Stanfield v. State

• Decision Date: 26 April 1988
• Docket Number: 6 Div. 300
• Citation: 529 So.2d 1053
• Parties: James Ronald STANFIELD, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1053

529 So.2d 1053

James Ronald STANFIELD, alias v. STATE.

6 Div. 300.

Court of Criminal Appeals of Alabama.

April 26, 1988.

Rehearing Denied May 24, 1988.

Certiorari Denied July 29, 1988

Alabama Supreme Court 87-1055.

J. Stephen Salter and Kimberly R. West, Birmingham, and Ryan deGraffenried, Jr., Tuscaloosa, for appellant.

Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

James R. Stanfield was convicted for trafficking in cocaine, the unlawful possession of meperidine, and the unlawful possession of marijuana. The respective sentences were ten years' imprisonment and a fine of $50,000, three years' imprisonment and twelve months' imprisonment, the terms of imprisonment to run concurrently.

I

The defendant argues that the warrantless searches of his person and his automobile were illegal and in violation of the Fourth Amendment.

At approximately 6:30 on the evening of September 30, 1983, agents of the West Alabama Narcotics Squad executed a search warrant at 20-W Skyland Apartments in Tuscaloosa, the residence of Rick Krebs and Fred Selman. Officer Terry Pennington testified that within a forty-eight hour period before that time he had "received some information that a fellow named 'Ron' would be delivering a quantity of cocaine to 20-W Skyland Apartments, the residence of a Mr. Selman and Mr. Krebs; and further that this Ron was from the Montgomery area," and "that he would be in sometime around 7:00 o'clock." Pennington testified that he had received information from this informant on "several" occasions. He did not state what that information was, whether or not it had led to arrests, or whether or not that information had proven correct or accurate.

The probable cause to search the apartment was "separate" and "independent" from the information received from Officer Pennington's informant about "Ron." The search warrant and affidavit are not contained in the record. On this appeal, this defendant does not challenge the propriety of either the search warrant or the search of the apartment.

Officer Eldon Willingham was stationed outside the apartment. He radioed the officers inside the apartment that "there was a white male coming in a Chevrolet that had a Montgomery County plate on it." Sometime between a "few minutes" and twenty minutes after 7:00 that evening, the defendant knocked on the door of the apartment. Officer Dennis Levins opened the door. Officer Ken Miksis testified that he identified himself as "Ron" in response to Officer Miksis's question. Officer Pennington testified that Officer Miksis identified himself as "Ken" and identified himself as a police officer only after the defendant had already identified himself as "Ron" after he entered the apartment. Officer Pennington testified that Miksis then "told [the defendant] to come on in and go over and have a seat on the couch."

The defendant was carrying a paper bag which contained beer. The defendant sat down on the couch. Officer Miksis testified that he "observed [the defendant] stuffing a little black pouch or a little black bag into the cushion of the chair." Miksis retrieved the bag, found it to contain "a marijuana or hash pipe, a little bit of suspected hash, and a little vial of cocaine--suspected cocaine," and then advised the defendant of his Miranda rights.

Officer Levins testified that before Officer Miksis searched the defendant's bag and discovered the contraband, he had gotten the defendant's car keys from the defendant and left the apartment to search the defendant's car. Officer Willingham testified that, when he entered the apartment, Officer Miksis was reading the defendant his rights, that Officer Levins got the defendant's keys, and that he and Levins then left the apartment and searched the defendant's car. A thermos containing cocaine was found inside a "nylon totebag" inside the car. Also discovered were an automatic pistol, subsequently discovered to be stolen, a briefcase containing $4,960, and some mepergan capsules.

Agent Pennington testified Levins got the defendant's keys after the defendant had been searched. On cross-examination, he admitted that it was "possible" that Officer Levins got the defendant's keys before the defendant's bag had been searched.

The trial court found that "the search of the vehicle is based on information from a reliable confidential informant which was corroborated by the events of that day." We find that the searches of the defendant's person and his vehicle were justified.

