Day v. State

• Decision Date: 20 September 1988
• Docket Number: 8 Div. 924
• Citation: 539 So.2d 410
• Parties: James Arthur DAY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 410

539 So.2d 410

James Arthur DAY v. STATE.

8 Div. 924.

Court of Criminal Appeals of Alabama.

Sept. 20, 1988.

On Return to Remand Dec. 30, 1988.

John S. Tucker, Jr. and John H. Wiley III, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Charles W. Hart III, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

This is an appeal by James Arthur Day of his conviction for trafficking in cannabis, in violation of § 20-2-80, Code of Alabama 1975. Appellant was convicted by a Morgan County jury and was sentenced to 25 years' imprisonment and fined $25,000.

The record indicates that Walter Price, a deputy sheriff in Morgan County, observed appellant, who was a suspected drug dealer, driving a black Mercury Cougar automobile in Decatur, Alabama. Appellant pulled his car off to the side of the road, as did the driver of a pickup truck that appeared to be following appellant's car. Appellant and the driver of the truck got out of their vehicles and met at the rear of appellant's car. The driver of the truck, who was later determined to be Bruce Adams, was carrying a satchel. The two men opened the trunk of appellant's car, and Deputy Price observed Adams place the satchel into the trunk. After a few seconds of "shuffling around," Adams removed the satchel and the two men departed.

Deputy Price followed Adams's truck and advised Officer Keith Russell, by radio, to stop the truck, which he did. A search of the truck revealed a briefcase containing two plastic bags of marijuana. Adams and a passenger in the truck, Shannon Cobb, were arrested.

After questioning Adams, Deputy Price instructed Officer Hudson to keep appellant's vehicle under surveillance while he obtained a search warrant. Officer Hudson proceeded to appellant's residence, where he observed his car. After about 30 minutes, appellant emerged from his residence and drove off. Officer Hudson informed Deputy Price that appellant was leaving and, a short time later, Officer Hudson stopped appellant's car. Officer Hudson asked appellant if he could search his car, and appellant responded by asking whether he had a warrant. After Officer Hudson informed him that Deputy Price was in the process of obtaining one, appellant said that "there would be no need to do that" and that he could "go ahead and look." Hudson discovered a duffel bag, in the trunk of the car, containing four bags of what was later determined to be marijuana. As a result of this discovery, appellant was arrested and ultimately convicted of trafficking in cannabis; he now appeals from that conviction.

I

In appellant's first argument, he contends that the trial court erred in denying his motion for a judgment of acquittal. The basis of appellant's argument is that the state's evidence was insufficient to prove that he was in possession of more than 2.2 pounds of marijuana, as is required for a conviction of trafficking in cannabis. Ala.Code (1975), § 20-2-80.

During the trial of this case, the state called Martha Odom, a forensic drug chemist with the Alabama Department of Forensic Sciences, to testify to the identity and weight of the material found in appellant's possession. Odom stated that she weighed the entire quantity of material in the four bags and that its total weight was 3.9 pounds. Odom explained the manner in which she performed various analyses on the material and further testified that, as a result of these analyses, she determined that "[e]ach of the four bags contained marijuana."

Appellant contends that Odom's statement, "Each of the four bags contained marijuana," was insufficient to prove that the quantity of marijuana contained within the 3.9 pounds of plant material was in excess of 2.2 pounds. We disagree. "Marijuana" is defined by § 20-2-2(15), Code of Alabama 1975, as follows:

"All parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Such term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of germination."

When a defendant is being prosecuted for trafficking in marijuana, pursuant to § 20-2-80, the burden is clearly on the state to prove that he was in possession of more than 2.2 pounds of marijuana, as that term is defined above. Mulhern v. State, 494 So.2d 787 (Ala.Cr.App.1986). However, once the state has established the existence of the requisite amount of marijuana, the burden is then on the defendant, if he seeks to contest the validity of that weight, to show that there was matter contained in the material weighed which should have been excluded pursuant to § 20-2-2(15). Ex parte Bohannon, [Ms. 87-59, July 29, 1988] (Ala.1988); Dickerson v. State, 414 So.2d 998 (Ala.Cr.App.1982).

