Blaine v. State

• Decision Date: 19 December 1978
• Docket Number: 3 Div. 835
• Citation: 366 So.2d 353
• Parties: Wayne Ike BLAINE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 353

366 So.2d 353

Wayne Ike BLAINE v. STATE.

3 Div. 835.

Court of Criminal Appeals of Alabama.

Dec. 19, 1978.

Rehearing Denied Jan. 16, 1979.

Benjamin E. Pool, Montgomery, for appellant.

William J. Baxley, Atty. Gen. and J. Bernard Brannan, Jr., Asst. Atty. Gen., for the State.

CLARK, Retired Circuit Judge.

A jury found appellant guilty of possession of heroin. The trial court sentenced him to imprisonment for fifteen years.

A large part of the record (more than one hundred pages) pertains to a motion to suppress certain evidence, which motion was filed and heard before the trial of this case. The court overruled the motion, and the evidence sought to be suppressed was admitted during the trial. It related to the circumstances of the finding by law enforcement officers of a large quantity of heroin at the Travelodge Motel on Federal Drive in Montgomery, Alabama, on May 18, 1977. In the process of the hearing on the motion to suppress, it developed that the State was contending that there was a connection between defendant and the heroin at the Travelodge Motel, but it appears that it was definitely understood between the parties that defendant was not charged in this case with the possession of such heroin. It was definitely understood between the parties that the prosecution in the instant case was for the possession of heroin which the evidence shows was found in an automobile being driven by defendant. The basis of the motion to suppress was a charge by defendant that the heroin found at the Travelodge Motel was obtained as a result of an unconstitutional search and seizure. A recital at this time of the evidence on the hearing of the motion to suppress would be a mere repetition of what was comprehensively stated by Judge Tyson in Golden v. State, Ala.Cr.App., 361 So.2d 1128, cert. denied 361 So.2d 1132 (1978). The relation between appellant and Golden, as indicated by substantial evidence, is shown by the opinion in Golden, as well as by the record in the instant case.

We adopt the conclusion reached in Golden that ". . . probable cause, coupled with exigent circumstances (the destruction of evidence), justified the warrantless search of appellant's motel room under the fifth exception to warrantless searches listed in Daniels, supra, (Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973))."

The determination that there was no illegal search and seizure at Travelodge makes it unnecessary to decide whether appellant herein had standing to question the constitutionality of the search of a room at the Travelodge and the seizure of the heroin found therein, as to which parties were in disagreement at the hearing on the motion to suppress.

Detective Michael M. Farrier and Officer T. M. Armstrong, of the Narcotics and Dangerous Drugs Division of the Montgomery Police Department, testified that soon after the search and seizure of the heroin at the Travelodge and the arrest of Holly Golden and the other female who, according to the facts narrated in Golden, supra, and according to the evidence in this case, were emptying heroin into the toilet and bathtub of the motel room they were occupying, they located defendant herein in a Thunderbird automobile, which answered a description and license tag number of the automobile they had been informed he had been using in connection with the sale of heroin, and for which vehicle a dispatch had been "put out" by the Police Department. The two were frisked for a weapon and brought to the City Hall, one by one of the officers in the officers' automobile and the other by the other officer in the automobile defendant was driving.

Officer Farrier testified that before they left the scene of the apprehension of defendant, a search of his automobile was made by Officer Farrier. He stated that he was looking chiefly for any weapon in the automobile, and he said that at the time he pulled up the arm rest "in the middle of the seat on the driver's side" he found a penny match box under the arm rest. He then searched the seat and under the seat on the passenger's side and found nothing. According to Officer Armstrong, he did not see Officer Farrier searching the automobile defendant was driving.

Both officers testified that after the two men in the automobile driven by defendant were brought to police headquarters, defendant was taken out of the automobile he had been driving, and the car was locked, with Officer Farrier keeping the keys for the time being. While defendant was at headquarters he was asked if he would consent to a search of his automobile, and he replied in the affirmative. The two officers then went out and searched the automobile. At that time, according to both officers, Officer Armstrong found a penny match box on the floorboard under, or almost under, the seat on the passenger's side of the automobile. In the match box was a paper in which a powdery substance was contained. The match box and its contents were preserved, turned over to a State toxicologist, whose qualification as a witness was admitted by the defendant and who testified that the powdery substance was heroin.

We do not agree with appellant that the search of the automobile at police headquarters that resulted in the seizure of the penny match box with heroin therein was illegal. Appellant does not deny the existence of the probable cause premise but insists that at that time no legal search could be made without a warrant. He does not claim that the circumstances at the time of the apprehension of defendant while driving his automobile were not sufficiently exigent to justify an arrest without a warrant.

One answer to appellant's contention in this respect is found in the conclusion reached in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970):

". . . For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.

"On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained. The same consequences may not follow where there is unforeseeable cause to search a house. Compare Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409. But as Carroll, supra, held, for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars."

Another answer to the position taken by appellant is that the trial court was justified in concluding that defendant had voluntarily consented to a search of the automobile. This conclusion is reached with full regard for Rosenthall v. Henderson, 389 F.2d 514 (6th Cir. 1968); Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (1951); and Higgins v. United States, 93 U.S.App.D.C. 340, 209 F.2d 819 (1954), cited by appellant as holding that a consent to search is Per se invalid, but which would be better assayed as holding in effect that consent is Prima facie invalid. The evidence in this case is sufficient to overcome any possible presumption of invalidity. It is not a case in which "it is incredulous to say that he actually consented to a search of a place where he knew incriminating evidence to be" as argued by appellant. Whether a correct conclusion or not, it is certainly a reasonable conclusion that during the process of defendant's being required to get back in the Thunderbird, after he and the other occupant had been personally frisked while they were out of the automobile, he (the defendant) while moving or being moved from the driver's side to the passenger's side of the automobile adroitly moved the penny match box with its contents from beneath the hand rest near the driver's seat to the floorboard under the passenger's seat. This is emphasized by one of the contentions made on the trial that the match box and its contents could as well have been property of the passenger as the property of defendant. In this connection, it should be said that the record is silent as to any possible connection between the passenger in the automobile and the presence of heroin therein and that no charge was made against the passenger.

While Officer Farrier was being cross-examined as a witness, the following occurred:

"Q Well whatever you did at the scene, whatever you did, did it turn up any thing to connect Wayne Blaine with any of the alleged heroin in the car?

"MR. BELL: I object to that.

"THE COURT: Sustained."

A similar question was asked and a similar ruling made during cross-examination of Officer Armstrong:

"Q Yes, sir, you stated that. Did you find anything in the vehicle that would in any way connect or provide a link between Wayne Blaine, the Defendant, and that match box?

"MR. BELL: I object to that as calling for

"THE COURT: Sustained. Ask him what else he found in the vehicle."

We find no error in either of the court's rulings. Both witnesses were interrogated intensely by both parties as to what was found in the automobile at the time defendant was first apprehended and thereafter at the police station. Counsel for defendant was given great latitude to bring out from the witnesses all of the facts. Appellant cites no case in which it was held that the trial court committed reversible error in sustaining objections of the State to questions similar to those quoted above. Notwithstanding the...