Opinion
1 Div. 375.
November 24, 1987. Rehearing Denied January 26, 1988. Certiorari Denied March 11, 1988 Alabama Supreme Court 87-527.
Appeal from the Court of Criminal Appeals, 507 So.2d 1066.
James M. Byrd, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
On January 7, 1987 this cause was submitted on briefs of attorneys for appellant. On March 10, 1987 this cause was affirmed by the Court of Criminal Appeals without opinion and on April 14, 1987 the appellant's application for rehearing and petition requesting a written statement were denied, all without opinion. The Court of Criminal Appeals was unanimous.
On April 28, 1987 a petition for certiorari was filed in the Supreme Court of Alabama by appellant's counsel. On September 27, 1987 the Supreme Court of Alabama directed this court to issue an opinion and answer two inquiries with reference to its determination in this cause. ( Cumbie v. State, 520 So.2d 1383) (Ala. 1987).
Robert William Cumbie was charged in a two count indictment with unlawfully possessing cocaine on May 6, 1985 contrary to the provisions of § 20-2-70 Code of Alabama 1975 as amended. In the second count, he was charged with unlawfully possessing marijuana on May 6, 1985 contrary to the provisions of § 20-2-70 Code of Alabama 1975 as amended. Appellant was arraigned and entered a not guilty plea. Thereafter, appellant's counsel filed a motion to suppress averring that the search warrant was issued without probable cause and, therefore, was unlawful. Secondly, he asserts that the search warrant was improperly executed in that the same was executed by persons other than those to whom the warrant was directed.
Because the order of remand from the Supreme Court of Alabama calls into question this court's prior actions, the memo of this court circulated on February 19, 1987 to each member of the court, in which the court unanimously concurred at conference of March 4, 1987 and released without opinion on March 10, 1987 is hereinafter quoted:
"Robert W. Cumbie was charged in a two-count indictment with the unlawful possession of marijuana and in the second count with the unlawful possession of cocaine, both contrary to the provisions of § 2-2-70 Code of Alabama 1975.
"The amounts involved were .8 grams of cocaine and approximately 1 3/4 pounds of marijuana.
"Thereafter, because of a motion to suppress which challenged the sufficiency of the affidavit and search warrant, the cause was tried before the judge without a jury. After the close of the suppression hearing, the evidence was then stipulated to the court and the court found the appellant guilty as charged. The cause was then deferred for a sentencing hearing.
"After the pre-sentence report was presented and the appellant testified, the court found the appellant guilty of the possession of cocaine and guilty of the possession of marijuana felony and sentenced the appellant to five years' imprisonment in the penitentiary. The appellant then gave notice of appeal.
"The sole issue on this appeal is the validity of the search warrant. The appellant cites Aguilar v. Texas, 378 U.S. 108 [ 84 S.Ct. 1509, 12 L.Ed.2d 723] and Spinelli v. United States, 393 U.S. 410 [ 89 S.Ct. 584, 21 L.Ed.2d 637] and asserts that the "two prong" test of these two opinions with reference to the basis of knowledge and the veracity of the affidavit's informant were not here properly established.
"There was not enough evidence offered, either, under the appellant's argument to satisfy Illinois v. Gates as to the totality of the circumstances under that opinion, 462 U.S. 213 [ 103 S.Ct. 2317, 76 L.Ed.2d 527].
"The search warrant in the instant cause was issued to Officer Samuel M. Cochran, of the Mobile City Police and Narcotics Squad, based upon the information from some known informants as well as a couple of anonymous tips. The two confidential informants told the officer that they had seen drugs at the residence of this appellant within the 48 hour period just prior to the issuance of the warrant and the service of the warrant on the appellant. The appellant's brother was at his residence at the time the warrant was executed on May 6, 1985 at approximately 5:30 in the afternoon.
"The officer at the hearing before Judge Kittrell testified that he had used the confidential informant on several occasions, that two persons had been arrested and convicted for violation of controlled substances act as a result of information of this allegedly anonymous source who furnished him the information here. He stated, morever, that he had received 'at least five anonymous calls' over the past two months involving this same appellant. The information was that this appellant was trafficking in controlled substances. Moreover, he stated that he had also executed search warrants at the residence of this appellant's brother approximately two blocks away about two months before and had seized 2 1/2 ounces of cocaine. He stated he was accompanied by Officers Eddie Carr, Terry Hicks of the ABI and, also, Drug Enforcement Agent Charlie Parks. He said there may have been some other uniformed sheriff's deputies with them.
