Johnson v. State

• Decision Date: 30 January 1998
• Docket Number: CR-96-2094
• Citation: 719 So.2d 272
• Parties: Ronald JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 272

719 So.2d 272

Ronald JOHNSON v. STATE.

CR-96-2094.

Court of Criminal Appeals of Alabama.

Jan. 30, 1998.

Rehearing Denied March 20, 1998.

Certiorari Denied July 17, 1998

Alabama Supreme Court 1971154.

Mark Anthony Dutton, Moulton, for appellant.

Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for appellee.

COBB, Judge.

Ronald Johnson pleaded guilty to, and was convicted of, possession of marijuana in the first degree, a violation of § 13A-12-213, Ala.Code 1975. He was sentenced to serve one year and one day in prison and was fined $1,050. Before he pleaded guilty, Johnson preserved one issue for appeal.

Johnson contends that the trial court erred in denying his motion to suppress evidence gathered as a result of what he says was an illegal search. The trial court found "that the limited search and 'pat down' of the defendant's outer garment was proper, as incident to a lawful arrest, and was otherwise lawfully permitted." (C. 55.) Specifically, Johnson claims that the arresting officer had neither a reasonable suspicion that Johnson was carrying a concealed weapon nor probable cause to conduct the search of his pockets that yielded the bag of marijuana.

The following evidence was presented with respect to Johnson's motion to suppress. James Horsley, a conservation enforcement officer, testified that, while on patrol in the Black Warrior Wildlife Management Area, he encountered Johnson and a juvenile, who were in a pickup truck. Upon seeing firearms in the truck, Horsley placed Johnson under arrest for not having a permit to possess a firearm in a wildlife management area. This was, however, a noncustodial arrest. Horsley testified that when conservation officers arrest someone for the illegal possession of a firearm in that area, the officers check the vehicle and the person for ammunition and illegal game.

Horsley further testified that he saw Johnson reach into either his pants pocket or his jacket pocket. Horsley testified that he believed that Johnson could have a firearm, ammunition, or illegal game in the pocket. Horsley asked Johnson if he had anything in his pocket, and Johnson did not respond. Horsley then patted Johnson down and felt something that felt like a plastic bag with something soft in it. Horsley then asked Johnson to empty his pockets, at which time Johnson produced the marijuana from his pocket. Horsley testified that this search was not an inventory search and that he was "not fixing to place [Johnson] in jail unless we had problems with him." (C. 44.)

Johnson argues on appeal that, because he was not under custodial arrest at the time of the pat-down search, the officer had no probable cause to conduct a search under the search incident to a lawful arrest exception to the warrant requirement. Thus, Johnson claims, the trial court should have suppressed the marijuana.

However, once Officer Horsley discovered that Johnson illegally possessed firearms in the wildlife management area, Horsley had probable cause to search both Johnson and his vehicle to determine whether Johnson possessed additional firearms, ammunition, or illegal game. "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)).

Here, Officer Horsley caught Johnson in illegal possession of a firearm in a wildlife management area. Thus, it is appropriate that Officer Horsley search both Johnson and his vehicle for...