Howard v. State

• Decision Date: 02 July 1985
• Docket Number: 6 Div. 494
• Citation: 479 So.2d 1321
• Parties: Emery Lee HOWARD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1321

479 So.2d 1321

Emery Lee HOWARD v. STATE.

6 Div. 494.

Court of Criminal Appeals of Alabama.

July 2, 1985.

Rehearing Denied Aug. 20, 1985.

Certiorari Denied Nov. 27, 1985

Alabama Supreme Court 84-1265.

William A. North, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A jury found this appellant guilty on a trial on an indictment in pertinent part as follows:

"EMERY LEE HOWARD, alias MIKE HOWARD, whose name is to the Grand Jury otherwise unknown, did on to-wit: August 5, 1983, while at or near 1642 Mims Avenue S.W., Birmingham, Jefferson County, Alabama, unlawfully possess 27.059 grams of powder containing cocaine, a controlled substance, contrary to and in violation of the provisions of the Alabama Uniform Controlled Substances Act, in violation of Section 20-2-70 of the Code of Alabama."

The court adjudged defendant guilty in accordance with the verdict of the jury of the crime charged in the indictment and set a date for a sentence hearing within the next six weeks approximately. At the conclusion of the sentencing hearing, the court sentenced defendant to imprisonment in the penitentiary of the State of Alabama for a term of twelve (12) years.

In the brief of counsel for appellant, a different attorney from the attorney representing defendant on the trial of the case, four issues are presented. We will consider them in the order of their presentation in the brief of appellant's counsel.

I.

The argument of appellant's counsel as to the first issue is thus captioned in his brief:

"The search warrant was constitutionally deficient and could not support the search of defendant's residence."

Prior to the introduction of any evidence in the case in the presence of the jury, a large part of the first day of the trial of this case was devoted to the consideration by the trial judge and the attorneys for the respective parties of the question of the validity of the search warrant upon which the search of defendant's home was based, and by which search the cocaine in the case sub judice was discovered and seized. The transcript of the proceedings discloses that the search warrant was issued about seven P.M., August 5, 1983, by a judge of the Municipal Court of Birmingham and executed within an hour thereafter. The validity of the warrant and the search was challenged by motion of defendant to suppress evidence of the results of the search. It was shown at the hearing that the issuance of the warrant was largely based upon the affidavit of Sgt. Kenneth W. Williams of the Birmingham Police Department, before the particular judge who issued the warrant, and such affidavit, as typed, "subscribed and sworn before the municipal judge and signed by Sgt. Williams was and is in the transcript as follows:

"Before me, Judge of the Municipal Court of Birmingham of Jefferson County personally appeared Sgt. K.W. Williams who, after being duly sworn, upon his oath deposes and says as follows:

" 'An anonymous informer gave information to the Birmingham Police Department which has been received by the affiant and is as follows: that late this afternoon the gray automobile, late model, with a Florida license plate pulled into the residence of Michael Howard located at 1642 Mims Avenue. Two persons got out of the car and brought a quantity of cocaine into the residence. At this very moment, the illegal narcotics are being divided and prepared for illicit sale according to the information provided. Your affiant has personal knowledge that Emery Michael Howard does in fact reside at 1642 Mims Avenue and has an extensive criminal history, moreover, officers of the Birmingham Police Department have verified that the automobile described by the anonymous informant is in fact located at the premises described. Other information about the subject, Howard, which has been furnished by the anonymous caller is personally known to your affiant to be accurate and true. Further observation indicates activity in the said residence of the type and kind described by the caller. Based upon the information supplied by the anonymous caller and the corroborating observation by the Birmingham Police Personnel, I have probable cause to believe and do believe that a quantity of cocaine is presently located at the premises described above.' "

Three witnesses testified on the hearing of the motion to suppress, who were Sgt. Williams, Lt. Newfield, and the defendant. Some of their testimony was as to what was found in the house searched, which is not particularly pertinent to this particular issue and will be considered hereafter under Issue II. As to the issue now under consideration, it should be said to the credit of the attorneys for each of the parties in the trial court and the trial judge that they were up to date in their acquaintance with the last word of the Supreme Court as of that time in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), in replacing, by the "totality of circumstances" principle, the "two-pronged" test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 21 L.Ed.2d 23 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). It should be said also that appellant's attorney is to be credited with studiously keeping himself abreast of the times by citing Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984).

