Ervin v. State
Decision Date | 13 March 1992 |
Citation | 630 So.2d 115 |
Parties | Herman Ousley ERVIN v. STATE. CR 91-186. |
Court | Alabama Court of Criminal Appeals |
Valerie L. Palmedo, Jacksonville, for appellant.
James H. Evans, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.
Herman Ousley Ervin, the appellant, was convicted of robbery in the first degree and was sentenced to life imprisonment as a habitual felony offender. He raises two issues on this appeal from that conviction.
The appellant maintains that his initial arrest for public intoxication was illegal, and that, consequently, his subsequent arrest for resisting arrest and assault in the third degree and the search of the automobile were all illegal. We disagree.
On January 3, 1991, Gadsden police officer Brian D. Bostick observed an automobile "speeding rapidly off" from Krystal's parking lot and traveling at a "very high rate of speed" and "in a reckless manner." R. 23, 46, 98. He pursued that car at a high rate of speed for approximately one and one-half miles. The vehicle ran around a roadblock where a road was closed and eventually stopped in the "projects."
The appellant was the passenger in this automobile.
Once stopped, the driver was removed from the car and given field tests for driving under the influence of alcohol. A large amount of currency was observed inside the vehicle--on the seat, on the floor, and in the console--by both Officer Bostick and Officer R. Sam Barnes, who had arrived to assist Officer Bostick. When questioned, the appellant and the driver repeatedly contradicted themselves about the source and ownership of the money. The appellant had no identification. Neither the appellant nor the driver could produce proof of ownership of the vehicle, which did not have an ignition key or a key switch. The appellant, while sitting inside the vehicle, was holding a white paper bag labeled "Krystal" which contained a brown paper bag. The appellant acted in a very nervous and "excitable" manner.
Officer Barnes ordered the appellant out of the vehicle as a safety precaution so he "could watch his hands and see if there was no weapons in the car." Barnes testified:
When the appellant exited the automobile, he left the paper bag he had been clutching inside the vehicle. The officers radioed the dispatcher to inquire whether there had been any recent robberies. Subsequently, the appellant became extremely loud, boisterous, and began using profane language. This behavior led Officer Barnes to warn the appellant that he was going to be arrested for public intoxication and disorderly conduct. About that time, the officers received a radio transmission that another agency had requested a description of both the vehicle and its occupants. R. 115. Although it is not entirely clear from the record, it appears that at this time the officers also received information "about the robberies in one of the local areas." R. 104. The decision was made to hold the appellant and the driver for further investigation. When one of the officers went to handcuff the appellant, the appellant struck the officer and fled. There was testimony that the appellant fled when he heard the radio transmission "[t]hat a robbery had occurred in Anniston and Piedmont and Jacksonville." R. 107. The appellant was captured a short distance away, was returned to the scene, and was placed in a patrol vehicle. The officers then received a radio dispatch that the City of Piedmont was looking for the vehicle and that the driver and the appellant fit the description of the suspects in several robberies. R. 107.
The officers' conduct in this case was both reasonable and responsible. "[W]hile mere suspicion, without more, is not sufficient justification for stopping a vehicle, if the officer can point to independent facts which lead to his 'articulable and reasonable' suspicion that the ... occupants [of the vehicle] have violated some law, then stopping the vehicle would be justified under the fourth amendment." Ex parte Yeung, 489 So.2d 1106, 1109 (Ala.1986). United States v. Williams, 876 F.2d 1521, 1524 (11th Cir.1989). Here, Officer Bostick's personal observation of the reckless manner in which the automobile was being driven provided a sufficient basis for an investigative stop of that vehicle. See Kemp v. State, 434 So.2d 298 (Ala.Cr.App.1983).
Ex parte Carpenter, 592 So.2d 627, 631 (Ala.1991). See also Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). "[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983) (footnote omitted).
A suspect who has been validly stopped "may be detained while it is determined if in fact an offense has occurred in the area." 3 W. LaFave, Search and Seizure § 9.2(f) at 378 (2d ed. 1987). While "an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop," Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983), "an officer whose suspicions are not allayed is justified in holding the suspect for an additional period of time in order to conduct further investigation such as referral to a central data bureau...." 1 W. Ringel, Searches and Seizures, Arrests and Confessions § 13.5(a) at 13-50 (1991). See Dalton v. State, 575 So.2d 603, 605 (Ala.1990) ( ).
Apparently, the search of the vehicle occurred while the driver of the automobile was being given field tests for DUI but before he was formally placed under arrest. The vehicle was searched "to check and see if there was any kind of weapons or any kind of valuables in the car." Officer Barnes testified, "At that time we were starting an inventory search to see what was in the car because the driver of the car [who was being arrested] would not release the car to anyone else." R. 27. The seizure of the money from the inside of the automobile was not the fruit of an illegal search and seizure because the money was in plain view. See Poole v. State, 596 So.2d 632 (Ala.Cr.App.1992).
1 Ringel at § 13.8 at 13-68. "When police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle." Griffin v. State, 579 So.2d 35, 37 (Ala.Cr.App.1991) (citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)). Here, the appellant did not object on the ground that the inventory itself was improper. Compare Ex parte Boyd, 542 So.2d 1276 (Ala.), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989).
Furthermore, "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981) (footnotes omitted), quoted in Gundrum v. State, 563 So.2d 27, 28 (Ala.Cr.App.1990). The fact that the driver of the vehicle was not actually "placed under arrest" before the search of the vehicle is insignificant under the facts of this case. Cf. Rawlings v. Kentucky, 448 U.S. 98, 111 and n. 6, 100 S.Ct. 2556, 2564 and n. 6, 65 L.Ed.2d 633 (1980) ( ). See also 2 W. LaFave, Search and...
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