Shaneyfelt v. State
Decision Date | 22 April 1986 |
Docket Number | 1 Div. 98 |
Citation | 494 So.2d 804 |
Parties | Gary Nolan SHANEYFELT v. STATE. |
Court | Alabama Court of Criminal Appeals |
Christopher Knight, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Beatrice E. Oliver, Asst. Atty. Gen., for appellee.
Gary Nolan Shaneyfelt was indicted in a two-count indictment for possession of diazepam and possession of methamphetamine in violation of § 20-2-70, Code of Alabama 1975. The jury found the appellant "guilty as charged in the indictment" and the appellant was sentenced to five years' imprisonment in the penitentiary.
Officer Rassie Smith of the Mobile Police Department testified that he and several other officers executed a search warrant at 2075 West Victory Drive in Mobile at 12:45 on the afternoon of December 7, 1983. When the officers arrived at this residence, Smith knocked on the door, identified himself and his purpose. Smith heard people moving around inside and saying "police".
At this point the officers forcibly entered the residence. Smith went into the bedroom and found Mary Shaneyfelt standing next to the bed and James Brown sitting on the bed. When Mary Shaneyfelt saw Smith, she threw some yellow pills into the air and ran into the closet. A number of additional yellow tablets was found on the bed. These pills were analyzed and found to be methamphetamine, a controlled substance.
In the living room the officers found the appellant, Richard Mosely, and David and Brenda Norton. Officer Claude Monigan found a number of white tablets wrapped in foil lying on the floor next to the spot where the appellant was sitting. The white tablets were diazepam, a controlled substance.
All of the people found in the house that afternoon were charged. The charges against Mosely and the Nortons were dropped because the appellant and Mary Shaneyfelt told Smith that Mosely and the Nortons had just arrived at the house and were not involved. Smith said the appellant had been seen at this residence on a number of previous occasions.
The State rested its case. The appellant's motion for judgment of acquittal was denied.
Several defense witnesses testified as to the good reputation of the appellant. The appellant stated that he was divorced from Mary Shaneyfelt on December 7, 1983 and that they were not living together on this date. The appellant testified that he would come by Mary Shaneyfelt's house occasionally to check on things.
On the day in question, the appellant stated that he was at Mary Shaneyfelt's house cleaning the sewage line. Mosely was helping him perform this task. Around 12:30 p.m., he and Mosely went into the house to sit down. David Norton, accompanied by his wife, came by to offer his help. They were also sitting in the living room when the police came in. The appellant was unaware that the diazepam was there when the police found it.
When the appellant was arrested on this day, he told the police his address was 2075 West Victory Drive. He also gave them this address in March of 1984 when he was arrested on a DUI charge.
The appellant challenges the sufficiency of the evidence.
Smith v. State, 457 So.2d 997, 999-1000 (Ala.Crim.App.1984).
"
Lyons v. State, 455 So.2d 295, 296 (Ala.Crim.App.1984).
In the case at bar, the appellant told Officer Smith that the three people in the room with him at the time the diazepam was found near his person were not involved. Certainly, the appellant's knowledge can be inferred from his statement clearing the other people in this room. Furthermore, the activity in the living room, (i.e., moving around, saying "police") just prior to the officers' entry, also tends to connect the appellant with the contraband to show constructive possession. See Smith, supra.
German v. State, 429 So.2d 1138, 1143 (Ala.Crim.App.1982), cert. denied, 429 So.2d 1138 (Ala.1983).
The appellant's guilt or innocence was a question for the jury. The appellant's motion for judgment of acquittal, therefore, was properly denied. See Parham v. State, 333 So.2d 912 (Ala.Crim.App.1976), cert. denied, 333 So.2d 915 (Ala.1976).
The appellant asserts that his motion to suppress should have been granted on two grounds. First, he alleges that the search warrant in this case was invalid.
The affidavit which provided the basis for the issuance of the search warrant stated that Officer Smith had received information from a confidential informant that he had been to the residence of Gary and Mary Shaneyfelt within the past three days. While at this residence, the informant observed a quantity of small yellow tablets. Mary Shaneyfelt told the informant the tablets were Desoxyn.
The affidavit also stated that the confidential informant had provided Smith with reliable information in three cases in the past six months. Smith provided the names of two of those cases at the suppression hearing. He further testified that the informant told him that both Mary Shaneyfelt and the appellant were present when he went to their residence. Funches v. State, 53 Ala.App. 330, 299 So.2d 771 (1974), cert. denied, 293 Ala. 752, 299 So.2d 778, cert. denied, 419 U.S. 1114, 95 S.Ct. 793, 42 L.Ed.2d 813 (1975).
In light of this evidence, the search warrant in this case is clearly sufficient under the totality-of-the-circumstances test set out in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Second, the appellant contends the search warrant was executed in violation of Alabama's Knock and Announce Statute set out in § 15-5-9, Code of Alabama 1975. Section 15-5-9 provides:
Laffitte v. State, 370 So.2d 1108 (Ala.Crim.App.), cert. denied, 370 So.2d 1111 (1979); Conner v. State, 382 So.2d 601 (Ala.Crim.App.1979), cert. denied, 382 So.2d 605 (Ala.1980).
Officer Smith testified that, upon arriving at the address listed on the search warrant, he knocked on the door and said, (R. 17). He heard some people inside "start moving around" and saying, "Police, police." (R. 17). Smith then instructed another officer to kick the door open. This was done and the officers entered the residence.
An affirmative refusal of entry is not always necessary before an officer is justified in forcing entry. Conner, supra. In fact, in most instances, the refusal of admittance will not be affirmative but will be by implication. Laffitte, supra.
Officers are "justified in assuming that they had been denied admittance" when there is "some positive...
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