McGruder v. State

• Decision Date: 01 December 1989
• Docket Number: 4 Div. 198
• Citation: 560 So.2d 1137
• Parties: Ellis McGRUDER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1137

560 So.2d 1137

Ellis McGRUDER v. STATE.

4 Div. 198.

Court of Criminal Appeals of Alabama.

Dec. 1, 1989.

Rehearing Denied Jan. 19, 1990.

Certiorari Denied March 30, 1990 Alabama Supreme Court 89-678.

Mac Borland, Jr., Dothan, for appellant.

Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Ellis McGruder was convicted of the unlawful possession of cocaine in violation of Ala.Code (1975), § 13A-12-212. He was subsequently sentenced to imprisonment for three years and was fined $500.00. Three issues are raised in this appeal from his conviction.

I

McGruder contends that the evidence was insufficient to support his conviction.

On December 12, 1987, Deputy Joe Watson of the Houston County Sheriff's Department received from a confidential informant information that a black male residing in the rear apartment at 223 West Crawford Street, Dothan, Alabama, had cocaine in his possession. The informant also stated that the black male drove a brown, four-door Oldsmobile automobile, bearing Alabama license plate 38DB 296.

Deputy Watson and his informant then went to that address, where Watson observed that the apartments were situated as previously described by the informant and that the brown Oldsmobile was present. They did not enter the apartment in which the informant stated that he had seen the cocaine. Deputy Watson returned to his office, while other officers placed the apartment under surveillance. Watson was unable to obtain either the name of the lessee of the apartment or the name in which the Oldsmobile was registered, but he did procure a search warrant for the apartment.

Meanwhile, two black males, later identified as Anthony Potter and Buford McRay, left the apartment and drove away in the brown Oldsmobile. The officers on the scene stopped the Oldsmobile after it had traveled a short distance. Cocaine was found in the vehicle and on the person of Potter, and both Potter and McRay were arrested. A key to the apartment was taken from McRay. The Oldsmobile was subsequently found to be registered to Potter.

After the arrest of Potter and McRay, the apartment was searched pursuant to the warrant obtained by Deputy Watson. A sandwich bag containing marijuana was found on top of a dresser in one of the bedrooms. An expired driver's license issued to Ellis McGruder and a Tylenol bottle containing .37 grams of crack cocaine were found in the pocket of a jacket hanging in the closet of this same bedroom. This jacket bore a garment tag reading "National Linen Service, Dothan Country Club." Deputy Watson testified that there were certificates on the wall of this bedroom with McGruder's name on them. Also in this bedroom, Watson found mail addressed to McGruder, pictures of McGruder, and a name tag from the Dothan Country Club with McGruder's name on it. However, Deputy Donald Valenza, who assisted in the execution of the warrant and who actually found the Tylenol bottle containing cocaine, could not say whether there were any personal effects of McGruder's in the bedroom in which the contraband was found. According to Watson, another bedroom contained the personal effects of McRay.

McGruder was not present at the time the apartment was searched, but was arrested by Deputy Watson on February 24, 1988. McGruder was properly advised of his Miranda rights and he thereafter informed Watson "that he didn't live [at the West Crawford apartment] anymore. He did live there when we searched the place, but he [McGruder] had moved a short time after."

McGruder did not present an affirmative defense at trial. He did elicit from Deputy Watson the information that Burford McRay was 20 years old on December 12, 1987, and would not have been of sufficient age to purchase alcoholic beverages, implying that the expired driver's license was being used by McRay for that purpose. He also established through Deputy Watson that a valid driver's license had been issued to him (McGruder) on May 14, 1987. (The license found during the search of the West Crawford Street apartment bore an expiration date of May 16, 1987.)

In a prosecution for the possession of illegal drugs, the state need not prove that the defendant had actual physical possession of the drugs, for possession may be either actual or constructive. Radke v. State, 52 Ala.App. 397, 398, 293 So.2d 312, 313, affirmed, 292 Ala. 290, 293 So.2d 314 (1974). "An inference of constructive possession arises when the controlled substance is found on premises owned or controlled by the accused." Donahoo v. State, 505 So.2d 1067, 1070 (Ala.Cr.App.1986).

