B.A.H. v. State

• Decision Date: 01 May 2009
• Docket Number: CR-07-2236.
• Citation: 28 So.3d 29
• Parties: B.A.H. v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

28 So.3d 29

B.A.H. v. STATE of Alabama.

CR-07-2236.

Court of Criminal Appeals of Alabama.

May 1, 2009.

Rehearing Denied May 29, 2009.

Certiorari Denied August 14, 2009.

Alabama Supreme Court 1081191.

Christopher Gene Childers, Florence, for appellant.

Troy King, atty. gen., and William D. Little, asst. atty. gen., for appellee.

KELLUM, Judge.¹

The appellant, B.A.H., was adjudicated delinquent after pleading guilty to the underlying charge of unlawful possession of marijuana, a violation of § 13A-12-214, Ala.Code 1975. B.A.H. was ordered to serve two weekends at the Boy's Attention Home. Before entering his guilty plea, B.A.H. reserved the right to appeal the trial court's denial of his motion to suppress certain evidence.

On June 18, 2008, Officer Ira Davis of the Florence Police Department initiated a traffic stop of a sport-utility vehicle ("an SUV") for a violation of the city's noise ordinance. Four people were inside the SUV; B.A.H. was in the front passenger seat. The driver got out of the vehicle and Officer Davis began writing her a citation. Officer Davis approached the SUV to talk with the passengers. B.A.H. asked the officer if he could get out of the car to buy a drink from the gasoline service station where the SUV had been pulled over. Officer Davis testified that B.A.H. "seemed to want to be anywhere else other than where he was." (R. 7.) Officer Davis told B.A.H. that he could exit the vehicle to go inside the store, but that he would be subject to a patdown. Officer Davis testified he was concerned for his safety at this point. B.A.H. told the officer he was not going to get out of the vehicle because he did not want to undergo a patdown. B.A.H.'s answer, along with his subsequent nervous demeanor and fidgeting "sent up a red flag in [Officer Davis's] mind." (R. 10.) Given the circumstances, Officer Davis suspected that B.A.H. might have a weapon on his person, so he asked B.A.H. to get out of the vehicle and lift his shirt so Officer Davis could see if he had a weapon in the waistband of his pants. B.A.H. complied and Officer Davis observed a clear, plastic bag containing marijuana hanging from his front pocket. B.A.H. was arrested and charged with second-degree possession of marijuana.

B.A.H. filed a motion to suppress the marijuana because, he alleged, it was the product of an illegal search. On August 20, 2008, the trial court held a hearing on B.A.H.'s motion to suppress. Officer Davis testified to the aforementioned facts for the State. B.A.H. presented no evidence in opposition. B.A.H. argued that the search by Officer Davis was improper because, he said, the officer did not have reasonable suspicion sufficient to justify the search. Furthermore, B.A.H. argued that Officer Davis exceeded the scope of a Terry² stop and frisk by asking B.A.H. to lift his shirt in order to dispel the officer's suspicion that B.A.H. was armed. The trial court denied B.A.H.'s motion upon finding B.A.H. implicitly consented to the search by agreeing to lift his shirt in response to Officer Davis's request. B.A.H. then pleaded guilty after preserving the issues raised in his suppression motion. B.A.H. appealed.

I.

B.A.H. argues that the trial court erroneously denied his motion to suppress because, he says, Officer Davis's search was improper. Specifically, B.A.H. argues that Officer Davis had insufficient reasonable suspicion to conduct a patdown because, based on the nature of the traffic stop, Officer Davis could not have reasonably suspected that he might uncover evidence of a more serious crime. Additionally, B.A.H. argues that Officer Davis did not have a reasonable suspicion that B.A.H. had committed a crime or that he was in the course of committing a crime, nor did he have a reasonable suspicion that B.A.H. was armed and dangerous.

"`This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute.' See, State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999)." State v. Davis, 7 So.3d 468, 469-70 (Ala.Crim.App.2008). Here, the facts are undisputed; Officer Davis was the sole witness to testify at the suppression hearing, and his testimony was undisputed. Thus, the only issue before the Court is whether the trial court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the trial court's ruling.

"`Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct investigatory stops of persons or vehicles if they have a "reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur..."' Davis, 7 So.3d at 470, quoting Wilsher v. State, 611 So.2d 1175, 1179-80 (Ala.Crim.App.1992) (internal citations omitted). When an officer stops a suspects pursuant to Terry, the officer "`"`is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.' [Terry,] 392 U.S. at 30, 88 S.Ct. 1868."'" Smith v. State, 884 So.2d 3, 9 (Ala.Crim.App.2003), quoting Riddlesprigger v. State, 803 So.2d 579, 582 (Ala. Crim.App.2001). In State v. Hails, 814 So.2d 980 (Ala.Crim.App.2000), this Court explained the standards by which any Terry search would be judged "`Police may conduct a patdown search without a warrant if, under the totality of the circumstances, the officer has an articulable, reasonable suspicion that a person is involved in criminal activity and that he is armed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of the search is measured objectively. If a reasonably prudent person would believe that his safety, or the safety of others, is endangered, he may conduct a limited search of outer clothing to discover any weapons. Id. at 27, 88 S.Ct. 1868.'

"United States v. Raymond, 152 F.3d 309, 312 (4th Cir.1998). `And in determining whether the officer acted reasonably in such circumstances, due weight must be given ... to the specific reasonable inference which he is entitled to draw from the facts in light of his experience.' Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968)."

814 So.2d at 986.

This Court has recognized that a traffic stop is "`"more analogous" to the brief investigative detention authorized in Terry'" than custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala.Crim.App.1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala.Cr.App.1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala.Crim.App.1989), quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), as well as any passenger, Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). Furthermore, so long as the police officer has properly seized the occupants of the car, the officer may order the driver, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), or a passenger, State v. Hails, 814 So.2d 980 (Ala.Crim.App.2000), cert. denied, 814 So.2d 988 (Ala.2001), recognizing Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), out of the car without violating the Fourth Amendment. See, State v. Abner, 889 So.2d 52, 53-54 (Ala.Crim.App.2004) (recognizing the applicability of Mimms and Wilson in Alabama).

When a police officer properly seizes a vehicle for a traffic violation, the police officer may not only order the driver out of the vehicle, but may also pat down the driver for weapons if the officer reasonably believes that the driver is armed and dangerous. Mimms, 434 U.S. at 112, 98 S.Ct. 330. Recently, the United States Supreme Court expanded the Terry traffic stop jurisprudence in Arizona v. Johnson, ___ U.S. ___, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), holding that, as with a driver suspected of carrying a weapon, a police officer may also order a passenger out of a vehicle and conduct a patdown of a passenger if the officer reasonably believes that the passenger is armed and dangerous. The Supreme Court explained:

"[I]n a traffic-stop setting, the first Terry condition — a lawful investigatory stop — is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous."

___ U.S. at ___, 129 S.Ct. at 784 (emphasis added).

In Johnson, police officers pulled over a vehicle after a license-plate check indicated that vehicle's registration had been suspended for an insurance-related violation. As one officer approached the vehicle, she noticed that the passenger in the backseat, Johnson, turned around to watch the officers and stared at her as she approached the vehicle. Johnson had a police scanner in his pocket and was wearing blue clothing, which the officer believed indicated his membership in the Crips, a violent street gang. Johnson informed the officer that he was from an area that the officer knew was home to a Crips gang. The officer suspected that Johnson might have a weapon on him based on his appearance and the answers he provided to her questions. The officer asked Johnson to step out of the car with the purpose of obtaining gang-related intelligence. The officer patted Johnson down after he got out...