McIntosh v. State

Citations: 64 So. 3d 1142; 2010 Ala. Crim. App. LEXIS 86; 2010 WL 3834028Docket: CR-09-0579

Court: Court of Criminal Appeals of Alabama; October 1, 2010; Alabama; State Appellate Court

Lead Opinion SummaryLead Opinion Original

EnglishEspañolSimplified EnglishEspañol Fácil

Jerry McIntosh II pleaded guilty to unlawful possession of methamphetamine under Alabama Code 13A-12-212 and received a 10-year sentence, which was split into 15 months of imprisonment followed by 5 years of supervised probation. He was also ordered to pay a $1,000 assessment to the Forensic Science Trust Fund, a crime victims’ compensation fund assessment, and court costs. Prior to his plea, McIntosh filed a motion to suppress evidence obtained from a search of his residence, claiming the affidavit for the search warrant lacked "fresh" information and thus did not establish probable cause. 

During the suppression hearing, it was revealed that on October 31, 2007, Deputy Ivan Bryant informed Officer Claude Shackelford about a confidential informant's claim that McIntosh was manufacturing methamphetamine at his home. The informant had provided information within the previous 24 hours, indicating the presence of methamphetamine at McIntosh’s residence and a cooler hidden on his property. Officer Shackelford, who had a background in law enforcement, prepared the affidavit based on this information, asserting the informant's credibility and detailing prior knowledge of McIntosh's involvement in methamphetamine production. The search warrant was executed the same night, leading to the recovery of narcotics that resulted in McIntosh's conviction. Officer Shackelford noted that other task force members also had prior knowledge of McIntosh's alleged drug manufacturing activities.

Officer Shackelford testified about his collaboration with Deputy Bryant on narcotics cases and confirmed that Deputy Bryant regarded the informant providing information about McIntosh as reliable. During cross-examination, Shackelford admitted he could not specifically remember discussing the "freshness" of the informant's information but stated that the affidavit indicated the information was fresh within the last 24 hours, recorded shortly after his conversation with Bryant. He emphasized that he would not pursue a search warrant without timely information regarding the presence of narcotics. Shackelford began drafting the search warrant application upon receiving a call from Deputy Bryant but did not know when the informant gained knowledge about McIntosh's drug involvement. He also could not recall discussing any issues with the issuing magistrate that weren't included in the affidavit.

The confidential informant testified that on October 31, 2007, she overheard McIntosh discussing drug manufacturing with two men and indicated she had seen drugs inside his residence. She contacted Deputy Bryant immediately after leaving McIntosh’s home. Following arguments regarding the information's freshness, the trial court denied McIntosh's motion to suppress evidence obtained from the search. McIntosh pleaded guilty but reserved the right to appeal the suppression ruling, arguing the affidavit was constitutionally deficient for failing to disclose when the informant learned the information. He contended that under the Fourth Amendment, search warrants require a finding of probable cause, which necessitates specific facts in the affidavit. A probable cause determination must consider the totality of circumstances, and delays in seeking a warrant can lead to issues of "staleness" of information.

McIntosh argues that the affidavit for the search warrant is constitutionally deficient, citing Lewis v. State and Nelms v. State. In a similar case, Green v. State, the Alabama Supreme Court determined that an affidavit stating information from a confidential informant about methamphetamine activity was insufficient to establish probable cause due to a lack of current information. The court noted that the affidavits in Lewis, Nelms, and Green did not provide adequate details to ascertain the timeliness of the informant's information. 

In Thomas v. State, the court found that an affidavit, which referenced a previous heroin seizure and a recent purchase by an undercover officer, failed to show that the information from the informant was fresh. The absence of specific dates for the informant’s observations rendered the affidavit stale, as significant time had passed during which the heroin could have been removed. Similarly, in Lewis, an affidavit stating that a reliable informant observed cocaine within the last seventy-two hours was deemed deficient because it did not specify when the observation occurred, leading to the reversal of the trial court's denial of the motion to suppress.

In Nelms v. State, 568 So.2d 384 (Ala.Crim. App. 1990), the Court of Criminal Appeals reversed the trial court's denial of a motion to suppress evidence obtained through a search warrant. The affidavit supporting the warrant claimed a confidential informant had seen Crack-Cocaine in the defendant's residence but failed to specify when this observation occurred. The phrase "within the last seventy-two hours" referred to the informant's communication with the affiant, not the actual sighting of the drugs. Consequently, without a clear date of observation, the affidavit was deemed constitutionally deficient and insufficient to establish probable cause for the warrant. The court emphasized that vague references to past observations do not provide a reliable basis for determining if illegal activity was occurring at the time of the warrant's issuance. Moreover, the affidavit did not clarify when the informant received the information or when they reported it, leaving the timeline ambiguous. The court also noted that any potential deficiencies in the affidavit could not be remedied by additional information provided to the magistrate, as the affiant did not recall giving any such details beyond what was included in the affidavit itself.

The case at hand parallels the Nelms and Lewis cases, where allegations arose that supporting affidavits lacked a chronological context necessary for evaluating the timeliness of the search warrant. In those cases, the State attempted to address the affidavit deficiencies by providing testimony from the affiants about facts communicated to the judges who issued the warrants. However, in all three cases, the affiants could not recall the specifics of their conversations with the issuing judges regarding the timing of the informant’s observations of illegal activity. The Court of Criminal Appeals determined that such oral testimony was inadequate to rectify the deficiencies in the supporting affidavits.

Officer Shackelford indicated he had discussed the urgency of the information with Deputy Bryant and believed he included a phrase in the affidavit stating the information was fresh within the last 24 hours. However, he could not remember if the magistrate had posed any questions about the affidavit's content or if he had disclosed any additional facts during their discussion. His inability to recall these details led the Court to conclude that his testimony could not remedy the affidavit's shortcomings. Consequently, neither the affidavit's contents nor Shackelford's testimony established probable cause for the search warrant's issuance. Following the Supreme Court's precedent in Ex parte Green, the trial court's denial of McIntosh's motion to suppress was deemed erroneous, resulting in the reversal of McIntosh's conviction and remanding the case for further proceedings. The decision was concurred by Justices Welch, Windom, and Main, with Justice Wise concurring in the result. Lamar County is part of the 24th Judicial Circuit.