Herrin v. State

• Decision Date: 07 June 1977
• Docket Number: 1 Div. 627
• Citation: 349 So.2d 103
• Parties: William Melvin HERRIN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 103

349 So.2d 103

William Melvin HERRIN v. STATE.

1 Div. 627.

Court of Criminal Appeals of Alabama.

June 7, 1977.

Rehearing Denied June 28, 1977.

Wilson M. Hawkins, Jr., Mobile, for appellant.

William J. Baxley, Atty. Gen. and Vanzetta Penn Durant, Asst. Atty. Gen., for the State.

DeCARLO, Judge.

William Melvin Herrin was convicted under an indictment charging possession of marijuana, not for personal use. After a jury trial he was found guilty and sentenced to three years and six months in the penitentiary. It was from this judgment that he appeals.

Prior to the trial, the court held a hearing outside the presence of the jury on a motion to suppress.

The evidence on behalf of the State tended to show that John Reid, an officer in the Alabama State Troopers for approximately five years, on September 25, 1974, was alone and patrolling Interstate 10, in Mobile County. He received a dispatch from the State radio which according to Reid, stated: ". . . be on the look-out for an old model Chevrolet occupied by three or more white males, possibly in connection with a holdup in Mississippi of a drug store." According to Reid, the radio dispatch said that the people wanted were white males with long hair and that the robbery had occurred in Pascagoula, Mississippi. He said the dispatch described the car as approximately a 1962 or 1963 blue Chevrolet. It was believed to have a Mississippi tag. However, Reid said that he did not remember whether the report had given the tag number, but stated the dispatcher said the car was either blue or tan.

Some minutes after receiving the dispatch, Reid saw a 1965 Chevrolet that was green with a brown front hood and fender. He followed the car and after getting behind the vehicle, he radioed the dispatcher. Reid thought he gave the dispatcher the tag number at that time but did not remember asking, "if it was a stolen tag." He did tell the dispatcher that he had stopped the car which could possibly be connected with an armed robbery. After Reid turned his blue lights on, the car stopped just west of the Theodore-Dawes exist of Interstate 10. Reid said the car had a South Carolina license plate on the back.

After stopping the car, Reid asked the driver to come to his patrol car. Reid said the driver had either a South Carolina or Louisiana driver's license. After inquiring about the car's ownership, Reid called to the others, over his car's loudspeaker, to get out of the car. He then searched the occupants of the car but did not find anything. Reid said he then looked in the window and saw a small plastic bag of "plant material" on the right of the front seat, nearest the place where the appellant was sitting. He said he was outside the vehicle at the time and that the bag was in plain view.

Reid explained that he was suspicious of the people because of the description in the dispatch and the car's license plate being attached by what appeared to be a string looped over it. According to Reid, "it would take approximately five seconds to put one (license plate) on like that. It was hanging from the automobile." Further, he said that the people fit the description that he received and that he was going to search the vehicle for a weapon. Reid acknowledged that he was cautious because it was still possible that members of the group could have a weapon. Reid stated that his search was a "fast shake-down," but that he had "help coming."

When Reid searched the car, he found in the right front side, near the passenger's seat, an "AWOL" bag. He opened the bag and found at the bottom of it, underneath some clothes, a large plastic bag containing "plant material." Some letters addressed to the appellant were also in the bag. When questioned about his reason for searching the car, Reid said: "I was going to look for a weapon. . . ."

At that point, a State investigator was called and the occupants of the car were taken into custody.

At the completion of Officer Reid's testimony, the defense called Sgt. Ronald Bell, who was the post commander and the custodian of the records of the Highway Patrol. He showed the judge the radio log which contained all the communications coming into and leaving the radio dispatcher's office. Bell testified that the dispatcher had received a call, number 134, and it was sent out to all units about 4:45 P.M., September 25, 1974. It indicated that it was in reference to a robbery and a Mississippi tag, number 938-CEY. He said that the dispatch did not indicate whether the subjects in the car were white or black but explained that the log did not purport to be a verbatim report of what the dispatcher had said. Bell admitted the log contained no reference to the color of the vehicle.

