Williams v. State, 3 Div. 305

• Decision Date: 08 March 1988
• Docket Number: 3 Div. 305
• Parties: Samuel C. WILLIAMS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 881

530 So.2d 881

Samuel C. WILLIAMS v. STATE.

3 Div. 305.

Court of Criminal Appeals of Alabama.

March 8, 1988.

Rehearing Denied April 12, 1988.

Certiorari Denied Aug. 26, 1988

Alabama Supreme Court 87-871.

Maurice S. Bell and David G. Flack, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Samuel C. Williams, was convicted on May 1, 1985, of the offense of trafficking in cocaine, a controlled substance, in violation of § 20-2-80(2)(a), Code of Alabama 1975. He was sentenced to 25 years' imprisonment and fined $50,000. He appeals, raising ten issues.

I

Appellant contends that the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant because, he says, the warrant was issued without probable cause and was based upon an affidavit which the affiant "knew was false or would have known was false except for a reckless disregard of the truth."

The search warrant in the instant case was sought as a result of three so-called "controlled drug buys" from appellant. The state's evidence showed that in January 1985, a person referred to as "Informer A" was given $300 by the police officers and sent to appellant's residence to buy a quantity of cocaine. The informer entered the residence and returned with the cocaine. This procedure was successfully repeated twice by the same informant in February, the last buy being within 72 hours of the issuance of the warrant. On each occasion, the officers observed the informer enter the residence and return with the cocaine. On each occasion, the informer reported that he had observed cocaine on the premises and had purchased cocaine from appellant. The informer was considered reliable, having furnished information on several prior occasions which resulted in five arrests and one conviction for drug violations. With this information, the officers obtained a day-time search warrant to search appellant's residence, outbuildings, and all automobiles within the curtilage, for the following: "Cocaine and/or any mixture, compounds, or substance containing cocaine and all other controlled substances. Also to include all notes and records relating to drug activity."

The search was conducted pursuant to the warrant, and the officers discovered and seized cocaine from appellant's trousers pocket; cocaine from a kitchen cabinet; a plastic straw and residue from the kitchen table; inositol; a razor blade; aluminum foil; plastic bags; "triple-beam" and "Y-line" scales; 24 aluminum foil packages containing cocaine, found in a bottle taken from under appellant's house; a .38-caliber pistol; some "pills"; and $1,245 cash from appellant's trousers pocket, of which $250 had been marked and used in one of the "controlled buys." The total weight of the cocaine seized was 38.8 grams. The cocaine contained inositol.

Appellant testified at the suppression hearing and denied any knowledge of the cocaine, the informer, or the $250 found in his trousers pocket which had been used in one of the "controlled buys." It can be inferred from defense counsel's cross-examination of prosecution witnesses and from appellant's testimony at the suppression hearing that the thrust of appellant's defense is that he was the victim of police harassment and that the money used in a controlled buy and the cocaine found on his premises were planted by the police, the informant, or both.

When called upon to issue a search warrant, the task of the issuing magistrate is 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 the person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). And the duty of a reviewing court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Id.; McCray v. State, 501 So.2d 532 (Ala.Cr.App.1986), cert. denied, 501 So.2d 532 (Ala.1987).

The so-called "two-pronged test," derived from the decisions of the United States Supreme Court 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), i.e., whether the basis of knowledge of the informer was revealed and the veracity or reliability of the informer sufficiently established, was abandoned in Illinois v. Gates, in favor of the "totality-of-the-circumstances analysis that traditionally has informed probable cause determinations." Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The Court stated in Gates that an informant's veracity, reliability, and basis of knowledge are highly relevant in determining the value of the informant's report, but that these elements are not to be considered as entirely separate and independent requirements to be rigidly exacted in every case. The Court explained that they should be considered as intertwined issues that may be useful in determining whether there is probable cause to believe that contraband or evidence is located in a particular place. A magistrate's "determination of probable cause should be paid great deference by reviewing courts." Id. at 236, 103 S.Ct. at 2331 (quoting from Spinelli v. United States, 393 U.S. at 419, 89 S.Ct. at 590-91).

