Harris v. State

• Decision Date: 03 February 2006
• Docket Number: CR-04-0274.
• Citation: 948 So.2d 583
• Parties: Timothy Lee HARRIS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

948 So.2d 583

Timothy Lee HARRIS v. STATE of Alabama.

CR-04-0274.

Court of Criminal Appeals of Alabama.

February 3, 2006.

Rehearing Denied April 14, 2006.

Certiorari Denied August 11, 2006 Alabama Supreme Court 1051042.

Richard R. Klemm, Dothan, for appellant.

Troy King, atty. gen., and Nancy M. Kirby, deputy atty. gen., for appellee.

SHAW, Judge.

Timothy Lee Harris was convicted of trafficking in marijuana, a violation of § 13A-12-231(1), Ala.Code 1975. He was sentenced, as a habitual felony offender, to life imprisonment.

On appeal, Harris contends that the trial court erred in denying his motion to suppress the marijuana evidence found as a result of a warrantless search of his automobile because, he says, the search did not fall within the automobile exception to the warrant requirement. Specifically, he argues (1) that there was no probable cause to search his vehicle, and (2) that his vehicle was parked on private property at the time of the search and the automobile exception, even if there was probable cause to search, does not apply to vehicles parked on private property.

The evidence adduced at the suppression hearing and at trial indicated the following.¹ Carlton Ott, a corporal with the Dothan Police Department assigned to the vice-intelligence division, testified that on August 19, 1999, he received information from a confidential informant, who had provided reliable information in the past, that Harris was in possession of a large amount of marijuana at his residence at 2401 Brown Street. The informant said that he had seen Harris in possession of the marijuana within the last few hours; that the marijuana was located in Harris's white Plymouth Laser automobile, which was parked outside the residence; and that a second automobile, a white Mazda 929, was also parked outside the residence. That evening, approximately six hours after receiving the information from the informant, Cpl. Ott and Mark Nelms, a sergeant in the vice-intelligence division of the Dothan Police Department, set up surveillance at Harris's residence, a mobile home, to corroborate the information received from the informant. They saw both vehicles described by the informant parked in the front yard of the mobile home.

Cpl. Ott testified that at approximately 10:10 p.m. they saw Harris leave the mobile home and get in the Plymouth Laser. According to Cpl. Ott, Harris sat in the vehicle for a few minutes until a black female drove up in a maroon Hyundai Sonata automobile and parked on the street in front of the residence. At that point, Cpl. Ott said, Harris got out of the Plymouth Laser and got into the Hyundai Sonata; Harris and the driver of the Sonata sat in the vehicle for a few minutes and then drove away. Cpl. Ott then radioed two backup officers and told them to stop the Sonata. Cpl. Ott said that he saw no bulges in Harris's clothing when he got out of the Laser and into the Sonata; that he had no information on the driver of the Sonata; and that no arrests were made during the stop. According to Cpl. Ott, no more than three minutes after the stop was completed, the Sonata returned to Harris's residence, Harris got out of the Sonata and got in the Laser, and then drove the Laser toward the back of the mobile home. At that point, Cpl. Ott said, they decided to "move in" because "[i]t was obvious . . . that criminal activity was taking place." (R. 28.)

Cpl. Ott and Sgt. Nelms, as well as the officers who had stopped the Sonata, entered the premises and met Harris as he was walking around from the back to the front of the mobile home. They detained Harris and conducted a Terry² patdown of his person. Cpl. Ott testified that Harris told him that his mother was inside the residence, and Cpl. Ott then knocked on the front door. According to Cpl. Ott, he informed Harris's mother that he had information that Harris was in possession of marijuana, and Harris's mother gave him permission to search her mobile home. Cpl. Ott testified that Harris did not appear nervous about the search of the mobile home. However, shortly after detaining Harris, Cpl. Ott called for a K-9 unit to come to the residence so that a drug-sniffing dog could sniff the Laser. When Harris heard that Cpl. Ott had called for a K-9 unit, Cpl. Ott said, Harris became nervous and began calling for his mother. Cpl. Ott then asked Harris for the key to the Laser, and Harris handed him a key. However, Cpl. Ott recognized that the key Harris gave him was not a Chrysler-product key and he then asked Harris if he was sure this was the key to the Laser. According to Cpl. Ott, Harris told him that the key fit the Mazda 929 and that he did not have a key to the Laser. Cpl. Ott testified that the officer who had conducted the patdown of Harris told him that Harris had another key ring in the pocket of his shorts and Cpl. Ott then reached in Harris's pocket and retrieved the key to the Laser.

