Collier v. State

• Decision Date: 30 June 1981
• Docket Number: 1 Div. 189
• Citation: 413 So.2d 396
• Parties: Russell L. COLLIER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 396

413 So.2d 396

Russell L. COLLIER v. STATE.

1 Div. 189.

Court of Criminal Appeals of Alabama.

June 30, 1981.

Rehearing Denied Aug. 4, 1981.

Thomas M. Haas and James M. Byrd, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Mark R. Ulmer, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the unlawful possession of marihuana in violation of Alabama Code Section 20-2-70 (1975). Sentence was fifteen years' imprisonment.

Deputy Norman Pierce of the Baldwin County Sheriff's Department, while patrolling County Road 4 which runs parallel to the Intracoastal Canal in Gulf Shores, observed an "18-wheeler truck" turn into the driveway at Moesch's Diesel repair shop. It was approximately 11:30 P.M., Saturday, February 9, 1980.

Sometime later that night Deputy Pierce drove back to Moesch's Diesel. The truck he had seen earlier was gone. Deputy Pierce then drove to the driveway belonging to Childress and Company, just west of Moesch's Diesel, to see if he could see "any activity". He found a chain stretched across the driveway. Deputy Pierce testified that he had been patrolling the area for approximately a year and had never seen a chain blocking the Childress driveway.

Around 3:00 A.M. on February 10, Deputy Pierce drove past the area a third time and observed truck tracks coming out of Childress's driveway. He noticed that the chain was down. The tracks led down the driveway to the Intracoastal Canal where Pierce saw pieces of burlap scattered on the ground.

Deputy Pierce went back to this site at 9:00 A.M. and found the chain back across the driveway. He contacted Chief Deputy Jim Anderson who met him between 11:30 and 12:00 A.M. Together Pierce and Anderson took the chain down, drove in and saw the imprint of a boat edged into the bank of the canal. Anderson also saw a piece of burlap, a plastic surgeon's glove and one or two cotton work gloves. Looking east toward Moesch's Diesel, Pierce and Anderson saw a shrimp boat, The Ricky G. This boat had mud on its bow "that would have matched the imprint in the bank on the canal." The Ricky G was tied to the slip at Moesch's Diesel yard. Deputy Pierce testified that he "knew the boat hadn't been there" the previous night "when I was down there." The yard foreman at Moesch's Diesel did not know anything about the boat.

Chief Deputy Anderson, Deputy Pierce and the yard foreman boarded the boat and upon lifting the hatch cover discovered numerous bales of marihuana covered in burlap. Anderson and Pierce left the boat and set up surveillance. Deputies Bobby Stewart and Roland Howell were later called to take over surveillance.

Around 8:00 P.M. on February 10, The Ricky G backed out of the slip at Moesch's Diesel into the canal and traveled approximately two hundred yards west to Childress's Landing where a ten-wheeler refrigerator truck had backed to the edge of the canal from Childress's driveway. Chief Deputy Anderson and Deputies Stewart and Howell had positioned themselves fifty to seventy-five yards west of Childress's Landing in a wooded area. Chief Deputy Anderson testified "we could hear what sounded, to us, like something being pitched up into the truck." Deputy Howell stated that he could see a light on the boat and "occasionally, I could see a figure or an outline of some persons moving." He could also hear "the sound of people throwing bales of marijuana into a truck."

After approximately thirty minutes of loading, The Ricky G proceeded west in the canal toward Mobile Bay. The refrigerator truck also attempted to leave, but moved only fifty to one hundred feet away from the canal before being stopped. Chief Deputy Anderson stated that when his group, which had been stationed in the woods, identified themselves as police officers, "everybody scattered". The persons in the truck fled the scene but were later arrested. The Ricky G, which had also been stopped, was escorted back to the scene at Childress's Landing and two or three persons were arrested aboard ship.

After the capture of the truck and the boat, the defendant was discovered clinging to the bank of the canal, up to his shoulders in water, approximately ten or twelve feet off the bow of The Ricky G. Deputy Howell pulled the defendant out of the water: "(W)hen we first pulled him out of the water, I placed him under arrest and read him his rights." From all accounts the defendant was so cold he could not talk or stand up. He did indicate that he understood his rights by shaking his head. Deputy Nunley stated that the defendant was "near dead" when he was pulled from the water. There was testimony that the temperature at that time was between eighteen and twenty-three degrees. The defendant was immediately placed in a patrol car "to warm him up" and taken to "the fire station where the paramedics could give him some medical attention."

