Fennell v. State

• Decision Date: 29 May 1973
• Docket Number: 8 Div. 340
• Parties: Isom FENNELL, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 373

282 So.2d 373

51 Ala.App. 23

Isom FENNELL, Jr. v. STATE.

8 Div. 340.

Court of Criminal Appeals of Alabama.

May 29, 1973.

Rehearing Denied June 26, 1973.

Harris & Esdale, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Thomas Sorrells, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

Isom Fennell, Jr. was convicted under an indictment charging possession of drugs and was sentenced by the Circuit Court of Morgan County to four years in the penitentiary. It is from this judgment that he appeals. This case was argued and submitted on May 10, 1973.

Evidence on behalf of the State tended to show that on April 26, 1969, Deputy Merrill Sims and Sgt. E. L. Anders, both of the Morgan County Sheriff's Department, were working the 6:00 P.M. to 4:00 A.M. shift. Deputy Sims testified that prior to going on duty, he was instructed by Sheriff Sandlin to watch for an Oldsmobile with a Kentucky tag, as he had information that a load of whiskey was coming in on the Northwest side of Decatur. At the trial, Sgt. Anders stated they were to be looking for either a Chrysler or Chevrolet having a Kentucky or Madison County tag. Defense counsel asked Sgt. Anders if he didn't testify at the preliminary that the Sheriff told him to be on lookout for a Tennessee tag, and Anders replied, 'I don't recall testifying to that.'

Around 2:00 or 3:00 A.M., while they had a pick-up stopped checking the operator's license, a 1968 Mercury automobile eased past the deputies bearing a Kentucky tag. The two officers followed and stopped the automobile. As they approached, appellant got out and showed them his license. Standing beside the car with the door open, both officers saw eight or ten empty beer cans and bottles on the floorboard and one full can on the front seat. Also visible were two or three 4 10 boxes between the front and back seat, with the words 'Robitussin AC' written on them. Sheriff Anders removed a bottle from one carton and read that it contained codeine.

On direct examination, he testified as follows concerning the subsequent search and arrest:

'Q. Did you speak to the defendant about looking in his trunk because it was loaded down?

'A. Yes, sir, I asked him what was he loaded with, and he said, 'Clothes.' And I asked him about opening the trunk and let me see them, and he did, he opened it.

'Q. You said, 'What are you loaded with?' He said, 'Clothes.' And you said, 'Well, can I see them?' And then did he voluntarily open the trunk and let you in?

'A. Yes, sir.

'Q. Did he open the trunk, or did you?

'A. He opened it.

'Q. Tell the jury what you found.

'A. There was thirty cases of this Robitussin cough syrup in the trunk.'

'Q. Well, when exactly did you arrest the defendant, Sergeant? Did you arrest him before you looked in the trunk, or after you looked in the trunk, or do you recall exactly when in time you arrested him, or did you say your time was--did you say 'You are under arrest' at any time?

'A. I arrested him for illegal possession of prohibited liquor after we searched the car.

'Q. After you searched the car, you went back and said 'You are under arrest.' Did you say you are the--did you say 'You are under arrest?'

'A. 'Under arrest for illegal possession of prohibited liquor.''

At the jail, appellant stated he was supposed to have made contact with someone at a Shell Service Station. Officer Sims then drove the Mercury to the appointed location, but after waiting for over an hour, he did not observe anyone try to make contact with the car.

On the same day, Clarence Harris, Investigator for the Morgan County Sheriff's Department, and Sgt. Bryant, State Investigator, interviewed appellant after advising him of his rights. Appellant stated he understood these rights and did not want a lawyer. Outside the jury's presence, testimony was heard concerning appellant's statement, and the court determined it to be voluntary. Harris testified that the following remarks were made by appellant:

'Well, I asked him how he got this stuff, and what he was going to do with it. He said that a guy in Louisville offered him two hundred dollars to make the trip to Decatur, and he was to leave his car parked on Vine Street, which he said he did. He said that he went to a juke joint for a while, and when he came back his car had this cough syrup in it, and from there the instructions was to go to the Shell Service Station on the corner of Church Street and Highway 31, and there someone else would contact him and advise him what further he must do and what he was to do with this stuff.'

The State Toxicologist testified that Investigator Harris delivered to him four bottles labeled with commercial label, Robitussin A.C., and that the liquid therein contained codeine.

Evidence was introduced concerning the Robitussin AC cough syrup found in the car, and a motion to suppress was filed. The motion was considered by the court during the course of the trial and overruled.

Counsel for the appellant argued many propositions, both orally and in brief, but the question of probable cause emerged as the fundamental inquiry. Did the deputies have probable cause to stop and search the car Isom Fennell, Jr. was driving? If not, then the lower court was in error in overruling the appellant's motion to suppress. If the deputies acted on reasonable belief and with probable cause, then the judgment is due to be affirmed.

The Supreme Court recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.'

The subject of probable cause received further consideration in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, wherein the court stated:

'The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.

'A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.'

Applying these principles to the present case, we believe the deputies' actions were reasonable and in response to what they had been told and what they personally observed. The information came from the Sheriff of Morgan County and certainly warranted more credence than like information from an unknown informer or a telephone tip.

In reaching this conclusion, we reject counsel's argument that the reasonable cause for stopping could only be predicated on personal knowledge rather than information supplied by another.

Counsel for appellant insists that at the time the officers stopped Fennell's car, an arrest was effected. His authority for this contention is Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, which involved a theft from an interstate shipment of whiskey at a Chicago terminal. In that case, the Government had received information of an undisclosed nature from the employer of one, Pierotti. On the day following the interstate theft, agents were investigating in the neighborhood of the theft and saw Henry and Pierotti leave a tavern and drive away. The agents followed them into an alley in a residential area where Henry left the car and entered a gangway. He returned carrying several large cartons which were placed in the car. The agents were unable to follow, but later saw the car parked near the same tavern. Within a short time, Henry and Pierotti left the tavern and returned to the same area and again loaded cartons into their car. From their position, the agents were unable to determine the contents of the cartons, but when the men drove off, the agents waved them to a stop.

Henry, supra, may be interpreted by some courts and writers as establishing the proposition that any restraint of a suspect's freedom of movement constitutes an arrest. We do not believe, however, that this decision announces such a precedent. In the Henry trial, the point at which the arrest occurred was not a contested issue. In fact, the Government expressly conceded that the arrest took place when the car was stopped. The apparent reason for this concession was to permit testimony of the agent's belief that a crime was being committed at that very moment.

In its opinion, the...