Garrett v. State

504 So. 2d 319
CourtCourt of Criminal Appeals of Alabama
DecidedSeptember 9, 1986
Docket4 Div. 383
StatusPublished
Cited by3 cases

This text of 504 So. 2d 319 (Garrett v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garrett v. State, 504 So. 2d 319 (Ala. Ct. App. 1986).

Opinions

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a judgment of conviction and sentence on a separate jury trial of the appellant on an indictment that charged that he and Lisa Shy “Did knowingly have in actual or constructive possession in excess of one kilo or 2.2 pounds of Marijuana, contrary to law, in violation of 20-2-80 of the Code of Alabama,” which designates the crime as “Trafficking in cannabis.” The court fixed his punishment at imprisonment for twenty-five years and imposed a fine of $25,000.00.

The brevity of the STATEMENT OF FACTS contained in brief of counsel for appellant, which counsel for appellee “accepts ... as being substantially correct” and adopts “by reference,” influences the writer of this opinion to quote it in full. It is as follows:

“On March 29, 1984, Sheriff Lamar Had-den, Lieutenant Mike Gilley and other members of the Houston County Sheriff’s Department stopped Appellant, Charles Garrett and a friend Lisa Shy, on Highway 53, known as Eddings Road in Houston County, Alabama. They were traveling south in a red pickup truck with a camper on the back, pulling a boat. The Sheriff’s Department had received information on March 29, 1984, either through the Crime stoppers program of Houston County, Alabama, which is a program where anonymous tips are received, or from an old tried and true informant as testified by Lieutenant Gilley. Crime stoppers is a program through which informers are paid for information regarding possible crimes and their identity remains anonymous. From the information received from one of these sources, Lieutenant Gilley obtained a search warrant to search the person of Appellant and his residence. On the evening of March 29, 1984, Lieutenant Gilley, Sergeant Leroy Woods and agent Jones met at the intersection of Highway 53 and Eddings Road. They saw a red pickup truck pulling a boat turn on Eddings Road. They followed Appellant and stopped him about one mile from Eddings Road. They had no search warrant to search the pickup truck. The search warrant they had was addressed to the Appellant’s residence three miles south of Highway 53, right on Eddings Road for %o of a mile, then turn right on Willie Varnum Road for 3.1 miles to a dirt road, turn left for Vio of a mile. The affidavit made to the magistrate made no mention of a pickup truck and it is considered by Lieutenant Gilley they had no warrant to search the truck.
“They stopped approximately three miles from the trailer described in the search warrant. Eddings Road did not pass the trailer. To get to the trailer from Ed-dings Road required two right turns onto other roads.
“Lieutenant Gilley searched the back of the pickup truck and the boat. Inside the closed camper shell on the back of the pickup truck he found a brown closed suitcase. Inside the boat he found a five gallon sealed bucket. From inside the truck Officer James testified he found a pistol and a brown metal box and a roach in the ash tray of the truck. The box [321]*321was locked and he got the key from the appellant to unlock the box. Officer Jones testified, ‘He produced a key and that he opened and turned it over the [which we deem should be “to”] Lieutenant Gilley.’ Over the objection of the Appellant the State introduced evidence found in the suitcase of the closed camper in back of the truck and the contents contained in the locked box located in the cab of the truck. They had no warrant to search the pickup truck.
“Lieutenant Gilley and the other officer then took the Appellant to the trailer described in the warrant and, ‘he executed the search warrant.’ He found 43 one pound bags of marijuana, scales, 4 plastic bags containing white powder, a brown vial, a razor, and some capsules. “Joe Saloom of the Alabama Department of Forensic Sciences testified he received a large brown paper bag from Lieutenant Mike Gilley of the Houston County Sheriff’s Department. That it contained three exhibits. One just loose plant material and two large zip-lock plastic bags containing plant material. That in all there were 4.76 pounds of marijuana seed and other plant material. He testified he weighed all of the material together and did not check to see if the seed would germinate. At the close of Joe Saloom’s testimony, the State rested its case. The appellant filed a motion for Judgment of Acquittal which was overruled by the Court.
“The Appellant, Charles Garrett, testified in defense of the charges that he was set up by his wife or someone acting on her behalf.
“He said he had moved to the trailer in Houston County to get away from the harassment of his wife. That she had filed suit for divorce against him in the State of Kansas and was constantly harassing him about the divorce.
“Garrett further testified that he was in Texas several days before he was arrested and had come back to Houston County the night of March 28, 1984; that he had no knowledge of the controlled substance found in the trailer.
“It was further shown that Appellant’s wife was in town the day he was arrested or shortly thereafter and took his pickup truck and other property owned by him to Kansas where she resided.”

I.

The first issue presented by counsel for appellant is thus captioned in his brief:

“WAS THE BASIS FOR THE SEARCH WARRANT VALID WHEN THE STATE’S SOLE CLAIM TO SUCH VALIDITY WAS THE CONFLICTING AND INCONSISTENT TESTIMONY OF A TIP FROM AN INFORMER WHOSE IDENTITY THE STATE REFUSED TO DISCLOSE WHEN THERE WAS NO OTHER UNDERLYING CIRCUMSTANCES FOR THE WARRANT AND SEARCH.”

In his argument in support of Issue I, counsel for appellant cites Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and Young v. State, 372 So.2d 409 (Ala.Cr.App.1979). Roviaro v. United States is distinguishable from the instant case in that in Roviaro, the informer was a participant in each of the two sales of the prohibited substance involved, while there is no contention in the instant case that the informer was a participant in the possession of the marijuana for which defendant was charged and being tried. In Young v. State, this Court held that where there was a tip from an unidentified informant which failed to meet one prong of the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), of cause for arresting the defendant for possession of the prohibited substance, and the arrest of a person who had been identified by the informant as a possessor of the prohibited substance was not sufficient to justify the arrest of such person. Nevertheless, the Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), has relaxed the standard set forth in Aguilar v. Texas, as well as Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), by following the “totality-of-the-circumstances approach” as set forth in detail in the cited [322]*322case. We are of the opinion that, in accordance with Illinois v. Gates,

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Bluebook (online)
504 So. 2d 319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garrett-v-state-alacrimapp-1986.