Foy v. State

• Decision Date: 19 August 1980
• Docket Number: 6 Div. 258
• Citation: 387 So.2d 321
• Parties: Leon FOY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 321

387 So.2d 321

Leon FOY v. STATE.

6 Div. 258.

Court of Criminal Appeals of Alabama.

Aug. 19, 1980.

Robert C. Sutton, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., Sandra M. Solowiej, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Leon Foy was indicted by the grand jury in 1976 for violation of the Alabama Uniform Controlled Substances Act, § 20-2-1, et seq., Code of Alabama 1975, in that he did "unlawfully possess 1.961 grams of powder containing heroin, a narcotic drug." At trial in 1979, ¹ Foy was found guilty and sentenced to serve three years in the state penitentiary. Foy's sole contention on appeal is that the trial court erred in overruling his timely motion to suppress evidence of the heroin, allegedly the fruit of an unlawful search and seizure.

Charles F. Trucks, a sergeant with the Birmingham Police Department, was the sole state witness at the pretrial motion to suppress hearing, and also testified at appellant's trial. He related that, on the night of August 19-20, 1976, he and other law enforcement officers had been engaged in the surveillance of a specific apartment located on Goldwire Road in Birmingham for the purpose of observing "activities that were taking place within that apartment, or in the area, and, later on, to serve a search warrant on that residence" (R. 11). The officers did not have the warrant when the surveillance commenced. Sergeant Trucks stated that initially he was positioned behind some shrubbery in the parking lot of a commercial establishment some distance away, but was able to observe the apartment with the aid of binoculars. From this vantage point, he witnessed appellant and a female emerge from the apartment around 10:20 p. m. and leave in an early model automobile. He testified that the couple returned in the car some forty-five minutes later, but then left a second time in the same automobile.

In the interim, one of the officers had left the scene and returned with a search warrant, authorizing the search of the apartment (the warrant itself does not appear in the record, and no issue is raised as to its efficacy). Sergeant Trucks testified that, around midnight, the officers made preparations to serve the warrant, and he changed his position from the parking lot to a ditch adjacent to the apartment building's parking lot. An unidentified black police officer, clad in his uniform and a windbreaker, but having removed his gun belt, approached the second floor apartment to knock on the door and attempt to gain entrance without exciting suspicion. At this point, Sergeant Trucks stated, the early model automobile returned, and a black female, identified as Bobbie Haley, got out while appellant remained inside (there is some confusion as to exactly when appellant left the automobile, that is, initially or only when Bobbie Haley raised her subsequent hue and cry; we attach no significance to what we consider to be these minor discrepancies, however). Sergeant Trucks stated that, upon seeing the officer near the apartment, the female suddenly yelled something like, " 'Mama. Dump the dope. It's the cops. Let's get the hell out of here" (R. 64). Again, there is some variation between the versions of what she actually yelled; in any event all versions referred to "dumping dope" and the presence of the police.

At this point, the witness testified, both the female and appellant attempted to escape, the latter backing away and then running with his right hand down near his right ankle. Sergeant Trucks stated that he pursued them both, tackled them, and that he only subdued appellant after a violent struggle. Upon patting appellant down, the officer discovered a matchbox hidden in appellant's right sock. The box contained "five or six" foil packages found to have a brownish powder in them. Appellant was placed under arrest, according to Sergeant Trucks, and conveyed upstairs to the apartment being searched; the female was placed in a police car. Sergeant Trucks testified that he gave the matchbox and foil packages to Sergeant James Sims.

Sergeant James L. Sims, a member of the Narcotics Division of the Birmingham Police Department, testified that he had obtained the search warrant for a specific apartment on Goldwire Road in the name of Marie Haley on the night of August 19-20, 1976. He stated that he was present when the raid took place, and witnessed Sergeant Trucks and appellant struggling on the ground during the course of the raid. By the time he arrived to help, Sergeant Trucks had subdued and handcuffed appellant. Sergeant Sims further stated that he received the matchbox containing the foil packages from Sergeant Trucks that night and placed them in his pocket until his return to police headquarters, at which time he sealed them in a standard evidence envelope. The next day, he stated, he opened the envelope for a magistrate, but re-sealed and initialed it, and conveyed it to Wayne Burrow of the Department of Forensic Sciences.

Wayne Burrow, a toxicologist with the State Department of Forensic Sciences, testified that he received the envelope from Sergeant Sims and performed a number of chemical tests on the contents of the foil packages. He stated that the packages contained 1.961 grams of powder of which 7.6 percent was heroin.

The State rested, and appellant's motion to exclude was overruled; appellant offered no witnesses and did not testify himself.

I

Appellant contends that, under the facts as set forth above, the incriminating packets of heroin were the fruit of an illegal search and seizure and should have been suppressed pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). We disagree with this contention, and hold that appellant's motion to suppress the evidence of heroin was properly overruled by the trial court.

It is well settled in constitutional jurisprudence, and appellant so concedes, that, though the use of a search warrant is usually mandated by the Fourth Amendment, a warrantless search may be made of a defendant's person pursuant to a lawful arrest in order to secure any weapons or evidence which the defendant might possess. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 889, 20 L.Ed.2d 917 (1968); Douglas v. State, Ala.Cr.App., 366 So.2d 373 (1979); Sellers v. State, 48 Ala.App. 178, 263 So.2d 156 (1972). For such a search to be proper, it must not precede the arrest, but must be made contemporaneously with it and then limited only to the person of defendant or any area from which he might seize a weapon or destroy evidence. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Allen v. State, Ala.Cr.App., 376 So.2d 826 (1979). While Sergeant Trucks' search of appellant in this case certainly did not exceed the permissible scope (as the heroin was discovered on appellant's person), appellant argues that the "search of Leon Foy was clearly prior to his arrest, not contemporaneous with, incident to it, nor after it." We disagree.

The facts indicate that immediately after the warning cry of his female companion, appellant attempted to depart the scene, all the while reaching toward his right ankle with his right hand. Sergeant Trucks tackled appellant, a struggle ensued, and appellant was subdued and handcuffed. Sergeant Trucks testified that, upon his discovery of the heroin, he placed appellant under arrest. Under such facts, contrary to what appellant asserts, we feel that the actual arrest of appellant was accomplished when appellant was forcibly subdued, because at that point Sergeant Trucks "curtailed his freedom of movement on the basis of probable cause to believe that he was engaged in criminal activity." Terry v. Ohio, supra; Sibron v. New York, supra; Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Strickler, 490 F.2d 378 (9th Cir. 1974); cf. Central of Georgia Railway Company v. Carlock, 196 Ala. 659, 72 So. 261 (1916). Because the actual point of arrest is usually a question of fact, Sibron v. New York, supra, on the facts here presented, we are of the opinion that, "for the purposes of constitutional justification," appellant had already been subjected to arrest at the time the search of his person occurred, and thus the search was incident to his arrest.

Because, of course, evidence seized as the result of an unlawful arrest is inadmissible and must be suppressed, Malone v. State, 51 Ala.App. 19, 282 So.2d 367, cert. quashed, 291 Ala. 789, 282 So.2d 371 (1973); we are necessarily confronted with the question as to whether appellant's arrest in this instance was lawful. Appellant's arrest was admittedly without a warrant and is thus governed by § 15-10-3, Code of Alabama 1975, which provides in relevant part:

" §...