Atwell v. State

• Decision Date: 20 September 1991
• Citation: 594 So.2d 202
• Parties: William Alvin ATWELL v. STATE. Donald Keith INABINETT v. STATE. CR 90-155.
• Court: Alabama Court of Criminal Appeals

Page 202

594 So.2d 202

William Alvin ATWELL v. STATE.

Donald Keith INABINETT v. STATE.

CR 90-155.

Court of Criminal Appeals of Alabama.

Sept. 20, 1991.

Rehearing Denied Oct. 25, 1991.

Thomas M. Haas and N. Ruth Haas, Mobile, for appellant William Alvin Atwell.

Delano J. Palughi, Mobile, for appellant Donald Keith Inabinett.

James H. Evans, Atty. Gen., and Joseph G. L. Marston III, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The appellants, William Alvin Atwell and Donald Keith Inabinett, were charged by separate indictments with trafficking in marijuana. The cases were consolidated for trial upon motion by the State, and a jury found both appellants guilty as charged. Appellant Atwell was sentenced to six years' imprisonment and appellant Inabinett was sentenced to three years' imprisonment. Additionally, each appellant was fined $25,000. Three issues are raised in this consolidated appeal.

In its case-in-chief, the State presented evidence that, around 10:00 p.m. on March 3, 1989, Mobile County Deputy Sheriff Brian Hill received information from Deputy Harold Martin. In response to this information, Deputy Hill went to the city of St. Elmo on Highway 90 in Mobile County, where he looked for a white pickup truck with a boat in the back. Around 10:30 p.m., Deputy Hill observed a truck matching this description and began to follow it. Some two to three minutes later, Deputy Andy Earl, who was accompanied by Deputy Matthew Danzy, pulled in behind Deputy Hill. Both Hill and Earl were driving unmarked vehicles. The truck, followed by the two unmarked police cars, proceeded east on Highway 90, turned right onto Ramsey Road, and then left onto Boe Road. ¹

Approximately a quarter of a mile before reaching a sharp curve on Boe Road, the officers, acting on orders from Deputy Martin, attempted to stop the truck. Deputy Hill placed his blue light on the roof of his vehicle and, when the truck slowed down, he pulled in front. Deputy Earl also turned on his blue light, but stayed behind the truck. Deputy Hill testified that he stopped and, when the truck appeared to be stopping, he started to exit his vehicle. However, the truck suddenly pulled around him, almost running over him, and continued down Boe Road. The officers gave chase.

The truck went into the sharp curve on Boe Road at a speed of 35 to 45 m.p.h., veered into the opposite lane, then crossed its own lane, and ran off the road, before the driver righted the truck in the proper lane. Deputy Earl testified that, as the truck was negotiating this curve, he observed "a large object [being] thrown from what appeared to be the window, the passenger side of the vehicle." The chase proceeded down Boe Road, onto Old Pascagoula Road, and then onto Forts Lake Road, with the three vehicles traveling at speeds that, at times, approached 90 to 100 m.p.h. According to the officers, the truck ran several stop signs and forced several cars off the road during this chase. The officers also testified that items were being thrown out of the windows on both sides of the truck as well as out of the sliding rear window.

The high-speed chase continued until the truck pulled into the parking lot of Presley's Grab All, a convenience store located on Forts Lake Road some two and one-half miles into the State of Mississippi. Deputy Hill pulled in beside the passenger side of the truck. As Deputy Earl pulled into the parking lot, his car engine died and he exited his vehicle at that point. The officers, who were all apparently wearing Sheriff's t-shirts and jeans, approached the truck with weapons drawn, identifying themselves as deputy sheriffs. The officers testified that they did not know that they were in Mississippi at this time.

Deputy Hill went to the passenger's side and commanded the passenger (appellant Atwell) to exit the vehicle. When Atwell did so, Hill handcuffed him. Meanwhile, Deputy Earl had approached the driver's side and commanded the driver (appellant Inabinett) to exit the vehicle. According to Deputy Earl, Inabinett refused to get out of the truck. Earl attempted to pull Inabinett out and a scuffle ensued with Inabinett eventually being subdued and handcuffed. Both appellants were placed in one of the several marked police vehicles that had arrived on the scene. The appellants were later transported back to Mobile County and jailed. ²

Deputy Bruce Lee, who arrived at Presley's Grab All after the appellants had been handcuffed, and Deputy Hill retraced the chase route, looking for items that had been thrown out of the truck. Before Deputy Lee left the store to begin this search, Deputy Earl informed him (Lee) that he (Earl) had seen something thrown out of the truck at the sharp curve on Boe Road. At this curve, Deputy Lee found a brown "garbage-type sack." In this sack were five smaller, clear plastic bags, each containing "about a pound of green plant material that [Lee] identified to be marijuana." He submitted the plant material for analysis and had the plastic bags fingerprinted. On cross-examination, Deputy Lee stated that it was "about midnight" when he found this bag.

