Ala. R. Crim. P. 3.8
This rule is essentially the same as Alabama Code 1975, §, and shall govern unless otherwise provided by law.
Committee Comments to Amendment Effective December 1, 1997
The committee proposed this amendment to comply with the recommendation by the Alabama Supreme Court that Rule 3.8 be redrafted to permit the broader issuance of anticipatory search warrants. Ex parte Oswalt, 686 So. 2d 368 (Ala. 1996). In Oswalt, the Alabama Supreme Court held that anticipatory search warrants are not per se unconstitutional, but that those that fail to comply with Rule 3.8, Alabama Rules of Criminal Procedure, are impermissible.
The Alabama Supreme Court noted in Oswalt that the use of present- and past-tense language in Rule 3.8 (as it read before this amendment) restricted the issuance of anticipatory search warrants. The amendment permits anticipatory search warrants by adding future-tense language. Now a warrant to search for property that is not within the jurisdiction when the warrant is issued, but that is expected to be within the jurisdiction when the search is conducted, is valid if it otherwise complies with the rule.
A common factual basis for anticipatory search warrants occurs when the officer presents evidence that contraband is on a "sure course" to a certain premises. It is clear that the affidavit supporting the anticipatory search warrant must show elements beyond the mere fact that the officer believes that a delivery of contraband is going to occur. The affidavit must also reveal how the officer obtained this belief, how reliable the sources are, and what part, if any, the state or a governmental agency will play in the delivery. The judicial officer will then decide whether there is probable cause to believe that the delivery will occur, and whether there is probable cause to believe that the contraband will be located on the premises when the search takes place. See, e.g., United States v. Garcia, 882 F.2d 699, 703-04 (2d Cir. 1989).
Committee Comments to Amendment Effective November 1, 1998
The amendment to Rule 3.8 adds subsection (b) which authorizes the issuance of search warrants on oral testimony, as is authorized in the federal courts. This amendment basically tracks the provisions of Rule, Federal Rules of Criminal Procedure, but has been modified to recognize that not all magistrates are authorized under Alabama Law to issue search warrants.