"Seized as a result of this were a set of triple beam scales, a paper bag containing several plastic bags of green plant material, a vial of pills which proved to be lawful item and $3,971 in U.S. Currency. He said that the ownership and occupancy of the residence was verified by gas and power bills. He stated they found buried a metal tool box which contained several plastic bags. These were large, zip lock bags and had residue of marijuana in them. A film container also had some green plant material in it. This was the inventory made at the time of the search. (Also some vials of uncontrolled tablets).
"Within the affidavit itself there is a statement, 'Within the past 8 hours information was received from a source requesting anonymity to the Mobile Police Department.' This source had indicated that the appellant's brother and a friend, Donnie Chastang, had just returned within the last 24 hours from Miami, Florida, with a large quantity of cocaine.
"Judge Kittrell found that there was sufficient information given to Judge Johnstone before the search warrant was issued. I agree with this.
"Reviewing all the material which had been placed before Judge Johnstone, I am satisfied that sufficient basis for probable cause existed for issuing the warrant. The warrant is, therefore, valid and, hence, the search and seizure thereunder are valid.
"As to the second issue raised, that is, that a Mobile municipal officer assumed the initiative in the execution of the search warrant, this argument has been rejected in recent cases as there were, in fact, uniformed sheriff's deputies who were along in this case. Moreover, there were agents from the ABI with the municipal officer who actually executed the warrant. In light of this, it is clear that the search warrant was properly executed.
"In view of the above, I recommend that this cause be affirmed without opinion.
"AFFIRMED, NO OPINION."
I
As may be seen from the foregoing discussion, Officer Samuel M. Cochran of the Mobile Police Department clearly placed sufficient information before Judge Johnstone who signed the search warrant to authorize the issuance of same. We reaffirm our determination that sufficient information was placed before Judge Johnstone to authorize the issuance of the search warrant in question. The appropriate legal authorities are set forth hereinabove.
II
With reference to the execution of the warrant which was directed "To the Sheriff of Mobile County, Alabama" as herein set forth, the warrant was validly executed by the uniformed officers who conducted the search. The applicable legal authorities to support this are fully set forth in the opinions of this court in Gratton v. State, 456 So.2d 865 (Ala.Cr.App. 1984), cert. denied, 456 So.2d 865 (Ala. 1984); Hicks v. State, 437 So.2d 1344 (Ala.Cr.App. 1983), affirmed 437 So.2d 1346 (Ala. 1983) and Williams v. State, 505 So.2d 1252 (Ala.Cr.App. 1986), affirmed 505 So.2d 1254 (Ala. 1987).
Because of the considerable volume of cases flowing through the Alabama appellate courts, we do not issue opinions in many cases, such as the case at bar, when, from the facts, the legal issues have been properly determined in the courts below and no new or novel legal arguments are presented. Such is the situation with reference to the case at bar. However, as directed, we issue the foregoing as and for the opinion of this court.
For the reasons stated, the judgment of the court below is due to be and the same is, hereby, affirmed.
AFFIRMED.
All the Judges concur.
ON REHEARING
TYSON, Judge.
Robert W. Cumbie, through counsel, has filed an application for rehearing to which he attached a motion requesting an extension and that further facts be set forth pursuant to Rule 39(k), A.R.A.P.
Appellant's counsel takes issue with this court's statement of facts as set forth in its opinion dated November 24, 1987, in which a memo of this court which was circulated to the members of this court on February 19, 1987, and unanimously concurred in on March 4, 1987 at conference, wherein this cause was originally affirmed without opinion on March 10, 1987, is quoted.
Mobile City Police Officer Samuel M. Cochran, of the Narcotics and Vice Squad, testified at the motion to suppress hearing in this cause. His testimony in the cause leading up to the issuance of the search warrant by Judge Johnstone is as follows:
"Q. Officer, I show you what has been marked as State's Exhibit 1. Can you identify that exhibit?
"A. Yes, sir, I can.
"Q. What is that exhibit?
"A. This is the search warrant affidavit that I prepared and presented to Judge Johnstone for a search warrant at 2854 Halls Mill Road, Mobile.
"Q. And who made up that document?
"A. I did.
"Q. And who did you make it up for?
"A. I presented it to Judge Johnstone, the affidavit for the search warrant.
"Q. And was that a judge in Mobile County?
"A. Yes, sir, he is.
"Q. And were you sworn in?
"A. Yes, sir, I was.