McGruder maintains that the state failed to prove that he had sufficient "control" over the premises from which to infer that he had constructive possession of the cocaine. This same issue was raised in Mitchell v. State, 395 So.2d 124 (Ala.Cr.App.1980), cert. denied, 395 So.2d 127 (Ala.1981), wherein we stated:

"A review of the evidence convinces us that this was a question for the jury under the facts of this case. The jury could reasonably infer that the defendant lived or resided at the house where the drugs were found from the concurrence of three facts: (1) The lease was in the defendant's name as was a cable T.V. contract; (2) the electric bill was in the defendant's name; and (3) the presence of the defendant's two children at the house. This inference is especially compelling when considered in conjunction with the fact that there was no evidence that the defendant did not reside in this house."

395 So.2d at 126 (emphasis added).

The question of whether McGruder resided at the West Crawford apartment was, like the question in Mitchell, a question for the jury. Although there was no evidence of a lease or of utility bills in McGruder's name, the state did establish that the room in which the cocaine was found also contained a large number of McGruder's personal effects. Moreover, McGruder admitted to Deputy Watson that he had resided in the apartment on the date of the search. These facts, coupled with the "fact that there was no evidence that [McGruder] did not reside in this [apartment]," id., would support the jury's reasonable inference that McGruder did reside in the apartment. See also McCord v. State, 373 So.2d 1242, 1243 (Ala.Cr.App.1979).

A conviction for the possession of illegal drugs cannot be based on constructive possession alone. Temple v. State, 366 So.2d 740, 741 (Ala.Cr.App.1978). Where, as in the present case, the state relies on constructive possession, it is necessary that the prosecution prove that the defendant had knowledge of the presence of the illegal drugs. Clark v. State, 527 So.2d 161, 163 (Ala.Cr.App.1987); Shaneyfelt v. State, 494 So.2d 804, 805 (Ala.Cr.App.1986); Temple v. State, 366 So.2d at 741. This "knowledge may be established by circumstantial evidence. Walker v. State, 356 So.2d 674, 675 (Ala.Cr.App.1977), cert. denied, 356 So.2d 677 (Ala.1978)." Temple v. State, 366 So.2d at 741. However, "[w]here the accused is not in exclusive possession [of the premises upon which illegal drugs are found], this knowledge may not be inferred without other evidence that connects [the] defendant with the contraband." Shaneyfelt v. State, 494 So.2d at 805.

"[T]he kinds of circumstances which may provide a connection between a defendant and the contraband are unlimited and will naturally depend on the facts of each particular case." Temple v. State, 366 So.2d at 743. "Where drugs are found on premises of which the defendant was in nonexclusive possession, the fact that they were found among or near his personal belongings may be a circumstance which is sufficient to link him with the possession of those drugs." Gary v. State, 473 So.2d 604, 605 (Ala.Cr.App.1985).

The cocaine was found in a jacket in the closet of a bedroom containing many of McGruder's personal effects. This jacket was identified as "some kind of bus boy jacket" and bore a tag indicating that it was the apparel of an employee of the Dothan Country Club. A Dothan Country Club name tag with McGruder's name on it was also found in this bedroom. It is reasonable to infer that McGruder was or had been employed by the Dothan Country Club, ¹ that the jacket was his, and that he knew of the presence of the cocaine in the pocket of the jacket. Reviewing the evidence in this case under the principles set forth at length in Dolvin v. State, 391 So.2d 133 (Ala.1980); White v. State, 546 So.2d 1014 (Ala.Cr.App.1989); and Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978), cert. denied, 368 So.2d 877 (Ala.1979), we are convinced that the evidence is sufficient to support McGruder's conviction.

II

McGruder asserts that the search warrant for the apartment at 223 West Crawford Street was invalid. His argument appears to be twofold: (1) Probable cause cannot be established solely by information supplied by an undisclosed informant ² and (2) the state failed to establish the reliability of the informant.

The affidavit in this case recites that the affiant, Deputy Watson, was told by a "reliable informant" that said informant had been in the "rear apartment" at 223 West Crawford Street "within the past 72 hours" and had observed a black male ³ in that apartment "in possession of cocaine." The affidavit also recites: "Affiant states that this informant has furnished information in the past that has proven reliable, true and correct. Affiant further states that all information received from this informant has been proven to be reliable, true and correct."

The information supplied by the informant was clearly the sole basis for the issuance of the search warrant. ⁴ In McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), the United States Supreme Court stated:

"[W]e have repeatedly made clear that federal officers need not disclose an informer's identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U.S. 102, 108, 85...