Arnold v. State

Decision Date28 February 1992
Citation601 So.2d 145
PartiesDouglas Edward ARNOLD, alias Douglas Arnold, alias Doug Arnold, alias Douglas E. Arnold v. STATE. CR 90-974.
CourtAlabama Court of Criminal Appeals

James C. McInturff, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Douglas Edward Arnold, was convicted of first degree theft and was sentenced as a habitual offender to imprisonment for life. He was also ordered to pay $500 to the Crime Victims' Compensation Fund and to pay $370 in restitution. Six issues are raised in this appeal from his conviction.

I

The appellant asserts that the indictment is defective in that it did not sufficiently inform him of the degree of theft with which he was charged. This argument is completely without merit.

Rule 13.2(b), A.R.Crim.P., provides that "[t]he indictment ... shall state for each separate offense ... the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated." The indictment against the appellant was filed January 11, 1991, some ten days after the effective date of the current Alabama Rules of Criminal Procedure, including Rule 13.2(b). See Rule 1.5. This indictment charged, in pertinent part, that the appellant

"did knowingly obtain or exert unauthorized control over one purse of the value of Two Hundred Eighty Dollars and Ninety Dollars of the lawful currency of the United States of America, a more particular description of which is to the grand jury otherwise unknown, the property of Lynne Swanson, which was taken from the person of Lynne Swanson, with the intent to deprive the owner of said property, in violation of Section 13A-8-3 of the Alabama Criminal Code." R. 331 (emphasis added).

Section 13A-8-3, Ala.Code 1975, is entitled "Theft of property in the first degree" and provides, in pertinent part, that "[t]he theft of ... property of any value taken from the person of another constitutes theft of property in the first degree." (Emphasis added.) The indictment not only alleges that a purse and currency were "taken from the person of Lynne Swanson," thereby tracking the language of § 13A-8-3, 1 it makes specific reference to that section as well. Under these circumstances, we find it incredible that the appellant could have failed to understand that he was charged with first-degree theft. Cf. Committee Comments to Rule 13.2(b), A.R.Crim.P. ("Since the adoption of the criminal code, [inclusion in the indictment of the citation of the applicable statute] should not be an undue burden and will ensure that the defendant and his attorney will know exactly what offense is charged") (emphasis added).

II

The appellant maintains that his arrest was illegal and that, consequently, the statement he gave after this arrest should have been suppressed.

A suppression hearing was held immediately prior to trial. At this hearing, Birmingham police officers Jerome Green and Herman Hinton testified that, around 12:20 a.m. on August 31, 1990, they went to the 3300 block of 17th Avenue in the Norwood community, in response to a report of a "shooting in the area." R. 11, 39. As they approached the area of the reported shooting, Officer Green, who was driving, turned out the lights on the patrol car "so that [they] could possibly catch the suspect who was doing the shooting." R. 12. When the officers reached the block where the shooting was reported to have occurred, Officer Hinton observed the appellant "running as though he was protecting an object close to his right side." R. 41. Hinton stated that he thought the appellant "probably [had] some type of semi-automatic weapon," and that he called the appellant to Officer Green's attention. R. 49-50. Green then observed the appellant "walking in a fast pace" along the street. R. 12. 2 Hinton testified that when the appellant saw the patrol car, "he began to pick up the pace." R. 48.

As the patrol car approached the appellant, Hinton "rolled [his] window down" and "yelled for [the appellant] to stop." R. 41. The appellant ignored this command and ran into a nearby apartment. The officers left their vehicle and followed him. As the officers reached the door of the apartment into which the appellant had gone, the appellant "stepped back out of the apartment." R. 14. When he reappeared, the appellant did not have anything under his arm. R. 51.

