706 So. 2d 1319 | Ala. Crim. App. | 1997
The appellant, Charles Wayne Getz, was convicted for trafficking in amphetamines, a violation of §
On June 22, 1996, a confidential informant approached Ronnie Dollar, an investigator with the Bullock County District Attorney's Office, and provided information about illegal drug activities being conducted by the appellant. The informant told Investigator Dollar that he had personally seen methamphetamine at the appellant's residence and had seen "methamphetamine cooking paraphernalia" on the premises as well.
In support of this information, the informant provided Investigator Dollar with three photographs evidencing the appellant's illegal drug activity. The photographs showed a pickup truck belonging to the appellant with jugs and trash in the back of the truck. Investigator Dollar testified some of the jugs "had pipes that ran out [of] the top that appeared to . . . be some type of cooking device." The informant said that one jug in particular contained a liquid that was a mixture containing amphetamines. In addition, a residue film was visible at the bottom of those jugs in the photographs that did not contain the liquid. Investigator Dollar testified that he never received any information from the informant in the past, and that he did not have any other indication that the informant was reliable.
In order to verify the information, Investigator Dollar rode with the informant to the location of the pickup truck and the appellant's residence. The informant was able to lead Investigator Dollar to the exact location of the appellant's property and residence. Investigator Dollar testified that upon their arrival, he could see a pickup truck while standing on the edge of the road bordering the appellant's property. He further testified that the truck he observed from the road had jugs in the back of the truck bed and looked very similar to the truck depicted in the pictures provided by the informant.
On June, 22, 1996, Investigator Dollar applied for a search warrant to search the appellant's house, property, and the vehicle located on the property based upon the informant's information, the pictures, and Investigator *1321 Dollar's personal observations. The affidavit stated that "[w]ithin the past 48 hours methamphetamines were observed at the residence of [the appellant] in Bullock County." In addition, the affidavit stated that "[w]ithin the past 24 hours methamphetamine cooking paraphernalia was observed on the [appellant's] premises." While the search affidavit did not state who had made these observations, Investigator Dollar testified at the initial suppression hearing that these two statements were made on the basis of the informant's allegations. Finally, the affidavit contained a specific description of the location of the appellant's residence and property. While drafting the affidavit, Investigator Dollar showed the issuing judge the informant's pictures.
The search warrant was executed by Investigator Dollar and other police officers on that same day. The officers discovered quantities of both amphetamines and methamphetamines, as well as jugs used to manufacture drugs matching the description given by the informant. The appellant was not present on the property when the search was conducted. In addition, at trial the appellant maintained the defense that he had not lived on the premises for some time.
At the suppression hearing, the appellant moved to suppress all of the evidence seized pursuant to the execution of the search warrant. The trial court denied the motion. The appellant renewed the motion the following day at a pretrial hearing, claiming that "new evidence" required the trial court to reconsider its prior ruling. After hearing this "new evidence," the trial court denied this motion as well.
At trial, the State offered into evidence the entire contents of both the search warrant and Investigator Dollar's affidavit in support of the warrant. The trial court admitted both documents into evidence over the appellant's hearsay objection.
This court has previously held:
Usery v. State," 'In [Illinois v.] Gates [
462 U.S. 213 ,103 S.Ct. 2317 ,76 L.Ed.2d 527 (1983)], the United States Supreme Court established the "totality of the circumstances" test for evaluating whether probable cause could be adduced based on information provided by a confidential informant. In analyzing the informant's tip, the courts not only look at the veracity, the reliability, and the basis of the informant's knowledge, but also recognize "the value of corroboration of details of an informant's tip by independent police work." Gates,462 U.S. at 241 ,103 S.Ct. at 2334 ; Benoist v. State,539 So.2d 1110 (Ala.Cr.App. 1988). "[A] deficiency in one may be compensated for . . . by a strong showing as to the other. . . ." Gates,462 U.S. at 233 ,103 S.Ct. at 2329 .' "
After applying the "totality of the circumstances" test set out in Gates, we find that probable cause existed to justify the issuance of the search warrant. Although there was no previous indication as to the informant's veracity or reliability, these two attributes were nonetheless established through independent police corroboration. See Usery,
The appellant alleges in his brief that Investigator Dollar made factual "misrepresentations" in his affidavit in support of the application for the search warrant. While under oath at the pretrial hearing, the appellant's trial counsel, on the basis of his own independent investigation, alleged that Investigator Dollar trespassed on the appellant's property without first obtaining a search warrant and took the photographs of the truck himself. The appellant suggests in his brief to this court that a confidential informant never existed in this case and that Investigator Dollar committed perjury when he testified at the suppression hearing and when he applied for the search warrant.
