Warren v. State

• Decision Date: 13 March 1973
• Docket Number: 1 Div. 328
• Citation: 288 So.2d 817,52 Ala.App. 35
• Parties: Patrick WARREN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 817

288 So.2d 817

52 Ala.App. 35

Patrick WARREN v. STATE.

1 Div. 328.

Court of Criminal Appeals of Alabama.

March 13, 1973.

Rehearing Denied May 1, 1973.

Thomas M. Haas, Mobile, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant, Patrick Warren, was tried and convicted in Baldwin County Circuit Court for selling marihuana in violation of the Alabama Uniform Controlled Substances Act. ¹ Punishment was fixed at four (4) years imprisonment in the penitentiary by the court.

Briefly, the facts of this case necessary for consideration on appeal are as follows: Appellant was indicted for selling marihuana to H. E. Mitchell, an undercover agent for the Alabama Department of Public Safety. The sale, according to Mitchell, occurred on September 18, 1971, at the residence of appellant Warren in Fairhope, Alabama, in the presence of Warren's younger brother, Timothy. Mitchell testified that he paid appellant five dollars for a 'two cent match box' full of marihuana, which had been emptied from a plastic bag into the box by appellant. Agent Mitchell further testified that the bag was brought into the house by appellant's younger brother from an automobile at appellant's request. However, appellant's brother testified that no sale of any kind took place while Mitchell was visiting his brother and that he did not go outside and get any marihuana.

Testifying for the State, Dr. Nelson Grubbs, a state toxicologist, stated that he received a match box containing plant material from state investigator C. H. Webber on September 21, 1971. Earlier Webber had testified that the match box was delivered to him by agent Mitchell on September 18, 1971, and was in substantially the same condition when he gave it to Dr. Grubbs. Dr. Grubbs, who was qualified as an expert witness, stated that following an analysis of the substance he determined it to be marihuana.

Prior to the trial in chief, appellant filed numerous motions which were all denied by the trial court. In pursuing this appeal, appellant argues that the trial court erred in overruling certain of these motions. On the motion of appellant's counsel to suppress the state's evidence, the trial court excluded the jury and conducted a full hearing on the issues concerning the admissibility of the state's evidence. Among the grounds which appellant asserted were illegal search and seizure; invasion of the right to privacy; that the evidence was obtained by fraud, deceit and trickery by the state's agent; and that the evidence was unlawful in that it was obtained by entrapment. In support of his motion to suppress, appellant Warren called investigator Webber, along with two friends of the appellant. From the record, it is readily apparent that appellant's counsel was attempting to show illegal entrapment on the part of agent Mitchell. In response to a question, agent Mitchell described the sale as follows:

'I had been assigned here on an undercover operation to try to buy drugs from folks trafficing in drugs in the Fairhope area. On that occasion I went to his residence and knocked on the door and his younger brother admitted me inside the house and said Pat was taking a shower and would be out shortly, and I went in and waited and when Patrick came out I asked him if he had any grass, and he said he had a 'lid' in the car and would sell me a match box of it, and he told his younger brother to go out and bring it in, and he did so and he emptied the matches out of a match box and helped the younger brother fill it with marijuana and handed it to me and I gave him $5.00 for it.'

Mitchell further stated that while working in the Fairhope area, he was accompanied by a young resident of that area, however, he (Mitchell) did not know the young man's name but only that the young man was to help him make 'buys'. According to the two witnesses called by the appellant Mitchell made an unsuccessful attempt to purchase marihuana in the Fairhope Bay area from Warren in August, 1971, in their presence.

There was no error in overruling the motion to suppress. Clearly, there was no 'search' of which appellant could complain. Nor was there any 'invasion of privacy' as agent Mitchell was Invited into appellant's residence by his younger brother. Likewise, the marihuana was not rendered inadmissible because of any 'unreasonable' seizure perpetrated by 'fraud, deceit, and trickery'. Since all the evidence adduced by appellant showed no sale took place under any circumstances, could there have been entrapment? Nevertheless, the trial court submitted the issue of entrapment to the jury for its consideration.

Prior to the trial, appellant challenged the constitutionality of the Alabama Uniform Controlled Subatances Act (hereinafter referred to as Controlled Substances Act) by filing a motion to dismiss the indictment. Appellant's motion was overruled by the trial court and now, appellant in his brief renews his attack upon the statute under which he was later convicted. Appellant contends that the statute is unconstitutional because it 'arbitrarily classifies marihuana with hard narcotics'. Appellant further maintains that the Controlled Substances Act is unconstitutional because it is violative of Article 4, Section 45 of the Alabama Constitution.

