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10/28/94 EX PARTE STATE ALABAMA (RE HERBERT MOORE

October 28, 1994

EX PARTE STATE OF ALABAMA (RE: HERBERT MOORE, DAVID JONES, AND ROBBIE MOORE
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Madison Circuit Court, CC-92-495, -496, -497;. Court of Criminal Appeals, CR-92-1183). Daniel B. Banks, Jr. (Madison Circuit Court), TRIAL JUDGE.

Released for Publication February 26, 1995.

Shores, Hornsby, C.j., and Almon, Houston, Steagall, Ingram, and Cook, JJ., concur. Maddox, J., Dissents.

The opinion of the court was delivered by: Shores

SHORES, JUSTICE.

WRIT DENIED.

Hornsby, C.J., and Almon, Houston, Steagall, Ingram, and Cook, JJ., concur.

Maddox, J., Dissents.

MADDOX, JUSTICE (dissenting).

I would grant the writ in this case to review the holding by the Court of Criminal Appeals that the search in this case was illegal. The facts of this case are very similar to those in State v. McFall, [Ms. CR-92-1333, March 25, 1994] ___ So.2d ___ (Ala.Cr.App. 1994), in which officers were executing a search warrant for illegal drugs and used a ram to gain entry. In McFall, the State appealed from the trial court's order granting McFall's motion to suppress. The Court of Criminal Appeals reversed.

In McFall, the defendant was charged with possession of a controlled substance, in violation of § 13A-12-212, Ala. Code 1975. He moved to suppress the marijuana and the drug paraphernalia found in his mobile home because, he argued, it was seized pursuant to an unlawful execution of a search warrant. Moore particularly argued that law enforcement officials had failed to comply with Alabama's "knock and announce" statute. § 15-5-9, Ala. Code 1975. The trial court, in granting this motion to suppress, held that there was "not sufficient time between the last knock and the forcible entry."

Section 15-5-9 provides: "To execute a search warrant, an officer may break open any door or window of a house, any part of a house or anything therein if after notice of his authority and purpose he is refused admittance."

In McFall, after setting out the evidence surrounding the search, the court held:

"It is well settled that the 'weight and credibility to be attached to the testimony of ... witnesses [at a suppression hearing is] a question for the trial Judge.' Kitchens v. State, 445 So. 2d 1000, 1002 (Ala. Cr. App. 1984). Additionally, '"the findings of a trial court on a motion to suppress are binding on this court unless they are clearly erroneous."' Harper v. State, 535 So. 2d 599, 600 (Ala. Cr. App. 1988), quoting Simmons v. State, 428 So. 2d 218, 219 (Ala. Cr. App. 1983).

"This court, in Beshears v. State, 593 So. 2d 174, 175 (Ala. Cr. App. 1991), quoting Laffitte v. State, 370 So. 2d 1108, 1110 (Ala. Cr. App.), cert. denied, ...


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