State v. Calhoun

Decision Date28 January 1986
Docket Number4 Div. 505
Citation502 So.2d 795
PartiesSTATE of Alabama v. Bobby CALHOUN and Malcolm Schartau.
CourtAlabama Court of Criminal Appeals

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellant.

Don P. Bennett, of Herring & Bennett, Dothan, for appellee Calhoun,

W. Terry Bullard, Dothan, for appellee Schartau.

TYSON, Judge.

Bobby Calhoun and Malcolm Schartau were indicted for the unlawful possession of marijuana in violation of § 20-2-70, Code of Alabama 1975.

After entering pleas of not guilty, the appellees filed motions to suppress the evidence. A hearing was held on these motions and, following the hearing, the trial judge granted the appellees' motions to suppress. The order of the trial judge is quoted below.


"The matters before the court are defendants' motions to suppress evidence obtained through search of their persons and vehicle. Upon consideration of same and ore tenus testimony, the court is of the opinion that the searches were made pursuant to strong suspicion, but not upon probable cause as required by the United States Constitution, i.e., no one, not even the confidential informant herein, knew from personal observation or otherwise that the defendants had in their possession marijuana at the time of their detention and search. The court is of the further opinion that the officers' actions were pursuant to legal precedent, except detention and searches which were premature, and evidence seized cannot support convictions herein. Therefore, it is

"ORDERED AND ADJUDGED that the evidence seized from the defendants pursuant to the searches of their persons and vehicle is suppressed and shall not be used against them." (R.92).

The State now appeals from this order of the trial court pursuant to Rule 17(a), Alabama Temporary Rules of Criminal Procedure.

The following facts were ascertained during the hearing on the motions to suppress.

Sometime between 1:00 and 2:00 on the afternoon of February 4, 1985, John Givens, a narcotics officer with the Dothan Police Department, received a phone call at his house from a confidential informant. The informant had provided Givens with information in the past and the information had been reliable. Givens had made cases from information received from this informant in the past and convictions had been obtained from this informant.

The informant told Givens that Calhoun and Schartau would be "... together that evening and that they would be making a trip to an area in Wicksburg--unknown--just in the Wicksburg area, and they would be buying dope--marijuana, particularly." (R. 5-6). The informant said that the appellees would leave Coy's Gameroom that night in a maroon El Camino and would return to Coy's after making the buy.

Shortly after the call, Givens and Officer White of the Dothan Police Department, met the informant at the K-Mart parking lot in Dothan. Two other people were present at the meeting at the K-Mart parking lot. One was an unidentified female and the other was Susan Norton, a friend of the informant's and appellee Schartau's wife.

At the meeting in the parking lot, White and Givens remained in their vehicle while the informant talked to them through the window. Givens and White asked the informant if they could make a purchase from the appellees. The informant replied that this was unlikely since the appellees did not know them or might recognize them as narcotics agents.

At this point, a plan was conceived whereby the officers would supply Norton with $40 which she would give to her husband so that he could purchase marijuana for her and deliver it to her at Coy's Gameroom.

Givens and White then returned to the police station. The informant, Norton and the unidentified female also came to the station. There, Givens gave the informant the $40. From this point, there was no further contact between the officers and the informant or Norton until after the arrest of the appellees.

That night, Officers Givens and White drove to Coy's Gameroom and parked. At some point, the maroon El Camino left Coy's. The officers followed this vehicle on Highway 84 around the circle and determined it was going towards Wicksburg. The officers then returned to Coy's and waited until the El Camino returned.

When this vehicle got back to the parking lot of Coy's, the officers approached the vehicle. Officer Givens approached the driver's side of the vehicle, identified himself to the driver, advised him of his information and told the driver to get out of the vehicle. The driver was Calhoun. When Calhoun exited the vehicle, Givens could see two hand-rolled marijuana cigarettes in Calhoun's shirt pocket.

As White approached the passenger side of the vehicle, he saw the passenger (Schartau) shut the glove box. After Schartau got out of the vehicle, White searched Schartau and found a cigarette pack in his shirt pocket with two hand-rolled marijuana cigarettes in it. White further searched the vehicle and found a plastic bag containing plant material in the glove box.

