Caffie v. State

• Decision Date: 28 October 1986
• Docket Number: 1 Div. 934,1 Div. 915
• Parties: Francis CAFFIE v. STATE. (Two Cases) ,
• Court: Alabama Court of Criminal Appeals

Page 822

516 So.2d 822

Francis CAFFIE v. STATE. (Two Cases)

1 Div. 915, 1 Div. 934.

Court of Criminal Appeals of Alabama.

Oct. 28, 1986.

Rehearing Denied Nov. 25, 1986.

Certiorari Denied Feb. 20, 1987

Alabama Supreme Court 86-360 (1 Div. 934).

Wilson M. Hawkins, Jr., Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and M. Beth Slate, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Francis Caffie, was indicted in a two-count indictment at the October 1983 term of the Mobile County grand jury for possession of marijuana and hydromorphone hydrochloride, both being controlled substances. He was convicted on both counts after a jury trial and sentenced, as a repeat offender pursuant to § 20-2-76, Code of Alabama 1975, to fifteen years in the penitentiary. (Case No. CC83-3328, 1 Div. 934).

Thereafter, on September 26, 1984, after a hearing, orders granting probation to appellant in four prior unrelated cases were revoked, and in the revocation proceedings, it was stipulated by the parties that the evidence presented in appellant's trial for possession of marijuana and hydromorphone hydrochloride (CC83-3328, 1 Div. 934) would be considered as the evidence in the probation revocation hearings. The four prior cases referred to are No. DC81-20458 (possession of marijuana for personal use); No. DC81-20459 (sale of marijuana); No. DC81-20460 (sale of marijuana); and No. DC81-20461 (receiving stolen property in the second degree). Appellant pleaded guilty in each of the four cases on September 4, 1981, and was sentenced to three years' imprisonment in the penitentiary in each case. The sentences were ordered to run concurrently, but suspended for three years, and appellant was placed on probation.

Appellant appeals his conviction for possession of marijuana and hydromorphone hydrochloride, 1 Div. 934, and also appeals the revocation of his probation in the four previous cases. The appeals from the revocation of probation are consolidated herein for purposes of this opinion and are designated 1 Div. 915. On motion of appellant, 1 Div. 915 and 1 Div. 934 are also consolidated for purposes of this opinion. We will address appellant's appeals in all five cases.

We will first consider the appeal in case No. CC83-3328, 1 Div. 934. At trial, the State introduced marijuana and hydromorphone hydrochloride which had been found in a white 1978 Chrysler automobile parked near the scene of appellant's arrest. Appellant contends that his arrest, the search of his person, and the search of the automobile were unconstitutional. The State argues that appellant was properly stopped and detained on the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and § 15-5-30, Code of Alabama 1975. ¹

At the suppression hearing, Officer Raymond Grissett of the Mobile Police Department testified that on December 14, 1982, at approximately 4:59 p.m., he received a radio dispatch advising him of "suspicious circumstances" and "possible drug dealing" at the corner of Alex Herman Drive and Bishop Avenue in Mobile (hereinafter referred to as "the corner"). Grissett was advised that the call originated from "community watch," and that the informant was a person known to police authorities. However, no officer could testify that he knew for certain who made the complaint, or that the complainant was, in fact, known to police authorities. The dispatcher was not called to testify at the suppression hearing or at trial. Grissett was further advised that a black male, wearing blue jean coveralls, a blue sweatshirt, and a blue cowboy hat was selling drugs at that location. A white 1978 Chrysler automobile was also described in the dispatch. When Grissett arrived at the scene, he saw a person near the corner who matched the given description. Grissett observed this person, later identified as appellant, walk toward a white 1978 Chrysler automobile and, then, past it as appellant proceeded to the corner. Grissett was alone in his marked patrol unit and decided to wait for backup, which was reportedly in the area. Grissett proceeded down the block and saw appellant at the corner, but as he proceeded to turn at the end of the block, he lost sight of appellant. As Grissett proceeded back to the corner, he met Sergeant Billy Luther, and together but from opposite directions, Grissett and Luther approached the corner, where appellant and two other black males were standing. According to Grissett, Luther placed appellant against a wall and patted him for weapons. Appellant produced identification, and the officers evidently went through his pockets. A "large amount of cash" was taken from appellant's person. Appellant was then placed in a patrol car and was "not free to leave" at that point.

