Knox v. State

172 So.2d 787

Grady KNOX

STATE.

8 Div. 964. Appeals of Alabama.

Court 15, 1964.

Dec. 12, 1965.

Rehearing Jan. Denied

Rаlph Slate, Decatur, E. áppellant. denied on new trial was March

motion for a hence, appeal. 16, 1964; this are as of the case follows: The facts September 10, 1963, Monday morning, On dry employees daybreak, a shortly after Decatur, Alabama, in known goods store Lee’s, that the store David discovered Gen., Atty. Flowers, M. Richmond been burglarized. A safe had had been Gen., Atty. III, Anderson, Asst. Mark W. checks, open money bags, broken the State. for missing therefrom. Two currency werе pass enough large for a man to holes ceiling in through had been cut and, footprints on store, there were since directly under clothing on counters burglar holes, apparent it seemed burglars building descend- or entered the counters. ing through the holes onto the paper writing them were Pieces of with on tendency in had some found the store which they had belonged indicate that Raymond possession of one been Aday. Bowman and two other E. C.

Officer Department Decatur Police officers of the Aday court lived went to trailer where Aday found in a house. The officers ap- in in trailer which front of another Aday lived, talking women. pellant to two Offi- by the officers and then arrested appellant’s trailer cer Bowman entered arrest for without warrant and, trailer, to search rope open view seeing after coil of trailer, аp- he arrested a table in the “suspicion burglary”, pellant for appellant was rope. The confiscated held city jail he was where taken to being day following until charged crime. with a had no warrant testifying that he After PER CURIAM. appellant, Officer Bowman to arrest part: testified Knox, Grady in- appellant, The burglary in the the offense of dicted for sir, you had no war- right, so “Q. All plea He entered a degree. second he сom- arrest. Had rant for his the Circuit Court guilty tried in and was pres- your any crime mitted jury County, The Morgan Alabama. ence? charged guilty as appellant found for object; calls Hundley; We guilty “MR. adjudged indictment and he was conclusion, legal conclusion eighteen sentenced the Court and Penitentiary. His that. in the State months testified that Overruled. trailer. Bowman he searched “THE COURT: trailer under this for articles judge you can The said answer. “Q. missing from the safе David Lee’s store liquors. as well as No, found officers sir. “A. liquor they no in the trailer but did find %. ¿¡i ijc currency, money bags, and checks which you rope or “Q. Could have seen the confiscated, they part of which were you rope you did see the identified at the trial as missing articles got into the house ? from the safe in David store. The Lee’s appellant formally charged with bur- No, “A. sir. glary procured. after this evidence was % % ^ i]i ‡ :-i rope The аppel- seized at the time you of the “Q. tell the Court did what Just lant’s arrest without a warrant in his trail- you when went out to Knox’ trail- house, er which referred to there, is “first er Lieutenant Bowman. search,” during and the articles seized There was two other officers with “A. search conducted under the search under Raymond Aday me. was out- prohibited liquor warrant, which is re- along the trailer side with two ferred search,” to as the in- “second were women, I bеlieve their names are appellant’s troduced evidence over the May Zeta Shelton and Pauline objections, effect, they that were Raymond Shelton. We took into fruits illegal searches and seizures. custody and told him that we “Q. jje position trailer or ‍‌‌​‌‌‌‌‌‌‌‌‌‌​​‌​​​​‌‌‌​​​‌​​​​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‍the time wanted to trailer and asked him if he was mond, and I was the first officer or demand that I don’t recall offer the trailer. to the anyway suggest could see Mr. the Poliсe Station. At least one or not he was of the officers remained with Grady Knox. Did he either í|í you any door, you í}í request question ask I the door was Grady Knox, asked him whether prior stepped up if resistance Knox you that ;}i you that I knocked. him down at or you leave inside the ifc you leave after the leave? or did he or in leave open, Ray- i}c op- I trailor were seized under warrant hibited v. covered while making a seаrch under was a The court below found: search and seizure for there was no called ‘second search’ the Thirdly, search it objection that seizure.’ ‘talcing’ ‘first search’ the ‘implied’ “ * * * First, as to the so called State, Ala.App. 572, 105 ^[42] ‘derivative liquors. was, of the to search for another the arrest being Ala.App. [64], As to the so Phillips invitation. in this Court’s view rope It is not entering 'plain right v. was not an being of a Secondly, of search and view.’ аrticles of the Knox grounds legal, crime dis So.2d 687. 