Duck v. State

• Decision Date: 13 October 1987
• Docket Number: 8 Div. 763
• Citation: 518 So.2d 857
• Parties: Louie Carl DUCK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 857

518 So.2d 857

Louie Carl DUCK v. STATE.

8 Div. 763.

Court of Criminal Appeals of Alabama.

Oct. 13, 1987.

Rehearing Denied Nov. 10, 1987.

Certiorari Denied Jan. 22, 1988

Alabama Supreme Court 87-249.

J. Louis Wilkinson and Virginia A. Vinson, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Louie Carl Duck was found guilty of trafficking in marijuana. He was sentenced to 3 years and fined $25,000. On appeal, he contends that the warrantless seizure of marijuana from his premises was illegal and that his motion to suppress should have been granted.

The facts are as follows: On June 10, 1986, the appellant filed a missing vehicle report with the Albertville Police Department. On June 11, 1986, the appellant recoverd his car and notified Albertville Police that he wanted the report withdrawn. At 11:00 p.m. that evening, Officers Billy Wear and Billy Wright of the Albertville Police Department went to the appellant's house trailer to have him sign a form withdrawing the report. The officers knocked on the appellant's door; he opened the door, took the form from the officers after they explained what it was, and stepped inside his trailer to sign it. Both officers followed the appellant into the trailer. Appellant neither invited the officers in nor attempted to keep them outside. While in the trailer, Officer Wright noticed a bag of marijuana on the kitchen floor. Once outside the trailer, Officer Wright asked Officer Wear if he had seen the marijuana. Officer Wear said "no," and they knocked on the door again. When the appellant opened the door, Officer Wright pointed out the marijuana to Officer Wear from the doorway. The appellant was arrested and the bag of marijuana was seized; he would not consent to a search of the rest of his trailer, and the officers decided to obtain a search warrant. The search netted ten other bags of marijuana from the trailer.

At a suppression hearing, the appellant attempted to suppress evidence of the bag of marijuana initially seized without a warrant and the ten other bags seized pursuant to the warrant, these being, allegedly, the illegal fruit of the initial, warrantless seizure. The appellant contended that the officers had no prior justification for being in his trailer. The motion was denied. The appellant then waived a jury and stipulated to all the necessary elements for finding a violation of § 20-2-80, Code of Alabama 1975, trafficking in cannabis. The idea was to preserve the suppression issue for appeal. The court found the appellant guilty and appellant raises the denial of his motion to suppress on appeal.

I

Generally, merely to observe what is in plain view is not a "search" at all. State v. Davidson, 44 Wis.2d 177, 170 N.W.2d 755 (1969). Since mere observation of contraband is not a search, it is not restricted by the Fourth Amendment. 68 Am.Jur.2d Searches and Seizures, § 23 (1973). In State ex rel. Berger v. Cantor, 13 Ariz.App. 555, 479 P.2d 432 (Ct.App.1971), the Arizona Court of Appeals held that no search occurred when an officer, who had stopped a car for a safety inspection, observed a kilo of marijuana in the glove compartment, which had been opened by the driver in order to retrieve his registration certificate at the officer's request. In the present case, there is no evidence that the police officers were searching for or expecting contraband. They were merely performing an everyday procedural task, as were the officers in Berger, supra. Therefore, there was no search being conducted by the officers on appellant's premises, and the seizure of the initial bag of marijuana was not prohibited by the Fourth Amendment. Consequently, the remaining evidence seized pursuant to the search warrant was not "the fruit of a poisonous tree," and was legally received into evidence.

Other courts have treated the plain view doctrine as one of the exceptions to the search warrant requirement. "Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances and subject to certain clearly defined exceptions." United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984); see also, Youtz v. State, 494 So.2d 189 (Ala.Cr.App.1986). "The burden is on the government to demonstrate ... circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries." Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732 (1984).

"Reasonableness is determined in the light of the total atmosphere of the case, and in the area of reasonableness of search and seizure, each case must be judged on its own particular facts and circumstances." 68 Am.Jur.2d Searches and Seizures § 2 (1973).

The exceptions to the requirement of a warrant "have been clearly expressed in Alabama jurisprudence as plain view; consent; incident to lawful arrest; hot pursuit or emergency situations; where exigent circumstances exist coincidental with probable cause; stop and frisk situations; and inventory search situations." Spann v. State, 494 So.2d 716, 718 (Ala.Cr.App.1985). This case falls under the plain view exception, and no warrant was required.

The plain view...