The occupant of the apartment, Gloria Robinson, was also at the door when the appellant reappeared. Officer Green talked with Ms. Robinson and learned that the appellant did not live at that apartment. Although Ms. Robinson had seen the appellant around the neighborhood, she did not know why he ran into her apartment. Green testified that she told him that the appellant had gone into the back of her apartment and had "thrown something down." R. 29-30. Ms. Robinson took Officer Green to "the back room," into which the appellant had gone, and Officer Green observed a purse laying on the floor. R. 18. He asked Ms. Robinson if the purse was hers, and she stated that "she had never seen it before." R. 18. Officer Green took possession of the purse and left the apartment.

While Officer Green was talking with Ms. Robinson, Officer Hinton asked the appellant to accompany him to the patrol car. Hinton patted the appellant down and asked the appellant his name, then radioed this information to the dispatcher for an NCIC check. The dispatcher reported back that the appellant was wanted on an outstanding misdemeanor warrant for menacing. Hinton testified that he arrested the appellant at this point on the menacing warrant and placed the appellant in the back of the patrol car.

After obtaining the purse from Ms. Robinson's apartment, Officer Green returned to the patrol car. He asked the appellant if the purse was his and the appellant stated that it was not, "but that a lady he [knew] asked him to hold it ... because she was in a argument, the middle of a argument with somebody, and that she stated the police was coming." R. 19. It appears that about this time, another patrol unit arrived on the scene and the officers in that unit informed Officer Green that a purse snatching had occurred a few hours earlier in the evening. Green radioed in a description of the appellant's clothing and information concerning the purse and its contents and the officer in charge of the purse snatching investigation instructed him "to bring [the appellant] to the precinct." R. 21. Once at the precinct, the appellant was formally arrested for the theft of the purse.

The appellant argues that there was no probable cause to arrest him at the time Officer Hinton ordered him to stop. This is quite true. However, "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Under Terry, an investigatory stop may be made on the basis of reasonable suspicion, which "is a less demanding standard than probable cause." Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990). The standard of reasonable suspicion requires only that an officer have "specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity." Hickman v. State, 548 So.2d 1077, 1080 (Ala.Cr.App.1989). To determine whether reasonable suspicion existed for a particular stop, the totality of the circumstances, as known to the officer at the inception of the stop, must be considered. See United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); United States v. Lechuga, 925 F.2d 1035, 1039 (7th Cir.1991).

A recent report of the occurrence of a crime, when accompanied by other relevant facts or circumstances, such as "observed activity [on the part of] the particular person stopped," can establish the reasonable suspicion necessary to justify an investigatory stop. 3 W. LaFave, Search and Seizure § 9.3(d) at 461 (2d ed. 1987). In the present case, the officers were dispatched in the early morning hours to investigate a reported shooting. When they arrived in the block where the shooting was reported to have occurred, Officer Hinton observed the appellant running or walking briskly with an object, which Hinton thought might be a semiautomatic weapon, tucked under his right arm. Upon observing the patrol car, the appellant "pick[ed] up the pace." R. 48.

While "quickening one's pace upon seeing the police" will not, standing alone, support an investigatory stop, 3 LaFave § 9.3(c) at 451, it is not the only factor present in this case. The officers did not just happen to observe the appellant walking down the street with something under his arm--they were at a specific location to investigate a recent report of a shooting. As Officer Green remarked during cross-examination on the motion to suppress, "if somebody was shooting in the area, if they was the one doing the shooting, if they saw a police car, ... [walking fast would be] the natural thing to do." R. 34-35.

We note that the officers were apparently not given any description of the person involved in the reported shooting, compare People v. Johnson, 125 A.D.2d 702, 510 N.Y.S.2d 21, 22 (1986) (officers received "radio report of a black male with a gun, wearing blue jeans, a blue and white shirt, and a 'kufay hat' "), appeal denied, 69 N.Y.2d 882, 515 N.Y.S.2d 1030, 507 N.E.2d 1100 (1987); People v. Wider, 172 A.D.2d 573, 568 N.Y.S.2d 141, 142 (1991) (officers received radio report of "shots fired," which included a description of the perpetrator), and that there were persons other than the appellant present in the area of the...

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