152 So.2d for purpose Kelley illegal taken there pro for by are found. Searches and [79] C.J.S. No, “A. sir.” Seizures, 83, Page Sec. 904. Court The morning arrest, The after the might point here out Court jail while he was being held without objection have could overruled the charged with denying any crime and the admission of this evidence because knowledge burglary, of the Officer Bow- suppress a motion to not filеd be man obtained a warrant from the Recorder fore the case was tried.” City ap- of Decatur to search the pellant’s prohibited liquors, prohibition house for Amend- of the Fourth and went with two other officers to the ment of the United Constitution States seizures, arrest a warrant without the trailer searches against unreasonable warrant; search or without a appellant Federal Government forbids the which after аppellant arrested by using evi- that he crime a man convict rope. follows discovering the by him unreasonable from dence obtained n searchand an unrea- product rope is against seizure, that the enforceable theStates seizure unless Officer search Amend- sonable through the Fourteenth appellant’s trailer entered the Ohio, Bowman Mapp v. 367 U.S. S.Ct. ment. consent, invitation, permission, or 1684, 6 L.Ed.2d 1081. making arrest purpose of an State, Ala.App. Kelley v. Title In Section as authorized held Alabama, this Court “[a] 105 So.2d 15 Code of in full that which mere observation Boyd is not search.” view every presumption indulge We L.Ed. his accused against waiver stated, effect, doc- the court right against unreasonable constitutional Amendments Fifth trine of the Fourth and Glasser seizures. See searches part of the on the "apply to all invasions 60, 70, 62 S.Ct. employes of the sanc- .government and its intro justify the L.Ed. 680. To privacies of tity man’s home the of a by police offi a seized of evidence duction doors, of breaking his It is not the life. ground the on private residence within a cer drawers, that rummaging the of his (cid:127)and entry by in made officer’s that the offense; but of constitutes essence the the consent, there must vitation, permission, or right his indefeasible it is the invasion of overt some a statement or еvidence of be liberty, security, personal personal (cid:127)of suf occupant residence of such act the * * are private property his to waive his intent to indicate ficient plain as used opinion that “in view” (cid:127)of the privacy his security of rights to the n 'inthe Kelley case, supra, be cannot con- in freedom from unwarranted home and police a plain (cid:127)strued to mean view not a open is An door therein. trusions only private after (cid:127)officer a residence within sub peaceful A rights. waiver of such legal entry therein without the officer’s con not a or seizure is a search mission e., trespasser. (cid:127)authority (cid:127) Where merely —i. thereto, is but an invitation sent or police private residence officer enters suprem regard for the a demonstration n without. any incriminating authority, legal acy the Searches law. C.J.S. n evidencediscovered after and seized therein nothing find Page 821. We Seizures § entry the is the fruit of an unreasonable record to a conclusion seizure, and, an .search and further arrest appellant’s the entered Officer Bowman no illegal and based ..'on such evidence is invitation, permission, or consent. trailer right at- and seizure derivative search State, 39 Weldon v.

taches- thereto. See police with ‍‌‌​‌‌‌‌‌‌‌‌‌‌​​‌​​​​‌‌‌​​​‌​​​​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‍ officer arrests When Ala.App. 97 So.2d 825. warrant, objects to defendant out to be claimed the introduction of private A search of a residence arrest, is burden on incident to such an without a search is unreasonable lawful. that the arrest the State show andnot incidental to arrest when Cassone, People Misc.2d See (cid:127)arrest the search and could not have follows war arrest 822. If N.Y.S.2d lawfully been made before search. unlawful, incident evidence seized rant is A.L.R.2d 757. thereto is inadmissible. appel- that the present testified case Bowman Officer Bowman Officer presence his crime in testified that in the “first search” he did lant committed no appellant and, therefore, rope entry the arrest of see until after his into home; cannot search” that he entered at the time of the “first 583; during There the justified as an “on view” arrest. articles seized the “secоnd' nothing ground, others, which it can search” among is the record from on the Bowman, probable enter- showing be said that Officer there was no -cause trailer, ing to for had reasonable cause the issuance of the warrant. war- appellant supporting a rant and believe that the had committed affidavit were intro- felony, justify under so as to the arrest duced the State. Alabama, Title

