Reed v. State
| Decision Date | 31 March 1981 |
| Docket Number | 1 Div. 69 |
| Citation | 401 So.2d 131 |
| Parties | Freddie Earl REED v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Thomas M. Haas and James M. Byrd, Mobile, for appellant.
Charles A. Graddick, Atty. Gen. and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
Appellant was convicted of the offense of possessing marijuana and the jury assessed a fine against him in the amount of $7,500.00. As additional punishment the trial court sentenced him to fifteen years imprisonment in the penitentiary. Appellant was represented by counsel of his choice and at arraignment he waived reading the indictment and pleaded not guilty.
Appellant did not testify in his behalf but rested after his cross-examination of the State's witnesses and his motion to exclude the State's evidence for failure to make out a prima facie case. He filed a motion for a new trial raising the sufficiency of the evidence and claimed the trial court erred in refusing several written charges.
On January 28, 1978, Officer Sammie Brown, Jr., of the Mobile Police Department went before one of the District Court judges and made an affidavit in support of a search warrant to search the residence of appellant located at 3628 Minmarsue Drive in Prichard, Alabama. The affidavit reads as follows:
"SEARCH AFFIDAVIT
___
District Court of Alabama, Mobile County
Affidavit: State of Alabama, County of Mobile: Before the undersigned personally appeared Officer Sammie Brown, Jr. who requested a search warrant and in support thereof made oath as follows:
( ) was stolen or embezzled.
(X) was a means of committing the felony of:
Possession of Marijuana
( ) will be used to commit the offense of:
/s/ Sammie Brown, Jr.
/s/ Paul W. Brunson
( )Judge, District Court of
( )Municipal Judge, City of" Officer Brown, along with several other officers of the Mobile Police Department, a Deputy Sheriff of Mobile County, and a police officer of Prichard, went to the address set forth in the search warrant and knocked on the door. Appellant answered the door knock and the officers told him they had a search warrant. Appellant exclaimed, "No" and slammed the door, locking it. One of the officers opened the burglar bar door and Officer Brown kicked the door open. The officers entered the house and found appellant and a small child. Appellant was in the den area of the house and was in the process of drawing the curtains in the room.
The search got under way and the officers found approximately 24.9 pounds of marijuana which was in several bags. According to the testimony of Ms. Alilee Pillman, the Toxicologist for the Mobile Police Department, whose qualifications were not questioned, "20 plastic bags of plant material and 14 one pound bags of plant material and two pounds of loose green plant material, a white paper bag with some more plant material, a brown paper bag and two bags in brown paper bags, three cigarette rollers, an ash tray containing plant material, four large garbage bags with residue, some scales, and some white powder were turned over to her by Police Officer Roderic Steade." She tested the plant material and found it to be marijuana. She also tested the white substance and found it was 0.2219 grams of phencyclidine. The testimony of Ms. Pillman was received without objection.
During the search the officers found three handguns and between seven and eight thousand dollars in currency. The money was subsequently returned to appellant.
When the officers found the white powder and brought it to the evidence officer in the den where appellant was sitting appellant spoke up and said "that he knew about the weed but he didn't know the white powder was in his house." This statement was made by appellant without any questions being asked him by the officers.
When the searching officers found the first bag of green plant material Officer Brown gave appellant the Miranda rights and warnings by reading these rights from a card he had in his possession. Brown further testified that he could not recall appellant's response to the Miranda rights but whatever his response was it was not made in a negative sense.
Appellant filed a pre-trial motion to suppress the evidence obtained during the search. The motion hearing was held on the day of the trial and was overruled and denied.
The affidavit in support of the search warrant in this case was based on hearsay information provided by and sworn to by Officer Sammie Brown, Jr., of the Mobile Police Department. In the affidavit Officer Brown swore that the informer had provided reliable information on two occasions in the past six months which led to the arrest and conviction of two drug offenders. He also stated in the affidavit that the informer came by this information as a result of a visit to appellant's residence within the past twenty-four hours.
Although an affidavit may be based on hearsay information and need not reflect the direct personal observation of the affiant, the issuing authority of the search warrant must be informed of some of the underlying circumstances from which the informant concluded that the drugs were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or his information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The requirements set forth in Aguilar v. Texas, supra, create a two "prong" test that must be met before an affidavit based on hearsay information can sufficiently support a search warrant.
One of the "prongs" of the "Aguilar" test requires that the issuing authority of the search warrant must be informed of the underlying circumstances from which the affiant concluded that the informant is a credible person and his information is reliable. McCurley v. State, 390 So.2d 15 (Ala.Cr.App.1980) reversed on other grounds, 390 So.2d 25 (Ala.1980). In the case at bar Officer Brown swore that the informant was reliable and had provided reliable information to the police on two previous occasions. In fact Officer Brown stated in the affidavit that "I received the following information from a reliable informant who has given me reliable information 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). The trial court had ample support for its finding that Officer Brown provided sufficient information for the issuing authority of the search warrant to conclude that the informant was credible and his information reliable.
The other "prong" of the test set forth by Aguilar v. Texas, supra, is that the issuing authority of the search warrant be informed of the underlying circumstances from which the informant concluded that the items to be seized were where he claimed they were. McCurley v. State, supra. Officer Brown stated in his affidavit that the informant had knowledge that the marijuana was at the residence as a result of a visit to that residence within the past twenty-four hours. He also indicated that the packaging and cutting of the material thought to be marijuana was done in a manner and appearance common to the processing and packaging of marijuana. This provides sufficient information for the issuing authority of the search warrant to conclude that there was probable cause that the marijuana existed in the place where the informant stated it was present during his visit in appellant's home.
Appellant asserts that Officer Brown had no personal knowledge that the informant observed the marijuana in the residence while on a visit. He further asserts that the informant could have been a burglar for all Officer Brown knew. Officer Brown made a determination that the informant was credible or the information was reliable. The...
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