Straughn v. State

• Decision Date: 30 May 2003
• Citation: 876 So.2d 492
• Parties: David F. STRAUGHN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

876 So.2d 492

David F. STRAUGHN v. STATE of Alabama.

CR-01-1378.

Court of Criminal Appeals of Alabama.

May 30, 2003.

Benton H. Persons, Andalusia, for appellant.

William H. Pryor, Jr., atty. gen., and Cedric B. Colvin and J. Thomas Leverette, asst. attys. gen., for appellee.

On Return to Remand and on Application for Rehearing

SHAW, Judge.

The State's application for rehearing on intervening remand is granted. See Bishop v. State, 608 So.2d 345 (Ala.1992). This Court's opinion of February 28, 2003, is withdrawn and the following opinion is substituted therefor.¹

David F. Straughn was convicted of two counts of unlawful possession of marijuana in the first degree, violations of § 13A-12-213(a)(2), Ala.Code 1975,² and of one count of unlawful possession of drug paraphernalia, a violation of § 13A-12-260, Ala.Code 1975. He was sentenced to eight years' imprisonment for each of the possession-of-marijuana convictions and to one year's imprisonment for the possession-of-drug-paraphernalia conviction; the sentences were to run concurrently.

The evidence adduced at trial indicated the following. In April 2000, a member of a hunting club contacted Mark Odom and Jody Scott, who were, at that time, members of the Red Level Police Department, and informed them that he had discovered marijuana plants growing in the woods where he hunted. Investigator Odom went to the area identified by the informant and located a patch of approximately 18 marijuana plants. The plants were in the woods, at the end of a dead-end road. Investigator Odom then decided to set up a video surveillance of the site. Because the Red Level Police Department did not have the equipment necessary to conduct the video surveillance, Investigator Odom contacted the Andalusia Police Department and asked for assistance.

On April 18, 2000, Mike Bowlan, at that time a detective with the Andalusia Police Department, brought two motion-activated video cameras to the area and set them up; one camera was placed near the road leading to the woods where the marijuana plants were located, and the other camera was placed inside the patch of marijuana plants. Two days later, on April 20, 2000, the officers checked the cameras to see if any activity had been recorded. The road-side camera had recorded two white males in a blue Chevrolet pickup truck driving down the road on April 20, 2000, but the camera in the patch had not recorded anything. On May 3, 2000, the officers again checked the cameras. This time, the road-side camera had recorded the same blue Chevrolet pickup truck driving down the road and parking near the woods, and it recorded a man with long hair getting out of the truck and then walking into the woods; several minutes later, the camera recorded the same man walking back to the truck and removing a "turkey hunter's mask" from his head. The camera in the patch had recorded a man wearing a turkey hunter's mask and tall snakeskin boots watering or otherwise tending the marijuana plants. The camera in the patch indicated that the man was tending the marijuana plants at the same time that the road-side camera recorded the same man near the truck.³ Officer Scott testified that when he viewed the videotape of the activity and saw the man removing the turkey hunter's mask from his head, he recognized the man in the video as Straughn, whom he knew personally, and that he recognized the truck in the video as Straughn's because he had previously seen Straughn driving the truck and had seen it parked at Straughn's residence.

On May 4, 2000, Investigator Odom obtained a search warrant for Straughn's residence and property. That same day, he and other officers executed the warrant; they searched Straughn's mobile home, a blue Chevrolet pickup truck belonging to Straughn's wife, Betty, parked outside the home, a greenhouse in the backyard, and the property surrounding the mobile home. Straughn, his wife, and his stepson were present at the time of the search. During the search, the officers discovered, among other things, a wooden smoking device, a Coca-Cola soft-drink can fashioned into a smoking device, numerous firearms, two turkey hunter's masks, a five-gallon bucket similar to the bucket used by the man who had been videotaped tending the marijuana plants in the woods, rolling papers, several containers of Miracle-Gro brand plant food and other chemicals used to enhance plant growth, and several small marijuana plants and seedlings. When the officers executed the search, Straughn was wearing snakeskin boots identical to those the man who had been videotaped at the patch had been wearing; the officers also discovered a hemostat, a device often used to hold a marijuana cigarette, in the front pocket of Straughn's overalls.