Section Code The Fourth Amendment оf the United' Constitution, States and Article Section appellant’s objec- Alabama, 1901, We conclude provide, Constitution of tion to rope part, should in introduction that no warrants shall issue without probable cause, have supported been sustained. by oath and affirmation. Supreme Our Court stated Brown v. Alabama, 277 Ala. 291: 167 So.2d Section Title Code of 1940, provides, part, reference to illegally “If is obtained evidence in- issuаnce of liquor contraband search war- trial, admissible before it is still in- : rants

admissible at the trial if the circum- pretrial motion sary. stances have not opinion ^[*] * that the ^[*] ** ‡ to exclude changed. better ^[*] rule We are of not neces- ^[*] that a ^[*] naming searched, er “Said warrants party whose describing supported ‍‌‌​‌‌‌‌‌‌‌‌‌‌​​‌​​​​‌‌‌​​​‌​​​​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‍by premises be issued person are affidavit only or oth- to be pretrial “We do not hold that a provides:. mo- Section Title further suppress tion improper, to is but we do magistrate, issuing “The before a: hold that necessary such is motion warrant, complainant must examine the objection may and that be made for the oath, any on and other he witnesses first time illegally when the obtained may produce, depositions- and take their offered at the trial.” writing, and cause the same to be- person persons- subscribed the or Although only pretrial a motion them; making and the same must set suppress illegally to obtained evidence is forth facts and circumstances as both case, interpret mentioned in the Brown tending ground to establish the or holding decision as that a defendant grounds application probable of the may object illegally to the introduction of believing cause for ground that a ex- obtained evidence for the at first time the ists authorizing search warrant to- tsial, although he failed to make such an issue.” objection any preliminary proceeding, including protest a magis the issuing In Edmunds Dedge, v. ex rel. way trate quash of a motion to the re 965, 967, Ala. 74 So. we find: turn. “Although, following provisions support application of his pre- for common to all search warrants and search liminary warrant under proceedings, requires- which the “second the act a-, search” of the magistrate that ‘the house issuing conducted, Officer Bowman submitted warrant must complainant- examine thе recited, oath, affidavit which part, relevant on other witnesses he- * * * that Officer produce, probable Bowman “has their take for believing Grady deposition writing, does believe that and cause the- sells, Knox keeps pro- person for sale or stores same to be subscribed liquors” persons hibited premises. making described (section them’ subd.. appellant objected 3), requirements. to the introduction of omission of these under the Fourth the same ness is as vitiative regarded been never has Id., 347 Amendments.’ upon a the Fourteenth issued when warrant L.Ed. at 1630 83 S.Ct. [10 U.S. affidavit.” sufficient Although involved a Ker 2d at 738]. So. Ala. In Toole warrant, a that case search