The appellees were then placed under arrest for possession of marijuana.

Anita Skinner also testified at the hearing. She stated that, on the afternoon of February 4, 1985, Norton and a person named Scott Wynn came over to her house. Norton and Wynn were "girlfriend" and "boyfriend". At some point, Skinner accompanied Wynn and Norton to the parking lot of K-Mart. At the parking lot, Officers Givens and White drove up and Norton talked to them.

A while later, she, Norton and Wynn went to the police station. At the station, Officer White gave Norton $40. Skinner heard White and Givens tell Wynn to "stay out of it." (R. 63).


Prior to our discussion of the substantive issue of this appeal, we must first address the appellees' contention that this court does not have jurisdiction over this appeal. Rule 17(a), Alabama Temporary Rules of Criminal Procedure, provides that:

"An appeal may be taken by the state in a felony case to the court of criminal appeals from a pre-trial order of the circuit court (1) suppressing a confession or admission or other evidence, (2) dismissing an indictment, information, or complaint (or any part of an indictment, information, or complaint), or (3) quashing an arrest or search warrant. Such an appeal may be taken only if the district attorney certifies to the court of criminal appeals that the appeal is not brought for the purpose of delay and that the order, if not reversed on appeal, will be fatal to the prosecution of the charge."

(emphasis supplied).

The indictment in this case states that the appellees "...did have in their possession marijuana, a controlled substance, contrary to law, in violation of 20-2-70 of the Code of Alabama." (R. 78). The appellees assert that, since the indictment did not specifically charge a felony (possession for other than personal use), they could be convicted of a misdemeanor (possession for personal use) and this appeal would have been wrongfully taken.

"Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony and, upon conviction, for the first offense may be imprisoned for not less than two nor more than 15 years and, in addition, may be fined not more than $25,000.00; provided, that any person who possesses any marihuana for his personal use only is guilty of a misdemeanor and, upon conviction for the offense, shall be imprisoned in the county jail for not more than one year, and in addition, shall be fined not more than $1,000.00; provided further, that the penalties for the subsequent offenses relating to possession of marihuana shall be the same as specified in the first sentence of this subsection."

Ala.Code, § 20-2-70(a) (1975). (emphasis supplied).

"It is to be noted that possession of marijuana includes the lesser offense of possession of marijuana for personal use (Title 22, § 258(47) only is a misdemeanor offense embraced in a felony charge of possession of marihuana. This inclusion is by operation of law. Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied 294 Ala. 758, 312 So.2d 414."

Coleman v. State, 344 So.2d 1249, 1250 (Ala.Crim.App.1977).

"An indictment charging possession of marijuana includes the lesser offense of possession of marijuana for personal use. Lee v. State, Ala.Cr.App. 350 So.2d 743; Butts v. State, Ala.Cr.App. 346 So.2d 497; Van Nostrand v. State, 56 Ala.App. 141, 319 So.2d 760. An indictment charging possession of marijuana, also, informs a defendant of the nature of the charges against him and fairly apprises him that he is charged with the lesser offense of possession of marijuana for personal use, a misdemeanor. Butts v. State, supra."

Reed v. State, 401 So.2d 131, 139 (Ala.Crim.App.), cert. denied, 401 So.2d 139 (Ala.1981).

"In Barnett v. State, 373 So.2d 1226 (Ala.Cr.App.1979), we stated the following, speaking through Judge Bowen:

"In Alabama, in a prosecution for illegal possession of marijuana, there is a presumption that the possession is for other than personal use. The showing of possession for personal use is a defensive matter and the burden of proving this matter is upon the defendant. Lee v. State, 350 So.2d 743 (Ala.Cr.App.1977); Roberts v. State, 349 So.2d 89, (Ala.Cr.App.), cert. denied, 349 So.2d 94 (Ala.1977); Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). The State need not prove that the possession of marijuana was not for personal use. Corbin v. State, 55 Ala.App. 33, 312 So.2d 604 (1975); Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert....

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