Ingram v. State

Citation226 So.2d 169,45 Ala.App. 108
Decision Date30 June 1969
Docket Number6 Div. 375
PartiesClinton INGRAM v. STATE.
CourtAlabama Court of Appeals

Fred Blanton, and Morel Montgomery, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Marlin Mooneyham, Asst. Atty. Gen., for the State.

PRICE, Presiding Judge.

This is an appeal from a conviction for possession of marijuana, with a penitentiary sentence of five years.

A pretrial motion to suppress the evidence was interposed by defendant and was denied.

The evidence taken at the hearing on the motion to suppress is as follows:

Detectives Swindall and Hayes, attached to the gambling detail of the vice squads of the City of Birmingham, were riding in an automobile 'looking for gamblers,' in the 2500 Block of 18th Street, North in Birmingham, about September 2, 1967, around 7:00 o'clock in the evening. It was still daylight. They saw four persons seated at a table, with approximately four onlookers 'standing around.' The table was between two houses on the west side of 18th Street. The police pulled the car in between the houses, got out and walked to the table. The defendant was standing at the left front portion of the table. When the policemen approached they saw him take a package, wrapped in a paper napkin, from the left front pocket of his pants and throw it to the ground. Just prior to this, one Hudson, who was in a wheel chair with a jacket lying across him, threw the jacket to the ground. Officer Swindall picked up the jacket and asked Hudson if it was his and he said it was not. He then picked up the package and asked whose it was, but no one claimed it. He opened the package and saw that it contained marijuana. He searched the jacket and found five packs of marijuana wrapped in tin foil. He arrested defendant for possession of the one package and arrested Joseph Willie Hudson for possession of the five packets in the jacket. Whereupon, he searched Ingram and Hudson and found on defendant a paper napkin similar to the one that was thrown to the ground.

Officer Swindall stated that it was approximately twenty to thirty feet to the table from where they packed the car; that he saw no gambling as the car pulled up and he bagan to get out. He said, 'I couldn't testify as to what was going on except the crowd that I testified around this table.' He said he did not stop the car to make an arrest for what he saw them doing and that he did not find sufficient evidence of gambling to make an arrest for that offense; that none of the people were known to him; that he had no warrant for the arrest of any of the individuals he later learned were there; that he had no search warrant for the premises nor for any individual; that a domino game had been going on. The dominoes were still on the table and the people were sitting and standing around it.

Joseph Willie Hudson testified at the hearing on the motion that he lived with his sister at 2506 18th Street, North, Birmingham, on September 2, 1967; that he paid his sister rent for his room out of his social security check; that he knows Clinton Ingram. Witness is a cripple and unable to work. Clinton Ingram is retired from U.S. Steel Corporation, and was at the home of witness on the occasion of the arrest, 'I invited him. Each day they came down, all of the old men came down there and plays dominos with me.' The table where they played was in his sister's yard. Ingram was a guest, having been invited on this occasion by witness. On cross examination he stated he didn't know the location of the property lines between the houses. A photograph of the location of the houses and yard was introduced.

Clinton Ingram testified he was present on this occasion; that he was invited to play dominoes by Hudson; that he had been retired from U.S. Steel for five or six months. He denied dropping the package to the ground and also denied having a napkin in his pocket.

In denying the motion to suppress the evidence, the court stated that in the absence of a showing of Alabama law to the contrary, he was of opinion there was a legal entry on the property and that upon seeing the defendant dispose of the package the officers had the right to search and arrest him and that the finding of the marijuana on the ground did not constitute a search.

Section 154, Title 15, Code 1940, provides in pertinent part:

'An officer may also arrest any person, without warrant, on any day and at any time, for any public offense committed, or a breach of the peace threatened in his presence; * * *.'

In Schook v. United States, 337 F.2d 563 (8th Circuit 1964) the court said:

'Reasonable grounds for suspicion when accompanied by facts or circumstances strong enough to testify a reasonably cautious man to believe the guilt of the suspect, suffice to constitute probable cause necessary for arrest without warrant,' and that a police officer who is only attempting to routinely question persons under Suspicious circumstances to ascertain their identity and actions is executing permissible police procedure to safeguard the community against criminal activity and is not making an arrest.

See also Hayes v. State, 44 Ala.App. 539, 215 So.2d 604; Maples v. State, 44 Ala.App. 491, 214 So.2d 700.

The testimony shows that if the officers had a duty to go on the premises to investigate a possible violation of law, it must have been because they had reasonable grounds for suspecting the parties were engaged in gaming.

Section 263 of Title 14, Code 1940, in pertinent part, provides:

'Any person who plays at any game with cards or dice, or any device or substitute therefor, * * * in any public house, highway, or in any other public place * * * shall, on conviction, be fined not less than twenty nor more than fifty dollars.'

The act of card playing is not a vice or crime in itself. Bythwood et al. v. State, 20 Ala. 47; City of Birmingham v. Richard, 44 Ala.App. 127, 203 So.2d 692, and the statute does not prohibit gaming in a private home. Town of Boaz v. Jenkins, 32 Ala.App. 299, 25 So.2d 394; City of Birmingham v. Richard, supra.

In some of the earlier cases it was said:

'Within the meaning of Section 4792 of the Code 1896 (now Title 14, Sec. 263), a place in the yard or curtilage of a private house 40 feet...

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11 cases
  • State v. Carufel
    • United States
    • Rhode Island Supreme Court
    • February 1, 1974
    ...Lindsey v. State, 488 P.2d 935 (Okl.Cr.1971); People v. Brown, 34 A.D.2d 108, 309 N.Y.S.2d 531 (1970); Ingram v. State, 45 Ala.App. 108, 226 So.2d 169 (1969). But see Holloway v. Wolff, 351 F.Supp. 1033 (D.Neb.1972); Commonwealth v. Raymond, 412 Pa. 194, 194 A.2d 150 ...
  • Berry v. State
    • United States
    • Alabama Court of Criminal Appeals
    • September 20, 2019
    ...1987) (citing Wong Sun v. United States, 371 U.S. 471 (1963); Lawrence v. Henderson, 478 F.2d 705 (5th Cir. 1973); Ingram v. State, 45 Ala. App. 108, 226 So. 2d 169 (1969)). Therefore, the circuit court erred in denying Berry's motion to suppress the drug evidence found in his possession in......
  • Herriott v. State
    • United States
    • Alabama Court of Criminal Appeals
    • March 9, 1976
    ...did in fact enjoy standing to attack the reasonableness of the search and seizure. This ruling was clearly correct. See Ingram v. State, 45 Ala.App. 108, 226 So.2d 169. ...
  • Jenkins v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 1, 1971
    ...the spot from which they view. Harris v. United States, supra; United States v. Molkenbur, 8 Cir., 430 F.2d 563 at 566; Ingram v. State, 45 Ala.App. 108, 226 So.2d 169. Compare Fullbright v. United States, 10 Cir., 392 F.2d 432, where observers with binoculars did not intrude upon the In th......
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