Ex parte Tucker

• Decision Date: 12 May 1995
• Parties: Ex parte Eddie Jerome TUCKER. (Re Eddie Jerome Tucker v. State). 1931358.
• Court: Alabama Supreme Court

Page 1339

667 So.2d 1339

Ex parte Eddie Jerome TUCKER.

(Re Eddie Jerome Tucker v. State).

1931358.

Supreme Court of Alabama.

May 12, 1995.

Rehearing Denied June 9, 1995.

Petition for writ of certiorari to the Court of Criminal Appeals (CR-93-325). Appeal from the Tuscaloosa Circuit Court, No. CC-92-2215; Thomas Wilson, Judge.

George A. Nassaney, Jr., Tuscaloosa, for Petitioner.

Jeff Sessions, Atty. Gen., and Ward Beeson, Deputy Atty. Gen., for Respondent.

ALMON, Justice.

This Court granted the writ of certiorari to review the conviction of Eddie Jerome Tucker for unlawful possession of marijuana in the first degree. The issue is whether the search and seizure of a film canister were contrary to the Fourth Amendment to the Constitution of the United States.

On the afternoon of October 9, 1992, Capt. Olen Lee and Sgt. William Hurter of the Tuscaloosa Police Department were on patrol in the area of 1225 6th Alley East, Tuscaloosa, Alabama, an area of town described by the officers as a "high crime area." Capt. Lee and Sgt. Hurter, as well as four other officers in two other patrol cars, stopped at 1225 6th Alley East, because there were five or six persons gathered there in front of a shot house. ¹ The house is located in a black neighborhood and the persons gathered in front of the house were black men. Between the porch of the house and the roadway there is a yard too small to park a car in, and there is no sidewalk. Some of the men, including Mr. Tucker, were standing in the yard abutting the roadway, and some were in the roadway leaning on a parked car. There had been no calls or complaints to the Tuscaloosa police on October 9 concerning any illegal activity at the house or pertaining to any of the persons gathered in front of the house. Eddie Tucker was not known to either Capt. Lee or Sgt. Hurter before October 9.

Capt. Lee, sitting on the passenger side of the patrol car, was approximately three feet from Mr. Tucker when Sgt. Hurter stopped the car on the roadway near where the persons were gathered. The officers testified that they were not aware of anything illegal occurring among the men, but, as he exited the car, it appeared to Capt. Lee that Mr. Tucker had a large bulge in one of his front pants pockets. For safety reasons, Capt. Lee asked Mr. Tucker what was in his pocket and told him to take whatever it was out so that it could be seen. Mr. Tucker took from his pocket a black 35mm film canister with its lid closed. Both officers testified that they knew at this point that the object was a film canister and was not a weapon.

Capt. Lee then directed his attention to another of the persons present, and Sgt. Hurter asked Mr. Tucker what was in the canister. After Sgt. Hurter asked this question, Mr. Tucker "stuck [the canister] behind his back." Sergeant Hurter then asked to see the canister. Mr. Tucker handed the canister to Sgt. Hurter, who opened it and found five $10 bags of marijuana packaged in cellophane. Mr. Tucker was read his Miranda rights, and Sgt. Hurter testified that it was made obvious to Mr. Tucker that he could not leave. Sgt. Hurter then asked if Mr. Tucker had an automobile present at the house, and Mr. Tucker pointed to one nearby. Sgt. Hurter asked if he could search it, and Mr. Tucker gave him the keys. Twenty-six more $10 bags of marijuana were found in the automobile.

Mr. Tucker moved to suppress the evidence of the marijuana, alleging that it was the product of an illegal search, seizure, and arrest. The motion was denied and the case was submitted for a judgment on stipulated facts. The circuit court rendered a judgment of guilty of possession of marijuana in the first degree, pursuant to § 13A-12-213, Ala.Code 1975, and sentenced Mr. Tucker to three years in the State penitentiary. The circuit court's judgment was affirmed by the Court of Criminal Appeals, with an unpublished memorandum. 658 So.2d 920.

