Sadie v. State

• Decision Date: 22 April 1986
• Docket Number: 3 Div. 970
• Citation: 488 So.2d 1368
• Parties: James R. SADIE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1368

488 So.2d 1368

James R. SADIE v. STATE.

3 Div. 970.

Court of Criminal Appeals of Alabama.

April 22, 1986.

Warren S. Reese, Jr., Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Louis C. Colley, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellant, James R. Sadie, was indicted and convicted for the misdemeanor offense of possession of gambling records in the first degree, as proscribed by § 13A-12-24, Code of Alabama 1975. He was subsequently fined $500 plus costs.

The prosecution was based upon the possession of materials which were seized during a search of Sadie's office on October 9, 1982. The search warrant ("Motion to Suppress, Defendant's Exhibit 5") which was issued on October 6, authorized the search of "the premises of 3701 Atlanta Highway" for "any and all gambling records." The warrant was issued on the affidavit ("Motion to Suppress Defendant's Exhibit 4") of Investigators Brantley and Fontaine, who swore to the following:

"That they are Police Investigators in and for the City of Montgomery, Alabama and they have reason to believe, probable cause to believe, and in fact do believe, that there is being kept stored and concealed within the business located at 3701 Atlanta Highway, Montgomery, Alabama, gambling records...." (emphasis added)

They based this assertion on the following facts included in the affidavit:

"A confidential informant hereinafter referred to as 'A', personally stated to the affiants that Jim Sadie was engaging in bookmaking operations at 3701 Atlanta Highway doing business as Alabama World Travel. 'A' further stated that this operation was a continuing adventure. 'A' further stated that within the last three (3) months he has placed bets with Jim Sadie and has had numerous converations with Jim Sadie during the past three (3) months concerning gambling.

"The facts tending to establish the reliability of 'A' are as follows: ... The Montgomery Telephone Directory shows that Alabama World Travel is located at 3701 Atlanta Highway. The Montgomery City Directory shows Jim Sadie as the president of Alabama World Travel....

"Further probable cause being that on October 5, 1982, affiant Fontaine removed a plastic bag closed with a twist tie from the curbline beside the building located at 3701 Atlanta Highway. Contained within this bag were pieces of paper. These pieces of paper were pieced together by Affiant Brantley. These pieces of paper are known to the affiants, through their experience, to be papers commonly used by bookmakers to take bets and are gambling records as defined in Section 13A-12-24, Alabama Code. These records are written on stationery from the Alabama World Travel and the desk of Jim Sadie.

"The above information is based on personal observations of the affiant and is for the purpose of securing a daytime search warrant for 3701 Atlanta Highway and the person of Jim Sadie doing business as Alabama World Travel." (emphasis added)

During the hearing on the motion to suppress, ¹ Investigator Fontaine testified that, in addition to the information contained in the affidavit, the judge who issued the warrant was shown some of the trash taken from the curb. This trash included memo sheets with words and figures written by hand and the words "FROM THE DESK OF: Jim Sadie" printed at the top; pages from a small, yellow pad with "Jim Sadie" written at the bottom; and an unsigned letter dated July 17, 1982, written on stationery with the letterhead "ALABAMA WORLD TRAVEL." This last exhibit is evidently a proposed draft of a letter from Sadie offering the addressee a "complimentary membership in GEO, my new travel club." Fontaine testified that no information other than that contained in the affidavit and the trash was given to the judge.

Investigator Brantley testified that, when speaking with the judge, he showed him all the evidence retrieved from the trash; that they spoke briefly about some of the items; and that they discussed the reliability of the informant. He further stated that he and Investigator Fontaine participated in a search of the premises at 3701 Atlanta Highway on October 9. The investigator explained the following sequence of events: While the deputies went to a solid door at the rear of the building and Lieutenant Kelly went to a center door, he, along with Investigator Fontaine, went through the front door. Upon entering a reception area, he went through a door located on the right side of the room and then through an office into another office, where Sadie and a woman were seated. After informing the two occupants that he was a police officer and had a search warrant, he went to a door and let the deputies in. Thereafter, the officers searched only Sadie's office. During cross-examination, Investigator Brantley testified that he understood from the issuing judge and the warrant that he had authority to search only Alabama World Travel.

