Ex parte Yeung

• Decision Date: 09 May 1986
• Citation: 489 So.2d 1106
• Parties: Ex parte: Foon Yu YEUNG. (Re: Foon Yu Yeung v. State of Alabama) 85-50.
• Court: Alabama Supreme Court

Page 1106

489 So.2d 1106

Ex parte: Foon Yu YEUNG (Re: Foon Yu Yeung v. State of Alabama)

85-50.

Supreme Court of Alabama.

May 9, 1986.

Raymond Johnson, Montgomery, for petitioner.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.

MADDOX, Justice.

On November 14, 1984, petitioner Foon Yu Yeung was convicted in the Circuit Court of Montgomery County on two counts of robbery in the first degree and was sentenced to twenty years' imprisonment on each count, with five years of the sentence on Count Two to run consecutively to the sentence on Count One, and with fifteen years of the sentence on Count Two to run concurrently with the sentence on Count One.

The Court of Criminal Appeals affirmed both convictions, without opinion, on August 20, 1985, 479 So.2d 89. On October 8, 1985, the Court of Criminal Appeals denied Yeung's motion for rehearing and also denied his motion for a finding of additional facts pursuant to Rule 39(k), Ala.R.App.P. In his Rule 39(k) motion, Yeung asserted that evidence in the record establishes the following facts:

"Circuit Court Case No. 84-1000

"a. Foon Yu Yeung was charged with the robbery of [Meing] Chiep [Lao], owner of the Bamboo Garden, and this robbery occurred on November 18, 1983, around 11:00 P.M. in Montgomery County.

"b. Officer J.T. Marshall and his partner, W.C. Martin, were on patrol on the night of November 18, 1983, and saw a small white car with Georgia [license] plates occupied by three Oriental males. The officers stopped the car and questioned the driver and released him. This happened around 11:30 P.M.

"c. The police officers received a call to be on the lookout for three Oriental males who were suspects in a robbery about ten minutes after the release of the subjects.

"d. The police officer, J.T. Marshall, admitted upon cross-examination, that he stopped the car purely on suspicion and without probable cause.

"e. The defendant moved to strike this testimony and requested the court to give an instruction to the jury to disregard this testimony.

"f. The trial judge denied this defense motion which resulted in prejudice to the defendant.

"Circuit Court Case No. 84-1001

"a. Foon Yu Yeung was charged with the robbery of the Mandarin Restaurant in Montgomery, Alabama, which occurred on November 5, 1983, around 11:50 P.M.

"b. Mr. John Lo and Mr. Roger Fan were both leaving the restaurant when they were met by three Oriental males who spoke in Mandarin.

"c. The defendant was identified only by Mr. Fan.

"Facts Pertaining to both Cases

"a. The trial judge enhanced the punishment from ten years to life to twenty years to life upon motion made by the state over objection by the defendant.

"b. The district attorney made this motion after the defendant had been sentenced."

Yeung has included this statement of "additional" facts with his certiorari petition. See Rule 39(k), Ala.R.App.P.

I

Yeung first contends that Officer Marshall should not have been allowed to testify that he and his partner stopped and questioned Yeung in Montgomery on November 18, 1983, the date of the robbery of Meing Chiep Lao because, as Yeung asserts in his Rule 39(k) motion, the officers had no reason other than suspicion for stopping Yeung's automobile and questioning him.

Pursuant to Rule 39(k), we will consider facts submitted in a 39(k) motion only if they are found to be correct. See, commentary to Rule 39(k), Ala.R.App.P. This requires that we examine the record for evidence to justify the petitioner's proposed statement of facts.

In this case, Officer Marshall's testimony clearly reveals that he and his partner decided to stop Yeung's car because a similar car, white, with Georgia plates, was thought to have been involved in robberies of several Chinese restaurants in Montgomery that occurred prior to November 18. The trial judge specifically stated that this testimony was the reason he would allow Officer Marshall to testify regarding Yeung's presence in Montgomery on the date of the robbery. Thus, we must consider the trial court's action in light of these facts, rather than those Yeung presents in his Rule 39(k) motion. ¹

Specifically, Yeung's first contention is that the fourth amendment to the United States Constitution prohibits Officer Marshall from testifying because Yeung was "seized" by the officers without justification. If Yeung is correct, then clearly the proscriptions of the fourth amendment would apply because that amendment applies "to all seizures of the person, including seizures that involve only a brief detention short of arrest." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). This includes brief authoritative detentions of vehicles and occupants for questioning, even if no search of the vehicle is conducted. See, id., at 878, 95 S.Ct. at 2578; United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074, 3082, 49 L.Ed.2d 1116 (1976).

In Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979), the United States Supreme Court discussed the constitutionality of discretionary spot checks as follows:

"The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure--limited in magnitude compared to other intrusions but nonetheless constitutionally cognizable--at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion 'would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches....' Terry v. Ohio, 392 U.S. , 22 [88 S.Ct. 1868, 1880, 20 L.Ed.2d 889] [ (1968) ]. By hypothesis, stopping apparently safe drivers is necessary only because the danger presented by some drivers is not observable at the time of the stop. When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations--or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered--we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. Almeida-Sanchez v. United States, 413 U.S. 266, 270 [93 S.Ct. 2535, 2538, 37 L.Ed.2d 596] (1973); Camara v. Municipal Court [of the City and County of San Francisco], 387 U.S. , 532-533 [87 S.Ct. 1727, 1732-1733, 18 L.Ed.2d 930] [ (1967) ]."

Thus, as Yeung asserts, mere suspicion that a driver might be violating a law, without any basis in fact, would not present sufficient justification to warrant an officer's stopping a vehicle. The United States Supreme Court states the standard required to justify stopping a vehicle as follows:

"Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment."

Delaware v. Prouse, 440 U.S. at 663, 99 S.Ct. at 1401.

So, while 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 vehicle is unregistered or that its occupants have violated some law, then stopping the vehicle would be justified under the fourth amendment.

This standard was taken directly from the Court's earlier holding in Terry v. Ohio, supra. There, an officer on patrol observed three persons he suspected were "casing" a store prior to robbing it. Based on his observations, the officer stopped the three men and frisked them, discovering concealed weapons on two of them. At trial, defense counsel sought to have the searches excluded from evidence as unconstitutional because they were conducted without...