195, 198, said: the Court holding certainly be read as must obtaining a search the standard probable ascertainment “The ‘the same under is likewise involved the writ for the issue -cause and Fourteenth Amendments.’ Fourth judicial function. of the exercise juris- exercised Having acquired and by taking the premises diction the constitutional “An evaluation of having person, and issued a affidavit of begin ity should search warrant required substantially the ‘the informed and with the rule that statute, the evi- weight of 'by magis deliberate determinations of cause could establish dence to empowered to trates- issue warrants inquiry, nor subject of be made the 'not * ** preferred are to over regard of judgment in that could the * who hurried action of officers made magistrate, be issuing may happen to make arrests.’ subject review on the trial Lefkowitz, States cause.” 420, 423, 877, 882 76 L.Ed. for this A.L.R. : The reasons [82 775] Alabama, in view of the the law in go rule the Fourth the foundations of cases, seem would and Toole Edmunds contrary evi A rule ‘that Amendment. by ju- issues search warrant to be that magis dence sufficient to showing act, dicial and in absence trate’s disinterested determination upon an warrant did not issue justify the issue a search warrant will 212, supra, required by affidavit as Section making a search without officers conclusively presumed that there it is Amend warrant would reduce the issuing information before sufficient nullity people’s ment to leave the prob- finding upon magistrate which only secure the discretion of homes in could based. able cause be police officers.’ v. United Johnson 367, 10, 14, States, 333 68 U.S. S.Ct. the affiant’s recites An affidavit which 369, [440], 92 L.Ed. 436 Under such in the affi- contained belief of the matters ulti rule ‘resort to would [warrants] conclusion, words with the same as a davit mately discouraged.’ v. Unit be Jones case, in the instant as in the affidavit used States, 257, 270, 362 ed U.S. 80 S.Ct. sup- has, effect, to been held sufficient 725, 736, 4 A.L. L.Ed.2d 697 [708] [78 City Besse- port warrant. See a search R.2d a search when 233]. 270; 201, Eidge, So. mer 162 Ala. 50 upon rather than magistrate’s, based 565, Ala.App. 89 So.2d Pоrch v. 38 police officer’s, prob determination of cause, reviewing ‍‌‌​‌‌‌‌‌‌‌‌‌‌​​‌​​​​‌‌‌​​​‌​​​​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‍courts will able accept However, ‘judicially J., recently wrote of a less Goldberg, Texas, competent persuasive character than 378 U.S. Aguilar v. justified acting officer in 1509, 12 would have an L.Ed.2d 84 S.Ct. 723: ibid., warrant,’ on his own without California, 374 83 U.S. “In Ker v. judicial determina sustain the will held L.Ed.2d 10 S.Ct. long as ‘there was substantial tion so proscrip- ‘Amendment’s Fourth conclude magistrate] to basis fоr the States against [the enforced tions are present probably Amendment,’ that narcotics were the Fourteenth through Id., S.Ct. 362 U.S. at 80 *.’ that ‘the of reasonable- standard 585 708], at at As upon 736 L.Ed.2d so well issued [4 affidavit which pro- did not by stated Mr. vide a finding prob- sufficient basis for a Justice Jackson: “ able cause magistrate, the issuing ‘The point of the Fourth Amend- that, therefore, evidence obtained a re- ment, grasped by which often is not sult of the searсh warrant was inadmissible officers, zealous is not that denies law in a Texas Court. enforcement of the usual which inferences reasonable men draw 1 footnote Aguilar case the protection from evidence. Its consists Court said that the record did not reveal requiring that those inferences be information other than that con- drawn mag- neutral and detached tained in the affidavit was brought to the istrate being judged instead of by the attention of issuing magistrate, and officer engaged competitive in the often then stated: enterprise of ferreting out crime.’ “ * * * It is elementary that States, supra, v. United at passing “Johnson validity warrant, of a 13-14, 333 U.S. at at S.Ct. 368 [369] the reviewing court only consider 440], L.Ed. [92 brought information magistrate’s-attention. Giord enello States, “Although the reviewing court will 480, 486, S.Ct. pay substantial judicial deference to 2 L.Ed.2d 1503 [1509], 79 C.J.S. determinations of cause, the Searches аnd 74, p. Seizures (col § court must still magis- insist that ” * * * lecting cases). perform trate his ‘neutral and detached’ function merely and not serve aas authority Under case, Aguilar stamp rubber police. for the and the Ker and Nathanson cases cited therein, we compelled hold, are and do “In Nathanson v. United hold, that an affidavit which recites the U.S. 78 L.Ed. affiant’s belief of the matters contained' upon was issued the sworn al- therein, without supрorting facts or cir legation that the ‘has affiant upon cumstances which a prob finding of suspect and does believe’ that certain able cause could based, is insufficient to specified merchandise was in a location. support a search warrant; and evidence Id., at 54 S.Ct. at 12 [78 seized as a result of a search warrant' 160], L.Ed. Court, noting upon issued such an affidavit must be ex affidavit, ‘went upon a mere affir- cluded the absence of a showing suspicion mation of and belief without con-, that, State in addition to the matters any adequate statement stipport- of tained in affidavit, the other information id., ing facts,’ 46, 290 at 54 U.S. S.Ct. was before magistrate the from which a 13 (emphasis L.Ed. at [78 add- 161] finding probable of cause could be based. ed), following announced the rule: “ Inasmuch as a may defendant now ob ‘Under Amendment, the Fourth ject to the introduction illegally of seized may ‍‌‌​‌‌‌‌‌‌‌‌‌‌​​‌​​​​‌‌‌​​​‌​​​​​‌‌‌​‌‌​​‌‌‌‌‌‌‌‌‍officer not properly issue a warrant evidence for the first trial, time at the private to search a dwelling he unless are of opinion the that a defendant would can find probable cause therefor from be denied his substantial rights if he could presented circumstances to facts not question raise the of whether a search him under oath or affirmation. Mere warrant under which evidence is seized affirmаnce of belief suspicion not upon was issued probable cause, supported enough.’ Id., 47, 290 U.S. at 54 S.Ct. by oath or affirmation. we hold that 162], at 13 (Emphasis L.Ed. at [78 when a objects defendant to the introduc added.)” tion of evidence seized under a search war The Court Aguilar concluded in the rant, case on the ground that there was no that a search warrant probable should not have been cause for the of issuance the wаr express merely denying if though determine judge should rant, the trial certiorari — ly disapproved prior our dicta as to the need supported a sufficient the warrant (2) pretrial suppress; motion to whether for the not here decide We do affidavit. 23, California, 83 of may warrant Ker v. State 374 go behind the a defendant 726, Aguilar 1623, v. probable L.Ed.2d no S.Ct. 10 there was to show affidavit 1509, Texas, 108, 84 S.Ct. warrant. State of 378 U.S. the for the issuance of cause 723, minimаl require that certain 12 L.Ed.2d affidavit, However, its the if 1 {10] probable be laid before of cause evidence judge be in- face, to the trial is found warrant; tlqe judge the search who issues probable finding of support a sufficient to Fed supremacy (3) the clause n cause, v. as illustrated Jones us to declare eral Constitution forces 725, 257, 4 L.Ed.2d 565, State, Ala.App. So.2d v. Porch testimony the then adduce Dedge, 199 ex rel. Edmunds v. State was, showing that sufficiеnt State, Ala. and Toole 74 So. upon fact, magistrate issuing making as insofar 170 Ala. So. be finding could which a of ex incontestable the issuance of a warrant this with based. Insofar as inconsistent court, set forth cept issuing before the above, princi- opinion, cited the decisions bad law. to pally deemed must be Toole is in Code this result only barrier opinions by the cited

