Walker v. State

• Decision Date: 23 October 1984
• Docket Number: 4 Div. 341
• Citation: 462 So.2d 794
• Parties: Luke WALKER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 794

462 So.2d 794

Luke WALKER v. STATE.

4 Div. 341.

Court of Criminal Appeals of Alabama.

Oct. 23, 1984.

Rehearing Denied Nov. 27, 1984.

Certiorari Denied Jan. 25, 1985

Alabama Supreme Court 84-273.

John M. Gruenewald, Dothan, for appellant.

Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Luke Walker was indicted and convicted for the third degree burglary of Clark's Grocery near Circle, Alabama. Alabama Code 1975, § 13A-7-7. Sentence was seven years' imprisonment. On appeal, Walker argues that the affidavit in support of the warrant authorizing the search of his house was insufficient and does not support a finding of probable cause.

The search warrant was issued by the Circuit Court of Jackson County, Florida. The affidavit in support of that warrant states:

"Your affiant is J.J. McCrary, a Deputy Sheriff, Jackson County, Florida and has been for the past twenty (20) years. Within the past fifteen (15) days your affiant has met with a confidential informant, on three (3) different occasions, who wishes his identity to be kept concealed regarding this matter. The confidential informant has given reliable information on more than one (1) occasion, that has proven to be correct. The confidential informant has related to your affiant that, in the within described house belonging to and occupied by L.W. Walker and Minnie Lois Lewis, is a kerosun heater and a Sanyo microwave oven that L.W. Walker has told informant on more than one (1) occasion that he (L.W. Walker) took from John Francis' Beer Joint. L.W. Walker has bragged about taking money from the machines and beer from the Beer Joint. A Burglary occurred the night of January 6, 1983 at John Francis Ward's Beer Joint, a Kerosun Heater and Sanyo microwave oven was missing from the establishment. The coin machines were burglarized and some beer was missing."

Walker contends that the affidavit is defective because the informant did not state how he knew that the stolen property was located in Walker's residence. He argues that the affidavit does not satisfy the basis-of-knowledge prong of the test established in 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).

The basis-of-knowledge prong requires the disclosure of the underlying circumstances necessary to establish the validity of the informant's conclusion that the stolen property was where he said it was. Spinelli, 393 U.S. at 413, 89 S.Ct. at 587. The State argues that that prong is satisfied in this case because the informant states that Walker had told him on more than one occasion that Walker had taken the heater and microwave oven from the Beer Joint. However, there is no direct or specific information indicating how the informant knows that the stolen property is inside Walker's residence.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court reaffirmed the "totality of the circumstances analysis that traditionally has informed probable cause determinations." 103 S.Ct. at 2332. The Court found that "the 'two-pronged test' has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate." 103 S.Ct. at 2330.

Gates advocates a "practical common-sense" approach to the issue of probable cause.

"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. And the duty of a reviewing cour...