Osner v. State

• Decision Date: 26 November 1974
• Docket Number: 8 Div. 312
• Citation: 310 So.2d 241,54 Ala.App. 520
• Parties: Joel OSNER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 241

310 So.2d 241

54 Ala.App. 520

Joel OSNER v. STATE.

8 Div. 312.

Court of Criminal Appeals of Alabama.

Nov. 26, 1974.

Rehearing Denied Dec. 17, 1974.

Roger H. Bedford, Russellville, for appellant.

William J. Baxley, Atty. Gen., and John S. Andrews, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was convicted of possession of marihuana. He was represented at arraignment and trial by retained counsel, who represents him on appeal. He pleaded not guilty. There was a general verdict of guilty. The court sentenced appellant to a term of six years in the penitentiary and assessed a fine of $7,500.00 against him.

Omitting the formal parts, the indictment reads as follows:

'The Grand Jury of said County charge that before the finding of this indictment Joel Deane Osner, whose name is unknown to the Grand Jury other than as stated, did unlawfully possess a controlled material, compound, mixture, or preparation containing the hallucinogenic substance, to-wit: marijuana, in violation of Section 204(d) of the Uniform Alabama Controlled Substances Act, of September 14, 1971, against the peace and dignity of the State of Alabama.'

In the early morning hours of April 4, 1972, a police officer of Red Bay, Franklin County, Alabama, was parked at the intersection of Highway 24 and Golden Road in that city. He was working the third shift and was alone in a marked patrol car with a blue light on top. While parked he saw a 1971 Dodge van truck approach the intersection and stop for the red light. When the light changed the driver of the van turned right on Highway 24 headed west toward the Mississippi State Line, which was about one-half mile away. The officer observed that the glass panels on the entire left side of the van had curtains over the glass panels. There were no curtains over the glass panels on the right side of the van nor were there curtains over the two glass panels in the double doors to the back of the van. The officer saw two occupants on the front seat. The driver was a white male and he had a white female companion.

The officer pulled in behind the Dodge van and followed it for a quarter of a mile. He saw the vehicle had a 1971 Georgia tag and he decided to check it out. He cut on the blue light and stopped the van about fifty to seventy-five yards from the State line. Appellant got out and walked back to the patrol car and asked the officer if he had done anything wrong. The officer got out and told appellant to get out of the highway and get between the two vehicles and asked him where he was going and appellant said he was goind to Huntsville. The officer told him if he was going to Huntsville, he was going in the wrong direction and asked him for his driver's license and tag registration. Appellant pulled out his billfold and while looking for the requested items, the officer looked in the van through the glass panels in the rear doors with a flashlight. He saw six or seven packages the size of a brick stacked under the curtain side of the van. Some were wrapped with brown paper and some were in clear plastic or cellophane. Some of the bundles were broken and the contents appeared to be Dried grass. The officer asked appellant what he was hauling and appellant asked him if had a search warrant and the officer said no but that he could get one. Appellant then asked if he would have to stay there until he got a search warrant and the officer told him that he would. Appellant put his hand into his left pocket and the officer stepped back and unsnapped his pistol and ordered him to take his hand out of his pocket. Then appellant said he did not have a weapon and pulled his hand out with a large roll of currency and asked the officer to take the money and Kilos and forget he had ever seen them. The officer refused saying 'he was not that kind of lawman', and asked appellant if he cared if he looked in the van. Appellant said, 'You might as well, I am in trouble anyway, I might as well', and opened wide both rear doors. The officer observed more brick-like bundles, some wrapped in brown and some in plastic covering. He also saw a large tarpaulin in the back of the van.

The officer placed appellant under arrest for attempted bribery and possession of marihuana, searched him for weapons and locked him in the patrol car. The officer went to the passenger side of the van and arrested the girl for possession of marihuana and put her in the back seat of the patrol car with appellant and locked the car. Appellant then said to the officer, 'Can't we make some kind of deal so we can let her go? Can you take me and the marihuana and let her go?'. The officer said he could not. The officer radioed to the only other police officer on duty and he arrived in five or ten minutes. Before the last officer got to the scene, the arresting officer returned to the open van and lifted the tarpaulin and saw several hundred more bundles similar in color and size as the ones that were in plain view. When the other officer arrived, he was shown the contents in the van and the doors were closed and locked. The arresting officer drove appellant and the girl to the city jail and locked them up. Before they were put in the cells, the officer read them the Miranda rights and warnings from a card furnished the police department by the district attorney. The other officer drove the Dodge van to the city hall.