Deputy Stewart testified that after the defendant had been helped from the water no one else was found around the truck: "(W)e checked to see that there was nobody else around the truck. And I went to the rear of the truck, and on the ledge, all the way across the back of it, was quite a bit of loose marijuana seed and residue. The truck was locked." Deputy Stewart then stated that "(w)e got a jack handle and pried the lock off and opened it." Over two hundred bales of marihuana weighing over 7,000 pounds were found inside the truck. There were no bales of marihuana found on The Ricky G at this time.

Deputy Nunley advised the defendant of his constitutional rights at the fire station. Nunley testified that as the defendant began to "come around" he said "he wanted to talk to us about what had happened, ... if it would help him any." Deputy Howell was immediately informed of this fact by radio dispatch and arrived at the fire station between forty-five minutes and one hour after the defendant had initially been pulled from the water.

Deputy Howell testified that the defendant's condition "was much better" when he saw him at the fire station. Deputy Nunley stated that by the time Howell arrived the defendant "was pretty well out of it and beginning to warm up a little."

Prior to questioning, Deputy Howell gave the defendant his Miranda warnings and further testified that the defendant was not threatened or intimidated, offered any reward, hope of reward, or promised anything whatsoever before making his statement. When asked what he wanted to talk about the defendant stated that he "just wanted to try and get things cleared up", and that he had made "a mistake and got caught." The defendant stated that between seven to ten persons had been involved and that some of those involved were not at the scene. Deputy Howell testified that the defendant told him that some of these people had come over in a cream colored Chevrolet Blazer. The defendant also told Deputy Howell that a rented car was involved, that some of the persons involved were staying in the Holiday Inn and others in the Ramada Inn in Mobile. The defendant told Deputy Howell who owned the boat.

The defendant's statement was not reduced to writing. After the defendant had made his statement, he was taken to the hospital emergency room where "they" found that everything was normal.

Ms. Deborah Sennett of the Department of Forensic Science identified the plant material she had received from Richard Carter as marihuana. Mr. Carter had collected samples of the marihuana from the refrigerator truck and The Ricky G the night the defendant was arrested. Ms. Sennett stated that each sample she examined and analyzed was marihuana and that each sample contained the active ingredient tetrahydrocannabinol.

I

The Alabama Controlled Substances Act is constitutional. Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973); Warren v. State, 52 Ala.App. 35, 288 So.2d 817, reversed on other grounds, 292 Ala. 71, 288 So.2d 826 (1973).

II

The defendant specifically alleges that the warrantless searches of The Ricky G and the refrigerator truck were illegal in that the State failed to meet any of the exceptions to the Fourth Amendment warrant requirements. We need not decide that question because at the threshold we are convinced the defendant lacked standing to contest the validity of the search and seizure. This is so because, based on all the facts and circumstances, the defendant did not have any legitimate expectation of privacy from governmental invasion in the areas searched. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

Persons charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated. Salvucci, supra; Rakas, supra. The burden rests on the defendant to prove not only that a search was illegal, but also that he had a legitimate expectation of privacy in the area searched. Rawlings, supra. "(A) prosecutor may, with legal consistency and legitimacy, assert that a defendant charged with possession of a seized item did not have a privacy interest violated in the course of the search and seizure." Salvucci, 100 S.Ct. at 2551.

The automatic standing rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 5 L.Ed.2d 697 (1960), was specifically overruled in Salvucci, 100 S.Ct. at 2554. See also Rawlings, supra. The test of standing is found in Salvucci.

"The person in legal possession of a good seized during an illegal search has not necessarily been subject to a Fourth Amendment deprivation. As we hold today in Rawlings v. Kentucky, post, at 2556, legal possession of a seized good is not a proxy for determining whether the owner had a Fourth Amendment interest for it does not invariably represent the protected Fourth Amendment interest."

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"While property ownership is clearly a...