Malone v. State
| Decision Date | 30 August 1973 |
| Citation | 282 So.2d 371,291 Ala. 789 |
| Parties | In re Leroy MALONE v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. SC 343. |
| Court | Alabama Supreme Court |
William J. Baxley, Atty.Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for the State, petitioner.
W.A. Kimbrough, Jr., Mobile, for respondent.
Petition of State of Alabama for certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that court in Malone v. State, 51 Ala.App. 19, 282 So.2d 367, having been heretofore granted, the court, after further consideration, is of the opinion the same should be quashed as improvidently granted.
Writ quashed.
The question presented is whether the seizure of the heroin here--when judged in accordance with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act--was reasonable? I say that the officer acted reasonably. The majority finds to the contrary. The facts are not disputed.
The officer making the seizure knew Leroy Malone. The officer had been a Mobile policeman for over eleven years and a member of the vice section for over a year. He had a warrant for his arrest on another drug charge. He spotted Malone on a public street. He proceeded to execute the warrant of arrest. He began to search Malone for weapons. During the course of the search, Malone dropped a packet on the ground, which the officer concluded contained heroin, because of the appearance of the white powder and the way it was placed in papers, and the manner in which it was wrapped. Malone was arrested on a charge of possession of heroin--that which Malone had dropped to the ground.
The Court of Criminal Appeals determined that the arrest warrant which the officer was executing was defective because of the insufficiency of the supporting affidavit. We make no point that the affidavit failed to meet current requirements laid down in decisions of the United States Supreme Court. The majority, we believe, feels that since the original arrest warrant was defective because of the insufficiency of the affidavit, there can be no justification for the initial intrusion by the officer, and any evidence, the possession of which would constitute a crime, is inadmissible. Malone was tried and convicted for the possession of heroin which was contained in the packet he dropped on the ground during the search being conducted incident to the arrest under the warrant. We believe the officer acted reasonably for the following reasons:
1. The officer had an order issued by proper authorities to make the arrest. It was not void on its face. The officer was bound and had no authority to inquire into the regularity or legality in the proceeding prior to its issue. Spear v. State, 120 Ala. 351, 25 So. 46 (1898).
2. When Malone dropped the packet to the ground, he surrendered dominion and control of it and his capacity to object to the seizure was at an end. Smith v. People, 167 Colo. 19, 445 P.2d 67 (1968).
3. The legitimate governmental interest of stamping out the damnable traffic in heroin justifies the intrusion against the constitutionally protected interest of the private citizen. cf. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
4. It was reasonable to seize the packet of heroin which had been dropped to the ground in plain view, because the discovery of the packet was inadvertent and was made while the officer was justified in making the initial intrusion because he had an arrest warrant.
We think that the Court of Criminal Appeals and the majority have put entirely too much emphasis upon Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Admittedly, Whiteley is a frustrating case. We agree with the late Mr. Justice Black who said about the Whiteley decision, in his dissent:
401 U.S. at 570, 91 S.Ct. at 1038.
But we think the majority has gone further than Whiteley requires.
We can distinguish Whiteley. In that case, the evidence seized was the fruits of the crime for which Whiteley was arrested, based upon a police bulletin, not an arrest warrant. The articles seized did not constitute the commission of another crime. Here, the officer had an arrest warrant, and the evidence seized here, unlike the fruits of the crime in Whiteley, constituted the commission of a...
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