On further questioning, Bell said the information appearing on the log depended mainly on the operator. He explained that in cases of alleged robbery the pertinent information appearing on the log should show, "the kind of vehicle, the tag number, the location . . . number of people in the car involved in the robbery, race, clothing or anything."

Upon the completion of Bell's testimony during the hearing, the State was asked to produce a picture depicting the rear of the 1965 Chevrolet in which the appellant and the others were riding. Officer Reid was then recalled and asked to identify the picture and to point out where the string holding the license plate was in the picture. He explained that it was either tied by wire or string behind the gas cap. Reid acknowledged that before he stopped the automobile he did not see the wire, but said: "I could tell it was loosely hung." Further, Reid stated that he could not tell what was holding the tag on until he had stopped the car.

At the end of Reid's testimony concerning the tag, the court announced it would reverse its ruling on the motion to suppress until the following morning. At that time, the attorney for the defendant made a motion to suppress the statement given by the defendant and the State called Alvin Abbott.

Abbott was employed in the Bureau of Investigation of the Alabama Department of Public Safety. He testified that he saw the appellant sometime between 5:30 and 6:00 P.M. on September 25, 1974, in the lobby of the State Trooper's office. At that time he read the "Miranda " rights to the appellant. He stated that the rights were read to the appellant a second time and that the appellant read them just prior to making a statement. Abbott said that he asked the appellant if he wished to talk and the appellant said, " . . . he didn't have anything to hide."

According to Abbott, he asked the appellant if he wanted to write the statement and the appellant said that he would prefer that the officer write it. Abbott said that the statement was made in the secretary's office, but that before it was taken he informed the appellant of his rights the second time. The officer read the appellant a document containing the rights and told him before he could talk to him, he had to sign it. After reading each right to the appellant Abbott received no response until he got to the end of the form. He also asked the appellant to read the form and the appellant signed it.

No further evidence was presented after Officer Abbott's testimony and the motion to suppress the statement was denied.

The next morning, outside the presence of the jury, the court denied the motion to suppress the evidence which had been previously heard, and the jury returned to the courtroom. At that point the trial resumed and the State called Officer Reid.

Reid's testimony was substantially the same as that he had given during the suppression hearing. However, he did say during his examination in chief that he had seen marijuana many times and described how it looked and smelled. He testified that in his opinion the substance found in the car was marijuana. Reid said that the bag containing the "plant material" was not in the middle of the front seat but closer to the passenger's side. During the trial he identified a picture depicting the "AWOL" bag which he said contained four large bags of "plant material" along with letters and a diary belonging to the appellant. Reid said he placed the bag containing these items in the trunk of his car and carried them to the State Trooper's office where he turned them over to Sgt. Abbott.

Sgt. Alvin Abbott of the Department of Public Safety stated that Officer Reid had turned over to him a green bag with yellow letters containing clothing and a plastic bag full of "plant material." Abbott turned the plastic bags containing the "plant material" over to Jim Small, a State toxicologist.

Abbott said that he had advised the appellant of his "Miranda " rights on two occasions and that the appellant had signed a "waiver of counsel document." He afterwards took a statement from the appellant which the appellant signed and verified as true. Abbott identified the waiver of counsel document and the statement given to him by the appellant, and they were admitted into evidence.

James L. Small, a toxicologist for the State of Alabama, testified that he had on hundreds of occasions tested substances thought to be marijuana. During the trial he identified a box containing material that was given to him on September 26, 1974, by Sgt. Abbott. He said he identified the material as marijuana after making certain tests. Small stated there was a total of three and one-quarter pounds of marijuana, and that it was a plant coming from the genus cannabis sativa L. and containing a group of substances called tetrahydrocannibinols.

I

It is contended that the stopping of the car occupied by the appellant and his companions was without probable cause and in violation of his Fourth Amendment Rights against unreasonable searches and seizures. The appellant maintained that the variance between the description broadcast and the description of the automobile stopped was fatal to the State's case.

The United States Supreme Court, in...