"[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). The mere presence of an individual at a place where a search warrant is about to be executed does not justify the search of that person. "[T]he search of persons not named or described in the warrant, but found on premises or who come onto premises being searched, is not made lawful simply by their presence; the law requires that there be probable cause to believe that such persons are themselves participants in criminal activity." Smith v. State, 292 Ala. 120, 121, 289 So.2d 816, 817 (1974). "A warrant for premises does not permit searches of persons which are not reasonably believed to be associated with it." J. Hall, Jr., Search and Seizure, Cumulative Supplement, March 1987, at p. 527.

In this case, we find that the defendant's presence at the apartment being searched, when coupled with information known to the officers and the defendant's furtive movements in "stuffing a little black pouch or a little black bag into the cushion of the chair," provided the probable cause necessary to justify the search of the defendant's person. In determining whether the police had probable cause to search the defendant, we apply the "totality of the circumstances" analysis of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Spann v. State, 494 So.2d 719 (Ala.1986). "We recognize that Gates dealt with probable cause for the issuance of a warrant.... This determination of probable cause, however, is applicable to both warrant and warrantless searches." United States v. Mendoza, 722 F.2d 96, 100 n. 5 (5th Cir.1983). See also Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

Although the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), was rejected in Gates, see Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984), an informant's veracity and basis of knowledge are still "highly relevant" in determining the existence of probable cause. Gates, 462 U.S. at 230, 103 S.Ct. at 2327.

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

Here the informant's tip did not supply the necessary probable cause. The informant's credibility was not established by past performance. Officer Pennington did not testify that his informant was reliable. See Neugent v. State, 340 So.2d 52, 54 (Ala.1976). The basis of the informant's knowledge was also not established. See Channell v. State, 477 So.2d 522, 525 (Ala.Cr.App.1985). Thus, the tip failed to satisfy both prongs of the Aguilar-Spinelli test. "Something more was required, then, before a magistrate could conclude that there was probable cause...." Gates, 462 U.S. at 227, 103 S.Ct. at 2326. "Under Gates, it has been held that corroboration of innocent details can be enough to show probable cause under the totality of the circumstances," J. Hall, Jr., Search and Seizure § 5.23 at 192 (March 1987, Cum.Supp.), even where neither the informant's veracity nor basis of knowledge has been otherwise established. W. LaFave, 1 Search and Seizure § 3.3(f) at 693-95 (2d ed. 1987).

Although the Tuscaloosa police officers here corroborated all the innocent details of the tip before searching the defendant, i.e., they determined that the defendant's name was Ron, that he was from Montgomery County, and that he had arrived shortly after 7:00 p.m., those details simply did not furnish a " 'substantial basis for ... conclud[ing]' that probable cause to search ... existed," Gates, 462 U.S. at 246, 103 S.Ct. at 2336. While it is true that the tip in the instant case predicted the "future actions of [a] third part[y]," 462 U.S. at 245, 103 S.Ct. at 2335-36, it did not provide the party's last name or even the most general of physical descriptions, such as race and approximate age, to say nothing of his address or means of travel. Even the anonymous letter in Gates (which the Court characterized as containing a "range of details," 462 U.S. at 245, 103 S.Ct. at 2335) included the full name of the suspects, their address, their mode of travel, and certain aspects of their lifestyle, such as the fact that they allegedly had $100,000 worth of drugs in their basement, bragged about never having to work, and were frequently visited by "big drug dealers." Gates, 462 U.S. at 225, 103 S.Ct. at 2325. Here we have only a first name ("A fellow named 'Ron' "), a general place of residence ("from the Montgomery area"), and a time of arrival ("sometime around 7:00 o'clock"). Like the Texas Court of Appeals in Correll v. State, 696 S.W.2d 297, 299 (Tex.App.1985), "[w]e have examined an exhaustive number of state and federal decisions which have been decided since the opinion of Illinois v. Gates but we have found none, and the State has referred us to none, which have been...