Mauldin v. State
Decision Date | 04 August 1981 |
Docket Number | 1 Div. 226 |
Parties | Tony Dariel MAULDIN v. STATE. |
Court | Alabama Court of Criminal Appeals |
Thomas M. Haas and James M. Byrd, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Deborah Hill Biggers, Asst. Atty. Gen., for appellee.
In a three count indictment the defendant was indicted for the unlawful possession of phenmetrazine, phencyclidine, and cocaine contrary to the provisions of the Alabama Controlled Substances Act. Section 20-2-70, Alabama Code 1975. A jury found the defendant guilty of possession of phenmetrazine and phencyclidine. Sentence was five years' imprisonment. Four issues are presented on appeal.
The defendant argues that his motion to suppress should have been granted because the affidavit supporting the search warrant was defective because (1) it failed to aver any underlying circumstances establishing the informer's 1 credibility; (2) it omitted any reference to time; and (3) it contained the hearsay conclusions of an unsworn informer.
The affidavit was made by Alabama State Narcotic Agent Harry Kearley before a District Court Judge of Mobile County. The material portions of the affidavit are as follows:
In this affidavit there are two "informers": Cargo Supervisor Arge and Special Agent Wallace.
The same showing required of an informer under Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), is not needed to establish veracity when the information comes from an average citizen who is in a position to supply information by virtue of having been a crime victim or witness. Richardson v. State, 376 So.2d 205 (Ala.Cr.App.) affirmed, Ex parte Richardson, 376 So.2d 228 (Ala.1978); W. LaFave, 1 Search and Seizure, Section 3.4 (1978). Additionally, we note that Arge's credibility was established when his information was verified by Special Agent Wallace. "Another law enforcement officer is a reliable source and ... consequently no special showing of reliability need be made as a part of the probable cause determination." 1 LaFave, Section 3.5 at p. 621. See also Richardson.
The affidavit does reveal each informer's basis of knowledge and the defendant's argument on this point is without merit.
We also find no merit to the defendant's argument that the vagueness of the time element in the affidavit renders the search warrant void.
"Probable cause to search, ... ordinarily may be said to exist only if it is established that certain identifiable objects are probably connected with certain criminal activity and are probably to be found at the present time in a certain identifiable place." 1 LaFave, Section 3.7 at p. 680. In this case, although the affidavit did not state when Cargo Supervisor Arge received and opened the package, we have no problem with stale information.
" ' "
Andresen v. State, 24 Md.App. 128, 331 A.2d 78 (1975), affirmed, Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976).
Special Agent Wallace determined through his own personal observation on April 10, 1980, that the package did contain cocaine. The affidavit was executed and the search warrant obtained on this same day. From the facts contained in the affidavit, the district court judge could properly determine that the cocaine would probably be found in the package addressed to the defendant.
Hearsay will support a finding of probable cause if there is a substantial basis for crediting the hearsay. United States v. Garner, 581 F.2d 481 (5th Cir. 1978); Satterwhite v. State, 364 So.2d 359 (Ala.1978).
The defendant was arrested after he had received the package at the airport but before the package had been opened. The defendant argues that therefore the officers had no reason to believe that the defendant had any knowledge of the presence of the cocaine inside the package and consequently they had no reason to arrest the defendant without a warrant. Section 15-10-3, Alabama Code 1975.
The officers had probable cause to arrest the defendant for the possession of a controlled substance where the package was addressed to the defendant, where they had reason to believe that the package contained a controlled substance and where they observed the defendant take possession of the package. Walker v. State, 356 So.2d 668 (Ala.Cr.App.), reversed on other grounds, 356 So.2d 672 (Ala.), on remand, 356 So.2d 674 (Ala.Cr.App.1977).
Yeager v. State, 281 Ala. 651, 653, 207 So.2d 125 (1968).
See also Diamond v. State, 53 Ala.App. 556, 302 So.2d 243, cert. denied, 293 Ala. 751, 302 So.2d 247 (1974); Miller v. State, 53 Ala.App. 213, 298 So.2d 633, cert. denied, 292 Ala. 741, 298 So.2d 639 (1974).
Since the defendant's arrest without a warrant was legal, the search incident thereto was also legal, and the controlled substances (phenmetrazine and phencyclidine) found on his person were admissible. French v. State, 94 Ala. 93, 10 So. 553 (1892); Cooper v. State, 380 So.2d 1003 (Ala.Cr.App.1980). Evidence obtained as a result of a search conducted incident to a lawful arrest is admissible. Lackey v. State, 54 Ala.App. 693, 312 So.2d 96 (1975).
When the defendant was searched incident to his arrest one plastic bag containing nine black capsules marked RJS were found on his person. It was established through the State's own witness that these RJS capsules contained "three noncontrolled substances." The noncontrolled substances were never identified.
The defendant argues that the admission of the capsules "led the jury to believe that the Appellant was carrying a large quantity of controlled substances on his person when he was arrested" and that therefore his motion for a mistrial was due to be granted.
Where the defendant is charged with the possession, sale or use of drugs, other controlled substances found at the time and the scene of the crime may be admissible to show the "complete story". Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975); Green v. State, 389 So.2d 537 (Ala.Cr.App.), cert. denied, 389 So.2d 541 (Ala.1980). Because it was established without dispute that the RJS capsules did not contain any controlled substance, their admission into evidence was not prejudicial to the defendant, A.R.A.P. Rule 45, and the defendant's ...
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