All evidence obtained by a search that is conducted in violation of the Constitution of the United States is inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966). The Fourth Amendment to the Constitution of the United States bans all unreasonable searches. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Whether a search is unreasonable depends upon the facts and circumstances of the particular case. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Warrantless searches are per se unreasonable, unless they fall within a recognized exception. Ex parte Hilley, 484 So.2d 485 (Ala.1985). Those exceptions include: objects in plain view, consensual searches, a search incident to a lawful arrest, hot pursuit or emergency situations, probable cause coupled with exigent circumstances, and a Terry "stop and frisk" situation. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard v. State, 335 So.2d 924 (Ala.1976).

The State contends that the warrantless search of the film canister here was justified under the exceptions for searches conducted with consent, with probable cause coupled with exigent circumstances, and as incident to a lawful arrest.

I.

"Consent to a search must be knowingly, intelligently, and freely given." Ex parte Wilson, 571 So.2d 1251, 1255 (Ala.1990). "Mere submission to police authority will not suffice for consent." Martinez v. State, 624 So.2d 711, 716 (Ala.Crim.App.1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921)). Accordingly, the State must prove that there was no express or implied duress or coercion exerted upon the person allegedly consenting to a search. Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965).

The State's argument as to consent is that Mr. Tucker voluntarily showed the officers what was in his pocket and that he willingly handed the canister to Sgt. Hurter. The facts clearly show that Mr. Tucker showed the canister to the officers in response to their directive. Capt. Lee testified about what happened when he exited the patrol car and saw a bulge in Mr. Tucker's pocket: "I asked him what it was and would he take it out and let me see it." Mr. Tucker complied, producing what the officers recognized as a film canister, and Sgt. Hurter testified that at this point he "asked him what was in it," ² and that Mr. Tucker then "stuck it behind his back."

Sgt. Hurter testified that it was not until after Mr. Tucker had put the canister behind his back that he asked for the canister. Although Sgt. Hurter stated that Mr. Tucker voluntarily handed him the canister, it is evident from the circumstances that Mr. Tucker was not actually given a choice. During cross-examination of Sgt. Hurter at the suppression hearing, the following exchange took place:

"A. Well, I asked [Mr. Tucker] to let me see it.

"Q. Okay. And did you say that in a tone of voice that let him know that you wanted to see the canister?

"A. Yes, sir.

"Q. And that you intended to see the canister?

"A. Yes, Sir.

"Q. And that he could no longer hide it behind his back?

"A. Yes, sir.

"Q. This was not phrased in such a way that you informed him he had the right not to let you see the canister, was it?

"A. No, sir.

"Q. Okay. And was it only at that point that he brought it from behind his back?

"A. Yes, sir."

It is apparent that Mr. Tucker did not freely consent to the search and seizure of the film canister. Mr. Tucker put the canister behind his back obviously intimating that he did not want Sgt. Hurter to have it. It was only after Sgt. Hurter asked for the canister in such a way that Mr. Tucker knew he should not withhold it that he handed it to Sgt. Hurter. The coercive effect of Sgt. Hurter's words and tone of voice could have only been magnified by the overt presence of five other uniformed police officers and two other marked patrol cars. Therefore, Mr. Tucker's actions evinced a lack of consent to the search of the canister and indicated that it was under at least implied duress or coercion that he submitted the canister to Sgt. Hurter.

II.

The Court of Criminal Appeals based its affirmance of Mr. Tucker's conviction on a holding that the search of the film canister was justified under the "probable cause coupled with exigent circumstances" exception to the warrant requirement. The first element of the exception has been described as follows:

"Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed."

Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925)); accord Nicaud v. State ex rel. Hendrix, 401 So.2d 43 (Ala.1981); Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Probable cause, however, "cannot be founded upon mere suspicion." Nicaud, 401 So.2d at 46.

The State avers that the following facts and circumstances were known to Sgt. Hurter: The area of the patrol was a high crime area in regard to which there had been past reports of the illegal sale of alcohol and drugs; Mr. Tucker was observed "congregating" with a group in front of a house owned by a person who had been recently arrested for the illegal sale of alcohol; during the execution of a search warrant at the shot house two to three weeks before Mr. Tucker's arrest, a container of crack cocaine and approximately two marijuana cigarettes were found on a bench presumably located on the front...