The radio dispatcher then advised that "community watch" had called back and stated that the officers had the "right subject and that white '78 Chrysler was parked in a parking lot adjacent to where we were." According to Grissett "several dozen" cars were parked in this parking lot. Grissett proceeded to the white 1978 Chrysler automobile and observed a black "industrial-type lunch box" in the back seat of the vehicle. The box was open, and he observed numerous "brown envelope packages and match boxes and a brown paper bag inside the lunch box." Grissett stated that these envelopes were of a type frequently used to package marijuana or drugs. He also observed a jacket and "a clear plastic bag ... with green plant material in it" laying on the back seat. The plastic bag appeared to contain marijuana. Grissett checked the vehicle's doors and found them locked. Grissett then went to appellant and requested the keys to the vehicle. From the protective search, Grissett knew appellant had keys in his possession. After appellant responded that the car had been loaned to him, he produced the keys from his pocket. With one of these keys, Grissett unlocked the vehicle; inventoried its contents; and called the narcotics division.

After appellant denied that the jacket was his, he was required to put it on. Grissett stated that the jacket fit appellant "perfectly." Appellant was then informed of his arrest and advised of his Miranda rights.

On cross-examination, Grissett acknowledged that "we had nothing to charge him with" and there was nothing to connect him with the vehicle until after the vehicle search.

After the prosecution presented the evidence delineated above, the court noted that appellant was "certainly not free to leave prior to" his formal arrest and that if the prosecution could not better connect appellant to the vehicle, then it was inclined to suppress the evidence.

The prosecution then conferred with its witnesses outside the court room, and then called Luther, who testified that as he approached the scene, he observed appellant approach the vehicle, open the door, place some items in the vehicle, close the door, and walk back to the corner. The court then granted in part, and denied in part, appellant's motion to suppress. The court granted appellant's motion to suppress the statements made by appellant, the second radio dispatch, the testimony concerning the jacket and its fitting appellant, and the money taken from appellant. The court denied appellant's motion to suppress the taking of the car keys from appellant and the contraband obtained from the vehicle.

I

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny created a narrowly drawn exception to the broad general rule that the seizure of a person "must be supported by the 'long prevailing standards' of probable cause." Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979). In White v. State, 49 Ala.App. 5, 12, 267 So.2d 802, 809 (1972), the court, quoting People v. Navran, 174 Colo. 222, 228-29, 483 P.2d 228, 232 (1971), stated:

"[W]e conclude that the authority to make a search without probable cause is limited in the following manner: There must be (a) some reason for the officer to confront the citizen in the first place, (b) something in the circumstances, including the citizen's reaction to the confrontation, must give the officer reason to suspect that the citizen may be armed and, thus, dangerous to the officer or others, and (c) the search must be limited to a frisk directed at discovery and appropriation of weapons and not at evidence in general."

See also Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200, cert. denied, 291 Ala. 93, 278 So.2d 205 (1973). We have reviewed Terry and its progeny, and conclude that White is an accurate evaluation of the Terry analysis.

In applying the first prong of the Terry analysis, we note that the Terry Court stated:

"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."

392 U.S. at 22, 88 S.Ct. at 1880. Thus, it has been often stated that:

"[T]he quantum of cause necessary to justify an investigatory stop is a 'reasonable' or 'founded' suspicion that a person has committed or is about to commit a criminal act .... The founded suspicion must arise from specific facts and not inchoate hunches, but the officer is entitled to draw inferences from those facts in light of his experience."

United States v. Post, 607 F.2d 847, 850 (9th Cir.1979). See also 1 W. LaFave and J. Israel, Criminal Procedure § 3.8(d) (1984). In United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), the Court further clarified this reasonable suspicion prong of the Terry analysis, stating:

"Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like 'articulable reasons' and 'founded suspicion' are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that...