Sims v. State

• Decision Date: 14 June 1991
• Docket Number: CR-89-342
• Citation: 587 So.2d 1271
• Parties: Brad Haywood SIMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1271

587 So.2d 1271

Brad Haywood SIMS v. STATE.

CR-89-342.

Court of Criminal Appeals of Alabama.

June 14, 1991.

Rehearing Denied July 26, 1991.

Certiorari Denied Oct. 4, 1991

Alabama Supreme Court 1901699.

Thomas M. Goggans, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Brad Haywood Sims, was convicted of distributing a controlled substance, cocaine, in violation of § 13A-12-211, Code of Alabama 1975. He was sentenced to 10 years in prison. The sentence was split, with three years to be served in prison and the remainder on probation. The instant appeal is the result of the appellant's second trial. The appellant's first trial ended in a mistrial with the jury unable to reach a verdict.

The evidence tended to show that as a result of a search warrant executed on the appellant's house, $360.00 in marked bills was discovered. These bills had been given to a confidential informant so that he could purchase cocaine. A total of $932.00 was recovered from the appellant's home. The appellant raises eight issues on appeal. However, since this case must be reversed, we address those issues which merit a reversal.

I

The appellant initially contends that the trial court erred in not suppressing the evidence recovered in his home since his home was searched as a result of a warrant, which, he argues, contained false statements in the affidavit supporting the warrant. The affidavit accompanying the warrant reads as follows:

"That a confidential and reliable informant, hereinafter referred to as 'A' observed a quantity of an off-white rocky substance which appeared to 'A' to be 'crack' cocaine being stored in the residence located at 3437 Perry Street, Montgomery, Alabama, within the past seventy-two (72) hours.

"Further probable cause being that 'A' witnessed crack cocaine being sold out of the residence located at 3437 Perry Street during the month of September.

"Further probable cause being that 'A' has given the affiant information in the past which has been proven true through investigative means.

"Further probable cause being that 'A' has assisted the Narcotics & Intelligence Bureau in numerous investigations which have resulted in numerous arrests.

"Further probable cause being that the power for the residence at 3437 Perry Street is in the name of Brad Sims.

"Further probable cause being that intelligence information obtained by Narcotics & Intelligence Bureau personnel indicates that Brad Sims is involved in illegal narcotics activity.

"As Brad Sims is a member of the Montgomery Police Department and is therefore most likely armed with at least a Police Department issue 9mm automatic pistol, a no-knock clause is being requested in this warrant for officer safety.

"The foregoing is based on personal knowledge of the affiant and on facts obtained by the Narcotics and Intelligence Bureau, Administrative Division, Montgomery Police Department...."

The appellant maintains that Officer Lay, who executed the affidavit in support of the warrant, made several misrepresentations to the magistrate in order to obtain the warrant. The appellant contends that the sections of the affidavit underlined above were false. Specifically, he cites Lay's testimony at the suppression hearing in which Lay stated that the confidential informant, Julius Moore, stayed in the car and never went into the Sims residence. Lay further stated at the suppression hearing that the informant did not witness any drug transaction because he remained in the car. The appellant contends that the informant did not have any personal knowledge of the facts testified to in the affidavit and that the informant was relying on information supplied to him by another individual, Eric Johnson, who the appellant identifies as a known drug dealer. This fact was not stated in the affidavit or told to the magistrate.

The following occurred during the cross-examination of Officer Lay:

"Q [Defense Counsel]--Now, isn't it true that Julius Moore stayed out in the car and never went into the home of Brad Sims during the time of this so-called transaction between Eric Johnson and Brad Sims?

"A--Yes, sir.

"....

"Q--Isn't it true, sir, that Julius Moore told you that he stayed out in the car during the time that Eric Johnson went in to see Brad Sims about drugs?

"A--Yes, sir.

"Q--Were you also within the area at the time the red Saab driven by Julius Moore was waiting outside?

"A--No, sir.