"Q. When did you make the affidavit?
"A. On May the 6th of 1985.
"Q. And what facts did you relate to the Judge?
"A. That I'm Corporal Sam Cochran of the Mobile Police Department, Mobile, Alabama, currently assigned to the Narcotics Section. Within the last eight hours information was received from a source —
"THE COURT: Is all of that on the affidavit?
"THE WITNESS: Yes, sir, it is.
"THE COURT: Everything in there you swore to?
"THE WITNESS: Yes, sir, I did.
"Q. And did these facts pertain to Mobile County?
"A. Yes, sir, they did.
"Q. What address?
"A. 2854 Halls Mill Road here in Mobile.
"Q. And what was the source of the information on the affidavit?
"A. There were a number of sources, both anonymous and both confidentially known to me that had proven reliable in the past.
"Q. And how did you know the facts that you put down on the affidavit?
"A. The facts were called into the police department stating the information concerning Robert Cumbie, Steve Cumbie and Donnie Chastian. Those facts that were stated, some of which were verified to corroborate them, some of which were not, were unable to be completely verified, and then also facts presented in the affidavit were also known to me that I had received from a confidential reliable informant.
"Q. Is that information about the informant on the affidavit?
"A. It is.
"Q. Had you used that confidential informant before?
"A. Yes, sir, I had.
"Q. And what were the results?
"A. Two persons were arrested for drug violations and a seizure of controlled substances.
"Q. Now, the anonymous tips you talked about, what kind of anonymous tips were those?
"MR. BYRD: I would object, Your Honor, unless these are factors which were stated in the affidavit under oath. It's irrelevant and immaterial.
"Q. Did you state the anonymous tips on the — in your affidavit?
"A. Yes, sir, I did.
"Q. Would you tell us about those anonymous — was that like crimestopper type information or how what was that?
"A. Yes, sir, they were crimestopper information and they were also — I think three were crimestoppers and two were just straight calls into the vice section.
"Q. So, at least five anonymous calls you had received?
"A. Yes, sir. Over a period of some months that advised us of the involvement of Robert Cumbie, Steve Cumbie and Donnie Chastian in trafficking in controlled substances.
"Q. Now, Officer, based on those anonymous tips you stated in the affidavit and based on your confidential informant information stated in the affidavit, is there anything else on the affidavit that you can recall that you relied upon in obtaining the warrant?
"A. On the affidavit?
"Q. Right.
"A. In it also I state how we had previously executed a search warrant at the residence of Steve Cumbie, the known brother of Robert Cumbie, of approximately two blocks away and that we did in fact seize approximately two and a half ounces of cocaine and this was just a couple of months prior to this search warrant. It's stated in here. And at that time there was also information indicating Robert's involvement with that although he was not arrested because he was not present at the residence.
"Q. And what date was the search warrant issued?
"A. The search warrant was issued on May the 6th, 1985.
"Q. Who was the warrant issued to?
"A. Myself.
"Q. What address was the warrant issued for?
"A. 2854 Halls Mill Road.
"Q. When was the warrant executed?
"A. That same afternoon at 5:35 p.m.
"Q. Do you know who lived at that address?
"A. I do.
"Q. Who?
"A. Robert Cumbie.
"Q. And who executed the warrant?
"A. I did. Along with several other officers.
"Q. What other officers were involved if you can recall?
"A. Yes, sir. Myself, Corporal Eddie Carr, Corporal Terry Hicks, Alabama Bureau of Investigation Officers Ed Odom, also D.E.A. Agent Charlie Parks. I think also Agent Gary Etchin. And then there were some other uniformed officers that later came to the scene.
"Q. And what was seized at that address based on the search warrant you had obtained?
"MR. BYRD: Your Honor, I'll object to the form of the question. I also think that gets a bit beyond the scope of a motion to suppress hearing.
"THE COURT: Overrule.
"A. Seized was a set of triple beam scales, a paper bag containing several plastic bags of green plant material, also contained unknown vial of pills, $3,971.00 in U.S. currency. There was documentation which were gas bills and power bills. A metal tool box that contained several plastic bags, these large ziplock plastic bags that had residue in them. A film container that had green plant material. Two small plastic bags containing white powder. Those items were seized pursuant to the warrant.
"Q. That's an inventory list you're reading from which is part of State's Exhibit Number 1?
"A. Yes, sir, it is.
"Q. And were the items turned in for analysis?
"A. Yes, sir, they were.
