Hamilton v. State

• Decision Date: 13 May 1986
• Docket Number: 7 Div. 443
• Parties: Andre A. HAMILTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 100

496 So.2d 100

Andre A. HAMILTON v. STATE.

7 Div. 443.

Court of Criminal Appeals of Alabama.

May 13, 1986.

Rehearing Denied June 10, 1986.

Certiorari Denied Oct. 31, 1986

Alabama Supreme Court 85-1093.

J. Wilson Dinsmore of Dinsmore, Waites & Stovall, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant was found guilty of possession of cocaine and possession of cocaine with intent to sell, in violation of § 20-2-70, Code of Alabama 1975. He was sentenced to fifteen years' imprisonment and fined $25,000.

On March 4, 1985, Captain Dennis Surrett of the Talladega Police Department was told by a confidential informant that the appellant would be making a drug delivery in Talladega later that afternoon. The informant stated that he had talked with the appellant earlier that day and learned that he would be delivering 3.5 grams of cocaine to a certain area of Talladega at 4:00 o'clock p.m. According to the informant, appellant Hamilton would be driving a white, 1980 model Chevrolet Monza. After discussing the matter with the district attorney and several law enforcement officials, Captain Surrett learned that the appellant was a well-known drug dealer who was suspected of supplying a large portion of the cocaine sold in the county. Several unmarked police cars were immediately

dispatched to the area of town where the delivery was supposed to occur. Around 4:30 p.m., the appellant was seen driving a white Chevrolet Monza in the section of Talladega specified by the informant. The police turned on their blue lights and attempted to stop the appellant's automobile by blocking his lane with one of the police vehicles. The appellant, however, veered into the other lane, momentarily left the roadway and then sped past the police. During the brief chase which followed, the police saw a plastic bag thrown from the appellant's automobile. One of the law enforcement officials stopped to retrieve the package, which was found to contain marijuana, while the others pursued and stopped the appellant. After receiving a radio call informing them that the plastic bag contained marijuana, the appellant was informed of his constitutional rights and was arrested. A subsequent search of the appellant revealed a small set of scales containing vestiges of cocaine, one marijuana cigarette, and a small bottle of cocaine. In addition, the police also found lying alongside the road nearby two packages of cocaine stuffed into an otherwise empty prescription bottle, which pharmaceutical records proved belonged to the appellant.

I SEARCH AND SEIZURE

The appellant contends that the trial court erred to reversal in denying his motion to suppress evidence of the cocaine seized by the Talladega police. The fourth amendment to the United States Constitution prohibits all "unreasonable searches and seizures" by law enforcement officials and requires that illegally obtained evidence be suppressed. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The fourth amendment does not, however, prohibit all searches, but, rather, only those which are unreasonable. United States v. Lipscomb, 435 F.2d 795 (5th Cir.1970). A search incident to a lawful arrest is not unreasonable. The Supreme Court has expressly held:

"A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment."

United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 422 (1973); see also, Chimel v. California, 395 U.S. 752, 89 S.Ct., 2034, 23 L.Ed.2d 685 (1969); Sterling v. State, 421 So.2d 1375 (Ala.Cr.App.1982); Foy v. State, 387 So.2d 321 (Ala.Cr.App.1980).

A law enforcement official may arrest an individual without a warrant whenever a felony has been committed and he has probable cause to believe that the person arrested committed that felony. Section 15-10-3(3), Code of Alabama 1975; Ex parte Meeks, 434 So.2d 844 (Ala.1983). Absent probable cause, the arrest is invalid and any evidence obtained during a search incident to the arrest must be excluded as violative of the fourth amendment. Meeks, 434 So.2d at 846-47. In the case sub judice, the appellant maintains that his arrest was unlawful because the information provided by the informant was insufficient to establish probable cause.

