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09/09/94 RONALD ERIC OSWALT v. STATE

September 9, 1994

RONALD ERIC OSWALT, ALIAS
v.
STATE



Appeal from Tuscaloosa Circuit Court. (CC-93-47). Thomas Wilson, TRIAL JUDGE.

Patterson

The opinion of the court was delivered by: Patterson

PATTERSON, JUDGE

The appellant, Ronald Eric Oswalt, was convicted of trafficking in cocaine, a violation of Ala. Code 1975, § 13A-12-231, and was sentenced to 10 years' imprisonment. The sentence was split, and the appellant was ordered to serve three years' imprisonment and the balance of his sentence was suspended upon the condition that he be placed on probation for five years following his release. He appeals, raising three issues.

After an unsuccessful effort to suppress evidence of the contraband forming the basis of the charge, the appellant waived a trial by a jury, and the case was submitted to the trial court for a decision on stipulated facts. The parties stipulated, inter alia, that the appellant was the person charged with the offense; that the transaction occurred in his residence in Tuscaloosa County as testified to by the officers in the hearing on the motion to suppress; and that the contraband was, in fact, cocaine, weighing 28.54 grams. It was also stipulated that the transcript of the suppression hearing, at which the appellant sought to suppress the cocaine because it was seized by the officers on the basis of an alleged invalid search warrant, would also be submitted to the trial court for its consideration in making its judgment.

I.

The appellant first contends that the trial court erred in denying his motion to suppress the cocaine seized in his residence pursuant to a prospective or "anticipatory" search warrant. An anticipatory search warrant "is a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place." 2 W. LaFave, Search and Seizure § 3.7(c) (3d ed. 1987). The appellant argues that an anticipatory warrant is invalid in Alabama. We have not previously addressed the validity of anticipatory warrants in this state.

We begin our Discussion by recounting the circumstances surrounding the issuance of the warrant and the seizure of the cocaine. Officer N.E. Willingham of the narcotic division of the Alabama Department of Public Safety received information from John Plowman, an informer, that the appellant was involved in the distribution of illegal drugs. As a result, the appellant became the subject of an investigation. Subsequently, on July 28, 1992, the informer reported to Willingham that he had had a conversation with the appellant and that the appellant had expressed an interest in purchasing cocaine and marijuana. On instructions from Willingham, the informer met with the appellant the following day and told him that he knew someone with cocaine and marijuana for sale and that the price would be $1,100 per ounce for cocaine and $1,400 per pound for marijuana. On July 30, 1992, the informer reported to Willingham that the appellant wanted to purchase one ounce of cocaine and that he wanted it delivered to his residence in Northport on August 1, 1992.

At 10:40 a.m. on August 1, 1992, Willingham obtained an anticipatory search warrant authorizing the search of the appellant's person and residence for evidence of cocaine and "drug distribution" after completion of the cocaine transaction. On that same date, Officer Paul Johnson of the Department of Public Safety, posing as a "drug dealer," obtained slightly more than an ounce of cocaine from the vault at the Department of Public Safety and, accompanied by the informer went to the appellant's residence, arriving around noon. Johnson and the informer entered the residence at the appellant's invitation and discussed the transaction with him in his living room. The appellant gave Johnson $550 in cash and gave him a personal check for $550. Johnson handed the appellant the cocaine and, after examining it, the appellant stated that he was satisfied. He expressed a desire to purchase more cocaine and some marijuana. The entire conversation was transmitted from a transmitter concealed on Johnson's person to Willingham, who was waiting outside with two other officers.

It was understood by the officers that when the transaction was complete, the informer would leave the house and that that would be the signal for Willingham and the other officers to enter the residence and execute the search warrant. When the informer left the residence at 12:12 p.m., Willingham and the other officers entered the residence and conducted a search pursuant to the search warrant. They seized the cocaine that was the subject of the transaction, along with a pistol, a smoking device containing marijuana residue, "booklets on drugs," ledgers containing evidence of prior drug sales, and the check and currency involved in the transaction. When Willingham entered the residence, the appellant was sitting on the couch and the cocaine was on the couch "right beside his knee."

The affidavit supporting the issuance of the search warrant states, in pertinent part, as follows:

"My name is N.E. WILLINGHAM, I am a law officer with the ... Alabama Department of Public Safety, Narcotic Division.

"YOUR AFFIANT HAS BEEN A POLICE OFFICER FOR APPROXIMATELY 18 YEARS AND SINCE FEBRUARY 1985 HAS BEEN EMPLOYED WITH THE ALABAMA DEPARTMENT OF PUBLIC SAFETY AS A STATE TROOPER. SINCE JULY 1988 YOUR AFFIANT HAS BEEN ASSIGNED TO THE NARCOTIC DIVISION AS A NARCOTIC AGENT. YOUR AFFIANT HAS PARTICIPATED IN, BEEN INVOLVED IN AND LED NUMEROUS INVESTIGATIONS INVOLVING THE ILLEGAL USE, POSSESSION, DISTRIBUTION AND THE TRAFFICKING OF CONTROLLED SUBSTANCES AND VIOLATIONS ARISING THEREFROM.

"FURTHER, YOUR AFFIANT IS CONDUCTING AN INVESTIGATION IN TUSCALOOSA COUNTY, ALABAMA, FOCUSING ON RONALD ERIC OSWALT, WHITE MALE, 04-10-70 AND WHO RESIDES AT THE PREMISES KNOWN AS 1801 HARPER ROAD, LOT 6, QUAIL RIDGE TRAILER PARK, NORTHPORT, ALABAMA. YOUR AFFIANT HAS RECEIVED INFORMATION FROM A COOPERATING INDIVIDUAL WHO HAS ...


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