Dale v. State

• Decision Date: 26 February 1985
• Docket Number: 1 Div. 854
• Citation: 466 So.2d 196
• Parties: Thomas Angelo DALE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 196

466 So.2d 196

Thomas Angelo DALE v. STATE.

1 Div. 854.

Court of Criminal Appeals of Alabama.

Feb. 26, 1985.

James C. Powell, Daphne, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Alexandra Webb, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Thomas Angelo Dale was indicted for possession of controlled substances in violation of the Alabama Uniform Controlled Substances Act. The jury found the appellant "guilty as charged in the indictment," and he was sentenced to eight years' imprisonment in the penitentiary.

I

The appellant asserts his motion to suppress should have been granted because Officer Lance Monley lacked probable cause to seize, search, and arrest the appellant.

At the suppression hearing, Officer Lance Monley, an investigator with the Baldwin County Sheriff's Department, testified that on the afternoon of January 3, 1983, he met with a confidential informant concerning the possession of contraband by the appellant. After the initial meeting with Monley, the confidential informant went to the residence of the appellant's girlfriend. When the informant met with Monley the second time, he told Monley that he had seen the appellant in possession of "angel dust" and "marijuana," and that the appellant would be making a delivery of the drugs later that afternoon. The informant stated that the appellant would be leaving from his girlfriend's residence traveling in one of two vehicles, which he described, and would be going to Mamie Jackson's Place in Daphne to make the delivery.

At approximately 6:00 p.m., Monley saw the appellant in one of the vehicles which the informant had described, and he was heading in the direction of Mamie Jackson's Place. While the appellant was stopped in traffic at a red light, Monley stopped him. In the process of patting down the appellant, Monley observed a bulge in the appellant's left jacket pocket. In the jacket pocket, Monley found a pill bottle containing some pills, and four aluminum packets. The packets were later determined to contain phencyclodine or "angel dust." The appellant was then placed under arrest and transported to the Sheriff's Department.

Monley then returned to pick up the vehicle which the appellant had been driving. While he was driving the vehicle to the Sheriff's Department, Monley noticed "roach butts" and "marijuana residue" in the vehicle's open ashtray.

Monley further testified that he had used this informant several times in the past and that the appellant was suspected of being a drug dealer.

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Warrantless searches and seizures are per se unreasonable unless one of the following seven circumstances is found to exist:

"(1) In 'plain view,' see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);

"(2) With 'consent' voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);

"(3) As 'incident to a lawful arrest,' see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);

"(4) In 'hot pursuit' or 'emergency' situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;

"(5) Where 'exigent circumstances' exist coincidental with 'probable cause' (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and

"(6) In 'stop and frisk' situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

"(7) Inventory searches, see South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

Daniels v. State, 290 Ala. 216, 276 So.2d 441 (1973).

The two relevant circumstances to this case are plain view (i.e., the marijuana found in the ashtray) and probable cause with exigent circumstances (i.e., the "angel dust" found in the pill bottle).

The appellant argues that the tip received by Monley from his "confidential informant" did not satisfy the analysis set out by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and, therefore, Monley did not have probable cause to stop, seize and search him.

However, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court abandoned the "two pronged test" established in Aguilar, supra, and Spinelli, supra, and readopted the traditional "totality of circumstances" approach to probable cause. See also Sawyer v. State, 456 So.2d 114 (Ala.Cr.App.1984); Walker v. State, 462 So.2d 794 (Ala.Cr.App.1984).

" 'In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' "

"Id. [Brinegar v. United States, 338 U.S. 160] at 175, 69 S.Ct. [1302] at 1310 . Our observation in United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), regarding 'particularized suspicion,' is also applicable to the probable cause standard:

"The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

"As these comments illustrate, probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972), 'Informants' tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability.' Rigid legal rules are ill-suited to an area of such diversity. 'One simple rule will not cover every situation.' Ibid." Illinois v. Gates, supra, 103 S.Ct. 2328-2329. (Footnote omitted.)

The Supreme Court in Illinois v. Gates, supra, did not hold that the two prongs of Aguilar, supra (the informant's "veracity" or "reliability" and his "basis of knowledge") are no longer relevant in the "totality of circumstances" analysis, but did say that it is unnecessary to satisfy both prongs to establish "probable cause."

The informant's veracity and basis of knowledge are relevant considerations in the determination of probable cause and "... a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Illinois v. Gates, supra, at 2329.

Using the "totality of circumstances" test, we hold Monley did have probable cause to stop, seize and search the appellant. The appellant was suspected of being a drug dealer in the area. Monley did not receive an anonymous tip, but received the tip from an informer whom he had used in the past and knew his reliability. The basis of the informant's tip was formed by his visit with the appellant at the appellant's girlfriend's residence. The informant told Monley what kind of contraband the appellant possessed, when and where the appellant was going to make a delivery of the contraband and he also described the vehicle in which the appellant would be traveling. Monley independently verified the informant's tip when he saw the appellant driving toward the destination, and at the time the informant had given, and in the vehicle which the informant had described.

Monley's seizure and search of the appellant was not based on a mere suspicion or rumor, but on the "likely probability" that he would find contraband on this appellant.

Since we have determined Monley had probable cause to stop, seize, and search the appellant, we must decide if exigent circumstances existed so as to justify this warrantless search and seizure. As this court has stated previously, the inherent mobility of automobiles often makes it difficult to obtain a warrant before an automobile is removed from the jurisdiction. Sterling v. State, 421 So.2d 1375 (Ala.Cr.App.1982), and authorities cited.

Even though there was no evidence that the appellant would remove the automobile from the jurisdiction or that evidence would be destroyed before a warrant was obtained, we uphold this warrantless search. When probable cause to search exists, it makes no difference if an immediate search of the automobile is conducted or if the automobile is impounded, and a warrant is later obtained. Sterling, supra.

Therefore, we hold Monley's search of the appellant was supported by probable cause and was, in fact, proper.

The discovery of the marijuana in the open ashtray of the vehicle in which the appellant was stopped, is certainly legitimate under the "plain view" exception to the warrant requirement which,

" '[P]ermits a warrantless seizure of evidence if the seizing officer 1) has prior justification for the intrusion, 2) comes upon the evidence inadvertently, and 3) immediately recognizes the objects discovered as evidence of wrongdoing.' Myers v. State, 431 So.2d 1342, 1344 (Ala.Cr.App.1982), cert. quashed, 431 So.2d 1346 (Ala.1983). See also Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d...