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05/24/96 EX PARTE RONALD ERIC OSWALT (IN RONALD

May 24, 1996

EX PARTE RONALD ERIC OSWALT (IN RE: RONALD ERIC OSWALT, ALIAS
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Tuscaloosa Circuit Court, CC-93-47, Court of Criminal Appeals, CR-93-0522).

As Amended. Released for Publicaiton May 24, 1996.

Hooper, C. J., and Shores, Kennedy, Cook, and Butts, JJ., concur. Almon, J., concurs in the result. Maddox and Houston, JJ., Dissent.

PER CURIAM.

We granted Ronald Eric Oswalt's petition for a writ of certiorari to the Court of Criminal Appeals to determine whether that court erred by affirming the trial court's denial of Oswalt's motion to suppress evidence seized when police officers executed an "anticipatory search warrant" for his residence. Based on the evidence seized in the search, Oswalt was found guilty of trafficking in cocaine.

The Court of Criminal Appeals affirmed the conviction, holding that anticipatory search warrants do not violate the protections against unreasonable searches and seizures contained in the Fourth Amendment to the United States Constitution and the Alabama Constitution of 1901, Art. I, § 5. It also held that such warrants are valid under Alabama law controlling the issuance of search warrants. Oswalt v. State, 1994 Ala. Crim. App. LEXIS 361 [Ms. CR-93-0522, September 9, 1994] 686 So. 2d 361 (Ala. Crim. App. 1994). Although we recognize, along with an overwhelming number of jurisdictions, *fn1 that an anticipatory search warrant is not per se unconstitutional, *fn2 we hold that the specific anticipatory search warrant at issue in this case was not authorized by existing Alabama law.

I.

An informant told Officer Norman Willingham, of the narcotics division of the Alabama Department of Public Safety, that Oswalt was involved in the distribution of illegal drugs and that Oswalt wished to purchase cocaine and marijuana. Willingham had the informant tell Oswalt that he knew someone who could sell Oswalt those drugs. In response, the informant told Willingham that Oswalt wanted to purchase one ounce of cocaine and wanted it delivered to him at his residence in Northport on August 1, 1992.

On the morning of August 1, Willingham obtained a search warrant from Magistrate Gene Boswell, based on his affidavit stating that later that same day an undercover narcotics agent, Paul Johnson, would travel to Oswalt's residence and sell Oswalt an ounce of cocaine, which would then be in Oswalt's possession in his residence. It is uncontested that when Willingham obtained the search warrant, there was no probable cause to believe that Oswalt already had possession of the cocaine that was ultimately seized from his residence, or that he had possession of other controlled substances. Later that day, Johnson was accompanied by the informant to Oswalt's residence, the drug transaction occurred as planned, and the search warrant was executed. The search yielded the 28 grams of cocaine that Agent Johnson had just delivered and sold to Oswalt.

Oswalt was indicted for trafficking in cocaine, in violation of Ala. Code 1975, § 13A-12-231(2)a. He pleaded not guilty and moved to suppress the evidence obtained by the search of his residence, contending that the search warrant was invalid. The trial court denied the motion and, after the case was submitted to the trial Judge on stipulated facts, Oswalt was convicted. He was sentenced to three years in prison, with five years' probation upon release. As noted above, the Court of Criminal Appeals affirmed Oswalt's conviction. Oswalt, supra. We granted certiorari review to consider whether the anticipatory search warrant at issue in this case is valid under Alabama law.

II.

Both Ala. Code 1975, § 15-5-2, and Rule 3.8, Ala.R.Crim.P., address the issuance of search warrants. The requirements of the procedural rule and the statute are virtually identical; however, unless otherwise provided by law, Rule 3.8 supersedes § 15-5-2. *fn3 Although a legislative act generally controls over a court rule, Section 6.11 of Amendment 328 of the Alabama Constitution of 1901 confers on this Court the authority to "make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts," subject to the rules being changed by the legislature only "by a general act of statewide application." See, also, Ex parte Foshee, 246 Ala. 604, 21 So. 2d 827 (1945); Holsemback v. State, 443 So. 2d 1371 (Ala.Crim.App. 1983); Committee Comments to Rule 1.1, Ala.R.Crim.P. The Alabama legislature has recognized the supremacy of this Court's Rules of Criminal Procedure over statutory provisions on the same subject, stating in § 15-1-1, Ala. Code 1975: "Any provision of this title ['Criminal Procedure'] regulating procedure shall apply only if the procedural subject matter is not governed by rules of practice and procedure adopted by the Supreme Court of Alabama."

Thus, in order to determine whether a search warrant is authorized under Alabama law, we look to the specific language of Rule 3.8. The Rule reads:

"A search warrant authorized by this rule may be issued if there is probable cause to believe the property sought:

"(1) Was unlawfully obtained;

"(2) Was used as the means of committing or attempting to commit any offense under the laws of the State of Alabama or any political subdivision thereof;

"(3) Is in the possession of any person with intent to use it as a means of committing a criminal offense, or is in the possession of another to whom he may have delivered it for the purpose of concealing it or preventing its discovery; or

"(4) Constitutes evidence of a criminal offense under the laws of the State of Alabama or any political subdivision thereof."

(Emphasis added.)

The search warrant was obtained on the morning of August 1, 1992. The affidavit supporting the warrant, which is also dated August 1, 1992, stated, in pertinent part:

"My name is N.E. Willingham, I am a law officer with the following law enforcement agency: Alabama Department of Public Safety, Narcotics Division.

"....

"FURTHER, YOUR AFFIANT IS CONDUCTING AN INVESTIGATION IN TUSCALOOSA COUNTY, ALABAMA, FOCUSING ON RONALD ERIC OSWALT ... 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 IDENTIFIED OSWALT AS BEING A PERSON INVOLVED IN THE DISTRIBUTION OF CONTROLLED SUBSTANCE.

"ON TUESDAY, 07-28-92, THE COOPERATING INDIVIDUAL STATED TO YOUR AFFIANT THAT HE HAD HAD A CONVERSATION WITH OSWALT, IN WHICH OSWALT STATED THAT HE WAS LOOKING TO ...


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