Oliver v. State

they had something which no con- over I ; probationer A ar- trol but Fiorella did. appeal on only point brief raised The gambling on raid rested 16th on the trial is that deem substantial we March, picked up probation who is deny- in discretion judicial his judge abused 8, has, in April warrant on revocation Bert- because a continuance ing Bertrand convincing the absence of some clear and trial shortly before had rand’s mother excuse, prepare adequate had time thereto- lawyer those addition to hired a hearing April for a held 16.” himself by the court. appointed fore Bertrand, living with his age Mobile was arrested defendant The mother in Here Bertrand’s mother Mobile. was re- February indictment The 1969. reasonably presumed can be to know j., day February, on the 18th turned February aught his arrest 1969. For that indict- defendant committed and the finally employ appears did not an at- she day. ment the same until torney about March 11. 21, designat- February entry A minute ' II enquiry “Pre-Arraignment,” shows an ed or not judge as whether trial insanity pre-trial A reference appointed counsel the defendant wished discretionary hospital with the State court did The Bertrand so wish. and that judge. trial Pace represent him. appointed then counsel 645; Ala. 226 So.2d Brown v. day the that defendant Later same App. 391, 231 So.2d 167. place trial formally arraigned. The took 12, 1969. record March We have examined entire requisites accordance with the Code do consider posture we not In this T. 389 and consider that discretion judge the trial abused judgment of conviction due to be that the Mobile delaying the case so in not Affirmed. ap had Bertrand’s mother whom counsel appear. parently hired could ethically

Concededly lawyer cannot he has been retained. a case until

enter being sought when

The fact he already in case is lawyers are

other he will have as to whether weigh

for him to they leave off. So.2d time to take over where normally presume that Moreover, he should Mack OLIVER spade done some lawyers the other have not will work on case ground.

plowing all new STATE. 6 Div. 12. sup ordinarily who counsel Thus counsel, Appeals supplements other plants or Criminal Alabama. ready get ample already time Aug. for a ask trial, expect or should continuance. State,

In Fiorella v. said: we

“ * * * in- came fact that counsel course, is date, a late

to the case -at Davis, Birmingham, appel- Mason J.

lant. Gallion, Atty. Gen., MacDonald Gen., Clark, Atty. for the David W. Asst. State. present, I

“A. was Detective Swindal present, and I don’t recall for sure two, about the other and another officer named present. Barnard “Q. right, All you sir. I want to tell ALMON, Judge. Court, will, you Jones, .if Detective anything what if you told to Lieutenant illegal pos- convicted of Mack Oliver was Wilson, issuing magistrate with re- to marijuana session of and sentenced fif- spect why you to wanted a warrant? years penitentiary. teen in the “A. told I him that Dunlap Officer had been to 1036 9th Avenue South. deny- court erred in the trial He contends suppress to ing pre-trial motion “Q. you Did tell him when he had that it marijuana, alleging was seized been there? illegal an further that the court search and “A. night. That granted his motion to exclude should have evidence. State’s “Q. right. All by Joseph to B. The affidavit sworn prior “A. a few minutes to our Just City Birming- of Jones, a detective for conversation, purchase made a and of ham, magistrate to issue the which led the marijuana, and he saw $5.00 some as follows: search warrant is additional marijuana mantle, and sack, jar, or and had a matchbox in Marijuana “(Describe Property) it that he measured out what this officer amphetamines and barbitu- certain other bought. description particular rates more by affiant, which is not obtainable Judge “MR. going COLLINS: I am Person) (Name or Describe Mack this, except to to and move that it be description name or is Oliver whose hearsay. excluded. This is all affiant, guilty otherwise unknown is thereof, property said is and that located “THE COURT: This officer here (Describe or situated as follows: Place testifying is that he told the man who to be Premises 1036 9th Searched) gave this, the warrant and that South, Birmingham, Avenue present other officer was at the time. Jefferson Alabama, description County, a better you saying? Isn’t that what are premises or which location unknown ' Yes, “THE WITNESS : sir. tending facts and that the to es- affiant ground foregoing tablish the for the is- “MR. You are not COLLINS: tes- suance of are a search warrant as fol- tifying- anything firsthand, this (Set Tending lows: out Facts to Estab- you, given information that was Warrant) lish Ground for Issuance right ? amount August On 1967 -an mari- juana at purchased was 1036 9th Ave. So. By the “THE officer who COURT: Birmingham, County, Alabama. Jefferson alleged present to have been at the portion purchaser This this be- observed given to the time the information was ing larger removed amount from there, warrant Lieutenant officer-over marijuana. what believe This we- Wilson, is correct? larger marijuana was still amount at Yes, “THE sir. Dun- WITNESS: the purchaser this address when left.” .there, lap and Lieutenant Wilson was .pre-trial hearing suppress, At the there, there; De- "..'was I-was and Detec- ' ! tective .. as. follows: tive. was. there.' Swindal Jones.-testified back 'and- n wasn’t, to'go I aware search warrant in.-order “MR. COLLINS: nn - (cid:127) (cid:127) - look f . . claiming of'more. you that. Officer were 'the at time. Dunlap was there “Q. words, you pre- In as stated other viously, your May they requested it please “MR. WILKINSON: Court, you assistance any requesting differ- rather than it doesn’t make there, or theirs ? if Officer ence magis- not, he told the is what this if right. “A. That’s trate. “Q. executing In warrant ? From a reliable in- “THE COURT: already They up “A. it had worked

