549 So. 2d 598 | Ala. Crim. App. | 1989
The appellant, Robin Dewayne Helms, was convicted of violating the Uniform Controlled Substances Act, and was sentenced to ten years' imprisonment. On appeal, he raises three issues, all of which deal with the validity of, first, the affidavit, then, the search warrant, and, finally, the resulting search.
The affidavit in question reads as follows:
"Before me, Charles Thigpen, Judge of the Circuit Court of Dallas County, Selma, Alabama, the undersigned W.H. Duke, Investigator with the Dallas County Sheriff's Department, who is known to me, being duly sworn, deposes and says *599 that there is now being concealed certain property located in an apartment known as # 12G Chanticleer Apartments, Selma, Alabama. The property being concealed is as follows:
"Cocaine, Marijuana and other illegal Drugs
"which constitutes legal evidence pertaining to Possession of Illegal Drugs and that the fact tending to establish the aforegoing grounds for issuing a search warrant are as follows:
"I, W.H. Duke, Investigator with the Dallas County Sheriff's Department, have received information from a confidential reliable informant, whose information over a period of the last twelve months has led to narcotic arrest [sic] and convictions. That there is presently contained at this residence illegal drugs, to-wit: Cocaine, Marijuana and other illegal drugs. The aforesaid informant stated that during the past 24 hours he has visited the above described apartment and saw Cocaine, Marijuana, and other illegal drugs there. Said informant further states that he is familiar with the appearance of Cocaine and Marijuana and the substance at the premises is in fact Cocaine and Marijuana. This information was given to me by the informant within the past 24 hours prior to the making of this affidavit.
"Based on all of the above information I have probable cause to believe and do believe that there is presently contained at the residence, illegal drugs."
The "totality-of-the circumstances" test articulated inIllinois v. Gates,
Gates,"The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed. Jones v. United States, 362 U.S., [257] at 271 [
80 S.Ct. 725 ,736 ,4 L.Ed.2d 697 ]. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli."
"Although the two-pronged test of Aguilar-Spinelli has been abandoned, it has not been forgotten. '[A]n informant's "veracity", "reliability," and "basis of knowledge" are all highly relevant in determining the value of his report' and are 'relevant considerations in the totality-of-the circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.' Gates,
462 U.S. at 230 ,233 , 103 S.Ct. at 2328-29."
In the instant case, Investigator Duke's affidavit established the reliability of his informant, as well as the informant's basis of knowledge. This affidavit meets both theGates "totality-of-the-circumstances" test and the two-prongedAguilar-Spinelli test. Therefore, it was unnecessary for the officer to include any other information about his informant in the affidavit. Thus, the search warrant need not fail based on the reliability of the informant's information.
Section
The search warrant issued in the instant case reads as follows:
"STATE OF ALABAMA
"COUNTY OF DALLAS
"TO THE SHERIFF OR DEPUTY SHERIFF OF SAID COUNTY __________ GREETINGS:
"Affidavit having been made before me by W.H. Duke, Investigator with the Dallas County Sheriff's Department, Dallas County, Alabama, that he has reason to believe that there is now being concealed certain property in an apartment known as # 12G Chanticleer Apartments, Selma, Alabama. The property being concealed is as follows:
"Cocaine, Marijuana and other illegal Drugs
"and as I am satisfied that there is probable cause to believe that the property so described is being concealed on the premises above described and that the aforegoing grounds for application for issuance of the search warrant exist.
"You are hereby commanded to search forthwith the residence above described for the property and the persons, if you find the same present serving this warrant and making the search in the daytime and if the property be found there to seize it, leaving a copy of the warrant as a receipt for the property taken, and prepare a written inventory of the property seized and return this warrant and bring the property before me within ten (10) days of this date, as required by law. "Dated this the 5th day of June, 1987.
-s- Charles A. Thigpen ---------------------- JUDGE OF THE DALLAS COUNTY CIRCUIT COURT"
As can be seen from the above, the search warrant contains no descriptions or names of any persons to be searched. The leading case on this issue is Ybarra v. Illinois,
Alabama courts, in following the dictates of Ybarra, have held that a warrant to search designated premises will not authorize the search of every individual who happens to be on the premises. Travis v. State,
Because the search of appellant's person was not justified under the search warrant, we must now decide whether the search of appellant's person falls within one of the exceptions to the warrant requirement. These exceptions are: (1) plain view, (2) consent, (3) incident to a lawful arrest, (4) hot pursuit or emergency situations, (5) exigent circumstances coupled with probable cause, and (6) stop and frisk situations. Ex parteHilley,
In the instant case, law enforcement officials went to the location to be searched — # 12-G, Chanticleer Apartments — and detained appellant and his companion while the premises were searched. Pursuant to the decision in Michigan v. Summers,
Because of the controlling authority of the United States Supreme Court case of Ybarra v. Illinois, supra, we reluctantly hold that the strip search of appellant was not justified under the search warrant as written, or pursuant to any of the exceptions to the warrant requirement. Accordingly, the cocaine taken from him was due to be suppressed.
The conviction is reversed the cause is and remanded to the circuit court for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
All the Judges concur.