Berry v. State

• Decision Date: 17 January 2020
• Docket Number: CR-18-0233
• Parties: Frederick Leterrence BERRY v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

299 So.3d 336

Frederick Leterrence BERRY

v.STATE of Alabama

CR-18-0233

Court of Criminal Appeals of Alabama.

January 17, 2020

On Application for Rehearing

COLE, Judge.

The opinion issued on September 20, 2019, is withdrawn, and the following opinion is substituted therefor.

Frederick Leterrence Berry appeals his guilty-plea conviction for possession of a controlled substance, a violation of § 13A-12-212, Ala. Code 1975, and his resulting sentence of 24 months in prison, which the trial court suspended and imposed 24 months' probation.

Facts and Procedural History

Before he pleaded guilty, Berry moved to dismiss his indictment, arguing that his arrest was unlawful because "the officers were not in possession of the arrest warrant when they arrested [him] for failure to pay fines." (C. 33.) In a separate motion, Berry moved to suppress the drug evidence found as a result of that arrest.

At the hearing on Berry's motions, only one witness testified--Lt. Matthew Raiti of the Troy Police Department.¹ Lt. Raiti's testimony established the following: On April 6, 2017, the Troy Police Department was looking for a woman who had been reported missing by her family. While the search was ongoing, Lt. Raiti located what he believed to be the missing woman's vehicle in the parking lot of a Motel 6. Lt. Raiti spoke with the motel clerk, who directed him to Room 120. Lt. Raiti then went to Room 120 and knocked on the door, but he received no response. Lt. Raiti knocked again and heard "some noises" coming from inside the room. Lt. Raiti looked into the room through the window and saw a "black male walk towards the front of the room and then a white female walk into the restroom." (R. 9.) Lt. Raiti was "pretty sure" that the female was the missing person.

The black male then opened the door and spoke with Lt. Raiti. Lt. Raiti told the male why he was at the motel and asked him for his name, to which the male responded, "Frederick Berry." (R. 11.) At that point, Lt. Raiti ran Berry's name "through NCIC [National Crime Information Center] and through dispatch." (Id. ) Lt. Raiti explained that it was "common practice" to check for warrants on people--particularly when he was looking for a missing person and he did not know if the female had been kidnapped. (R. 11.) Lt. Raiti said that, under the circumstances in this case, "it's pretty imperative [he] know[s] who [he is] speaking with." (R. 11-12.)

Dispatch responded to Lt. Raiti's request and informed him that Berry had two active capias warrants from the Troy Municipal Court--"[o]ne was for possession of marijuana second and one was driving while [his license was] revoked." (R. 12-13, 15.) "Once [Lt. Raiti] was able to find out [they] had the warrants and [he] confirmed the information on the warrants ..., [he] placed [Berry] under arrest." (R. 13.) Lt. Raiti then performed a search incident to arrest. In Berry's right front pocket, Lt. Raiti found 15 Alprazolam

pills and 3 blue oval pills that he could not identify. After he arrested and searched Berry, Lt. Raiti continued into the motel room where he located the missing female in the bathroom. Lt. Raiti then took Berry to the police station, booked him, processed him, and served him with copies of the active capias warrants. At that time, Berry was also charged with possession of a controlled substance.

On cross-examination, Lt. Raiti was asked to explain what a capias warrant is, to which he responded:

"Capias warrants in essence are that the person has already been to--they've already been in front of a judge and have [pleaded] guilty or been found guilty and essentially they owe money to the Court or they could be not complying with conditions of their probation or whatever they've been given."

(R. 18.) Lt. Raiti also acknowledged that the active capias warrants for Berry's arrest were not for new offenses, that he did not physically see the warrants before he arrested Berry, and that he did not have the warrants in his hand when he arrested Berry.

At the close of the hearing, Berry's counsel argued that, because Lt. Raiti did not have physical possession of the capias warrants and because "it's not a felony or misdemeanor that the defendant is being arrested for," Berry's arrest was unlawful and the search incident to that arrest was unlawful. (R. 21-22.) The State responded:

"Following his procedures and policy under these circumstances, [Lt. Raiti] runs the information on Mr. Berry, comes back from dispatch that there are two outstanding warrants for him, capias warrants from the municipal court, which I'll agree they appear to be for failing to comply with conditions of a sentence that had been imposed on him for possession of marijuana second degree and driving while his license was revoked.