The van was carried to a local service station and locked up in the wash area. The arresting officer kept the keys to the van and posted the other officer to guard the van and he stayed with the van until late the next morning when the contents of the van were inventoried in the presence of the district attorney, the sheriff and an investigator. There were 387 packages or bundles which weighed approximately 800 pounds. The van and the contents were turned over to the sheriff of Franklin County. The contents were locked in a safe in the jail until April 12, 1972, when everything was turned over to six agents with the United States Customs in Mobile, except one bundle which was retained for use as evidence in this case. In addition, samples were taken from a number of other bundles to be sent to the laboratory for testing.

The six special agents from the Customs Office in Mobile came to Russellville at the request of the sheriff. The sheriff turned over the 1971 Dodge van and approximately 384 individual bricks of vegetable matter weighing about 750 pounds. When the agents got back to Mobile, the vegetable material was turned over to one of the Seizure Clerks in the District Director's Office. Thirty-eight (38) one-ounce samples were taken from 38 different bricks and sent by registered mail to a Customs Chemist in New Orleans, Louisiana, for laboratory examination together with one whole brick. The other material was locked in a safe in the office of the District Director. The van was put in storage.

The Clerk or Custodian of Seizure received the samples from the Chemist in New Orleans on May 8, 1972, and she initialed the package, wrote the case number on it, the date and time received, and locked it in the vault with the other evidence. The package remained in the locked vault until August 23, 1972, on which date it was removed from the vault by the Custodian and carried to Russellville for the trial of this case. The 38 different samples taken from 38 random bricks were analyzed by the Chemist and his findings were placed in different envelopes and were introduced in evidence as State's Exhibits 3 through 41 without objection.

Mr. F. V. Eagerton testified that he was employed as a Chemist in the United States Customs Laboratory in New Orleans and had been so employed for ten years. He earned a B.S. degree in Chemistry from Mississippi State University and he had eight years experience as a Chemist prior to his employment with the Customs Laboratory. He further testified that he had examined between 25 and 30,000 samples of marihuana. He said he conducted a microscopic examination and a chemical color test on the contents of the registered mail package he received from the U.S. Customs Office in Mobile on April 18, 1972.

He testified that it was his judgment and opinion, based upon both the microscopic examination and chemical color test, the contents of said packages were Cannabis Sativa commonly called marihuana. After completing the tests and analyses, each envelope was sealed with scotch tape, initialed and re-packaged and returned by registered mail to the Seizure Custodian, District Director of Customs in Mobile, Alabama. See Peppers v. State, Ala.App., 304 So.2d 39, 1974.

Appellant moved to exclude this witness's testimony on the ground that it was not sufficiently shown that he possessed the necessary qualifications to render such an opinion. The motion was overruled.

This was the arresting officer's first arrest for possession of marihuana. Actually he had never seen marihuana before this occasion. He had read pamphlets, books and publications issued by The American Federation of Police concerning marihuana. These publications contained pictures of marihuana and depicted marihuana in brick form. In the articles he had read concerning this contraband, he had seen the word Kilos prominently mentioned or associated with marihuana. Based upon the pictures he had seen and the description of marihuana in the publications he had read, along with appellant's use of the word Kilos, the officer was clear in his own mind that he had stopped a man on routine check who was in possession of marihuana. Thus, we are squarely met with a Fourth Amendment problem and to resolve it, we must be controlled by the law of searches and seizures.

The officer conducted a warrantless search of the Dodge van and it cannot be upheld as valid unless it falls within one of the exceptions to the rule that a search must be conducted pursuant to a valid search warrant.

In Daniels v. State, 290 Ala. 316, 276 So.2d...