Walker v. State
| Decision Date | 06 February 1973 |
| Parties | William A. WALKER v. STATE. 3. Div. 183. |
| Court | Alabama Court of Criminal Appeals |
L. H. Walden, Montgomery, for appellant.
William J. Baxley, Atty. Gen. and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Walker appeals from a judgment of conviction for the unlawful possession of heroin for which he was sentenced to a term of fifteen (15) years in the penitentiary. The only evidence came from a search.
The appeal was argued and submitted in this Court on December 12, 1972.
This case was originally assigned to another ojudge, who prepared an opinion, but it was not accepted by the majority.
We are pressed for a reversal on the contention that the affidavit upon which the search warrant is based was invalid. There are other matters raised on this appeal but in our view, it is unnecessary to deal with any of the issues except the validity of the affidavit.
The affidavit reads:
'Before Me, Honorable D. Eugene Loe, Judge, Municipal Court, City of Montgomery, Alabama, the undersigned being duly sworn deposes and says:
'That he has reason to believe that in the residence of William Walker, 1029 Apt. H, Day Street Road, Montgomery, Alabama, there is being kept and sold a large amount of Heroin in Violation of the Alabama Control Substance Act, Schedule 1.
'And that the facts tending to establish the foregoing ground for issuance of a search warrant are as follows:
'William Walker has been known to this office as a dealer and user of Heroin in the past.
'Informer A has been reliable in the past in that he has called affiant Alford on or about September 24, 1971 and stated that Farris Lawrence was in possession of a large amount of Heroin. Farris Lawrence was arrested that same day and charged with possession of Heroin. Her case is in this term of Circuit Court. Informer A called affiant Alford on September 25, 1971 and stated that Mack Pettway had a large amount of Heroin in his home. After a search of Pettway's home he was charged with possession of Heroin. His case is in this term of Circuit Court.
'The foregoing information is based upon personal information which has been obtained by affiant Alford.
'S/ E. B. ALFORD
E. B. Alford
Vice and Narcotics
Montgomery, Alabama
Police Dept.
'Sworn to before me this 6th day of November, 1971.
Alabama'
We hold that the affidavit does not meet one of the prongs of the 'two prong test' of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; and other cases from this court and the Supreme Court of Alabama.
The affidavit condemned in Davis v. State, 46 Ala.App. 45, 237 So.2d 635, is much stronger factually that the affidavit in the instant case. The main defect in the present affidavit is that it is a 'past tense' affidavit. It states that the informer told affiant by telephone that he 'had observed' a large quantity of heroin being used and sold from the premises described. 'Had observed' could have been any time in the past. The informer did not tell the officer-affiant the date or time he allegedly observed the narcotics on the premises. There is nothing in the affidavit which hints of time except the use of the past tense in connection with the informant's telephone report to affiant.
As the United States Court of Appeals, First Circuit, in Rosencranz v. United States, 356 F.2d 310, said:
'This brings us to the most serious defect in the affidavit--the absence of any averment as to the time when the affiant received information from his anonymous informant or as to the time when affiant detected the odor of mash. Nor is there anything in the affidavit which hints of time except the use of the present tense in connection with the informant's report to affiant.
'(13) There is little question but that, before Ventresca, supra (United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684), this defect would have been fatal. We summarize the authorities in the margin. 3
The very fact that there are not more cases involving affidavits without an averment of time of observation may be taken as evidence of the wide acceptance by public officers and magistrates of this requirement.
'* * * It is one thing to expect the magistrate to give a commonsense reading to facts set forth and to draw inferences from them. It is quite another thing to expect the magistrate to reach for external facts and to build inference upon inference in order to create a reasonable basis for his belief that a crime is presently being committed.
'(16) If the magistrate must observe certain minimum requirements, so must the officer-affiant. He must set forth the basis for the magistrate's inferences with enough precision so that, if the affidavit is subjected to an attack for lack of probable cause at a subsequent hearing, the trial judge will be ruling on the reasonableness of inferences based on the same underlying circumstances as confronted the commissioner. But suppose a commissioner, on the basis of an affidavit like that in this case, were to infer that both affiant's information and observation were recent, while at a hearing on a motion to suppress, affiant states that both information and observation were several months old. There would, in fact, have been no basis for issuing the warrant, and yet the affidavit would have been accurate and the affiant would be in no danger of prosecution for its falsity. To create the possibility of ancient information parading beneath the protective mask of a bland, 'present tense' warrant would not, in our opinion, be in the interest of proper law enforcement or justice.
'We conclude that a combination of undated, conclusory information from an anonymous source and an undated general allegation of personal observation by the affiant, with no other reasonably specific clues to the time of their happening, is inadequate. We do not think this is being hypertechnical, legalistic, or insistent on a requirement of
We realize, of course, that this court is not bound by the decisions of any Federal court other than the Supreme Court of the United States, but we agree with what Mr. Justice Lawson said in Thomas v. State, 277 Ala. 570, 173 So.2d 111:
'It might be said that this court is not bound to follow federal courts on federal questions except the Supreme Court of the United States, but to ignore the consistent holdings of those courts (on this question), which holdings have not been disturbed by the Supreme Court of the United States although efforts have been made to have it overturn those holdings, can only lead to further delay in bringing about the punishment of those guilty of violating the laws of this state.'
In treating affidavits based upon information furnished by an unidentified informer, the Supreme Court of Alabama in Clenney v. State, 281 Ala. 9, 198 So.2d 293, said,
'* * * We do not think, however, that hearsay alone can be sufficient basis for a warrant.
On Oliver v. State, 46 Ala.App. 118, 238 So.2d 916, the affidavit, per se, was determined to be insufficient, but when supported and aided by oral testimony, the deficiency was cured and met the time test of both Federal and State decisions. In Oliver, the testimony was:
'A. I was present, Detective Swindal was present, and I don't recall for sure about the other two, and another officer named Barnard Dunlap was present.
'Q. All right, sir. I want you to tell the Court, if you will, Dectective Jones, what if anything you told to Lieutenant Wilson, the issuing magistrate with respect to why you wanted a warrant?
'A. I told him that Officer Dunlap had been to 1036 9th Avenue South.
'Q. Did you tell him when he had been there?
'A. That night.
'Q. All right.
'
The informer's tip in the instant case was not sufficient to provide the basis for a finding of probable cause to meet the vagueness of the time element alluded to in Davis v. State, supra. It needed some further support which might have been forthcoming with a little more interrogation permitting 'the suspicious engendered by the informant's report to ripen into a judgment that a crime was probably being committed. * * *' This affidavit is 'deficient because it fails to show that the information received from the informant was fresh as opposed to being remote'. Ex parte State of Alabama ex rel (Horace E. Davis v. State), 286 Ala. 117, 237 So.2d 640.
The fifth paragraph of the affidavit does not embellish or buttress the fourth paragraph as to the time element. The informer's report does not say When,...
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