Shortly after Cpl. Ott retrieved the key, the K-9 unit arrived, and the K-9 officer walked his dog around the Laser; the dog alerted to the presence of narcotics at the rear of the vehicle. At that point, Cpl. Ott used the key to open the vehicle and discovered in the rear hatchback portion of the vehicle three one-gallon Ziploc brand plastic bags that were later determined to contain 2.92 pounds of marijuana. In addition, a large amount of currency was found in the center console, various papers with Harris's name on them were found in the glove compartment, and the registration indicated that the vehicle was registered to "Tim or Patricia Harris." (R. 74.)

Standard of Review

"When an appellate court reviews the findings and holdings of a trial court resulting from a hearing on a motion to suppress evidence, if the evidence before the trial court was undisputed, the `ore tenus rule,' pursuant to which the trial court's conclusions on issues of fact are presumed correct, is inapplicable, and the reviewing court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts."

Ex parte Kelley, 870 So.2d 711, 714 (Ala. 2003). Here, the evidence was undisputed; the only issue is whether the trial court properly applied the law regarding probable cause and the automobile exception to the warrant requirement to the undisputed facts. Therefore, we review de novo the trial court's denial of Harris's motion to suppress. Probable Cause

"A warrantless search of a vehicle is justified where there is probable cause to believe the vehicle contains contraband." Lykes v. State, 709 So.2d 1335, 1337 (Ala.Crim.App.1997).

"`Probable cause exists where all the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.' Sheridan v. State, 591 So.2d 129, 130 (Ala.Cr.App.1991). `The requisite probable cause is present "if a reasonably prudent person, based on the facts and circumstances which the officer knows, would be justified in concluding that the items sought are connected with criminal activity and that they will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213 [103 S.Ct. 2317, 76 L.Ed.2d 527] ... (1983)."' Day v. State, 539 So.2d 410, 413-14 (Ala. Cr.App.1988). `"The test for probable cause is `whether the facts available to the officer at the moment of the seizure or search, would warrant a man of reasonable caution to believe that the action taken was appropriate.'"' Ivey v. State, 698 So.2d 179, 185-86 (Ala.Cr.App.1995), aff'd, 698 So.2d 187 (Ala.1997) (quoting Riley v. State, 583 So.2d 1353, 1355 (Ala. Cr.App.1991))."

Johnson v. State, 719 So.2d 272, 273 (Ala. Crim.App.1998). "Probable cause to search a vehicle exists when all the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and the vehicle contains contraband." State v. Odom, 872 So.2d 887, 891 (Ala. Crim.App.2003). See also State v. Ivey, 709 So.2d 502, 505 (Ala.Crim.App.1997) ("Probable cause to believe a vehicle contains contraband exists where all the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that a search of the vehicle would produce contraband.").

"`Probable cause is concerned with "probabilities," that "are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act."'" Chevere v. State, 607 So.2d 361, 368 (Ala.Crim.App.1992), quoting Carter v. State, 435 So.2d 137, 139 (Ala.Crim.App.1982), quoting in turn Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

"`Probable cause does not require an officer to compile an airtight case against a suspect.' Williams v. State, 440 So.2d 1139, 1145 (Ala.Cr.App.1983). `It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief" that certain items may be contraband ... it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required.' Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (citations omitted)."

Mewbourn v. State, 570 So.2d 805, 808-09 (Ala.Crim.App.1990). "`"[P]robable cause does not require certainty of criminal activity, but only probability.... First-hand observations of criminal activity by a reliable informant in conjunction with police corroboration of factual details provides just this probability."'" Harrelson v. State, 897 So.2d 1237, 1241 (Ala.Crim.App. 2004), quoting McBride v. State, 492 So.2d 654, 658 (Al...