formant. buy, to a it and had delivered back to sir, Yes, “MR. WILKINSON: City the Hall before I became involved (cid:127)He :fc (cid:127) (cid:127) H* ^{[*] [*]} (cid:127) ifc in it. Does explain it? “Q. Well, let me phrase the question H' H» H» % _ . *fc ^[*] *fc way: Dunlap relate to this Did Officer “Q. right. Subsequent your All particular this you why gone he had that, telling the did he thén purchase? address to make a sign the warrant? working with Detective “A. He was Right. “A. Swindal, -Hayes at the as an and time “Q. you And affiant on were the the may took' undercover What Officer.- warrant, is that correct? n place Hall, City in the he back before was . .1 don’t know Right. “A. “Q. officer? As an undercover warrant, “Q. signed After he the did tive “A. “Q. ifc Jones, let me ask Yes, sir. (BY MR. Hi ifc COLLINS:) ífc you this: Did ^[*] Detec- >fc you ’ in the you in the company of some other of- ficers “A. We did.” then go City to 1036 9th Avenue South Birmingham? actually request aid of these other the warrant, Armed with this search Detec- night question, or oc- (cid:127)officers on this Jones, Hayes and tives and Lt. Swindal you question casion in to assist in exe- Myers apartment at appellant’s went to cuting this search warrant? Avenue, They Ninth arrived at South. ' approximately P.M. and 10:30 request “A. I didn’t their aid. No. Jones Myers Hayes door. went went the front 'They requested mine. right around the of the house and side explain “Q. you that a lit- Do want Hayes and the left. While Swindal Jones got tle are the one the bit. You door, knocking on the front Swindal were n search warrant, you? didn’t opening a window heard someone looking Upon of the house. left side asking ques- the one the “A. You are direction, appellant at the win- he saw tions. something out. attempting drop dow “got beside the that he testified Swindal my “Q. it to sa- You have answered caught house, sack I dropped as and he tisfaction. examining sack and deter- After it.” case, marijuana, working mining that it Swin- They contained “A. were house stage they to the back developed .and to this dal continued on after by pulling the it, door explained entered the back me into what called and and n -(cid:127)taken screen apparently a then, off what was for the latch place, and I asked able breaking an inner door. cause could not be subject door and made the apartment inquiry, did not re- appellant’s nor could judgment in that search, drugs. appel- regard any issuing magistrate After the of the veal be made subject lant was arrested. review on the trial of the State, 41, 52, cause.’ Toole v. by the oral testi- This affidavit unaided 195, 198; State, 54 South. Cheek v. mony is insufficient. of Detective Jones Ala.App. 108; Salley 57 South. Texas, Aguilar 378 U.S. 185.” South. 1509, 12 L.Ed.2d 723. Ala.App. 565, In Porch v. Alabama, 1940, is Code of Tit. § cert. denied 265 Ala. 89 So. as follows: 2d 698 (1956), prosecution possession magistrate, issuing “The before prohibited liquors, it was contended warrant, must on oath the com- examine defense counsel that Tit. 29 had plainant any may produce, and witness thus, complied with; rendering been writing, depositions their take the search specifi warrant invalid. More per- cause them be subcribed cally, counsel contended that since defense them; making depositions sons magistrate the record showed that the did tending must forth to set facts establish deposition complaining take the of the grounds of the application, prob- the or it, sign cause witness and him to no facts for believing they able cause exist.” tending ap were set forth to the establish Thus, question presented the is whether plication for the warrant on probable cause. allegations the in an affidavit made to se- Edmunds, citing supra, After the court may supplemented cure a search warrant be ruled was no there merit in this conten by testimony given oral issuing the before tion. magistrate. The on question decisions complete are not in Porch, In though supra, accord. Edmunds Even Edmunds and State, 555, 29, 214, v. 199 (1917), referring Ala. So. 965 were 74 to Tit. instead of § Supreme our Court said: presently Tit. with which we are concerned, these statutes almost are identi- “Although, following provisions the cal and been held to considered have be in to all common search pre- warrants and pari State, Ala.App. materia. v. 39 Jordan liminary proceedings, the requires act 469, 103 So.2d that ‘the issuing before a war- rant complainant must examine the on State, 578, Ala.App. In 42 Knox v. 172 oath, any may and other witnesses he 787, 699, So.2d cert. denied Ala. 277 172 * * * produce, depo- and take their (1965), So.2d the court 795 stated as fol writing, in sition cause the same to lows : by person persons be subscribed the or making (section them’ 3), subd. the “However, affidavit, face, if the on its of requirements omission these has never judge the trial to be found insuf regarded been as the vitiative warrant support finding probable to ficient a when upon it issued a sufficient affi- cause, as illustrated in v. United Jones davit. States, 257, 80 4 362 U.S. L.Ed. “ probable ‘The may ascertainment of cause 2d adduce testi the State then for the issue of mony showing the writ involved the ex- that sufficient evidence fact, ercise the judicial Having was, issuing magistrate function. in before the acquired and jurisdiction upon finding exercised in the probable cause premises by taking per- the affidavit could inconsistent be based. Insofar as son, having opinion, issued the warrant sub- cited with this the decisions State, stantially required by statute, above, as the principally the must Toole v. be weight prob- of the evidence to establish deemed to been overturned testimony put in him was not fore whose Supreme Court of the opinions cited writing. States.” the United concern, of instant there “In case 198 So.2d Clenney v. In so far as this record but one witness find: (1966), we infirmity only in the shows. affida- magis- be that to rule seems “The war- vit which led the issuance of the sufficient evidence must have trate failure the affiant to ex- rant was the Ap- probable cause. finding of support a pressly label his informer as one necessary that all it is not parently, infor- previously furnished reliable magistrate shall before evidence States, mation. United See Jones but, affidavit, since the in the stated L.Ed.2d 697. 80 S.Ct. U.S. in- affidavit Appeals holds court, Here, in on the circuit examination face, considera- limit its we sufficient affiant, Camp, testified that affidavit.” matters stated tion to previously been shown informer had be reliable. Ala.App. State, 44 Brandies v. In language indicat- (1969), there So.2d State, Ala.App. 578, “In Knox issued the judge who ing that the 787(1), we indicated that as witness not be called could warrant possible supply the deficiencies an evidence before testify had other that he if, fact, oral evi- affidavit additional writing. Yet was not reduced

