Levett v. State

• Citation: 593 So.2d 130
• Decision Date: 23 August 1991
• Docket Number: CR-89-1192
• Parties: Willie M. LEVETT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 130

593 So.2d 130

Willie M. LEVETT v. STATE.

CR-89-1192.

Court of Criminal Appeals of Alabama.

Aug. 23, 1991.

Rehearing Denied Oct. 11, 1991.

Certiorari Denied Jan. 31, 1992

Alabama Supreme Court 1910159.

Margaret Y. Brown, Auburn, for appellant.

James H. Evans, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Willie M. Levett was convicted of the unlawful possession of cocaine, a violation of Ala.Code 1975, § 13A-12-212(a)(1). He received a split sentence of five years, with one year to be served in the county jail and five years' probation. On this appeal of that conviction, he raises five issues.

I

The appellant contends that the search of his residence was illegal because there was insufficient probable cause for the issuance of the search warrant.

The warrant was obtained by Opelika police detective Michael Pink on the evening of September 14, 1989, from a Lee County circuit judge. The affidavit for the warrant states that

"[w]ithin the past seventy-two hours a reliable confidential informant has purchased cocaine from a black male known as Willie Levett, alias. The drug purchase was a Controlled Drug Buy and was monitored by Detectives Melvin Harrison and Michael Pink of the Opelika Police Department."

Detective Pink testified at the hearing on the motion to suppress that he told the judge who issued the warrant that the informant "had passed on some information in the past that became true, and he had passed some information that led to about four or five arrests." He also told the issuing judge that, on the previous day, he and Detective Harrison met with a confidential informant at a ballpark near the appellant's trailer. Pink patted down the informant, placed a body transmitter on him, and gave him $25. The informant then drove his own vehicle to the appellant's trailer, purchased cocaine, returned to the officers, and gave them the drug.

On cross-examination during the suppression hearing, Detective Pink conceded that he had conducted only a limited search of the informant's person and vehicle. He "body-patted" the informant and looked in the "seat and glove box," of the informant's car, but he did not "stick [his] hand all up under the dash" of the vehicle. He acknowledged that "it would have been possible for [the informant] to have had drugs with him at that time that [Detective Pink] didn't find."

Detective Pink testified at the suppression hearing that the detectives followed the informant's vehicle until they "thought it was time to get off of him," which was apparently before the informant turned down the street leading to what he identified as the appellant's trailer. From that point, the informant was "completely out of [the detectives'] sight." About one and a half minutes later, Detective Pink heard the following over the transmitter:

"KNOCK; DOOR OPENING

"Informant: 'How are you doing, Willie? You got a package?'

"Voice: 'Wait a minute.'

"PAUSE

"Voice: 'Here you go.'

"Informant: 'It's a nice package. I'll see you later.' "

Shortly thereafter (the record does not indicate how long), the informant returned to Detective Pink with a piece of aluminum foil containing crack cocaine, which he said he had just purchased from the appellant. The officer and the informant then rode back through the trailer park, and the informant identified the trailer in which he had purchased the cocaine. Detective Pink ran a license check of a vehicle parked in the yard of the designated trailer and found it was registered to the appellant. He also determined that the utilities for the mobile home were listed in the appellant's name.

The purpose of a "controlled buy" is to diminish the risk of falsehood in the informer's story and to obviate the need for an extended evaluation by the magistrate of the informer's credibility. See 1 W. LaFave, Search & Seizure § 3.3(f) (2d ed. 1987). LaFave observes:

"Yet another situation in which the corroboration will suffice to show veracity is that in which the informant has not been working independently, but rather has cooperated closely with the police, as is true when the informant makes a controlled purchase of narcotics. That is, where there is 'physical proximity and active participation in the informant's intrigue' by the police, so that it is not 'independent police work' which corroborates, but rather 'the police corroboration is a co-ordinate and intrinsic part of the informer's operation,' the risk of falsehood has been sufficiently diminished. As explained in State v. Barrett [132 Vt. 369, 320 A.2d 621 (1974) ]:

