Ellis v. State
| Decision Date | 02 November 1982 |
| Docket Number | 7 Div. 978 |
| Citation | 428 So.2d 142 |
| Parties | Hobert Owen ELLIS, alias v. STATE of Alabama. |
| Court | Alabama Court of Criminal Appeals |
James E. Hedgspeth, Jr. of Floyd, Keener & Cusimano, Gadsden, for appellant.
Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
Hobert Ellis was indicted by the June, 1981, Etowah County Grand Jury for trafficking in cannabis contrary to Section 20-2-80(1)(a) Code of Alabama 1975. Trial was had with the jury finding him "guilty as charged." A sentencing hearing was held after which appellant was sentenced to twelve years' imprisonment and assessed a $25,000 fine. From that conviction he now appeals.
Around 12:30 p.m. on May 16, 1981, appellant and his wife were seen on Littleton Road, a much traveled country road between Highways 431 and 278 in Etowah County. Appellant stopped his truck in the middle of the road and left the motor running as he exited and approached a car stopped in the middle of the opposite lane. The vehicles were not side by side. Rather, appellant had stopped his truck so that the bed of it was nearly even with the trunk of Robinson's car. Shortly thereafter, Chief Deputy Charles Tinsley and Captain Kirby Johnston of the Etowah County Sheriff's Department drove to the scene. They were on routine patrol when they observed the vehicles and appellant. Johnston saw appellant and another man, Aubrey Robinson, standing near the rear of the car. Appellant was carrying in his hand a large box, which had once held a lawn mower, toward the rear of the car. When appellant saw the patrol car, he threw the box down behind Robinson's car, said something to his wife, who, by that time had moved to the driver's seat of the truck, and began to walk toward his truck. Appellant's wife began to move the truck toward appellant, but was stopped by the officers. While Johnston requested identification from appellant and Robinson, Tinsley opened the box and found five one-pound bags of marihuana concealed in an opague feed sack. Appellant, his wife, and Robinson were immediately arrested.
Appellant contends that the trial court erred in denying his motion to suppress the introduction of the marihuana into evidence arguing that it was the product of an illegal search and seizure.
Captain Johnston testified that while they were approaching the parked vehicles, he saw appellant, whom he knew, carrying a large box in his hand. At trial, Johnston testified that he had known appellant "by reputation and by sight" for about four years. (R. 52). Johnston stated that once appellant saw the patrol car, he threw the box on the ground behind Robinson's car and began to walk toward his truck. He stated that Tinsley initially inspected the box and he viewed it a couple of minutes after Tinsley had.
Chief Deputy Charles Tinsley testified that he and Johnston had stopped at the scene because both appellant's and Robinson's vehicles were parked in the road preventing any other vehicle from passing, and that such constituted a traffic violation. See Ala.Code Section 32-5A-8, -138 (1975). Tinsley stated that as they were stopping, appellant's wife began to move the truck. Johnston, who was driving the patrol car, sounded his siren and flashed the blue light. The truck immediately stopped. Tinsley stated that the trunk of Robinson's car was open and he saw appellant, whom he knew, turn and make a swinging motion, although he could not see what he had done. Tinsley then saw appellant walk toward his truck.
Tinsley testified that he retrieved the box discarded by appellant and inspected its contents. It was located about one foot behind Robinson's car, with part of it resting on the road and the other part resting on the shoulder of the road. He stated that the end flaps of the box were pushed inside the box and a heavy paper sack, similar to that in which cattle feed is packaged, was sitting in the box. Tinsley opened the sack and observed the marihuana.
When Tinsley located the box, appellant was standing about six feet away from it. Neither appellant, his wife nor Robinson voluntarily made any claim to it. Tinsley testified that as he and Johnston drove to the scene he knew that there was something suspicious going on.
In addition, appellant and Robinson were searched at the scene. Found on Robinson was $1700.00. Nothing incriminating was found on appellant. Furthermore, it was shown that on May 11, appellant's wife had purchased a lawn mower from the Rainbow City Woolco department store. A store employee identified the box in which the marihuana was found as coming from his store and a receipt reflecting the above purchase. The box had contained a lawn mower of the same type that appellant's wife had recently purchased.
At trial, both appellant and his wife denied ownership and possession of the box.
