This is аn appeal by James Arthur Day of his conviction for trafficking in cannabis, in violation of §
The record indicates that Walter Price, a deputy sheriff in Morgan County, observed appellant, who was a suspected drug dealer, driving a black Mercury Cougar аutomobile in Decatur, Alabama. Appellant pulled his car off to the side of the road, as did the driver of a pickup truck that appeared to be following appellant's car. Appellant and the driver of the truck got out of their vehicles and met at the rear of appellant's car. The driver of the truck, who was later determined to be Bruce Adams, was carrying a satchel. The two men opened the trunk of appellant's car, and Deputy Price observed Adams place the satchel into the trunk. After a few seconds of "shuffling around," Adams removed the satchel and the two men departed.
Deputy Price followed Adams's truck and advised Officer Keith Russell, by radio, to stop the truck, which he did. A search of the truck revealеd a briefcase containing two plastic bags of marijuana. Adams and a passenger in the truck, Shannon Cobb, were arrested.
After questioning Adams, Deputy Price instructed Officer Hudson to keep appellant's vehicle under surveillance while he obtained a search warrant. Officer Hudson proceeded to appellant's residence, where he observed his сar. After about 30 minutes, appellant emerged from his residence and drove off. Officer Hudson informed Deputy Price that appellant was leaving and, a short time later, Officer Hudson stopped appellant's car. Officer Hudson asked appellant if he could search his car, and appellant responded by asking whether he had a warrant. After Officer Hudson informed him that Deputy Price was in the process of obtaining one, appellant said that "there would be no need to do that" and that he could "go ahead and look." Hudson discovered a duffel bag, in *412 the trunk of the car, containing four bags of what was later determined to be marijuana. As a result of this discovery, appellant was arrested and ultimately convicted of trafficking in cannabis; he now appeals from that conviction.
During the trial of this case, the state called Martha Odom, a forensic drug chemist with the Alabama Department of Forensic Sciences, to testify to the identity and weight of the material found in appellant's possession. Odom stated that she weighed the entire quantity of material in the four bags and that its total weight was 3.9 pounds. Odom explained the manner in which she pеrformed various analyses on the material and further testified that, as a result of these analyses, she determined that "[e]ach of the four bags contained marijuana."
Appellant contends that Odom's statement, "Each of the four bags contained marijuana," was insufficient to prove that the quantity of marijuana contained within the 3.9 pounds of plant material was in excess of 2.2 pounds. We disagree. "Marijuana" is defined by §
"All parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Such term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of germination."
When a defendant is being prosecuted for trafficking in marijuana, pursuаnt to §
In the instant case, Odom testified that the bags she received "contained almost exclusively . . . flowering tops." She further stated that there were stems in the material weighed, but nothing she would "really call stalks." InDickerson, the expert also testified that the plant material weighed contained stems.
Therefore, the question before us is whether the flowering tops and the branches *413
of the cannabis plant fall within the exclusion clause of §
Appellant relies on this court's holding in Mulhern v. State, supra, as support for his argument that Odom's statement, "Each of the four bags contained marijuana," was insufficient to prove that the amount of marijuana contained in the material weighed was in excess of 2.2 pounds. In Mulhern, the defendаnt's conviction for trafficking was reversed because the state's evidence, establishing the weight of the marijuana possessed, consisted of a lab report which revealed only the weight of the plant material and did not provide the actual weight of the marijuana contained in the plant material. However, in the instant case, the evidence clearly еstablished, as noted above, that the only thing contained in the bags was marijuana, as that term is defined in §
Therefore, in light of the conclusion, from the totality of the facts, that the material weighed was exclusively marijuana, Odom's testimony that the total weight was 3.9 pounds was sufficient to prove that appellant was in possession of more than 2.2 pounds of marijuana.
The bulk of appellant's argument on this issue concerns the validity and admissibility of his alleged consent given to Officer Hudson, allowing him to search appellant's car. However, because of this court's finding, as discussed below, that there was prоbable cause under the circumstances to authorize a warrantless search, determination of this issue of consent is not necessary in this case.