llave been overturned which reads: T. § States. Supreme (cid:127)оf of the United Court supreme court decisions of “The upon the search The affidavit which holdings decisions govern shall n issued in the instant case appeals, and the deci- of of court the warrant insufficient to proceedings such court sions n reason upon be the affiant’s went general subject appeals shall therein, with lief of the matters contained superintendence and control upon which such circumstanсes out facts or provided supreme section court as abelief could be based. Therefore, the state.” 140 of the Constitution in reveal that other record does not However, from being derived this section magistrate, formation was before the relates of 1901 140 of Constitution § as a result of articles seized Supreme Court only in which to matters been excluded. should have final. it is because is infallible of Alabama re- аs this cause is due to be Inasmuch only questions the Manifestly, on Federal above, we the reasons set forth versed for of Alabama Supreme priority Court re- pretermit relied on for other matters being link the next us is that of has over versal, they the belief that are with the chain of command. likely upon a new trial. to occur Article Cl. The command Reversed and remanded. indirectly is not United States Constitution intermediary minis through linked us spеcially). 'CATES, (concurring Judge is a man Supremacy Clause trations. The every judges, our (1) one of date to each and is threefold: decide here What Federal. Ala., 167 So.2d 291—even State Brown v. inability any States, to reach there Nor v. United 1. Jones See certify Rugen so as to conclusion unanimous 4 L.Ed.2d question T. under Code abstract dorf tlie § to refute 88. 11 L.Ed.2d S.Ct. bugaboo * Constitution, shall be police 3. “This informers must Land; supreme Law of the named. every Judges be bound shall Clearly does § T. Code any Thing thereby, Constitution apply no State there is here because Contrary question. State to or Laws into drawn statute Federal notwithstanding.”

Case Details

Case Name: Knox v. State

Court Name: Alabama Court of Appeals

Date Published: Dec 15, 1964

Citation: 172 So. 2d 787

Docket Number: 8 Div. 964

Court Abbreviation: Ala. Ct. App.