Opinion
No. CR-96-1700.
Decided November 14, 1997.
Appeal from Jefferson Circuit Court (CC-96-2360).
The appellant, Michael Dewayne Turner, appeals from his convictions for trafficking in marijuana, a violation of § 13A-12-231, Code of Alabama 1975, and for failure to affix a tax stamp, a violation of § 40-17A-4, Code of Alabama 1975. He was sentenced to 10 years' imprisonment on the trafficking conviction; that sentence was split, and he was ordered to serve 3 years and the remainder on probation. Additionally, he was sentenced to 2 years' imprisonment on the conviction for failure to affix a tax stamp. That sentence was suspended and the appellant was placed on probation.
I.
The appellant argues that the trial court erred in denying his motion to suppress evidence he alleged was illegally seized from his apartment pursuant to what he called an anticipatory search warrant. Initially, the appellant argues that the search warrant did not, on its face, indicate that it was an anticipatory search warrant. The appellant further argues that, assuming for the sake of argument, that the warrant was an anticipatory warrant, it was illegal because it was unauthorized by existing law.
Initially, we note that the record does not support the appellant's contention that the search warrant in this case was an anticipatory warrant. Additionally, we recognize that anticipatory search warrants are no longer authorized in Alabama. In Ex parte Oswalt, 686 So.2d 368, 372 (Ala. 1996), the Alabama Supreme Court, in reversing this Court's decision upholding an anticipatory search, described the nature and operation of those warrants as follows:
In response to Ex parte Oswalt, Rules 3.7 and 3.8, Ala.R.Crim.P., were amended to permit anticipatory search warrants. See Committee Comment to Rules 3.7 an d 3.8. The amendments are effective December 1, 1997.
"In general, a search warrant based upon `an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specific place' is referred to as an anticipatory search warrant. 2 W. LaFave, Search and Seizure, § 3.7(c) (2d. ed. 1987). In other words, an anticipatory search warrant anticipates that certain specific events will occur after the issuance of the warrant, those future events creating the probable cause that supports the warrant. If the future events do not occur, the warrant is void. United States v. Garcia, 882 F.2d 699 (2d Cir.), cert denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989)."
(Footnote omitted.)
The Court in Oswalt held that, while anticipatory search warrants are not per se unconstitutional, Rule 3.8, Ala.R.Crim.P., which requires that "the evidence to be seized be evidence of a criminal offense that has already occurred," Id. at 373, does not authorize anticipatory search warrants. See also Ex parte Wright, [Ms. 1951073, December 13, 1996] ___ So.2d ___ (Ala. 1996) (because the anticipatory search warrant described evidence of crimes that had not yet occurred when the warrants were issued, the warrants were invalid under state law and could not be used to justify the searches.)
Recently, in Ex parte Walls, [Ms. 1960352, August 8, 1997] ___ So.2d ___ (Ala. 1997), the Alabama Supreme Court examined the good-faith exception to the exclusionary rule and applied it to the anticipatory search warrant issued in that case. In Walls, the Court noted that when the anticipatory search warrant was issued, Alabama caselaw specifically recognized the validity of the warrant. The Court further reasoned that "[a]lthough that holding was subsequently reversed, the deterrent purpose of the exclusionary rule would not be served here, because the police did not have knowledge, nor could they be charged with knowledge that the warrant was invalid under Alabama law purely because of its anticipatory nature." Id. at ___. Thereafter, the Court affirmed this Court's holding that the police officers' reliance upon the warrant was objectively reasonable, given that when the warrant was executed, it was authorized under Alabama law.
Here, as in Walls, the evidence should not be suppressed because the police officers were acting in good faith in executing a facially valid anticipatory search warrant. The record reveals that the anticipatory search warrant was executed on September 6, 1995, approximately nine months' before the ruling in Ex parte Oswalt, supra, holding anticipatory search warrants invalid. Additionally, the record reveals that at the hearing on the motion to suppress, Officer Ashworth testified that he had executed anticipatory search warrants before obtaining the warrant at issue here. He testified that he was aware that anticipatory search warrants were valid when he obtained the warrant. Therefore, because the police officers were acting on a facially valid warrant when they searched the appellant's residence, the trial court correctly denied the appellant's motion to suppress.
II.
The appellant argues that the trial court erred in denying his motion for a judgment of acquittal because, he says, the State presented insufficient evidence to sustain his conviction for trafficking in marijuana. Specifically, he argues that the evidence was not sufficient to show that he knew or had reason to know that the package addressed to him contained marijuana.
The evidence presented by the State included the testimony of police officers who testified that, after the package containing the marijuana was seized pursuant to the anticipatory search warrant, the appellant told them, without ever opening the package, that it should contain approximately four pounds of marijuana. The officers testified that the appellant told them that he had received the package from Mr. Green in California, to whom he had just mailed a $2,100 Western Union for a prior shipment. The State introduced into evidence a receipt for that money gram. The State also introduced into evidence the testimony of a forensic scientist who testified that the package contained a total of 1,848.05 grams of marijuana, which is approximately 4.25 pounds.
There was sufficient evidence to present the case to the jury on the issue of the appellant's constructive possession of the marijuana. See Bright v. State, 673 So.2d 851 (Ala.Cr.App. 1995) (knowledge by the accused of the presence of a controlled substance may be, and usually is, established by circumstantial evidence). Mobley v. State, 563 So.2d 29 (Ala.Cr.App. 1990) (while proximity to the contraband alone is not enough to establish constructive possession, where other circumstantial evidence is sufficiently probative, the proximity to the contraband coupled with an inferred knowledge of its presence will support a verdict of guilt). The trial court did not err in denying the appellant's motion for a judgment of acquittal.
III.
The trial court failed to impose the mandatory fine in § 13A-12-281, Code of Alabama 1975, the "Demand Reduction Assessment Act." We remand this cause to the trial court for resentencing for the express purpose of imposing a fine in accordance with the aforementioned statute. The trial court shall take necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 60 days of the release of this opinion.
The appellant's conviction is affirmed. We remand this cause to the trial court for resentencing consistent with the instructions set forth in this opinion.
REMANDED WITH INSTRUCTIONS.
Long, P.J., Brown, J., concur; Baschab, J., concurs specially with opinion; Cobb, J., joins special concurrence.
Because the majority's statement, "we recognize that anticipatory search warrants are no longer authorized in Alabama," might be misconstrued, I specially concur in Part I of the majority opinion. The Alabama Supreme Court has amended Rule 3.8, Ala. R. Crim. P., effective December 1, 1997, to permit the issuance of an anticipatory search warrant if the warrant otherwise complies with the rule. Accordingly, anticipatory search warrants may be authorized in Alabama as of December 1, 1997.