State v. Moran

• Decision Date: 12 January 2001
• Citation: 791 So.2d 1065
• Parties: STATE v. Joseph Brannon MORAN.
• Court: Alabama Court of Criminal Appeals

791 So.2d 1065

STATE v. Joseph Brannon MORAN.

CR-99-0328.

Court of Criminal Appeals of Alabama.

January 12, 2001.

Bill Pryor, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellant.

Derek W. Simpson, Huntsville, for appellee.

LONG, Presiding Judge.

The State of Alabama appeals from the trial court's order granting Joseph Brannon Moran's motion to suppress evidence of marijuana seized when police officers executed an anticipatory search warrant at Moran's residence.

At the suppression hearing, the State presented testimony from Greg Lott, a narcotics investigator employed by the Athens Police Department and assigned to the Limestone County drug task force. Investigator Lott testified that toward the end of February 1999, a confidential informant, who Lott said had provided him with reliable information several times in the past, informed him that he was about to drive to the Texas/Mexico border with Julio Arispe to purchase a large quantity of marijuana for Moran. Investigator Lott told the informant to notify him as soon as he returned to Limestone County with the marijuana. On the morning of March 2, 1999, the informant paged Investigator Lott. During a subsequent telephone conversation, the informant told Investigator Lott that he and Julio Arispe had returned from Texas at approximately 4:00 a.m. that morning with approximately 15 pounds of marijuana. The informant stated that he would contact Investigator Lott later regarding the details of the delivery of the marijuana to Moran. Later that morning, the informant again paged Investigator Lott. Investigator Lott telephoned the informant and the informant told him that he and Julio Arispe would be driving from the Clinton Village Apartments in Athens to Moran's residence in Tanner at approximately 11:00 a.m. that morning. The informant stated that they would be delivering approximately 10 pounds of marijuana to Moran at that time.

After receiving the information regarding the delivery of marijuana to Moran's residence, Investigator Lott secured an anticipatory search warrant for Moran's residence. Investigator Lott submitted the following affidavit to Judge Woodroof of the Limestone County Circuit Court to obtain the warrant:

"On this date, March 2, 1999, I spoke with a confidential and reliable informant who has given information in the past [that] has proven to be true and correct and led to narcotics cases being made. The informant stated he/she has been to Texas with a hispanic male known to the informant as Julio Arispe. While in Texas, Julio Arispe bought ten pounds of marijuana and drove back to Clinton Village Apartments, Athens, Alabama, this morning at 4:00 a.m. At approximately 11:00 a.m., the informant, along with Julio Arispe, will leave the apartments in route to 11837 Stewart Road, Tanner, Alabama, to deliver approximately 10 pounds of marijuana to a [white male] known to the informant as Brandon [sic] Moran. The Limestone County Sheriff's Department, Athens Police Department, and the Drug Task Force [have] received several complaints on Brandon [sic] Moran and the above mentioned residence for the sale of marijuana.

"Based on the above information, I have probable cause to believe and do believe that marijuana to-wit: controlled substance, will be located at the above mentioned residence when the delivery takes place, in violation of the laws of the State of Alabama."

(C. 19.) The search warrant, which was signed by Judge Woodroof at 10:40 a.m. on March 2, 1999, read, in pertinent part:

"The attached affidavit having been sworn to by the affiant, Investigator Greg Lott, before me this day, based upon the facts stated therein, probable cause having been found, in the name of the People of the State of Alabama, I command you to enter during the day or night, the following prescribed place: 11837 Stewart Road, Tanner, Alabama, to search for, seize, secure, tabulate and make return according to the law the following property and things: marijuana, paraphernalia, U.S. currency, records and/or any evidence relative to the sale or possession of controlled substances."

(C. 20.) Investigator Lott testified that when he applied for the search warrant, he informed Judge Woodroof that as soon as the warrant was issued he was going to Moran's residence to wait for the expected delivery. Investigator Lott also informed Judge Woodroof that he would execute the search warrant immediately following the delivery of the marijuana and that if a delivery did not occur within a certain amount of time, he would not execute the warrant. Investigator Lott testified that he understood that the search warrant was anticipatory and that it was conditioned upon the delivery of marijuana to Moran's residence and that the warrant would be void if the delivery did not occur.

