"A secret or hidden court document could well prevent a lawyer from adequately preparing a defense for his client."
How later courts described this case
- "A secret or hidden court document could well prevent a lawyer from adequately preparing a defense for his client."
Written by the judges who cited it.
The opinion
ON REHEARING
In its application for rehearing, the state raises the following points:
1. That there is not a complete severance of identities or nexus between the suspects being chased by Joe Hines, the barber, and the suspects who were chased in the Cadillac automobile by officer Reed.
2. That the “fruit of the poisonous tree” doctrine does not apply to a second search based upon a valid search warrant issued on facts and evidence independent of a prior illegal search.
In support of the first point, the argument runs that “while parked, he (officer Reed) got a second communication on the radio from the Decatur Police giving a more specific description of the burglary suspects. Although he did not specify the more specific description he received in this second communication, he must have been informed that the suspects were white, * * * ” etc. (Emphasis added), and “In the present case, officer Reed radioed in to the Decatur Police a description of the car, the car’s tag number, and appparently described the two white subjects in the car, and merely related to the Decatur Police what he saw and what he was doing, as he chased the two white subjects from Decatur. It was the radio dispatch which came from the Decatur Police Headquarters which combined the information furnished by officer Reed with the information which had been furnished by the caller on behalf of Joe Hines, the barber. * * * In other words, the radio dispatch which was issued by the Decatur Police Department and later received by the arresting officer, was not based upon an arrest warrant issued without probable cause, nor was it based upon mere conclusions, but rather was based upon the information which the dispatcher had at his disposal from officer Reed and from the caller for Joe Hines.” (Emphasis added).
We cannot make the same assumptions and draw the same conclusions as the Attorney General, through his able Special Assistant, from a silent record. The caller for Joe Hines did not give a description of any kind to the police, not even the color of the suspects. No other radio dispatch gave a description of the suspects. At trial Mr. Hines testified that both suspects were neatly dressed, wearing coats and ties. When arrested, appellant and his companion were not wearing coats and ties and none were found in the car. Our statement, “There is a complete severance of identities or nexus between all the suspects in this case and the two men in the Cadillac the officers stopped in Town Creek in response to a police radio bulletin”, is completely supported by the record.
Point Two (2). “Fruit of the poisonous tree”.
Was the search warrant issued by Judge Powell based upon probable cause “established by facts totally separate and independent of the fruits of the prior search” ? Stated another way, were the facts alleged in the affidavit “acquired by exploitation of knowledge gained as a result of the first search” ?
The facts as they appear in this record answer the first question in the negative and the second question affirmatively.
The officer-affiant, David Smith, testified as follows on direct examination:
“Q. And you say the officers that went down to Town Creek relayed some information to you ?
*65 “A. Yes, sir, that is correct.
“Q. What did they tell you ? -
“A. They told me that a search of the car had been made there and that there was 'various tools and so forth in the car.
“Q. That they had seen themselves? “A. Yes, sir.
“Q. Did they relate to you that these tools and items and so forth looked like burglary tools to them ?
“A. Yes, sir.
“ON CROSS EXAMINATION
“Q. After the car was brought back here and you assembled this information, did you appear before a judge and make an affidavit and get a search warrant?
“A. This was the next day.”
The affidavit made by this witness before Judge Powell upon which the search warrant was issued was false in several respects. The affidavit recites, in part:
“ * * * Mr. Hines immediately telephoned the City Police Department in Decatur, Alabama, whereupon a radio dispatch was sent out by the police department to be on the look out for these two white subjects. * * * Officer David Reed, of the Decatur Police Department, was notified vila (sic) radio to be on the look out for two white subjects in the Moulton Street area about one minute before he observed Earl J. Miller entering said automobile driven by Norman Owens. * * * ”
The record simply does not bear out the affidavit. describing the two suspects as being white. At no time was a description of the suspects given in any radio dispatch and officer Reed did not testify to the contrary.
Further the affidavit concludes:
“Wherefore, your affiant requests that your Honor issue a warrant for the search of the said 1969 Cadillac automobile located at Police Department in Decatur, Alabama, based upon probable cause for his belief that additional burglary tools used to gain entrance in Diamond Jewelry in Decatur, Alabama, will be found in said automobile. The lock on the front door of Diamond Jewelry Company on said time and occasion, was pulled from its stationary position in the front door by some type device or tool.”
“Probable cause for his belief” — indeed! He had direct knowledge that burglary tools were in the trunk of this automobile. This knowledge was gained as a result of the first search and was related to this officer-affiant by the three officers sent to Town Creek and who opened the trunk of the car while appellant and his companion were in jail. The poison flowed from Town Creek all the way to Decatur and the taint of illegality permeated the atmosphere at the temple of justice when police officer David Smith went before the issuing magistrate seeking a search warrant in hopes of “covering up” the officers’ prior illegal activities. This officer suppressed the true facts from the magistrate and thus committed a fraud on the court. He was successful in keeping his fraudulent scheme hidden away for twenty (20) months and if appellant had pleaded guilty it would never have come to light.
“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all.” Silverthorne Lumber Co., supra.
Opinion extended. Application overruled.
CATES, P. J., and TYSON and DeCARLO, JJ., concur.
ALMON, J., dissents.