Neugent v. State

• Decision Date: 16 December 1975
• Docket Number: 8 Div. 655
• Citation: 340 So.2d 43
• Parties: Louis E. NEUGENT, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 43

340 So.2d 43

Louis E. NEUGENT, alias v. STATE.

8 Div. 655.

Court of Criminal Appeals of Alabama.

Dec. 16, 1975.

Rehearing Denied Jan. 20, 1976.

Robert M. Hill, Jr., Florence, James L. Hunt, Tuscumbia, for appellant.

William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

Illegal possession of amphetamines; sentence: eight years imprisonment.

On August 9, 1973, a search warrant was executed against the appellant for the search of his residence located west of Neugent's Truck Stop on Highway 43, Tuscumbia, Alabama. John Cooke, Detective Sergeant for the City of Tuscumbia, executed the affidavit upon which the search warrant was issued. The affidavit was based upon hearsay information given to the officer by an undisclosed informant. The affidavit set out the premises containing amphetamines as, 'Neugent Truck Stop and/or Lewis Neugent Residence,' however, the search warrant listed only the residence. Both were searched, but drgus were found only in the residence.

Since the search and seizure in this case are based solely on the hearsay information of an undisclosed informant, it is important to determine whether sufficient evidence establishing probable cause was before the issuing magistrate. The evidence upon which the warrant was issued is contained in the following affidavit: residence. Both were searched, but drugs

'STATE OF ALABAMA

'COLBERT COUNTY

'Personally appeared before me, Jerry M. Vanderhoef, Judge of the Colbert County Court of Colbert County, Alabama, John Cooke, who after first being duly sworn by me, and who is personally known to me, deposes and says as follows:

'I have received information from a person whose record of reliability for correctness has been good; that there is presently contained on the premises of Neugent Truck Stop and/or Lewis Neugent Residence, the residence being located some 150 to 200 yards West of said truck stop, the residence being reached by traveling West on a dirt road within approximately 50 feet of said truck stop. The truck stop to be searched is reached by traveling South on U.S. Highway 43 from its intersection with U.S. Highway 72 for approximately one to one and one-half miles; the truck stop being located on the West side of U.S. Hwy. 43. The truck stop being a truck stop and restaurant combination contained in one white block building, approximately 100 feet West of U.S. Hwy. 43, the residence of Lewis Neugent being reached by traveling West on a gravel road located approximately 50 feet North of said truck stop for a distance of 150 to 200 yards. The residence being the only dwelling house located on said gravel road, the residence being a brick or masonry building in the police jurisdiction of Tuscubmia, Colbert County, Alabama, illegal drugs, to-wit: Marijuana, amphetamines and barbiturates. The aforesaid informant stated that he saw the said illegal drugs on said premises described on the 9th day of August, 1973, 3 hours prior to making this affidavit. The informant also stated that Lewis Neugent, who resides at the above address, was seen selling amphetamines at the truck stop but the amphetamines are brought from the residence. This information was given to me by said informant August 9th, 1973.

'Based on all the above information received from my reliable informant, I have probable cause to believe and do believe that there are contained in the residence of Lewis Neugent and Neugent Truck Stop, located at Highway 43 South Tuscumbia, Colbert County, Alabama, illegal drugs, to-wit: marijuana, amphetamines and barbiturates.

'I make this affidavit for the purpose of securing search warrants for the purpose of searching Lewis Neugent and the premises located at Neugent Truck Stop and Lewis Neugent residence West of Highway 43 South, Tuscumbia, Colbert County, Alabama.

'/s/ John Cooke

Affiant

'Sworn to and subscribed before me, this the 9th day of August, 1973.

'/s/ Jerry M. Vanderhoef

Judge'

(Emphasis supplied.)

Appellant filed a motion to suppress the fruits of the search and seizure, which was overruled. During trial, he objected to admitting into evidence two bags of pills and one bag of capsules on grounds that such were obtained by an illegal search and seizure. The trial court overruled his objection and admitted the exhibits into evidence.

I

A search warrant based on hearsay of an undisclosed informant is not defective provided proper facts or circumstances are presented to the issuing magistrate upon which probable cause could be based. Fourth Amendment decisions by the United States Supreme Court require that magistrates make an independent determination of probable cause based upon evidence or 'underlying circumstances.' The Court expressed in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948):

'. . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.'

That Court, further, has required that the issuing magistrate not depend solely upon the conclusions of the affiant. This limitation was applied to search warrants in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), and to arrest warrants in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). In the latter case, the Supreme Court stated:

'The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime.

'The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made.'

In 1960, the Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, held that hearsay may be the basis for the issuance of a warrant by a magistrate. From that point forth, the problems confronting the police officer, the issuing magistrate and the appellate courts, due to hearsay information provided by an undisclosed informant, have been compounded. In 1964, in an attempt to clarify the law in this regard by establishing certain guidelines for the magistrate to evaluate hearsay information, the Court rendered the landmark decision of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. That decision was further refined in a second landmark decision, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Judge Charles E. Moylan, Jr., of the Maryland Court of Special Appeals, makes an excellent analysis of the problem with which we are here confronted in his 'Hearsay and Probable Cause: An Aguilar and Spinelli Primer,' Mercer Law Review, Vol. 25, p. 741 (1974). At pages 750--751, Judge Moylan states:

'. . . Whether the magistrate is dealing with a primary, a secondary or even, theoretically, a tertiary source, he must still (1) assess the credibility of that source and (2) then weigh the information furnished if he believes it to be true.

'Whether the information being evaluated is the direct observation of the affiant or is hearsay information, the issuing magistrate is required to perform the same intellectual surgery. In determining the existence Vel non of probable cause, the magistrate must make two distinct determinations. The number and the nature of these determinations do not vary, whether the specimen being analyzed is direct observation or hearsay information. He must:

'(1) Evaluate the truthfulness of the source of the information; and

'(2) Evaluate the adequacy of the factual premises furnished by that source to support the validity of the source's conclusion.

'In the first instance, he is judging the integrity of a person. In the second instance, he is judging the logic of a proposition. . . .

'Just as the magistrate must satisfy himself as to the credibility of a primary source by administering an oath to him and by looking at him, so too must he, by some alternative means, satisfy himself as to the credibility of the secondary source. In neither case may he accept someone else's conclusion in lieu of arriving at his own. Just as he may not permit an affiant's assertion as to his own credibility to serve as dispensation for the oath, neither may he permit the affiant's assertion as to his informant's credibility to serve as dispensation for the required recital of all necessary data about that informant that will permit the magistrate to draw his own conclusion as to credibility. This, simply, is the 'credibility/reliability' or 'veracity' prong of Aguilar.

'Once the magistrate has decided that the informant is believable, he has still only half completed his ultimate determination. He must still decide what the information is worth. He has decided that the source is not lying, but he has not yet decided whether the source is mistaken. The magistrate's second function is now to evaluate the information which he is accepting as true and to see what probabilities emerge from that available data. Again, he may not accept the conclusion of either the affiant-observer or the non-swearing informant. He must take from either of those sources his facts and then arrive at his own conclusion as to the significance of those facts.'

We have had Aguilar with us some fifteen years and Spinelli for nine years. While those cases placed somewhat of a burden upon law enforcement officers in composing an adequate affidavit, and upon a magistrate in determining the sufficiency of the affidavit, there should now have been sufficient time since those decisions were rendered that law officers, magistrates and trial judges should be familiar with the basic requirements enunciated in...