After the search warrant was issued, Investigator Lott went to Moran's residence. Investigator Lott testified that his informant and Julio Arispe arrived at the residence as expected and that he watched the informant and Arispe deliver a package to Moran. A few minutes after the informant and Arispe left Moran's residence, Investigator Lott said, he served the search warrant on Moran. During the search of Moran's residence, Investigator Lott seized $950 in cash, a pump shotgun, and one and a half pounds of marijuana. Later that same day, Investigator Lott said, he served another warrant on the residence of Julio Arispe and there he seized 12½ pounds of marijuana.

At the suppression hearing, Moran argued that the anticipatory search warrant obtained by Investigator Lott was invalid because, Moran said, the "triggering event" or condition precedent to the execution of the warrant—i.e., the delivery of marijuana to Moran's residence—was not included on the face of the warrant. In addition, Moran argued that the warrant was overbroad in that it allowed Investigator Lott to search for, and to seize, United States currency, drug paraphernalia, and any records or evidence relating to the sale or possession of marijuana when, Moran argued, there was no probable cause to search for anything other than marijuana.

In its written order granting Moran's motion to suppress, the trial court found that although the search warrant was not overbroad regarding the items that could be seized, the warrant was nevertheless invalid because, the court found, it "fail[ed] to provide any conditions governing the execution of the warrant." (C. 24.) Specifically, the court found that "the search warrant in this case should have provided that the warrant may be executed upon the condition of marijuana being delivered to the premises." (C. 24.)

The State contends that in granting Moran's motion to suppress, the trial court erroneously concluded that the condition precedent to the execution of an anticipatory search warrant must be stated on the face of the warrant. The State argues that such a ruling is too narrow and that an anticipatory warrant should be valid so long as the condition precedent is contained in the affidavit submitted in support of the warrant and the condition occurs before the warrant is executed. We agree.

Anticipatory search warrants, in general, are only relatively recently valid in the State of Alabama. In Ex parte Oswalt, 686 So.2d 368 (Ala.1996), and in Ex parte Wright, 709 So.2d 1111 (Ala.1996), the Alabama Supreme Court held that although anticipatory search warrants were not per se unconstitutional, they were not authorized under Rule 3.8, Ala.R.Crim.P., as that rule read when those cases were decided. The Court, however, recommended that the Advisory Committee for the Alabama Rules of Criminal Procedure redraft Rule 3.8, Ala.R.Crim.P., to permit anticipatory warrants. The committee followed the Court's advice, and effective December 1, 1997, Rule 3.8 was amended specifically to allow for anticipatory search warrants. Since that amendment, neither this court nor the Alabama Supreme Court has had the opportunity to address the requirements for a valid anticipatory search warrant. We do so now.

The trial court, in granting Moran's motion to suppress, recognized that anticipatory search warrants are valid in Alabama, but concluded that the warrant in this case was not valid because the condition precedent to its execution was not stated on the face of the warrant. The court's decision was based on United States v. Garcia, 882 F.2d 699 (2d Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989), a case which this Court and the Alabama Supreme Court have cited with approval, and which the Committee Comments to the amended version of Rule 3.8 also cite.

In Garcia, the United States Court of Appeals for the Second Circuit held that anticipatory search warrants are not per se unconstitutional, reasoning that "when a government official presents independent evidence indicating that delivery of contraband will, or is likely to, occur, and when the magistrate conditions the warrant on that delivery, there is sufficient probable cause to uphold the warrant." 882 F.2d at 702. The Court, however, recognized that warrants conditioned on future events present some potential for abuse and added, in dicta, that "when an anticipatory warrant is used, the magistrate should protect against its premature execution by listing in the warrant conditions governing the execution which are explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents." Id. at 703-04. This statement in Garcia—purportedly requiring the condition precedent to be stated on the face of the warrant—is clearly the basis for the trial court's ruling in this case.

However, the central issue in Garcia was whether anticipatory search warrants were constitutional, not whether those warrants must include, on their face, the conditions precedent to their execution. The statement in Garcia that the trial court here relied on in holding that the anticipatory warrant...