" 'The purpose of the search of the informer and his being escorted to the place of purchase was to eliminate both as much as possible of the hearsay aspects of the search warrant request and to reduce the reliance on "veracity" to a minimum. The magistrate had enough facts to support a finding of probable cause, and had them in a form which rendered extended evaluation of the informant's credibility unnecessary.' "

Id. at 686-87 (footnotes omitted). The transaction Detective Pink monitored here may have been a "buy," but it was only "semi-controlled" because the detective's involvement did not substantially diminish the risk of falsehood in the informer's story. Detective Pink conceded as much when he admitted that his limited searches of the informer's person and vehicle made it "possible for [the informant] to have had drugs with him at that time that [Detective Pink] didn't find." The fact that the detectives did not escort the informer to the place of purchase, indeed acknowledging that the informer was "completely out of [the detectives'] sight" before the informer arrived at his destination, did not either "eliminate both as much as possible of the hearsay aspects of the search warrant request [or] reduce the reliance on [the informer's] 'veracity' to a minimum." State v. Barrett, 132 Vt. at 374, 320 A.2d at 625, quoted in 1 LaFave, supra, § 3.3(f) at 687. This case is therefore not in line with those controlled buy situations "[w]here an informer works in tandem with a law officer, the law officer continually observing the informer" who was "under the constant surveillance of the police except for the time he was actually inside the residence." Williams v. State, 530 So.2d 881, 883 (Ala.Cr.App.1988), cert. denied, 489 U.S. 1028, 109 S.Ct. 1159, 103 L.Ed.2d 218 (1989).

Although the involvement of the law enforcement officers in this case did not substantially diminish the risk of falsehood in the informer's story, it did lessen somewhat the likelihood that the informant was lying. LaFave notes that

"The [controlled purchase] cases are to be distinguished from those in which there was no controlled purchase but the informer supports his story by delivery of the purchased drugs to the police. This is less satisfying corroboration, for it indicates that a purchase occurred but not does indicate much about the informant's truthfulness, though courts are inclined to find this corroboration sufficient as well. See State v. Hayward, 18 Or.App. 128, 523 P.2d 1278 (1974), also noting that the admission-against-penal-interest device will also come into play in such a case."

1 W. LaFave, Search & Seizure § 3.3(f) at 686 n. 317 (emphasis added).

The fact that the informant was subject to audio surveillance at least partially reduced the risk that he was lying about his destination and what occurred there.

"Even when the supervision has not been that close, corroboration which shows that the informant was in fact in contact with the person informed upon for some period of time or that the informant was in a position to see what he claims to have seen at some critical point is particularly helpful. Again, it does not totally eliminate the possibility of falsehood, but the risk is minimized by the fact that it is at least known that the informant could have personal knowledge of what he alleges."

1 LaFave § 3.3(f) at 687 (footnotes omitted). As we observed in a similar context in Powell v. State, 548 So.2d 590, 602 (Ala.Cr.App.1988), affirmed, 548 So.2d 605 (Ala.1989), "if [the informant] had been lying ... he would have been risking exposure of his falsehood by engaging ... in a police-monitored conversation." The informant must have been aware that if he had been lying about his drug purchase from the appellant, and the police officers discovered his falsehood, he would have to explain his possession of the rock of crack cocaine he delivered to them.

The true "controlled buy" cases present virtually no doubt that probable cause for the issuance of a search warrant is present. Compare Williams v. State, 530 So.2d at 882-83. Although the transaction monitored here was not a true controlled buy, there was, under the totality of the circumstances test announced in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), a substantial basis for concluding that controlled substances would be found in the appellant's residence. Even using the more stringent Aguilar- Spinelli test, the issuing magistrate was shown the informant's basis of knowledge, reliability, and veracity. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The informant's basis of knowledge was personal; he claimed to have purchased the contraband himself from the subject named in the warrant. His reliability was adequately shown by the fact that other information he provided had led to four or five arrests. See Heath v. State, 485 So.2d 1226, 1234 (Ala.Cr.App.1986) (information which led to three arrests satisfied reliability inquiry); Keller v. State, 54 Ala.App. 127, 129-30, 305 So.2d 402, 403-04 (1974) (same). The informant's veracity was sufficiently established by the fact that although the police did not keep him under visual surveillance, their audio contact with him minimized the chance that he was fabricating...