Horzempa v. State

290 So. 2d 220, 292 Ala. 140, 1974 Ala. LEXIS 1036

• Court: Supreme Court of Alabama
• Decided: January 24, 1974
• Docket: SC 557
• Status: Published

Opinions

FAULKNER, Justice.

John J. Horzempa was convicted of illegal possession of marijuana and was sentenced to five years in the State penitentiary. The Court of Criminal Appeals, 52 Ala.App. 153, 290 So.2d 217 reversed because the evidence seized was held to be the result of the unconstitutional validity of a search warrant. Certiorari was granted because the case was one of first impression.

The affidavit presented to the magistrate as the basis of his issuance of a search warrant is as follows:

“Affiant has received information from two different reliable informants that they have been in above described residence on several occasions recently and there have been drugs that are above described in the residence of John Thomas Walding. Both informants have made numerous drug buys for affiant in the past two weeks and their reliability has been established. The last buy was made three days ago and was a good buy. Both informants state the above drugs of Marihuana and Mescaline are now in the house which is described above and occupied by John Thomas Walding, alias, . . . and John Doe, alias, whose name is unknown to the affiant.”

Before a warrant for search can be issued, the judicial officer issuing the warrant must be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L. Ed.2d 306 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L. Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). In Whiteley the sheriff’s complaint alleged that “ . . . defendants did then and there unlawfully break and enter a locked and sealed building .” This was stated by the court to be nothing more than a conclusion on the part of the sheriff and could not support the independent judgment of a disinterested magistrate.

In Aguilar the officers said that, “Affiants have received reliable information from a credible person.” In Spinelli the affidavit contained the words that the FBI “has been informed by a confidential reliable informant.” In State, ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970) the affidavit stated, “‘Information from a person whose record of reliability for correctness has been good that Davis has had illicit narcotics . That Davis stated he had a supply at his restaurant building, in his car and in a small out building. This information given me in several conversations over a period of about one month in person and over telephone.’ ”

The question before this court now is whether the affidavit met the test laid down by the United States Supreme Court and this court. In State, ex rel. Attorney General, supra, Justice Merrill stated that,

“As we read Aguilar and Spinelli, they do not require anything more than a showing of circumstances necessary to enable the magistrate to determine the validity of the informant’s conclusion that the narcotics are where he says they are. This may be by an independent corroborative observation of the officer himself or it may be from information received from the informant himself.

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“We conclude that the affidavit failed to reveal circumstances to satisfy this part of the Aguilar test. It is true that the informer told the officer that Davis had stated he had a supply of narcotics at his restaurant, in his car, and in a small out building. But the affidavit does not state how his informant learned of this statement, or whether it was made to him.”

The affidavit in this case fails to state any facts corroborating the conclusion of the informants that the “above drugs of Marihuana and Mescaline are now in the house . . . occupied by John Thomas Walding.” This is a conclusion on the part of the informers. The affidavit states that “The last buy was made' three days ago and was a good buy” qualifying that the informants had made buys for the officer. However, the statement omits that the “buy” was made from the defendant. The affidavit states that they have been in the “above described residence on several occasions recently and there have been drugs that are above described in the residence of John Thomas Walding.”

In White v. State, 72 Ala. 195 (1882) this court said, “What is meant by ‘recent’, is incapable of exact or precise definition, and the term has been said to vary, ‘within a certain range, with the conditions of each particular case.’ ” In Reynolds v. State, 46 Ala.App. 77, 238 So.2d 557 (1970), it was said that a statement in an affidavit for a search warrant that an informant had “recently” seen or purchased drugs, when connected with other language that would lead to the conclusion that the unlawful condition continued to exist on those premises at the time of the application for the warrant, has been held sufficient. Citing cases. It was further said in Reynolds that, “The use of the word ‘recently’ in the affidavit under consideration, coupled with the statement that the drugs ‘are contained’ at the described location, was sufficient to show the event was not too remote.”

In the affidavit before us it merely says two reliable informants have been in the house on several occasions “recently” and “there have been drugs” in the residence. It fails to show that the informants had purchased drugs “recently” in the house, or that they had actually seen drugs “recently” in the house. It fails to show how the informants came into possession of knowledge that “there have been drugs . in the residence.”

The State’s brief states as a proposition of law that,

“An affidavit supporting a search warrant which states in essence ‘that the informant has recently seen drugs in the place to be searched’ is sufficient.”

This is not the situation in this case. The informants did not say they had “recently seen” drugs in the residence. This proposition of law does not fit the mold of this case.

The judgment of the Court of Criminal Appeals is affirmed.

Affirmed.

HEFLIN, C. J., and COLEMAN, BLOODWORTH and JONES, JJ., concur. MERRILL, HARWOOD, MADDOX and McCALL, JJ., dissent.