Neugent v. State
| Decision Date | 04 June 1976 |
| Citation | 340 So.2d 52 |
| Parties | In re Louis E. NEUGENT, alias v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. SC 1679. |
| Court | Alabama Supreme Court |
William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State, petitioner.
Robert M. Hill, Jr., Florence, for respondent.
We granted this petition for writ of certiorari, filed by the State, seeking our review and reversal of a decision of the Court of Criminal Appeals, Ala.Cr.App., 340 So.2d 43, wherein that court reversed and remanded a judgment of conviction of one Neugent for illegal possession of amphetamines.
The reversal was based upon the conclusion of a majority of that court that the affidavit, supporting the search warrant, did not sufficiently aver 'probable cause' in that it failed to meet the first 'prong' test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), i.e., requiring that the magistrate be informed of some of the 'underlying circumstances' from which the informant concluded that the drugs were where he claimed they were.
Thus, the question is: 'Are there sufficient allegations in the affidavit as to the underlying circumstances from which the magistrate could conclude that the informant's information was 'reliable'?'
We answer in the affirmative and reverse and remand the judgment and decision of the Court of Criminal Appeals.
The affidavit in question was executed by Detective Sergeant John Cooke of the City of Tuscumbia Police Department before Judge Jerry M. Vanderhoef and reads as follows:
Judge'
'(Emphasis supplied.)'
The affidavit describes the premises to be searched as 'Neugent Truck Stop and/or Lewis Neugent Residence,' although The warrant was issued only to search the residence. Both places were searched but Drugs were found and seized only at the residence. This search and seizure formed the basis for the subsequent prosecution.
First, we should note that the Court of Criminal Appeals held that the assertion in the affidavit ('I have received information from a person whose record of reliability for correctness has been good') was sufficient to support the second 'prong' of Aguilar, the test as to 'credibility' of the informant. In so doing, the Court seemed to invite our comment as to the viability of our 'Possum' Davis case (State ex rel. Attorney General (In re: Horace E. Davis, alias v. State), 286 Ala. 117, 237 So.2d 640 (1970) (per Merrill, J.)), because the court wrote that subsequent holdings by federal courts and by our Court 'would indicate that the language approved of in State ex rel. Attorney General may no longer be held...
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Reed v. State
... ... within the past six months." This is almost identical to the statement, "I have received information from a person whose record of reliability for correctness has been good," which was found to be sufficient to support this "prong" of the "Aguilar" test by the Alabama Supreme Court in Neugent v. State, 340 So.2d 52 (Ala.1976) cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977). The statement is also similar to the one approved by the Alabama Court of Criminal Appeals in McCurley v. State, 390 So.2d 15 (Ala.Cr.App.1980) reversed on other grounds, 390 So.2d 25 (Ala.1980) ... ...
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Stanfield v. State
... ... at 238, 103 S.Ct. at 2332 ... Here the informant's tip did not supply the necessary probable cause. The informant's credibility was not established by past performance. Officer Pennington did not testify that his informant was reliable. See Neugent v. State, 340 So.2d 52, 54 (Ala.1976). The basis of the informant's knowledge was also not established. See Channell v. State, 477 So.2d 522, 525 (Ala.Cr.App.1985). Thus, the tip failed to satisfy both prongs of the Aguilar-Spinelli test. "Something more was required, then, before a magistrate ... ...
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McGruder v. State
... ... 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) ... Deputy Watson's attestation that the informant had previously supplied information "that has proven reliable, true and correct" was clearly sufficient to establish the reliability and veracity of the informant. Neugent v. State, 340 So.2d 52, 54 (Ala.1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1653, 52 L.Ed.2d 361 (1977). The basis of the informant's knowledge was obviously his prior presence at the West Crawford apartment. Under the totality of the circumstances, we find that the issuing judge "had a ... ...
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Waters v. State
... ... The minimum information allowable for this purpose in an affidavit in Alabama is a statement that the information came from, "a person whose record of reliability for correctness has been good." Neugent v. State, Ala., ... Page 354 ... 340 So.2d 52 (1976); State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970). The conclusion that officers "received reliable information from a credible person" was condemned in Aguilar, supra. An affidavit that the FBI " 'has been informed by a ... ...