Cottrell v. State

• Decision Date: 20 December 2006
• Docket Number: CR-04-2044.
• Citation: 971 So.2d 735
• Parties: Dedrick Demond COTTRELL v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

971 So.2d 735

Dedrick Demond COTTRELL v. STATE of Alabama.

CR-04-2044.

Court of Criminal Appeals of Alabama.

December 20, 2006.

Rehearing Denied February 16, 2007.

Certiorari Denied May 11, 2007 Alabama Supreme Court 1060817.

R. Hays Webb, Tuscaloosa, for appellant.

Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.

COBB, Judge.

The appellant, Dedrick Demond Cottrell, pleaded guilty to possessing a firearm with an altered or removed serial number, a violation of § 13A-11-64, Ala.Code 1975. Cottrell was sentenced to one year and one day in jail; the court suspended the sentence and placed Cottrell on probation for two years. Before entering his guilty plea, Cottrell specifically reserved his right to appeal the circuit court's ruling denying his motion to suppress the gun, which was recovered as a result of a traffic stop.

Cottrell argued in his motion to suppress that the traffic stop was illegal because the stop was made pursuant to an anonymous tip that was not corroborated or verified by the police officer before he stopped Cottrell's vehicle. He asserts that based on the United States Supreme Court's decision in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), the results of the illegal stop — the gun — should have been suppressed because the anonymous tip had no indicia of reliability — it was not corroborated.

The circuit court held a hearing on the motion to suppress. At the hearing, Officer Darren Beams of the Tuscaloosa Police Department testified that on March 8, 2003, he was driving his patrol car eastbound on Skyland Boulevard in Tuscaloosa when a driver flagged him down and told him that a blue Chevrolet Lumina automobile was "swerving all over the road." The driver said that he saw all of the vehicle's occupants, three young black males, drinking beer. Officer Beams saw the vehicle the driver was describing as he was speaking to the anonymous motorist, and he initiated a traffic stop. He said that he noticed a lot of "furtive movement" and that it took the vehicle a "little time" to stop. He said that when the three got out of the vehicle he could see half a case of beer stuck in a hole between the backseat and the opening to the trunk. Officer Beams testified that Cottrell was driving the vehicle and that he obtained his consent to search the car. When he opened the driver's door, Officer Beams said, he saw the handle of a revolver sticking out from under the seat. He could see that the serial number of the gun had been altered. On cross-examination, Officer Beams said that he did not personally observe any illegal activity before the stop and that the sole basis for the stop was the complaint by the anonymous motorist.

The circuit court denied the motion to suppress. Cottrell then moved the court to reconsider its ruling. The circuit court likewise denied that motion. Cottrell then pleaded guilty to violating § 13A-11-64, Ala.Code 1975, and reserved his right to appeal the circuit court's ruling denying his motion to suppress the gun.

This Court's review of a ruling on a motion to suppress when the evidence presented is undisputed is de novo — we indulge no presumption of correction in the circuit court's findings. See State v. Hill, 690 So.2d 1201 (Ala.1996).

The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that an officer may stop and detain a citizen if he has a "reasonable suspicion" that a crime has been committed or that one is being committed. A totality-of-the-circumstances approach is used when assessing the information relayed to the officer. See United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). An anonymous tip may provide reasonable suspicion if the tip is reliable. See Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

More recently, in Florida v. J.L., the United States Supreme Court addressed whether an anonymous telephone tip that an individual was at a certain location and was carrying a gun was sufficient to stop the individual and conduct a search. The Supreme Court, holding that the anonymous telephone tip did not establish sufficient reliability to justify the stop, stated:

"In the instant case, the officers' suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, see Adams v. Williams, 407 U.S. 143, 146-147 (1972), `an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity,' Alabama v. White, 496 U.S. [325], at 329 [(1990)].

"....

"The tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line."

529 U.S. at 270-71, 120 S.Ct. 1375. Apparently, limiting its holding, the United States Supreme Court further stated:

"The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports, see Florida v. Rodriguez, 469 U.S. 1 (1984) (per curiam), and schools, see New Jersey v. T.L.O., 469 U.S. 325 (1985), cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.

". . . . We speak in today's decision only of cases in which the officer's authority to make the initial stop is at issue. In that context, we hold that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams [v. Williams, 407 U.S. 143 (1972),] and [Alabama v.] White[, 496 U.S. 325 (1990),] does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm."

529 U.S. at 273-74, 120 S.Ct. 1375. Also, Justice Kennedy, in a special concurrence joined by Chief Justice Rehnquist, noted that "there are many indicia of reliability respecting anonymous tips that we have yet to explore in our cases." 529 U.S. at 274, 120 S.Ct. 1375. Justice Kennedy then said:

"An instance where a tip might be considered anonymous but nevertheless sufficiently reliable to justify a proportionate police response may be when an unnamed person driving a car the police officer later describes stops for a moment and, face to face, informs the police that criminal activity is occurring. This too seems to be different from the tip in the present case. See United States v. Sierra-Hernandez, 581 F.2d 760 (C.A.9 1978)."

529 U.S. at 276, 120 S.Ct. 1375.

The United States Supreme Court's decision in Florida v. J.L., is factually distinguishable from the facts presented in this case. First, in this case the informant did not anonymously telephone the police; instead he flagged down a police officer from his vehicle as the officer was passing in his patrol car. The informant's identity was readily apparent by the license plate on his car, and the informant could have been held accountable for any misinformation he relayed to the police officer. We agree that "a face-to-face informant must, as a general matter, be thought more reliable than an anonymous telephone tipster, for the former runs the greater risk that he may be held accountable if his information proves false." United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir.1991). "Information from a citizen who confronts an officer in person to advise that a designated individual present on the scene is committing a specific crime should be given serious attention and great weight by the officer." United States v. Sierra-Hernandez, 581 F.2d 760, 763 (9th Cir.1978).

"Various federal and state courts have distinguished the government informant ... from the eyewitness, victim of a crime or a citizen who provides information of a crime. . . . The rationale of these holdings is that the concomitant danger of self-interest does not inure to a victim or witness to a crime as easily as it would to a government informant."

United States v. Unger, 469 F.2d 1283, 1287 n. 4 (7th Cir.1972).

Justice Rehnquist, writing for the court in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), stated:

"Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations — for example, when the victim of a street crime seeks immediate police aid and gives a...