Generally, a state, in the exercise of its police power, may regulate the administration, sale, possession, and use of narcotic drugs. See cases in 25 Am.Jur.2d, 'Drugs, Narcotics, and Poisons', § 17 Page 294. Obviously, it was the intent of our legislature to prevent drug abuse, control drug possession, and generally standardize Alabama's drug laws in enacting the Controlled Substances Act. ² Unless the inclusion of marihuana with other drugs is so arbitrary or unreasonable in that it is not related to a rational public purpose, there is no denial of equal protection under the Fourteenth Amendment to the United States Constitution. Because there are no pertinent Alabama cases on this point, we turn to cases of our sister jurisdictions. Appellant, in his brief, directs us to two cases which he contends should be controlling in the instant case. In People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407 (1971), the Illinois Supreme Court held that the classification of marihuana in Illinois' Narcotic Drug Act, which provided for a mandatory ten-year minimum sentence, rather than in the Drug Abuse Control Act, which provided for a maximum sentence of one year upon initial conviction, was arbitrary and denied equal protection. The McCabe decision is clearly distinguishable from the case before this court and hence is inapplicable. In McCabe, there were two separate statutes involved with no rational basis for classifying marihuana with the 'hard' narcotics rather than with 'stimulant or depressant' drugs. Further, there is a gross disparity between the penalties under the two statutes. Here, we have no question concerning the arbitrary classification of 'soft' drugs in one statute and the classification of 'hard' drugs in yet another. Nor is there any different penalty imposed for the sale of any of the proscribed drugs under the Alabama statute. ³

Appellant's brief also refers this court to a 1972 Michigan case, People v. Lorentzen, 387 Michigan 167, 194 N.W.2d 827. After analysis of Lorentzen, it is apparent that it too, is without application in the instant case. In Lorentzen, the Michigan Supreme Court ruled that a minimum penalty of twenty (20) years imprisonment for selling marihuana violated the United States and Michigan Constitutions' provisions against cruel and unusual punishment.

Our research indicates that the McCabe view is apparently the minority one. Several of our sister states have expressly rejected the approach taken in McCabe, supra. Recently, in Renya v. State, 434 S.W.2d 362, the Texas Criminal Court of Appeals held that the inclusion of marihuana in the same category as other addicting drugs more potent in destructive potential was not a violation of equal protection or due process of law under the Texas and United States Constitutions. The Renya decision also reviews the relevant cases from other states on this point. Among these cases are, People v. Stark, 157 Colo. 59, 400 P.2d 923; Spence v. Sacks, 173 Ohio St. 419, 183 N.E.2d 363; State v. Page, 395 S.W.2d 146 (Mo); Jenkins v. State, 215 Md. 70, 137 A.2d 115; People v. Mistriel, 110 Cal.App.2d 110, 241 P.2d 1050. Other recent state decisions on this point are Willoughby v. State, 481 S.W.2d 893 (Tex.Cr.App.); Finklea v. State, 481 S.W.2d 889 (Tex.Cr.App.); Hunter v. State, 481 S.W.2d 806 (Tex.Cr.App.); Sanders v. State, 482 S.W.2d 648 (Tex.Cr.App.); State ex rel. Scott v. Conaty, 187 S.E.2d 119 (W.Va.Sp.Ct. of App.); Borras v. State, 229 So.2d 244 (Fla.1969); Raines v. State, 225 So.2d 330 (Fla.1969); State v. Kantner, 493 P.2d 306 (Haw.).

Another important factor for consideration is the plainly evident absence of any evidence vis-a -vis the invalidity of the classification of marihuana with other drugs. Appellant attacked the constitutionality of the Controlled Substances Act in his pretrial motion to dismiss the indictment; however, at the trial he presented no evidence concerning the invalidity of the classification. Determining whether a statutory classification is valid when placed in juxtaposition with the requirements of equal protection of our state and federal constitutions requires that the statute be clothed with a presumption of constitutional validity. And, consequently, the burden of showing that such classification is invalid rests on the party challenging the statutory scheme. Alabama Digest, Constitutional Law, k48; Wilkey v. State ex rel. Smith, 244 Ala. 568, 14 So.2d 536, cert. denied 320 U.S. 787, 64 S.Ct. 195, 88 L.Ed. 473; Al Means, Inc. v. City of Montgomery, 268 Ala. 31, 104 So.2d 816.

Suffice it to say there is a great disparity of opinion as to the ills and effects...