During the course of the State's case-in-chief, the jury was excused and a suppression hearing was held. Deputy Earl testified at this hearing that "[w]hen [he] approached the back of the truck, when [he] was walking up to the truck there was a small plastic container and a lid and it was laying in the back of the truck partially on the boat that was in the back of the truck." He further described this container as being "like a Tupperware container" and stated that it appeared to be the object thrown out of the back window of the truck just before the truck stopped. It is not clear whether Deputy Earl observed the Tupperware-type container before or after the appellants were arrested. However, after both appellants were handcuffed, he collected the container, which he stated was open, and the lid. Inside the container were several plastic bags containing what appeared to Earl to be marijuana and related paraphernalia. Deputy Earl then assisted with a search of the cab of the truck, during which he found a hand-rolled cigarette "in the pocket on the driver's door." Despite rigorous cross-examination by appellant Atwell's counsel as to how the open Tupperware-type container remained on the boat in the back of the speeding truck, Deputy Earl maintained that this container was found open and in plain view. He categorically denied finding it under the driver's seat during the search of the cab.

The appellants called several witnesses at the suppression hearing. Deputy Danzy stated that the Tupperware-type container was on the floorboard of the bed of the truck, not on the boat, when Deputy Earl picked it up. Sidney Isham testified that he was at Presley's Grab All on the night of this incident and observed the officers searching the back of the truck. However, he did not see any officer pick anything up at that time. Appellant Atwell testified that the officers found the Tupperware-type container under the driver's seat and that, when it was found, appellant Inabinett stated that the container was his.

The trial court suppressed the hand-rolled cigarette found in the cab of the truck, but denied the motion to suppress as to the other items. The State's toxicologist testified that he determined the plant material in the Tupperware-type container to be marijuana, but he never specified the weight of this material. He testified that the total weight of the plant material in the bag found by Deputy Lee was 4.9 pounds, and he identified this plant material as being "real close to marijuana."

At the close of the State's case-in-chief, both appellants made a motion for judgment of acquittal and both motions were denied. Each appellant then called witnesses in his behalf, and appellant Inabinett himself testified before the jury. Essentially, the evidence offered by the appellants was that they had nothing to do with the bag found by Deputy Lee; that they were beaten and otherwise physically mistreated by the officers at the time of their arrests; and that the Tupperware-type container was found under the driver's seat and was immediately thereafter claimed by appellant Inabinett as his property.

After both appellants rested, the State called Deputy Harold Martin, not in rebuttal, but to conclude its evidence on the motion to suppress. Deputy Martin testified, over the appellants' objection and out of the presence of the jury, that, around 10:00 p.m. on March 3, 1989, he had a conversation with an informant from whom he had previously received information that proved reliable. This informant told Martin "that the driver of a white in color Chevrolet pickup truck, which had an aluminum boat in the bed of that truck would be in possession of a quantity of marijuana ... estimated ... to be around five pounds." The informant also told Martin that "the truck would be in the vicinity of Saint Elmo and Highway 90." The informant did not provide any other information, such as the driver's intended destination, the direction in which he would be traveling, a physical description of the driver, or the driver's name.

On cross-examination by appellant Atwell's counsel, Deputy Martin stated that his informant acquired this information in a conversation with a third party who was unknown to Deputy Martin. According to Martin, the informant saw this third person "with a quantity of marijuana that was supposedly from the driver of the white Chevrolet truck." Martin agreed with the trial court's summarization of his testimony: "[T]he informant told you that some person whose last name you don't know or can't remember, that he, the 3rd person, had purchased a quantity of marijuana from the driver of the truck and knew the driver to be in possession of other marijuana."

I

The appellants contend that their arrests were illegal in that the Mobile County deputies had no authority to make arrests in...