him which issuing magis- dence was laid before the find: rehearing, we opinion on in the same trate. In Brandies v. Tyler indi- 219 So.2d we point aspect we would from this “Aside must, that such oral evidence nev- cated war- the search comment on out that our ertheless, by required to 103 the extent § de- rant, not ratio strictly speaking, was 15, supra, writing. of be reduced to T. pro- a mere it was Rather cidendi. Thus, opinions, from these three it can dictum, way by gratuitous of nouncement a be deduced that there must be written a rul- because advisory in This nature. deposition for before the each witness necessary dis- to ing point was not on this issuing magistrate. appeal. pose of this “However, 103, supra, describing § that we will consider the State “Should deposition the minimal of content such a by wrong the ultimately held to be be says it set to tending ‘must forth facts Alabama, the as to of Supreme Court application, grounds establish the of the 103,supra, then if Brandies meaning of § they probable believing cause for that or tried, we it is true that is reindicted case, Thus, deficiency in this the exist.’ analysis positively ruled. in strict have one of substance but one of es- is not now, However, we think that as of we fully credibility of the in- tablishing the to our given proper construction the turn, showing a col- In such a former. statute.” somewhat-analogous to the lateral matter way exami- establishing of voir dire by 162, Myrick In v. competency proffered nations of the of a find: (1969), we So.2d 448 being a luna- suspected witness who 155, State, Ala.App. Tyler testify.” v. young “In tic or too 7, that we noted (Oct. 1969), in A decisions 1940, 15, that each of the above requires review T. Code § point. uniformity on issuing the dicates lack magistrate the before witness testimony Supreme has alluded Each time our Court must have search warrant approved use of problem it has the be sub- to this deposition to reduced to a written case, affida testimony in aid of a defective the oral the witness. In scribed Ap- Yet, the vit. the decisions be- magistrate had had other witnesses peals Compare purchaser seem be in 'conflict. 2. The observed the mari- Porch, my supra. supra, Myrick, juana with It is purchased he being which removed testimony larger oral be view should admissi- from amount of what he believed marijuana. ble an defective otherwise affidavit. to be cure larger 3. This marijuana amount of logically argued have been Could was still at this purchaser address the when committing that due to the of a failure left. conformity 15, magistrate (in with Tit. purchaser 4. The was Officer 135, Alabama, 1940, repealed Code now § City with Birmingham who had been Special Regular Act No. Ses working agent as an undercover with De- sions, 1969) evidence to reduce the writ Hayes. tectives Swindal and ing, been a defendant who has bound over grand jury to the must be I think released. 5. Officer Dunlap related these Similarly, issuing not. the failure of an facts to affiant. magistrate to comply with Tit. § should not vitiate an otherwise valid search may Search warrants be issued warrant. on hearsay information and need not re personal flect the direct observations of the It prior should remembered States, affiant. United v. 362 U.S. Jones Ohio, Mapp U.S. 80 S.Ct. 4 L.Ed.2d 697. The 6 L.Ed.2d at evidence was admissible informed, must be however, of trial, exception liquor with the cases (1) underlying some circumstances (Tit. 29, Alabama, Code of 1940) re- § from which informant concluded that gardless of the manner of seizure. To they narcotics were where claimed strictly construe Tit. so pre- as to were, (2) some of underlying cir reviewing vent considering court from cumstances from officer con testimony given oral issuing before an mag- cluded that or informant was credible engraft istrate is but an additional state Texas, Aguilar his information reliable. requirement already strict federal supra. search and seizure rules now made manda- tory on state courts. Here, underlying circumstances are

