Rickman v. State

361 So. 2d 22
CourtCourt of Criminal Appeals of Alabama
DecidedJanuary 24, 1978
StatusPublished
Cited by10 cases

This text of 361 So. 2d 22 (Rickman 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
Rickman v. State, 361 So. 2d 22 (Ala. Ct. App. 1978).

Opinion

361 So.2d 22 (1978)

S. T. RICKMAN, alias
v.
STATE.

6 Div. 540.

Court of Criminal Appeals of Alabama.

January 24, 1978.
Rehearing Denied February 21, 1978.

*23 Ralph I. Knowles, Jr., of Drake & Knowles, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen. for the State, for appellee.

BOOKOUT, Judge.

Illegal possession of cocaine; sentence: $300 fine and three years imprisonment.

The only issue presented concerns the warrantless stop and search of the appellant and his automobile. The State contends that the search was legal for it was made with probable cause coincidental with exigent circumstances, which is an exception to the warrant requirement. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

Lt. Lloyd Russell, a Tuscaloosa policeman and chief of the West Alabama Narcotics Squad, testified that around 11:30 A.M. on Sunday, June 6, 1976, he received a telephone call at home from an informer. The informer, Dwight Bingham, told Russell that he had been in the presence of the appellant the previous night, that appellant stated he was coming to Bingham's house on Sunday to watch a basketball game on television, that he would arrive there by 3:00 P.M., and that he would be bringing cocaine with him. Russell said Bingham also told him that the appellant would be coming to Tuscaloosa from Eutaw, and told him the type automobile the appellant would be driving and the vehicle tag number.

After receiving Bingham's call, Lt. Russell placed calls to various officers of the narcotics squad. He was able to assemble four officers at the squad office by 12:30 P.M. that day. Russell and the other officers then proceeded in four cars to the Foster's exit on Interstate 59, arriving there at approximately 1:00 P.M. Around 4:15 P.M., the appellant was spotted coming onto the interstate highway. Officer H. M. Turner was directed by radio by another officer to stop the appellant's automobile, which he did. By the time Lt. Russell arrived at the scene, Officer Turner had already searched the appellant. Turner said he found a small vial about two inches long in the left front pocket of appellant's clothing which contained .219 grams (.00772 ounces) of cocaine. The automobile was searched, but no contraband was found.

Although Lt. Russell received the tip at 11:30 A.M. and had a squad of four cars assembled on the highway by 1:00 P.M., neither he nor any of his officers attempted to obtain a search warrant. Russell testified that it would have been possible, with a minimum of effort to have obtained a warrant on Sunday, having done so on weekends before. He said he did not attempt to do so on this occasion because he did not think he had enough information to establish probable cause to obtain a search warrant. Therefore, he assembled his squad on the highway and made the search without a warrant.

*24 It is the State's theory that probable cause arose when the informer's tip was confirmed by officers seeing the appellant's automobile traveling toward Tuscaloosa near the time specified in the tip. The State contends that the mobility of the automobile gave rise to exigent circumstances which, being coincidental with probable cause, permitted police to stop and search the appellant and his automobile without a warrant.

A key question is whether Lt. Russell had probable cause to secure a warrant at the time he received the tip. A second key question is whether exigent circumstances actually arose which prevented the officers from obtaining a warrant.

I

Could Lt. Russell have obtained a search warrant based upon the tip from his informant? We think so.

"Probable cause may be based solely upon information obtained from a reliable informant—hearsay information. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). A tip may supply the basis for probable cause in and of itself where it discloses (1) some of the underlying circumstances which justify a conclusion that the informer is credible or his information is reliable, and (2) some of the underlying circumstances tending to demonstrate that, in the specific instance in question, he has drawn his conclusion of criminality in a reliable manner. Aguilar, supra. These two tests are the dual `prongs' of Aguilar, the veracity prong and the basis of knowledge prong. They constitute the initial standard to be applied in assessing the probative value of an informant's information. If the tip fails one of these prongs, the informant's report may still constitute the sole basis for a finding of probable cause if the information provided is in such detail and minute particularity that a `magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.' This is the self-verifying tip. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). . . ." Hatton v. State (1977) Ala.Cr.App., 359 So.2d 822.

In the instant case, we find the officer had received information from an informer with a record of reliability. Although Lt. Russell had made no other arrests based upon information given by Bingham, nevertheless the State and the defense through cross-examination established that Bingham had given Russell information on numerous occasions which had been checked out and proved to be correct. Our Supreme Court has held that ". . . no `batting average' is required to establish the reliability of the informer. If the affiant so desires, he may cite prior instances of proven reliability, but it is not a requirement." State ex rel. Attorney General, 286 Ala. 117, 237 So.2d 640 (1970); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966).

In obtaining a search warrant in Alabama, very little is required of the affiant to prove the reliability of his informer. In fact, all that is required is a recitation that the information came from, "a person whose record of reliability for correctness has been good." State ex rel. Attorney General, supra; Neugent v. State, Ala., 340 So.2d 52 (1976).

Lt. Russell's sworn testimony that Bingham had given him information on several occasions which proved to be correct is certainly sufficient to meet the "veracity prong" of Aguilar, supra, as interpreted in State ex rel. Attorney General and Neugent, supra.

As to the "basis of knowledge prong," it was the testimony of Lt. Russell that the informer told him that he was personally in the presence of the appellant the prior night when appellant told him he was bringing cocaine to Bingham's house the next day, and that he was coming to watch a 3:00 P.M. basketball game on television. We deem this to be sufficiently reliable information. It tells us how the *25 informer got his information—directly from the appellant, as opposed to a "rumor circulating in the underworld," street gossip, or other unreliable source. Thus, we conclude that Lt. Russell had probable cause to obtain a search warrant if

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Bluebook (online)
361 So. 2d 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rickman-v-state-alacrimapp-1978.