Mrs. Ellis testified that on May 16, neither she nor appellant had a box with them. She stated that she had never seen the box found by Tinsley until he retrieved it. She did not see it in anyone's possession. Mrs. Ellis stated that she did not see appellant pick up the box.
Appellant testified that he did not have a box with him on May 15, and did not take the box found by Tinsley to the scene. He stated that he did not have the box in his hand when the officers approached the scene in their patrol car. Furthermore, he denied having anything in his hand. Appellant stated that he did not know that there was a box containing marihuana on the side of the road where he had stopped.
A close reading of the evidence reveals that the officers were on routine patrol when they observed appellant's truck and Robinson's car obstructing Littleton Road. The obstruction constituted a violation of the rules of the road and, thus, the officers properly stopped to investigate. While in the process of stopping, they observed appellant throw down a large box which he had been carrying. Appellant then began to move from the rear of Robinson's car toward his truck, which his wife had begun to move toward him. The officers then sounded the siren and flashed the blue light to stop the truck.
At the scene, the officers recognized the appellant and knew of his bad reputation. Based upon their observations and appellant's reputation, the officers suspected that appellant was involved in some criminal activity. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Young v. State, 372 So.2d 409 (Ala.Cr.App.1979).
The evidence clearly established probable cause to search the box discarded by appellant. The observed traffic violation imposed upon the officers the duty to stop and investigate. See e.g. Braxton v. State, 350 So.2d 753 (Ala.Cr.App.1977); Dickerson v. State, 43 Ala.App. 694, 200 So.2d 487, cert. denied, 281 Ala. 718, 200 So.2d 492, cert. denied, 389 U.S. 994, 88 S.Ct. 496, 19 L.Ed.2d 289 (1967).
Furthermore, while reputation of an accused, standing alone, is an insufficient basis for a finding of probable cause, it may be considered with other facts and circumstances in determining probable cause. Murray v. State, 396 So.2d 125 (Ala.Cr.App.1980), cert. denied, 396 So.2d 132 (Ala.1981). So may an officer's suspicion be considered as a factor in determining whether probable cause existed. Nicaud v. State ex rel. Hendrix, 401 So.2d 43 (Ala.1981).
The furtive movements of appellant in discarding the box as well as his walking toward his truck thereafter are also legitimate circumstances to consider in determining whether probable cause existed. See Shipman v. State, 291 Ala. 484, 282 So.2d 700 (1973); See generally United States v. Mendenhall, supra.
Moreover, the inherent mobility of appellant's truck and Robinson's car is another fact supporting the conclusion that the officers, at time of the search of the box and feed sack, had facts and circumstances within their knowledge which would warrant a person of reasonable caution in believing that an offense had been or was being committed. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Jones v. State, 407 So.2d 870 (Ala.Cr.App.1981).
Consequently, based on the totality of the circumstances, we find that the officers had sufficient articulable facts before them to constitute probable cause. They legitimately searched the box and feed sack and legally discovered and seized cannabis. Thus, no error was committed in the trial court's denial of appellant's motion to suppress. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Vogel v. State, 426 So.2d 882 (Ala.1982).
Lastly, appellant contends that the State failed to prove the requisite quantity of cannabis. Thus, he argues that the trial court erred in overruling his motion to exclude the State's evidence and his motion for a new trial.
John Case, a criminalist with the State Department of Forensic Sciences, testified to his examination of the marihuana found by Tinsley. He examined the five bags submitted to him and determined that each contained marihuana. Case stated that (R. 106). Case stated that the total weight of the five bags was five pounds. He did not weigh the plastic bags.
As to the composition of the marihuana, Case testified on cross examination as follows:
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Ex parte Tucker
...as medication, coins, or keys.4 I cite a few cases and excerpts from those opinions to show that the majority errs.In Ellis v. State, 428 So.2d 142, 145 (Ala.Crim.App.1982), the court said:"The furtive movements of appellant in discarding the box as well as his walking toward his truck ther......
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Robinson v. State, 7 Div. 992
...7 Div. 992, November 2, 1982], but for the reasons herein stated, concur specially in part V. In the companion case of Hobert Owen Ellis, 428 So.2d 142 (Ala.Cr.App.1982), several distinguishing features in the testimony require comment in the instant To begin with, the two arresting officer......