As a general rule, warrantless searches are per se
unreasonable as being violative of the Fourth Amendment. Youtzv. State,
A suppression hearing was held to determine the legality of the search leading to the discovery of the marijuana in appellant's car. In this hearing, Deputy Price testified to the following: During a period of approximately four years preceding the day of appellant's arrest, he had personally received information from various sources concerning appellant's continuing involvement in drug trafficking. As a result of the information from one such source, appellant's residence had been searched and marijuana and paraphernalia was found and appellant had beеn arrested. On other occasions, Deputy Price had received information from confidential informants and individuals who had been arrested for drug violations that appellant was selling marijuana from the trunk of a black Cougar automobile. And, on one particular occasion when a Mark Thompson was arrested in a church yard and found to be in possession of 15 pounds of marijuana, a black Cougar automobile, with license plates registered to appellant, was seen leaving the church. This arrest was made subsequent to an informant's providing information that Thompson was going to meet, and to buy marijuana from, appellant.
In regard to the instant offense, Deputy Price testified to the following: On the day of appellant's arrest, he observed a transaction between appellant and Bruce Adams at the trunk of appellant's black Cougar automobile. Adams, who was arrested minutes later for possession of marijuana, said that he had gotten the marijuana from appellant and that there were several more bags in a green duffel bag in appellant's trunk. Subsequent to receiving this informаtion, Deputy Price contacted Officer Hudson and informed him of the events that had transpired and of the information received from Adams. Officer Hudson then placed appellant's car under surveillance at his residence, while Deputy Price proceeded to obtain a search warrant. However, during this time, appellant came out of his residence аnd got into his vehicle and drove off, with Officer Hudson following. A short time later, appellant's car was stopped and Officer Hudson conducted the search.
Appellant argues, in his brief, that there was not sufficient probable cause to justify the search of appellant's car prior to the issuance of the search warrant. He contends that the past information received from informants could not have provided probable cause because those informants had not been established as being reliable. He further argues that the information from Adams could not be perceived as reliable and as providing adequate probable cause to search because Deputy Price testified that he had never mеt Adams before he was arrested that day. In evaluating the merits of these contentions, we must consider the information known to Deputy Price and Officer Hudson in a cumulative manner and not as if this search were the result of information received from one isolated informant. Deputy Price testified that he had been receiving information concerning appellant's drug trafficking activities from various sources over a four-year period. Moreover, Deputy Price personally observed the transaction between appellant and Adams and knew that it fit the method of operation by which appellant had long been suspected of selling marijuana. Finally, only minutes after the transaction occurred, Adams told Deputy Price that he had gotten the marijuana from appellant and that there were several more bags in appellant's trunk. Therefore, even if one of these sources of information were inadequate to supply sufficient probable cause to conduct a warrantless search, when they are taken as a whole, there can be no doubt that probable cause existed. The standard used in determining the existence of adequate probable cause requires a finding that a reasonably prudent person, knowing what the officer knew, would have justifiably believed that the items sought were contraband and that they were located in the place to be searched. Gord v. State, *415 supra. This standard was met in the instant case.
In light of the foregoing and of the fact that the place sеarched was an automobile traveling on a public street, which provided the necessary exigent circumstances, the warrantless search of appellant's automobile was justified. The trial court correctly denied his motion to suppress.
It was within the trial court's discretion to impose sentence without the benefit of a presentence report, for neither party timely submitted a written notice seeking such report. A.R.Crim.P.Temp. 3. See also James v. State,
"Unless the court has no discretion as to the penalty to be imposed and no power to suspend execution of the sentence, the court shall conduct a sentence hearing, unless waived by the parties with consent of the court. The sentence hearing may commence immediately after a determination of guilt or may be continued to a later date to be set by the court."
"In our opinion, Alabama Rules of Criminal Procedure — Temporary Rules contemplate a hearing in which there should be no adjudication as to the punishment imposed or whether probation should be granted until both parties cоnclude their presentation of evidence and utilize their right to be heard."Graffeo v. State,
In the instant case, appellant was convicted of trafficking in cannabis, in violation of §
Moreover, the instant case is distinguished from Ex parteGlover,
After a complete review of the record of this case and the applicable law, we find no error warranting reversal of the trial court's judgment of conviction, and it is hereby affirmed. However, this case is remanded to the Circuit Court of Morgan County with directions to conduct a sentence hearing and to provide the results of said hearing to this court upon return to remand.
JUDGMENT AFFIRMED; REMANDED WITH DIRECTIONS.
All Judges concur. *416
AFFIRMED.
All Judges concur.