A law enforcement official has probable cause to make an arrest if, under the totality of the circumstances known to the officer at the time of the arrest, a reasonable person would believe that the suspect had committed or is committing a crime. Gord v. State, 475 So.2d 900 (Ala.Cr.App.1985); Fenn v. State, 456 So.2d 1165 (Ala.Cr.App.1984), cert. denied, 482 So.2d 300 (Ala.1985); United States v. Fixen, 780 F.2d 1434 (9th Cir.1986).

It is well settled law that tips given to police by an informant can provide probable cause to justify an arrest. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 Two factors to consider in applying the totality-of-the-circumstances test in the informant context are the reliability of the informant and his basis of knowledge. Gates, 462 U.S. at 230, 103 S.Ct. at 2329, 76 L.Ed.2d at 543. Here, Captain Surrett testified that the confidential informant from whom he had received the tip had supplied him with accurate and reliable information on at least three prior occasions, the last of these coming less than thirty days before the appellant's arrest. Furthermore, the informant indicated that the tip was based upon firsthand information gotten from the appellant only a few hours before the drug bust occurred. Based upon the detailed information supplied by the informant, we hold that there was probable cause at the time of the arrest to believe the appellant was committing a felony. Since the arrest was lawful, the search incident to that arrest was also proper. The trial court did not err, therefore, in denying the appellant's motion to suppress the bottle of cocaine found in the appellant's pocket. In addition, we note that probable cause to arrest the appellant was based not only upon the informant's tip, but also upon the reputation of the appellant as a major drug dealer, the appellant's attempted flight from the police, corroboration of specific details of the informant's tip by independent sources, and retrieval of the bag of marijuana jettisoned by the appellant.

L.Ed.2d 327 (1959); Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Channell v. State, 477 So.2d 522 (Ala.Cr.App.1985).

The appellant also argues that the two packages of cocaine found in the medicine bottle should have been suppressed. We disagree. A defendant's right to challenge the admissibility of evidence on fourth amendment grounds depends on whether at the time of the search, he had a reasonable expectation of privacy in that item. Rakes v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Beck, 602 F.2d 726 (5th Cir.1979); Ex parte Collier, 413 So.2d 403 (Ala.1982). A defendant has no reasonable expectation of privacy with respect to an abandoned object. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Edwards, 441 F.2d 749 (5th Cir.1971).

Since the appellant chose to voluntarily abandon the packages of cocaine, he has no standing to challenge the propriety of the search and seizure of those items. United States v. Colbert, 474 F.2d 174 (5th Cir.1973); Hayes v. State, 44 Ala.App. 539, 215 So.2d 604 (Ct.App.1968).

II CONSTRUCTIVE POSSESSION

Before a person can be convicted of violating § 20-2-70, Code of Alabama 1975, it must be proven beyond a reasonable doubt that he was in actual or constructive possession of one of the substances enumerated therein. To establish constructive possession, the state must show that the accused had dominion and control of the illegal substance itself or of the premises on which the substance was found. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984); Franklin v. State, 437 So.2d 609 (Ala.Cr.App.1983). The appellant argues that an object lying alongside a public right-of-way could not possibly have been within his control and that, consequently, he could not be found to have been in constructive possession of the two packages of cocaine found by the police. The appellant's argument is based upon the premise that the constructive possession doctrine is applicable only where the contraband is under the accused's control at the time of his arrest. While some degree of dominion and control over the contraband is a necessary prerequisite to conviction under § 20-2-70, it is not necessary that this control exist at the time of the arrest.

"The apparent purpose of a constructive possession doctrine is expansion of the scope of possession statutes to encompass those cases where actual possession at the As one commentator has so aptly observed, "most drug users separate themselves from their contraband as soon as a police officer approaches their person, residence or automobile." Claudill, Probability Theory and Constructive Possession of Narcotics: On Finding That Winning Combination, 21 Jurimetrics J. 235, 240 (1977). Where a defendant is actually seen throwing contraband from his automobile onto the public way, he is held to be in possession of the jettisoned item even though, technically, the contraband is not under his control at the time he is later apprehended. Ward v. State, 484 So.2d 536 (Ala.Cr.App...