"Acting on those warrants, he affected a lawful arrest and searched him incident to that lawful arrest where Lieutenant Raiti testified that he found the contraband that is the subject of these charges now that we have.

"Furthermore, Lieutenant Raiti testified as well that once Mr. Berry was taken into custody, taken to the police station, as the statute would require, [§] 15-10-3, [Ala. Code 1975,] with respect to warrantless arrests, when the officer has actual knowledge that a warrant for the person's arrest for the commission of a felony or misdemeanor has been issued, provided the warrant was issued for that chapter, and upon request, the officer shall show the warrant to the arrested person as soon as possible. And I believe that's exactly what he did.

"He does not have to have the warrant in his possession at the time of the arrest, but shall inform a defendant of the offense charged and the fact that a warrant has been issued. I think every bit of that is very clear and exactly what Lieutenant Raiti testified to.

"The fact that these were not arrest warrants for new offenses is inconsequential. The punishment remains the same. He has failed to comply with the orders of the court. Conditions of his sentences being that he pay these fees and these fines. These are misdemeanor offenses for which he was charged and he could be subject to further incarceration for failing to comply with the orders of the municipal court of Troy.

"So any argument should fall woefully short of whether or not this was an actual legal and lawful arrest. And any search incident to that arrest comports specifically with the law."

(R. 23-25.)

After the hearing, the trial court issued an order finding that the drugs found in Berry's possession were "seized during a search of [his] person pursuant to his lawful arrest, and therefore [there was] no violation of his Statutory ( Alabama Code [1975,] § 15-10-3 ) or Fourth Amendment Rights." (C. 45.) Thus, the trial court denied Berry's motions "separately and severally." (C. 45.) During the guilty-plea colloquy, Berry reserved for appeal the "issues raised within those respective motions." (R. 32.) This appeal follows.

Discussion

On appeal, Berry argues, as he did in the trial court, that his arrest violated § 15-10-3(a)(6), Ala. Code 1975, because Lt. Raiti was not in physical possession of the outstanding capias warrants for Berry's arrest at the time he arrested Berry. According to Berry, because Lt. Raiti did not have physical possession of the capias warrants at the time he arrested Berry and searched him incident to that arrest, both his statutory and his Fourth Amendment rights were violated, and, thus, the drug evidence found as a result of the search incident to his arrest should have been suppressed.

I.

Berry's argument that his arrest violated § 15-10-3(a)(6) is without merit. Berry's arrest on validly issued, active capias warrants related to the commission of misdemeanor offenses by an officer who did not physically possess those warrants complied with Alabama law.

As it is currently constituted, § 15-10-3(a)(6) authorizes law-enforcement officers to arrest a person when they are not in physical possession of a warrant

"[w]hen the officer has actual knowledge that a warrant for the person's arrest for the commission of a felony or misdemeanor has been issued, provided the warrant was issued in accordance with this chapter. However, upon request the officer shall show the warrant to the arrested person as soon as possible. If the officer does not have the warrant in his or her possession at the time of the arrest the officer shall inform the defendant of the offense charged and of the fact that a warrant has been issued."

(Emphasis added.)

According to Berry's reading of this statute, an officer may arrest a person when he or she is not in physical possession of a warrant only when that warrant is issued for a newly committed felony or misdemeanor offense--not when it is a capias warrant that is related to the commission of a felony or misdemeanor offense. Berry bases his narrow reading of § 15-10-3(a)(6) on two cases from this Court: Johnson v. State, 675 So. 2d 512 (Ala. Crim. App. 1995), and Edwards v. State, 961 So. 2d 914 (Ala. Crim. App. 2006). Those cases, however, do not control here.

To be sure, both Johnson and Edwards hold that, "[a]ccording to § 15-10-3(a)(6), because the warrant for the appellant's arrest was not for the commission of a felony or a misdemeanor, the arresting officer could not legally arrest the appellant without personally possessing the arrest warrant." Johnson, 675 So. 2d at 513 ; see also Edwards, 961 So. 2d at 915-16. However, those cases do not involve arrests based on validly issued, active capias warrants related to the commission of a misdemeanor offense. Rather, both Johnson and Edwards involve arrests based on warrants issued for civil contempt citations for failure to pay child support. See Johnson, 675 So. 2d at 513 ; Edwards, 961 So. 2d at 915. Neither Johnson nor Edwards applies in cases that involve an arrest for an outstanding capias warrant related to the commission of a criminal offense, nor do those cases persuade this Court to read § 15-10-3(a)(6) in the same...