Herriott v. State
Decision Date | 09 March 1976 |
Docket Number | 8 Div. 731 |
Parties | Michael Jon HERRIOTT v. STATE. |
Court | Alabama Court of Criminal Appeals |
Johnston & Johnston, J. Allen Brinkley, Huntsville, for appellant.
William J. Baxley, Atty. Gen. and Ellis D. Hanan, Asst. Atty. Gen., for the State.
The three-count indictment charged the appellant with the second degree burglary and grand larceny of Arfor Byrnfield, Inc., doing business as 'The Squash Blossom' in Huntsville, Alabama, and with buying, receiving, concealing, or aiding in concealing assorted jewelry, valued at $43,564.45, the personal property of Arfor Byrnfield, Inc. The jury's verdict found the appellant 'guilty as charged,' and the trial court then adjudged the appellant guilty and set sentence at four years imprisonment in the penitentiary, but suspended the sentence and placed appellant on probation for a period of four years.
Prior to the trial, the appellant had filed a motion to suppress the evidence, which was heard by the trial judge and denied. The same objection was raised at trial and overruled.
Detective J. W. King of the Huntsville Police Department testified that on the day after the break-in at the Squash Blossom, he received an anonymous 1 phone call which lead him and two other officers to the apartment of Bob Clancy, located at 2104 Quail Court, Huntsville, Alabama. Finding no one home, the officers decided to wait. At approximately 5:00 p.m., Bob Clancy pulled up on a motorcycle, followed by Cheryl Crawford, and the appellant in the latter's car. The officers approached them, identified themselves, and were 'invited' 2 into the apartment. Once inside, and with everyone gathered in the kitchen area, Detective King explained that he and the other two officers were conducting an investigation for some missing jewelry that had been stolen from the Squash Blossom the night before, and asked Clancy for permission to search his apartment. 3 Clancy unequivocally refused the officer's request and told them they would need a search warrant. It is true that Clancy subsequently capitulated and signed a consent to search form, but not until Detective King had made it clear that obtaining a search warrant would be a 'mere formality,' and that his, Clancy's, refusal would only serve to postpone the inevitable.
Contrary to Detective King's assertions, we note that the record offers not even the slightest evidence of probable cause, either for an arrest or a search. Clearly, the anonymous tip which lead the officers to Clancy's apartment was insufficient in this regard. Brown v. State, 42 Ala.App. 429, 167 So.2d 281. In fact, Detective King seemingly evidenced his knowledge of this fact when he, after receiving the tip, called the warrant magistrate and stated: 'We possibly might need a consent to search warrant.' (R. p. 29)
From Detective King's testimony (R. pp. 29--30):
Further (R. pp. 32--33):
And again (R. pp. 34--35):
'
'
I
Warrantless searches are per se unreasonable under the Fourth and Fourteenth Amendments subject to only a few 'specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585.
Since the search of Bob Clancy's apartment was conducted without a search warrant, the State here attempts to justify the officers' action on the basis of alleged consent.
Mr. Justice Bloodworth, in Daniels v. State, 290 Ala. 316, 276 So.2d 441, enumerates the exceptions to the warrant requirement in the following language:
'Notwithstanding the United States Supreme Court's assertion that its cases on the subject of the extent of a search which may be made without a warrant following a lawful arrest 'cannot be satisfactory reconciled,' it now seems to be fairly well established that there are at least six exceptions under which warrantless searches have been held valid, viz:
'(1) In 'plain view,' see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
'(2) With 'consent' voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
'(3) As 'incident to a lawful arrest,' see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
'(4) In 'hot pursuit' or 'emergency' situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton, (Mo.1970) 454 S.W.2d 481;
'(5) Where 'exigent circumstances' exist coincidental with 'probable cause' (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and,
'(6) In 'stop and frisk' situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).'
In discussing the question of whether or not consent was voluntarily given, the Supreme Court of the United States, in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854, stated:
In evaluating the circumstances surrounding the acquiescence to lawful authority, involved in a consent case, Judge Moylan of the Maryland Court of Special Appeals used the following language, in Whitman v. State, 25 Md.App. 428, 336 A.2d 515:
'. . . The lesson articulated by Bumper and Schneckloth in the area of search consents is that the individual subjected to the search may indeed be Submitting rather than Consenting, even in an atmosphere of relative cordiality because of the presence of psychological forces as potent and effectual in achieving a 'consent' as the traditional techniques and familiar instruments of physical 'persuasion.' We must, we find, be guided by the holding in Bumper that a consent which is actually simple acquiescence to lawful authority is not voluntary and, when the defendant is in custody, by the concern expressed in Schneckloth that 'in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.'
'While each case must rest for decision upon its own facts and the 'totality of the circumstances,' an arrest without probable cause followed by custodial prodding for the arrestee's consent to a search, combined with police representations that the issuance of a warrant will be practically automatic--these are circumstances calculated only to persuade the individual that insistence upon Fourth Amendment guarantees will secure for him merely a delay of the inevitable search rather than the protection against unreasonable search and seizure to which he is constitutionally entitled. . . .'
Similarly, Mr. Justice Faulkner, speaking for our Supreme Court in Lietz v. State, 291 Ala. 133, 279 So.2d 116, stated:
...
To continue reading
Request your trial-
Hubbard v. State
...to police authority which would be insufficient to establishing the requisite voluntariness for consenting to a search. Herriott v. State, 337 So.2d 165 (Ala.Cr.App.), cert. denied, 337 So.2d 171 "At the pretrial hearing the defendant presented no evidence that his consent was involuntary. ......
-
Hubbard v. State
...to police authority which would be insufficient to establishing the requisite voluntariness for consenting to a search. Herriott v. State, 337 So.2d 165 (Ala.Cr.App.), cert. denied, 337 So.2d 171 At the pretrial hearing the defendant presented no evidence that his consent was involuntary. T......
-
Kennedy v. State
...U.S. at 548-49, 88 S.Ct. at 1792; Amos v. United States, 255 U.S. 313, 317, 41 S.Ct. 266, 268, 65 L.Ed. 654 (1921); Herriott v. State, 337 So.2d 165, 169 (Ala.Cr.App.), cert. denied, 337 So.2d 171 (Ala.1976). While a ' "display of weapons is a coercive factor that sharply reduces the likeli......
-
State v. Patterson
...counsel directed this court's attention to in oral argument also do not appear to be persuasive. While it is true that in Herriott v. State, Ala.App., 337 So.2d 165, cert. denied, Ala., 337 So.2d 171 (1976), the defendant's written consent was held to be involuntary, it appears that there t......