Smith v. State, 8 Div. 298

• Decision Date: 12 June 1973
• Docket Number: 8 Div. 298
• Parties: Johnny SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 812

289 So.2d 812

52 Ala.App. 114

Johnny SMITH v. STATE.

8 Div. 298.

Court of Criminal Appeals of Alabama.

June 12, 1973.

Rehearing Denied June 29, 1973.

No brief from appellant.

William J. Baxley, Atty. Gen., Montgomery, and P. B. McLauchlin, Jr., Sp. Asst. Atty. Gen., Ozark, for the State.

BOWEN SIMMONS, Supernumerary Circuit Judge.

Appellant, also referred to herein as defendant, was indicted and convicted by a jury of Madison County for unlawfully possessing heroin, against the peace and dignity of the State of Alabama. The trial court, after due and proper allocution, fixed defendant's punishment at fifteen years imprisonment in the penitentiary of Alabama. No attorney appears here for appellant. He was represented by counsel in the trial court.

It appears in the transcript that one Bobby Eddy, a narcotics officer for the Sheriff's Office of Madison County, procured from Circuit Judge David Archer of Madison County a valid search warrant which authorized him to search Apartment 11, 2503 Rawlins Drive, Huntsville; and also the person of Andrew Carpenter who occupied the apartment. Officer Eddy and three companion officers proceeded in the evening of August 28, 1971, to make the search at which time they found some heroin and narcotics paraphernalia on the premises and on the person of Carpenter, who was arrested therefor.

While the officers were proceeding to search the apartment and had already found contraband on Carpenter's person, at about 10:50 P.M., a knock was heard at the door of the apartment. One of the officers admitted the defendant, who was escorted to the presence of Officer Eddy. The latter asked the visitor for an identification. Responding thereto defendant was making an effort to produce the identification when Officer Eddy asked him 'to hold it just a minute.' Then Officer Eddy proceeded to search him. 'His billfold was in his pocket. In the right rear pocket were three cellophane packages.' The state toxicologist later determined that the packages contained heroin.

The record shows that after the packages were found on defendant's person, Officer Eddy placed him under arrest. The record fails to show that defendant was guilty of any offense that justified his detention or search. He, for aught appearing, was a visitor to the premises and was a stranger to the officers. He was not named in the search warrand and so far as the record indicates was not a suspect of any unlawful offense. There was nothing in his appearance or conduct to indicate criminality.

Officer Eddy further testified that prior to the completion of the search the had not placed the defendant under arrest, and further that he did not go to the apartment looking for the defendant but went there to search the apartment. Defendant testified that he went to the apartment to see a friend. Absent in the record is any probable cause on the part of Officer Eddy for believing that defendant possessed heroin on his person. It was purely a routine search without any lawful authority therefor.

Amendment IV of the Constitution of the United States reads:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Of like import is Article 1, § 5, Constitution of Alabama, 1901.

We do not think that the search of defendant was authorized by either constitutional provision, supra. The search impinged upon defendant's constitutional rights and was unreasonable and without probable cause. Defendant as noted above was a stranger at the time, was not even a suspect involving the commission of any offense, was not named in the search warrant, and was not in the apartment when the officers arrived and began their search of the premises and Carpenter. There was nothing to indicate by his conduct or appearance that he possessed a weapon or was about to produce one. He was in the process of obeying Officer Eddy's order to produce an identification when the order was abruptly countermanded and the search of his person began.

It appears in State v. Jokosh, 181 Wis. 160, 193 N.W. 976, that Jokosh was convicted of having intoxicating liquor in his possession. He was convicted and sentenced. The liquor was taken from defendant's person and against his will and without a search warrant for his person. It was held that the search and seizure was unlawful, and it was immaterial that warrant had been issued for search of premises where he was employed, or that the officers saw the bottle before they seized defendant and thought that it contained intoxicating liquors, as was later found to be the fact, for a search is not made lawful by what is ascertained after it is made; and, since it is not unlawful to have a bottle in one's possession, the search could not be justified on the ground that the person searched was committing an unlawful act, and hence could be lawfully searched.

In that case the Supreme Court further observed:

'It is also said that if searches such as this cannot be made the prohibition law cannot be enforced. ...