Ex Parte State
WRIT DENIED.
HORNSBY, C.J., and ALMON, HOUSTON, STEAGALL, INGRAM and COOK, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
I would grant the writ in this case to review the holding by the Court of Criminal Appeals that the sеarch in this case was illegal. The facts of this case are very similаr to those in State v. McFall, [Ms. CR-92-1333, March 25,1994] ___ So.2d ___ (Ala.Cr. App.1994), in which officers were executing а search warrant for illegal drugs and used a ram to gain entry. In McFall, the State appealed from the trial court‘s order granting McFall‘s motion to suppress. The Court of Criminal Appeals reversed.
In McFall, the defendant was сharged with possession of a controlled substance, in violation of
Section 15-5-9 provides: “To execute a search warrant, an officer may break open any doоr or window of a house, any part of a house or anything therein if after notice of his authority and purpose he is refused admittance.”
In McFall, after setting out the evidence surrounding the search, the court held:
“It is well sеttled that the weight and credibility to be attached to the testimony of ... witnеsses [at a suppression hearing is] a question for the trial judge.’ Kitchens v. State, 445 So.2d 1000, 1002 (Ala.Cr. App.1984). Additionally, `“[t]he findings of a trial court on a motion to suppress are binding on this court unlеss they are clearly
erroneous.“` Harper v. State, 535 So.2d 599, 600 (Ala.Cr.App.1988), quoting Simmons v. State, 428 So.2d 218, 219 (Ala.Cr. App.1983).
“This court, in Beshears v. State, 593 So.2d 174, 175 (Ala.Cr.App.1991), quoting Laffitte v. State, 370 So.2d 1108, 1110 (Ala. Cr.App.), cert. denied, 370 So.2d 1111 (Ala. Cr.App.1979), held:
`“`“Where it appears from facts adducеd that an announcement of the officers’ purpose would frustrate a search, increase the personal peril of the exеcuting officers or cause destruction of the evidence sought, there would be no necessity for compliance with the knock and announce rule, for these exceptions constitute `exigent cirсumstances.‘” “”
Additionally, in Jackson v. State, 589 So.2d 781 (Ala.Cr.App.1991), this court stated:
“`A refusal of admittance need not be express and “will оftentimes be present only by implication.” Laffitte v. State, 370 So.2d 1108, 1110 (Ala.Cr.App.), cert. denied, 370 So.2d 1111 (Ala.1979) (quoting McClure v. United States, 332 F.2d 19, 22 (9th Cir.1964), cert. denied, 380 U.S. 945, 85 S.Ct. 1027, 13 L.Ed.2d 963 (1965)). “If the occupants of thе dwelling fail to respond within a reasonable time, refusal can be рresumed.” Irwin v. State, 415 So.2d 1181, 1183 (Ala.Cr.App.), cert. denied, 459 U.S. 971, 103 S.Ct. 302, 74 L.Ed.2d 283 (1982). “What constitutes a `reasonable time’ is necessarily dependent on the particular facts and circumstances of eаch individual case.” Id. This time is “necessarily shortened” where illegal drugs are involved due to the great likelihood of the “easy and swift destruction of the evidence.” Harper v. State, 535 So.2d 599, 600 (Ala.Cr.App.1988) (quoting Irwin v. State, 415 So.2d at 1184).‘”
589 So.2d at 781-85. The McFall court concluded that “[a]lthough the State failеd to elicit testimony regarding how much time elapsed from the time the оfficers `knocked and announced’ until the point of entry, the facts оf this case reveal that law enforcement personnel complied with the provisions of
I would grant the writ and review the evidence to determine whether the law enforcement officer complied with the provisions of