An employee of Alabama World Travel testified to the following: Several businesses were located at 3701 Atlanta Highway on October 9: Alabama World Travel; GEO, a travel club; two insurance agencies; and the business of an interior decorator. These last three businesses are located behind Alabama World Travel and GEO. One front door is marked "Alabama World Travel" and the other office on the front is clearly designated "GEO" by a sign. Furthermore, Alabama World Travel and GEO are separate businesses. The room searched is an office in the GEO business; no documents were taken from Alabama World Travel.

During cross-examination by the prosecutor, the employee testified that Sadie owns the travel agency; that he has no office in the Alabama World Travel business; that he is president of the travel club; that the entire building is designated as 3701 Atlanta Highway; that if Sadie receives a call at the travel agency, it can be transferred to GEO; and that the two businesses have a common interior door.

Sadie's daughter, likewise, testified that Alabama World Travel and GEO are clearly designated as separate businesses and that both are separately designated by signs on their doors which were located on the front of the building. She also stated that the two businesses have separate checking accounts and bookkeeping records and that her father owns both businesses.

A diagram of the premises at 3701 Atlanta Highway was introduced. It shows that Alabama World Travel and GEO are adjacent businesses located on the front of the building; that each has not only a front door, but a back door also; and that each has a restroom. It also shows that behind these two businesses are several vacant offices as well as occupied offices.

Sadie contends that the search warrant was defective because it failed to particularly describe the premises to be searched and, thus, that the evidence seized during the search should have been suppressed. The attorney general counterargues (1) that because the two investigators "were very much familiar with the location of the place to be searched," there existed no danger that any of the other businesses located at 3701 Atlanta Highway would be searched; and (2) that the affidavit, which was incorporated by reference into the search warrant, contained a sufficient description.

I THE SUFFICIENCY OF THE DESCRIPTION OF THE SEARCH WARRANT

We agree with Sadie's assertion that the description of the premises contained in the instant search warrant is too general to validate the search. Both the United States Constitution and the statutory law of Alabama require that a search warrant describe with particularity the place to be searched. U.S. Const., 4th Amend.; Ala.Code § 15-5-3 (1975).

"The traditional and accepted statement of the particularity required is found in Steele v. United States, 267 U.S. 498, 503 [45 S.Ct. 414, 416, 69 L.Ed. 757] ... (1925): '[I]t is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended.'

" '[T]he determining factor as to whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description given is technically accurate in every detail but rather whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not the one intended to be searched under the search warrant.' United States v. Darensbourg, 520 F.2d 985, 987 (5th Cir.1975).

"....

" '[T]he scope of the warrant to search is dependent upon the extent of the showing of probable cause. The command to search can never include more than is covered by the showing of probable cause to search.' [U.S. v.] Hinton, 219 F.2d at 325. 'Therefore, when the structure under suspicion is divided into more than one occupancy unit, probable cause must exist for each unit to be searched.' United States v. Whitney, 633 F.2d 902, 907 (9th Cir.1980), cert. denied, 450 U.S. 1004 [101 S.Ct. 1717, 68 L.Ed.2d 208] ... (1981).

" '[A] search warrant directed against a multiple-occupancy structure will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search thereunder of other units located in the larger structure and occupied by innocent persons.' Annot., 11 A.L.R.3d at 1333. The general rule is that 'a search warrant directed at a multiple-occupancy structure will ordinarily be held invalid if it describes the premises only by street number or other identification common to all the subunits located within the structure. What is needed is a description which singles out a particular subunit.' 2 LaFave [Search and Seizure at] 78-9 [ (1978) ]. See also C. Torcia, 1 Wharton's Criminal Procedure § 166 (12th ed. 1974); 68 Am.Jur.2d Searches and Seizures § 77 (1973)."

State v. Teague, 469 So.2d 1310,...