The only substantial difference between the evidence on the motion to suppress the evidence of the search and the results of the search of defendant's residence and what Sgt. Williams had stated and verified by his oath before the judge who issued the search warrant was as to the make of the automobile with a Florida license plate that was seen at the residence of the defendant, it being shown at the hearing of the motion to suppress that the automobile was not a Thunderbird as believed by one of the surveillant officers, but was a "Chrysler product." We are of the opinion that the trial judge correctly assayed the evidence and the law as set forth in Illinois v. Gates, supra, and Massachusetts v. Upton, supra, in determining that there was no infringement upon the defendant's right under the Fourth Amendment of the Constitution of the United States against "unreasonable searches and seizures." It follows that police officers of the City of Birmingham participating in the search had probable cause for believing that there was cocaine in the residence at the time. In our opinion, the municipal court judge was justified in issuing the search warrant on the basis of the affidavit and information that had been given to him by Sgt. Williams and the issue now under consideration should be determined adversely to appellant.

II.

The second issue presented is thus captioned in brief of counsel for appellant:

"WHETHER THE EVIDENCE WHICH THE JURY COULD LEGALLY CONSIDER WAS SUFFICIENT TO SUPPORT A FINDING THAT THE DEFENDANT HAD CONSTRUCTIVELY POSSESSED THE CONTRABAND."

According to the undisputed evidence presented in the presence of the jury, which consisted exclusively of evidence presented by witnesses called by the State, as no evidence was presented by any witnesses on behalf of the defendant, between 27 and 28 grams of cocaine was found in the house that constituted the residence of defendant, and such cocaine was seized by the officers conducting the search and in due course was subjected to chemical examination by a criminalist who examined it and testified that it was cocaine in the amount stated. However, the evidence is also undisputed that at no time during the search of the residence was any of the cocaine found in the actual physical possession of the defendant, that is, that none of it was found in the hands of or on the person of the defendant. Lt. Newfield and Sgt. Williams were the witnesses called by the State who testified as to what was found in the home of defendant and the circumstances as to the finding thereof. The entry made into the house was a forced entry by kicking in the front door. There were about twelve officers participating in the entry and search. According to some of the material testimony of Lt. Newfield, the following occurred:

"A. There was a living room and directly behind it was a kitchen. And from my point of view, to the right was a dining room. And as you enter the front door, there was a stair, my best recollection, going up into the living area.

"...

"Q. Very well, sir. As I understand your testimony you and Mr. Williams and perhaps some other officers came in this way through the front door; is that correct?

"A. That is correct.

"Q. I will ask you whether or not you first saw the Defendant Mike Howard in the kitchen area; would that be true?

"A. Coming out of the kitchen area.

"Q. All right. Was he coming out of the kitchen area slowly or was he running, what was he doing?

"A. Moving pretty quick.

"Q. And in which direction was he moving?

"A. Towards the stairs going into the living area upstairs.

"Q. Those stairs there?

"A. Yes. Those stairs going upstairs, there are some bedrooms and some baths upstairs.

"Q. I take it then from your description that this is a two-story house we are talking about; is that correct?

"A. I think you would call it three because you go down stairs on the other side of the kitchen and you have got a, to the best of my recollection, there is some sort of little den or room down there and there is also an enclosed garage in that area.

"Q. But at least there was one story above the area that you entered?

"A. That is correct.

"Q. So you went in the front door, it is your testimony, that this man Mike Howard you saw running or moving quickly from the kitchen area towards that stair leading upstairs; is that correct?

"A. That's correct.

"Q. As he did, did you have an occasion to apprehend him or did somebody else or what?

"A. Yes, sir. I...