Paschal v. State

• Decision Date: 10 November 1978
• Citation: 365 So.2d 681
• Parties: Ex parte Eugene Paschal. Re Eugene PASCHAL v. STATE of Alabama. 77-590.
• Court: Alabama Supreme Court

Page 681

365 So.2d 681

Ex parte Eugene Paschal Re Eugene PASCHAL v. STATE of Alabama.

77-590.

Supreme Court of Alabama.

Nov. 10, 1978.

Rehearing Denied Dec. 8, 1978.

William D. Hudson and William R. Willard, Jr., Gadsden, for petitioner.

William J. Baxley, Atty. Gen., and Eugenia D. B. Hofammann, Asst. Atty. Gen., for the State, respondent.

BEATTY, Justice.

Certiorari was granted in this case to consider whether the opinion of the Court of Criminal Appeals is in conflict with an opinion rendered heretofore on the requirement of probable cause. We reverse and remand.

After a thorough review of the record pursuant to Rule 39(k), ARAP we are unable to adopt without correction the facts of this case as reported in Paschal v. State, 365 So.2d 672 (Ala.Crim.App., 1978). The extended opinion of the court below mistakenly stated that "(t)he description of the suspects and the vehicle was contained in this (radio) broadcast," when, in actuality, the record shows evidence only that the vehicle was described in the radio dispatch. Further, the Court of Criminal Appeals mistakenly added that ". . . at Police Headquarters, the missing watches and rings from Michael's Jewelers were found, along with boxes containing same, in the trunk of appellant's automobile." However, the record shows that only empty plastic ring boxes and pillowcases were recovered from the automobile.

The dispositive issue in this case concerns the warrantless search of the defendant's automobile. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) the Supreme Court of the United States instructed that:

" '(S)earches conducted outside the judicial process, without prior approval by judge or magistrate, are Per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions.' . . . '(T)he burden is on those seeking the exemption to show the need for it.' . . ."

This Court has embraced this principle. See Kinard v. State, 335 So.2d 924 (Ala., 1976).

At trial the defense counsel objected to testimony pertaining to the search of the automobile and the admission into evidence of the fruits of that search on the ground that there was no search warrant. This objection placed upon the State the burden of showing either a warrant or one of the reasonable exceptions to a warrantless search. The Court of Criminal Appeals held that this burden was met by the State when it stated: "Here, as in Daniels (290 Ala. 316, 276 So.2d 441 (1973)), there were exigent circumstances In addition to probable cause, which justified the immediate search of appellant's car." (emphasis added). See Chambers v. Maroney,339 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). We need not discuss both elements of the Chambers' exception since petitioner has focused our attention on that of probable cause. The Court of Criminal Appeals found that:

The officer in this case, acting on the information at hand, Had probable cause to believe that the appellant's automobile contained the instrumentalities or fruits of a crime, and therefore was justified in making the warrantless search . . . . (emphasis added)

However, it appears from the opinion of that court that the "information at hand" consisted only of the following evidence:

Officer Brown testified that he had just received a report concerning the Michael's Jewelry Store robbery earlier that day, and that the automobile's description in the report matched that of appellant's vehicle. . . .

Therefore, in effect, the Court of Criminal Appeals held in the present case that the requirement of probable cause which is necessary in any search, warrantless or not, see United States v. Brennan, 538 F.2d 711 (5th Cir., 1976), was satisfied by the radio dispatch, and the radio dispatch alone. Such a holding, however, is contrary to that Court's earlier decision in Owens v. State, 51 Ala.App. 50, 282 So.2d 402, cert. denied 291 Ala. 794, 282 So.2d 417 (1973).

In Owens, supra, an officer observed a man getting into an automobile near the scene of a burglary. He radioed headquarters with a description of the automobile. An all points bulletin (A.P.B.) was then put out by the radio operator. Law enforcement officers in another town heard the radio report, stopped the automobile and then searched it. The Court of Criminal Appeals held that:

(T)he (arresting) officers at Town Creek could rely on the radio broadcast but the subsequent determination by any court as to probable cause must necessarily turn on All the circumstances giving rise to the police dispatch. . . . (emphasis added)

The court went on to find that on the facts of that case there was no probable cause to search the automobile. In the present case there is no evidence of the underlying circumstances which gave rise to the dispatch; there is merely the naked fact that a radio dispatch had described an automobile that fit the description of the defendant's automobile. As Owens clearly shows, this is insufficient to establish probable cause, and therefore the search was unreasonable under Coolidge, Kinard and Owens. If the law were otherwise, then mere suspicions insufficient to obtain a search warrant, nevertheless could be routed through a radio operator to the field and through that mechanical process gain legal credibility; in fact, if the broadcast were enough in itself to justify a search, as the court below appears to hold, then the State would never need to enter into evidence the suspicions behind the broadcast. As we have shown, that is not the law in this state. Hence, the majority of the Court of Criminal Appeals erred in holding that probable cause was established by the radio dispatch alone.

The case is therefore due to be and is hereby reversed and remanded to the Court of Criminal Appeals with instructions to remand to the trial court for a new trial.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., and MADDOX, J., dissent.

MADDOX, Justice (dissenting).

I agree with the majority that warrantless searches are per se unreasonable, and that the burden was on the State to show its need for the exemption, but I believe that the State met its burden here by showing that the officers had probable cause to seize the automobile and search it; therefore, under all the facts and circumstances, and based on the facts available to the officers at the time, I conclude they acted reasonably.

The majority and I differ basically only in one narrow area. The majority would require the State to "enter into evidence the suspicions behind the broadcast." I do not believe the law puts this burden on the State.

I realize that Alabama follows the Minority rule and allows a motion to suppress allegedly illegally obtained evidence to be made for the first time at trial (Brown v. State, 277 Ala. 108, 167 So.2d 291 (1964)), but I do not believe that the burden was on the State to go behind the radio broadcast and show its validity.

The defendant, attempting to suppress evidence, is the moving party and has the burden of going forward with the evidence. The ultimate burden, of course, depends on the claimed illegality. If the search and seizure was incident to a regularly issued warrant, valid on its face, then the accused must prove lack of probable cause, or unreasonable execution of the warrant. ¹

If the accused proves that the search and seizure was without a warrant (as was true here), then the burden shifts to the State to prove the existence of probable cause for the search. I believe the State met its burden in this case. In fact, as I read the majority opinion, I do not...