"MR. JORDAN: That's all we have at this time." (R. 4-8)
Officer Cochran was then cross examined by appellant's counsel. An unidentified anonymous source stated that the appellant's brother, Steve Cumbie, and Donnie Chastang had, within the past 24 hours, returned from Miami, Florida with a large quantity of cocaine. Steve Cumbie is not the defendant, nor was Donnie Chastang. An anonymous source had indicated that these two people had been to Miami, Florida and had returned with the cocaine in question. After further examining the witness as to the basis of his knowledge, and as to the basis of the anonymous sources, the officer stated that he had received information that all three of the suspects were drug violators in the Mobile area and were the topic of at least five anonymous tips to the police department narcotics section. The officer further stated, on cross examination, that one of his informants had told him of purchasing controlled substances from both Robert and Steve Cumbie and had been in Robert's house and seen the controlled substances there. He indicated he had given this information to Judge Johnstone.
Upon being asked about the anonymous tips, he stated that these were from people who worked with the police department as "crimestoppers". With reference to the basis of knowledge, the record discloses the following:
"Q. And then thirdly you say you had a total of five tips altogether related to Robert Cumbie that had been received anonymously. You said three were crimestoppers and two that were just made to where, the narcotics office?
"A. That I received in there by phone myself.
"Q. And finally you said you had a confidential informant who you've already testified to was reliable. You had used him before resulting in arrests. And he told you that he had in fact purchased cocaine and seen cocaine at Robert Cumbie's residence.
"MR. BYRD: Object, Your Honor.
"Q. I'm sorry. Purchased controlled substances and seeing controlled substances stored there.
"A. That is correct.
"MR. JORDAN: That's all." (R. 19)
Following further direct and cross examination, the trial court denied the appellant's motion to suppress. (R. 22). The district attorney then offered the affidavit and warrant as State's Exhibit 1 which was admitted. (R. 22). Record 23 and 24 then read as follows:
"MR. BYRD: Your Honor, we would object to it on the grounds as stated in our motion to suppress and the fact that it was improperly issued and executed.
"THE COURT: I give you an exception on all previously stated grounds. Overrule. Mark it in.
"(State's Exhibit Number 1 was marked into evidence.)
"MR. BYRD: In light of the testimony this morning and the rulings of Your Honor, the defendant with leave of court would like to maintain his plea of not guilty but stipulate a prima facie case and have preserved for review the legal rulings since I believe those are the only true issues in the case.
"THE COURT: All right. So the defendant stipulates to a prima facie case. Does the defendant have anything to present?
"MR. BYRD: No, sir. We — if Your Honor would —
"THE COURT: Got a prima facie case for possession of marijuana and cocaine?
"MR. BYRD: Yes, sir, as charged in the indictment in both cases. We believe Mrs. Bryant would testify that there was .8 grams of cocaine and one and three-quarters pounds of marijuana. And I have no questions about her qualifications or expertise.
"THE COURT: All right. Robert Cumbie, will you stand up, please. The Court adjuges you to be guilty of possession of cocaine and marijuana and directs that a presentence investigation be conducted by the State Boards of Pardon and Parole, returnable — I'm going to let this be returnable before Judge McDermott and I'll have him give you a date." (R. 2324)
In this cause, as indeed with all others which come before the judges on this court, it is our purpose to issue a succinct statement of the facts as opposed to quoting at length from the record because of the problems this entails in the length of appellate opinions. However, we have made an exception as hereinabove set forth because of the motion which was filed in this court by appellant's counsel.
We reiterate and reaffirm our views heretofore expressed on November 24, 1987, determining that there was sufficient information placed before Judge Johnstone to authorize the issuance of the search warrant and that the trial judge properly determined that there had been a sufficient case made to show the basis of the issuance of the warrant and its validity. We reaffirm these determinations.
With reference to the execution of the warrant, there is a serious question in the minds of the members of this court as to whether or not the appellant's counsel has properly preserved an issue as to the execution of same. However, presupposing that there was a sufficient objection made under his motion to suppress (R. 23), we reaffirm our determination that the testimony from Officer Cochran showed that a number of officers was present and participated in the search and arrest of this appellant on the date in question. See specifically R. 7, which is heretofore quoted.
Under the authorities set forth in this court's opinion of November 24, 1987, Issue II, we reaffirm our determination that the search warrant was properly executed.
MOTION DENIED; OPINION EXTENDED; APPLICATION OVERRULED.
All the Judges concur.