Calhoun v. State,"A search warrant may be invalidated if the affidavit contains a material and false statement made knowingly and intentionally or in reckless disregard for the truth. Franks v. Delaware,
438 U.S. 154 ,98 S.Ct. 2674 ,57 L.Ed.2d 667 (1978); Annot., 24 A.L.R.4th 1266 (1983). The defendant bears the burden of establishing the perjury or reckless disregard for the truth by a preponderance of the evidence."
Despite the appellant's allegations, we find that the search warrant itself and its execution was valid. The appellant's argument at trial presented a conflict in the evidence as to whether a confidential informant was actually used or whether the information relied upon in applying for the search warrant was unlawfully obtained. Resolution of this factual dispute required the trial court to assess the credibility of the testimony from both the suppression hearing and the pretrial hearing.
This court and the Alabama Supreme Court have long held that a trial court's determination regarding credibility of witnesses is entitled to great weight on appeal.
Calhoun v. State," 'When there is conflicting testimony as to a factual matter . . ., the question of the credibility of the witnesses is within the sound discretion of the trier of fact. His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence." '
Therefore, we hold that the trial court properly denied the appellant's motions to suppress the evidence seized during the execution of the search warrant.
During the direct examination of Investigator Dollar, the State elicited testimony regarding the hearsay allegations made by the confidential informant. The trial court allowed the testimony over the appellant's multiple objections as to hearsay. The State then offered into evidence two of the three photographs the informant had provided in support of his allegations. The trial court allowed the photographs into evidence over the appellant's objection as to improper foundation.1
Finally, the State offered the entire contents of both the search warrant and Investigator Dollar's affidavit into evidence. The *1323 appellant objected to the admission of these documents on the grounds of that they contained "hearsay information" provided by the informant. The trial court admitted both documents into evidence over the appellant's hearsay objection.
This court and the Alabama Supreme Court have consistently held that the admission of a confidential informant's hearsay allegations contained in an affidavit in support of a search warrant constitutes reversible error. Satterwhite v. State,
In Ex parte McCrary,
McCrary,"The improper admission of the search warrant put before the jury the fact that prior to the search a district judge was convinced that there was probable cause to believe that the Defendant had marijuana at his residence. This evidence was likely to influence the jury in its determination of the Defendant's guilt or innocence, and this Court cannot know for certain that it did not."
The primary issue in all three cases against the appellant was whether he was in constructive possession of the drugs or drug paraphernalia. The admission of the search warrant and the affidavit had the same potential effect on the jury as it did in McCrary: the jury was presented with evidence that a judge had already determined that probable cause existed to believe that the appellant was in constructive possession of the drugs or drug paraphernalia as charged in the indictment. This evidence had the likely effect of improperly influencing the jury in reviewing the evidence itself and in reaching a conclusion on its own as to the appellant's guilt or innocence. This court shares the same concerns as the Supreme Court did inMcCrary by stating that we are in no position to affirmatively declare that the jury was not unduly influenced in this case.
Based on our analysis set forth in this opinion, we decline to address the remaining issues raised by the appellant. The judgment of the trial court is reversed, and the cause remanded to that court with instructions to set aside the conviction and sentence and order a new trial.
REVERSED AND REMANDED.
All judges concur.