"....

"Q--He didn't see any drugs either at the house or outside the house--Let me rephrase it. Isn't it true Julius Moore, whom you have identified as A, never observed any drugs, crack or any substance, being stored in the residence at 3437 Perry Street?

"A--No, sir. He did not go in the residence.

"....

"Q--Isn't it true, sir, that Julius Moore never personally saw Eric Johnson hand any money to Brad Sims?

"A--Yes, sir...."

The United States Supreme Court, in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), recognized the importance of the veracity of the statements made in the affidavit to support a search warrant. "The Achilles' heel of any warrant is the presence of probable cause for the same; and this, in turn, can be resolved only by resort to the supporting affidavit...." E. Mascolo, Impeaching the Credibility of Affidavits for Search Warrants: Piercing the Presumption of Validity, 44 Conn.Bar.J. 9 (1970). "The veracity of the assertions supporting probable cause is integral to the criminal justice system." United States v. Cortina, 630 F.2d 1207, 1213 (7th Cir.1980). The warrant clause itself takes the affiant's good faith as its premise. See Cortina, 630 F.2d at 1213.

The United States Supreme Court, in Franks, stated that an individual could challenge the truthfulness of the material in the affidavit. See also Richardson v. State, 376 So.2d 205 (Ala.Cr.App.1978), aff'd, 376 So.2d 228 (Ala.1979). Relying on the Fourth and Fourteenth Amendments, the Supreme Court stated:

"Where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit."

Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676; See also Moore v. State, 570 So.2d 788 (Ala.Cr.App.1990); Villemez v. State, 555 So.2d 342 (Ala.Cr.App.1989); Gray v. State, 507 So.2d 1026 (Ala.Cr.App.1987).

The Supreme Court went further in Franks to say:

" '[W]hen the Fourth Amendment demands a factual showing sufficient to comprise "probable cause," the obvious assumption is that there will be a truthful showing' (emphasis in [Halsey ] ). This does not mean 'truthful' in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be 'truthful' in the sense that the information put forth is believed or appropriately accepted by the affiant as true."

Franks, 438 U.S. at 164-65, 98 S.Ct. at 2681, quoting United States v. Halsey, 257 F.Supp. 1002, 1005 (S.D.N.Y.1966).

Initially, we must determine whether the statements made in the affidavit were made either intentionally or with reckless disregard for the truth. "We know what intentional lies are, but the meaning of 'reckless disregard for the truth' is not self-evident...." United States v. Williams, 737 F.2d 594, 602 (7th Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). An affiant acts with "reckless disregard for the truth where he ' "in fact entertained serious doubts as to the truth of his" allegations.' ... Reckless disregard for the truth may also be proved inferentially 'from circumstances evincing "obvious reasons to doubt the veracity" of the allegations.' " United States v. A Residence Located at 218 Third Street, 805 F.2d 256, 258 (7th Cir.1986). "Because states of mind must be proved circumstantially, a factfinder may infer reckless disregard from circumstances evincing 'obvious reasons to doubt the veracity' of the allegations." Williams, 737 F.2d at 602.

When an appellate court reviews a ruling by a lower court on a question concerning whether an individual made a statement with reckless disregard for the truth " '[a]ppellate judges must exercise independent judgment and determine whether the record establishes [reckless disregard for the truth] with convincing clarity.' " A Residence Located at 218 Third Street, 805 F.2d at 259, quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 514, 104 S.Ct. 1949, 1967, 80 L.Ed.2d 502 (1984). It is clear after a review of the hearing that the complained-of statements were made with at least a reckless disregard for the truth. The informant, upon whom Lay based his information, did not enter the home of the appellant and did not witness a drug transaction. Another individual, identified as Eric Johnson, was said to have entered the residence and to have made the buy at the residence. However, none of this information is stated in the affidavit and it was not told to the magistrate. Indeed there is no information as to the veracity of Eric Johnson. "Unlike an officer in the field,...