In the instant case, Odom testified that the bags she received "contained almost exclusively ... flowering tops." She further stated that there were stems in the material weighed, but nothing she would "really call stalks." In Dickerson, the expert also testified that the plant material weighed contained stems. 414 So.2d at 1001. While recognizing that the terms "stalk" and "stem" "refer to the same portion of the plant, namely the main body or ascending axis of the plant which supports the secondary branches, leaves, and fruit," id. at 1003, the court considered the expert's use of the term "stem," within the context of his testimony, and concluded that he was not referring to the mature stalk, which is excluded by statute, but was referring to the branches. Id. at 1002. As the court in Dickerson did, we have considered Odom's use of the term "stem" within the context of her testimony, and we find that she was referring, not to the mature stalk, but to branches. Her testimony clearly indicates that, to her, stems and stalks are two totally different parts of the cannabis plant. Here, as in Dickerson, "[i]t is clear that no mature stalks were present in the marijuana." Id.

Therefore, the question before us is whether the flowering tops and the branches of the cannabis plant fall within the exclusion clause of § 20-2-2(15) and were, therefore, improperly included in calculating the weight of the marijuana found in appellant's possession. The definition of "marijauna," as noted above, provides for the inclusion of all parts of the cannabis sativa L. plant in the term "marijuana" except for certain parts which are specifically excluded. Those portions excluded are the mature stalk of the plant and the derivatives of the mature stalk, with the exception of the resin; the oil or cake made from the seeds of the plant; and the sterilized seeds of the plant. Nowhere in the exclusion clause is there a mention of either the flowering tops or the branches of the plant. Therefore, both fall within the definition of "marijuana," § 20-2-2(15), and likewise both were properly included in determining the weight of the marijuana in appellant's possession.

Appellant relies on this court's holding in Mulhern v. State, supra, as support for his argument that Odom's statement, "Each of the four bags contained marijuana," was insufficient to prove that the amount of marijuana contained in the material weighed was in excess of 2.2 pounds. In Mulhern, the defendant's conviction for trafficking was reversed because the state's evidence, establishing the weight of the marijuana possessed, consisted of a lab report which revealed only the weight of the plant material and did not provide the actual weight of the marijuana contained in the plant material. However, in the instant case, the evidence clearly established, as noted above, that the only thing contained in the bags was marijuana, as that term is defined in § 20-2-2(15). And unlike in Mulhern, Odom's testimony in the case at bar was that the bags contained marijuana, not that the material within the bags contained marijuana. In Mulhern, the lab report indicated the presence of marijuana in the material, while, in the instant case, Odom's testimony established that all of the material in the bags was, in fact, marijuana.

Therefore, in light of the conclusion, from the totality of the facts, that the material weighed was exclusively marijuana, Odom's testimony that the total weight was 3.9 pounds was sufficient to prove that appellant was in possession of more than 2.2 pounds of marijuana.

II

Appellant further contends that the trial court erred in denying his motion to suppress the marijuana found in the trunk of his car. He argues that the search was conducted without a warrant and, therefore, that the evidence obtained should have been suppressed.

The bulk of appellant's argument on this issue concerns the validity and admissibility of his alleged consent given to Officer Hudson, allowing him to search appellant's car. However, because of this court's finding, as discussed below, that there was probable cause under the circumstances to authorize a warrantless search, determination of this issue of consent is not necessary in this case.

As a general rule, warrantless searches are per se unreasonable as beng violative of the Fourth Amendment. Youtz v. State, 494 So.2d 189 (Ala.Cr.App.1986). However, when the circumstances of a case give rise to one of the well-documented exceptions to this general rule, a warrantless search may be acceptable. Dale v. State, 466 So.2d 196 (Ala.Cr.App.1985). One of these exceptions, which will be the subject of our attention here, arises when exigent circumstances exist along with adequate probable cause. This particular exception "authorizes the warrantless search of a vehicle when the police initially have probable cause to...