago and was a good buy. Both informants state the above drugs of Marihuana and Mescaline are now in the house which is described above and occupied by John Thomas Walding, alias * * * John Doe, alias, whose name is unknown to the affiant.'

No relevant oral or other written testimony was laid before the judge. Hence, Oliver v. State, 46 Ala.App. 118, 238 So.2d 916 (majority opinion) is not controlling here. The trial court overruled a pretrial motion to quash the search warrant and to suppress the evidence fructified from its use. (R. 2). Following the minority adjuration in Dawson v. State, 47 Ala.App. 293, 253 So.2d 362, Horzempa's counsel complied with the double objection requirements, i.e., on trial he objected to the introduction of the fruits of the search into evidence. (R. 80 et seq.).

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 are our points of departure. Neither of these two cases has been substantially changed at the last term of the Supreme Court of the United States.

Aguilar, supra, basically--on what is probable cause to get a search warrant--lays down two requirements. First, as to conclusions of the affiant there must be underlying circumstances given to the magistrate whereon the affiant concluded that his informant was reliable, or perhaps 'prudent' as in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (plurality opinion). ¹ Davis v. State, 286 Ala. 117, 237 So.2d 640.

Second, Aguilar also requires a recital in the affidavit of underlying circumstances given by the informant and in turn by the affiant to the magistrate for the informant's conclusion as to the location of the contraband. So that the magistrate, in determining probable cause, is necessarily confined to sworn evidence. Hearsay is admissible to get a warrant, but it must come through a witness who tells under oath that he has heard it. Clenney v. State, 281 Ala. 9, 198 So.2d 293.

In Harris, supra, the affidavit as to underlying circumstances of the informant's conclusion contained a statement against the informant's penal interest. This admission was:

'This person (i.e. the informant) * * * has purchased illicit whiskey from within the residence described, for a period of more than 2 years, and most recently within the past two weeks * * *.'

This inculpatory matter in Harris was preceded by the following recital as to affiant's action to ascertain whether or not the unidentified informer was truthful:

'I have interviewed this person, found this person to be a Prudent person, and have, under a sworn verbal statement, gained the following information: * * *.' (Italics added).

The plurality opinion in Harris relies heavily on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.

Here the officer used the adverb 'recently' to qualify the time of the two different informants being in the residence. In Reynolds v. State, 46 Ala.App. 77, 238 So.2d 557 'recently' was found acceptable when 'coupled with the statement that the drugs 'are contained' at the described location.' Judge Price relied heavily on Sutton v. State, Tex.Cr.App., 419 S.W.2d 857. Judge Almon dissented without opinion. Walker v. State, 49 Ala.App. 741, 275 So.2d 724 says:

'Reynolds is just another case pointing up that vagueness of the time element is a vice in affidavits that is fatal.'

Moreover, we do not think that the mere coincidence of the word 'recently' in the case at bar and in Reynolds necessarily makes the latter controlling here. In search and seizure the facts of each case must be looked to critically.

'Recently' alone is not enough to meet the test of Rosencranz v. United States, 356 F.2d 310 cited approvingly in Davis, supra, and in Walker, supra. In White v. State, 72 Ala. 195 we find:

'* * * What is meant by 'recent,' is incapable of exact or precise definition, and the term has been said to vary, 'within a certain range, with the conditions of each particular case.' Whart. Cr. Ev. § 759. * * *'

In Sutton, supra, the informant 'has seen the marihuana recently.' The affiant's surveillance noted known users 'going to and from the location.'

In Waggener v. McCanless, 183 Tenn. 258, 191 S.W.2d 551, we find:

'* * * We have no hesitation in deciding that to a reasonable mind, a statement by an observer at the time he made application for a warrant, that he had just recently seen a quantity of liquor stored on certain premises and had within the last few days, bought drinks of intoxicating liquor on those premises, would lead to the conclusion that the unlawful condition continued to exist on those premises at the time of the application for the warrant.'

Our next enquiry is to ascertain if in the affidavit sub judice the expression 'recently' is further modified so that the reasonable mind could resolve that the recent...