Spencer v. Town of Gordo, 2 Div. 279
| Decision Date | 07 October 1980 |
| Docket Number | 2 Div. 279 |
| Parties | Leland SPENCER v. TOWN OF GORDO. |
| Court | Alabama Court of Criminal Appeals |
Robert Prince, Tuscaloosa, for appellant.
W. O. Kirk, Jr., Carrollton, J. T. Simonetti, Jr., Asst. Atty. Gen., for appellee.
Appellant was convicted in the Gordo Municipal Court for violating the prohibition law and appealed to the circuit court where he was again found guilty and sentenced to six months hard labor and assessed a $500 fine.
On an undisclosed date in July 1979, Gordo Police Officer David Abstein arrested appellant on the instant charge. A pretrial hearing was held on the appellant's motion to suppress evidence found in a search of his automobile. Abstein testified that appellant had a reputation as a bootlegger and had two prior convictions for that offense. He said the police "had been having problems with him in town" and had complaints about his bootlegging activity. Therefore, the police "set it up to have him watched as he went into the State Liquor Store" in Northport in adjoining Tuscaloosa County.
On the date in question, an undisclosed informant called the Gordo city clerk and informed her that the appellant "had just left the liquor store and he had-appeared that he had bought a good quantity of alcohol and that he was in a black Volkswagen." The city clerk then informed Officer Abstein who in turn made an affidavit of those same facts back to the same city clerk who issued a search warrant to Officer Abstein to search the appellant's automobile. Abstein said he first tried to contact the municipal judge for a warrant, but on finding him to be out of town, he obtained the warrant from the city clerk.
Abstein sent a city employee to a truck stop on the highway coming into the county from Northport. The employee was armed with a "walkie-talkie" radio and was to follow the appellant and radio to Abstein which one of several roads the appellant would take into Gordo. The surveillance went as planned, and Abstein set up a roadblock within the town's police jurisdiction and stopped the appellant who was driving a black Volkswagen as described by the informant. Officer Abstein told appellant he was going to have to search his car, and appellant asked if he had a search warrant. Abstein produced the city clerk's warrant and proceeded with the search. He found "two half gallons of bourbon and two pints" in the car and placed appellant under arrest.
The only issue on appeal concerns the legality of the search. The city admits the invalidity of the search warrant issued by the city clerk, but contends the search was nevertheless valid because of the existence of probable cause coupled with exigent circumstances.
Probable cause may be based upon hearsay information received from an informant provided it meets two tests. Those two tests, or dual "prongs" as they are commonly referred to, are (1) the veracity prong and (2) the basis of knowledge prong. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
The testimony of Officer Abstein fails to meet the veracity prong of Aguilar by failing to show in any way that the undisclosed informant was reliable or had a record of reliability in the past. However, the basis of knowledge prong was met when the informant told the city clerk that he had just witnessed the appellant leave the liquor store with a quantity of liquor and driving a black Volkswagen. Thus, the informant's tip fails one of the tests or prongs of Aguilar, supra.
In Hatton v. State, Ala.Cr.App., 359 So.2d 822, 826 (1977), writ quashed, Ala., 359 So.2d 832 (1978), this court stated:
...
To continue reading
Request your trial
-
Eldridge v. State
...(Citations omitted.) Hatton v. State, 359 So.2d 822, 826 (Ala.Cr.App.1977), writ quashed, 359 So.2d 832 (Ala.1978); Spencer v. Town of Gordo, 389 So.2d 182 (Ala.Cr.App.1980). Those "other factors of further support" existed here. The totality of circumstances evinced from the testimony of O......
-
White v. State
...is mobile or moveable, such as an automobile.' " Oliver v. State, 479 So.2d 1385, 1389 (Ala.Cr.App.1985), quoting Spencer v. Town of Gordo, 389 So.2d 182, 184 (Ala.Cr.App.1980); Jones v. State, 407 So.2d 870, 873 (Ala.Cr.App.1981); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d......
-
Etheridge v. State
...an object to be searched is mobile or movable, such as an automobile. Reid v. State, Ala., 388 So.2d 208 (1980); Spencer v. Town of Gordo, Ala.Cr.App., 389 So.2d 182 (1980). Here, the fact that the marijuana was found in appellant's two trucks, both of which were capable of being moved, pro......
-
Oliver v. State
..."Exigent circumstances exist whenever an object to be searched is mobile or moveable, such as an automobile." Spencer v. Town of Gordo, 389 So.2d 182, 184 (Ala.Crim.App.1980); see also Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Etheridge v. State, 414 So.2d 157 ......