Straughn was indicted for two counts of possession of marijuana in the first degree — one count was based on the marijuana patch found in the woods and one count was based on the numerous marijuana plants and seedlings found on his property during the search. He was also indicted for possession of drug paraphernalia based on the various smoking devices found in his mobile home, the hemostat found in his pocket, and the various plant chemicals found on his property. The jury found him guilty on all three counts.

I.

Straughn first contends that the trial court erred in denying his motion to suppress the items seized as a result of the search of his residence and property because, he claims, the affidavit submitted in support of the search warrant contained a false statement and was insufficient to establish a nexus between the marijuana plants in the woods and the items sought to be seized at his residence.

The affidavit submitted by Investigator Odom in support of the search warrant states, in pertinent part:

"My name is Mark Odom and I am an Investigator with the Red Level, Alabama Police Department. During the course of my duties as such, I had a patch of growing marijuana that had been discovered, under surveillance with two video cameras. While videoing this patch, the camera recording the patch recorded a white male, wearing a turkey hunters mask, enter the patch of growing marijuana; and begin to tend the crop of marijuana. I videotaped this event and had another video camera set up along the road where the man's pickup had been parked, and when he returned to his vehicle, it was able to record him removing his mask and I was able to identify the man as David F. Straughn. I observed from the tapes that the truck that he was traveling on was a Chevrolet pickup truck made between 1980 and 1982 and was dark blue in color with white spoke wheels and the hood of the truck was lighter colored than the body of the truck. Myself and other police officers began a surveillance of the aforedescribed residence of David F. Straughn and have observed this same pickup truck parked at that residence.

"Therefore I have reason to believe and do believe that the aforenamed David F. Straughn is concealing in the aforedescribed residence, out-buildings, and vehicle; marijuana and/or the evidence of and/or the implements, tools, and other objects of paraphernalia used in the cultivation of marijuana, which is in violation of the Drug Crimes Amendment Act of 1987."

(C. 113b-113c.)

As for Straughn's contention that the items seized as a result of the warrant should have been suppressed because of an allegedly false statement contained in the affidavit, Investigator Odom did testify at the suppression hearing that he had "never been" to Straughn's residence "prior to ... getting the search warrant." (R. 31.) However, Straughn never argued to the trial court that there was a false statement in the affidavit that somehow invalidated the affidavit and rendered the search illegal, see Ex parte Parker, 858 So.2d 941 (Ala.2003); his only argument to the trial court regarding the sufficiency of the affidavit in support of the search warrant was that it did not establish a sufficient nexus between the marijuana patch and his residence. Therefore, this argument is not properly before this Court for review. See, e.g., C.D.C. v. State, 821 So.2d 1021 (Ala.Crim.App.2001), and Pace v. State, 766 So.2d 201 (Ala.Crim.App.1999).

Moreover, even if this argument were preserved for appellate review, we find no merit to it.⁴ As noted above, Investigator Odom testified at the suppression hearing that "prior to getting the search warrant" he "had never been to the defendant's home." (R. 31.) However, he stated in the affidavit that "[m]yself and other police officers began a surveillance of the aforedescribed residence of David F. Straughn and have observed this same pickup truck parked at that residence." (C. 26.) Although Investigator Odom's two statements appear, on their face, to be contradictory, the language Investigator Odom used does not preclude the possibility that both statements are true. The surveillance to which Investigator Odom referred in his affidavit could have been conducted by other officers, with Investigator Odom acting only in a supervisory capacity and not present during the surveillance. Indeed, nothing in the record, including Investigator Odom's testimony, indicates that no surveillance of Straughn's residence was conducted by any police officer. Investigator Odom's testimony indicates only that he, personally, had never been to Straughn's residence before he obtained the search warrant; that testimony indicates only that Investigator Odom did not personally conduct the surveillance to which he referred in his affidavit. Thus, Investigator Odom's testimony at the suppression hearing that he had never been to Straughn's residence before he obtained the warrant and his statement in the affidavit that he "and other officers began" surveillance of Straughn's residence before he obtained the warrant are not necessarily inconsistent. Although the affidavit could have been better worded, based on the record before us, we are not persuaded...