The issuance of the search warrant in the instant case did not depend entirely upon the information furnished by the informant. The informant's information was partly corroborated. Here, the informant had cooperated closely with the police by making the controlled purchases. The police corroboration is a coordinate and intrinsic part of the informant's operation, which lessens the likelihood that the information is false. Where an informer works in tandem with a law officer, the law officer continually observing the informer, the reports of the informer may be deemed credible even where certain material aspects of the informer's activities are without the officer's personal knowledge or observation. People v. Exline, 98 Ill.2d 150, 74 Ill.Dec. 610, 456 N.E.2d 112 (1983). State v. Gamage, 340 A.2d 1 (Me.1975); 1 W. LaFave, Search and Seizure § 3.3(f) (2d ed. 1987). Here, the informant was searched each time before he entered appellant's residence to make a buy and again immediately after he left the residence. He was under the constant surveillance of the police except for the time he was actually inside the residence. This was sufficient corroboration, at least, to provide, in part, a factual basis for the magistrate's conclusion that the informant was credible and his information reliable. The three controlled purchases so decreased the opportunity for falsehood as to provide the requisite indicia of reliability. See United States v. Rodgers, 732 F.2d 625 (8th Cir.1984); Dannelley v. State, 397 So.2d 555 (Ala.Cr.App.), cert. denied, 397 So.2d 577 (Ala.1981); People v. Exline.

Accordingly, in applying the totality-of-the-circumstances test in the case sub judice, we find that the affidavit was sufficient to support a finding of probable cause for the issuance of the search warrant. We further find that the search warrant, the affidavit, and the manner in which the search warrant was issued and executed were proper and met the requirements of § 15-5-13, et seq., Code of Alabama 1975. Finally, appellant's claim that the affiant knowingly and intentionally made false statements or made such with reckless disregard for the truth is unsupported by the evidence. The trial court properly denied the motion to suppress.

II

Appellant contends that the court committed reversible error in denying his motion to "strike the jury venire and to order a new jury venire after the state struck all those of the black race from the jury." He relies on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), which, inter alia, holds that a state denies a black defendant equal protection of the law when it puts him on trial before a jury from which members of his race have been purposely excluded on account of race.

An objection to an alleged Batson violation must be timely. Timeliness in this instance would indicate that the objection should be made early enough to give the trial court sufficient time to take corrective action without causing undue delay if it deemed action necessary. We have held that the proper time to raise such an objection is after the peremptory strikes have been made, but prior to the jury's being sworn. Kemp v. State, 516 So.2d 848 (Ala.Cr.App.1987); Raines v. State, 515 So.2d 82 (Ala.Cr.App.1987); Thornton v. State, 513 So.2d 83 (Ala.Cr.App.1987); Swain v. State, 504 So.2d 347 (Ala.Cr.App.1987). In Swain, 504 So.2d at 349, we quoted with approval Williams v. State, 712 S.W.2d 835 (Tex.Dist.Ct.App.1986), where the court held: "In light of Batson, the proper time to raise such an objection was after the peremptory strikes had been made, but prior to the jury being sworn." The Fifth Circuit Court of Appeals addressed this issue in United States v. Erwin, 793 F.2d 656 (5th Cir.), cert. denied, 479 U.S. 991, 107 S.Ct. 589, 93 L.Ed.2d 590 (1986). In Erwin, the defendants waited a week after the jury was selected before moving to strike the panel. The jury had not yet been empaneled, the trial was about to begin, and all the unselected veniremen had been released. The Erwin court, in holding the motion untimely, stated: "The Court in Batson envisioned that a motion to strike would be made promptly, probably before the venire was dismissed. See [476 U.S. 79], at [99-100] & n. 24, 106 S.Ct. [1712] at 1724 & n. 24." 793 F.2d at 667. In so holding, the court placed emphasis on the difficulties such untimeliness would cause the court and the great delay in starting the trial if a new venire had to...