simply police that Officer awas officer just purchased marijuana. holding This way no infringes upon rights, Fourth Amendment ap since conclude, therefore, specific We that the plicants for search warrants must sup still requisites probable laid cause down in ply magistrate with sufficient facts for States, Aguilar, supra; Spinelli v. United to conclude that there is 637; 21 L.Ed.2d U.S. probable cause. Clenney State, supra; v. v. Davis State, 286 Ala. 237 So.2d 640 Ms. For jurisdictions cases other in accord June respect have been met with with this view see Marshall v. search warrant. 143, 147 Ga.App. 666; Titus, S.E.2d State v. 154; Mark, 107 N.H. 220 A.2d State v. necessity no There is to consider the- 216 A.2d 377. N.J. manner in which the ap- officers entered pellant’s apartment subsequent since the following facts were before the search nothing incriminating. revealed magistrate : reasons, foregoing 'For the judgment ago 1. That few minutes an amount appealed from due to be and same is- of marijuana purchased appellant’s at hereby premises Avenue, South, at 9th Bir- minghspi, County, Alabama. Affirmed. Jefferson CATES, (concurring). Judge slam the door a trial court longer can No summary- court reexamining what up his enough hack says jurisdiction Edmunds a warrant.

handing a constable on this So. State, 42 Knox v. point was overruled has been

Ala.App. 172 So.2d Supreme Court.

approved our marijuana because I concur began. away before

thrown 539, 215 State, 44 Hayes v. validity the warrant Therefore,

604. pass for us to on. not needful in the road right fork at are we Nor 24, 19641 August Act No. 100 follow hold bad.

toor

238 So.2d HICKS

Roscoe

STATE. 67.

6 Div. Appeals of Alabama. Criminal Curtis, MacLaurin, Tweedy Maddox & Aug. Beech, Jasper, & appellant. Gen., Gallion, Atty. MacDonald Turner, Gen., Walter Atty. S. Asst. for the State.

CATES, Judge. twenty-five degree

Second murder with a year Appellant go sentence. elected the penitentiary forthwith. February held trial was filed days. The last brief was

took eleven February 1970. with this Court 591; State Furmage, N.W.2d N.C. Minn. 1. But see State v. Paulick, Ruotolo, 563; A.2d 52 N.J.2d 109 S.E.2d State

Case Details

Case Name: Oliver v. State

Court Name: Court of Criminal Appeals of Alabama

Date Published: Aug 25, 1970

Citation: 238 So. 2d 916

Docket Number: 6 Div. 12

Court Abbreviation: Ala. Crim. App.