Whitener v. State

390 So. 2d 1136
CourtCourt of Criminal Appeals of Alabama
DecidedAugust 19, 1980
StatusPublished
Cited by7 cases

This text of 390 So. 2d 1136 (Whitener 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
Whitener v. State, 390 So. 2d 1136 (Ala. Ct. App. 1980).

Opinion

390 So.2d 1136 (1980)

Ricky Joe WHITENER
v.
STATE.

8 Div. 348.

Court of Criminal Appeals of Alabama.

August 19, 1980.
Rehearing Denied October 7, 1980.

*1137 Steven E. Haddock, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction under Chapter 4, Title 28, Code of Alabama 1975. The offense is proscribed and the punishment prescribed by § 28-4-115:

"It shall be unlawful for any person, firm or corporation or association within this state to transport in quantities of five gallons or more any of the liquors or beverages, the sale, possession or transportation of which is prohibited by law in Alabama. Any person convicted of violating this section shall be guilty of a felony and, upon conviction, shall be imprisoned in the penitentiary of this state for a period of not less than one year, nor more than five years."

Upon the return by the jury of the verdict of guilty, the court sentenced defendant to imprisonment for three years.

According to the undisputed evidence, an officer found thirty cases of beer in the trunk of an automobile driven by appellant just after the automobile had passed over the bridge over the Tennessee River, going south on Highway 31 in Decatur, Morgan County, Alabama, at approximately 1:15 P.M. May 12, 1979. Before such evidence was introduced, the court conducted a hearing out of the presence of the jury on a pretrial motion of defendant to suppress evidence as to what was found. The court's denial of the motion, together with its overruling defendant's objection to the evidence when presented, constitutes the major insistence of appellant for a reversal. Appellant argues there was a violation of defendant's constitutional right to security against an unreasonable search and seizure.

There is a conflict in several particulars between the testimony of the officer who found the beer and the testimony of defendant and one riding with him in the automobile, which the trial court obviously *1138 resolved against defendant, which was well within the province of the court to do; and we treat the issue presented as if the version of the officer as to what occurred in connection with his discovery of the beer and his apprehension of defendant is correct.

No warrant for the search of the automobile of the defendant had been obtained. The officer, Sergeant James Steenson, of the Decatur Police Department, received a telephone call from a confidential informant about 9:00 P.M. on Friday, May 11, 1979. Sergeant Steenson testified:

"The substance of the information that evening was that he [defendant] would be coming through Decatur possibly two or three trips that [the following] morning hauling beer, and that he would be in a dark-colored Chevrolet, which would be a '65 to '67 model.

"Q. And do you have any information as to what route he would be taking?
"A. Yes. That he would be coming in there across the bridge."

Officer Steenson further testified that on May 12 he watched for defendant and the automobile about 11:20 A.M., but that he did not maintain a constant watch by reason of other duties to perform, and that about 1:15 P.M. May 12 he saw the automobile driven by defendant with another person therein. The officer followed the automobile for a short distance, signalled it to stop, and thereafter the beer was found in the trunk.

Numerous cases are cited by both parties that pivot upon the question whether the warrantless search of an automobile is justified. We see no necessity for discussing all of them, however, by reason of concurrence of the parties in the view that, under the circumstances here presented, the search of the automobile and the seizure of the beer would have been unconstitutional, unless the officer had probable cause for believing that defendant was unlawfully transporting beer at the time or that defendant voluntarily gave his consent for the officer to make the search. Furthermore, the parties have lessened the need for extended discussion of cases involving the existence of probable cause vel non by recognizing that adequate guidance is found in Hatton v. State, Ala.Cr.App., 359 So.2d 822, writ quashed, Ala., 359 So.2d 832 (1977):

"The legality of the warrantless stop and search of the appellant's automobile turns on whether the Sheriff and his deputies had probable cause to believe that it contained contraband. [Authorities cited] ...
"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 of 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). Less detailed information from a reliable source may also be used as grounds for a finding of probable cause where the key elements of the tip are verified or corroborated. Ex Parte State ex rel. Attorney General v. State, 286 Ala. 117, 237 So.2d 640 (1970); Payton v. State, 47 Ala.App. 347, 254 *1139 So.2d 351 (1971). Finally a tip that will not meet any of these statements may still be used in conjunction with a number of other factors of `further support' to show probable cause."

We examine the facts pertaining to the question of probable cause in the light of Hatton as quoted above and the principles stated therein. As to the stated prong (1) of Aguilar, we need only say that it is clear that the circumstances of the instant case justified a conclusion that the informer was credible with a good record of reliability for correctness, and there is no contention to the contrary. The specific issue between the parties is whether the requirements of prong (2) are met, and, if not, whether the "tip" causing the search is intrinsically verified or was extrinsically corroborated or supported, in the light of Spinelli, supra, and subsequent cases.

In Hatton,

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