Opinion
4 Div. 454.
June 29, 1976. Rehearing Denied August 24, 1976.
Appeal from Circuit Court, Covington County; Abner Powell, III, Judge.
Allen Edward Cook, Andalusia, for appellant.
William J. Baxley, Atty. Gen., and Milton C. Davis, Asst. Atty. Gen., for the State.
Joey Barnes, husband of Janet Barnes, 4 Div. 445, this day decided, was indicted for possession of marihuana and additionally for glutethimide and phencyclidine, in a three-count indictment for violating the Alabama Uniform Controlled Substances Act. The jury found the appellant "guilty as charged" and the trial court entered judgment setting sentence at four years imprisonment.
In this case there was objection at trial to the introduction of the items seized, by the arresting officers, Deputies Harrell and Scpek, on the night of December 7, 1975, just outside Mrs. Brown's trailer. In addition there was a motion to exclude the seized items at the close of the State's evidence.
This raises the question of an unlawful search and seizure under the Fourth Amendment to the United States Constitution.
The basis of the officers going to the scene in question was a Bench Warrant issued by the Superior Court of Clayton County, Georgia. The two officers did not comply with the provisions of Title 15, Section 60, Code of Alabama 1940, with reference to obtaining an Alabama warrant.
This case is therefore controlled by this Court's opinion in Barnes v. State, Ala.Cr.App., 337 So.2d 22, this day decided. The facts and applicable law are ably stated by Judge Harris in Barnes, supra.
For the error in overruling the motion to exclude, this cause is due to be reversed and remanded on authority of Barnes v. State, supra.
REVERSED AND REMANDED.
HARRIS and BOOKOUT, JJ., concur.
DeCARLO, J., dissents with opinion.
CATES, P.J., not sitting.
DeCARLO, J., dissents for the reasons set out in his dissenting opinion in Barnes v. State, 58 Ala.Cr.App., 337 So.2d 22 this day decided.