Jones v. State
| Decision Date | 23 June 1981 |
| Docket Number | 8 Div. 422 |
| Parties | James Dean JONES v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Donald E. Holt and Joe M. Patterson, Jr., Florence, for appellant.
Charles A. Graddick, Atty. Gen., and Sandra M. Solowiej, Asst. Atty. Gen., for appellee.
On March 10, 1980, appellant was indicted by the Grand Jury of Lauderdale County for transporting liquors or beverages in quantities of five (5) gallons or more. Sec. 28-4-115 Code 1975. In a trial by jury appellant was found guilty and sentenced to one year and one day in the Lauderdale County Jail.
On January 17, 1980, J. D. Burchett, an agent for the State of Alabama Alcoholic Beverage Control Board, was located on a stake-out of the State of Alabama liquor store on University Drive in Huntsville, Alabama. At approximately 9:40 a. m. a beige or off-white Chevrolet pickup truck with dual rear wheels and a camper shell on back parked at the rear of the liquor store and boxes were loaded onto the truck from the liquor store.
Agent Burchett testified over appellant's objection that he had seen this truck on two previous occasions which were January 3, 1980, and January 10, 1980, both on a Thursday, at the back door of the University State Store in Huntsville. Agent Burchett testified that, on both of these occasions, boxes were being loaded from the store onto the truck. On one of these occasions Agent Burchett attempted to follow the truck but lost sight of it as it crossed the state line into Tennessee. As a result of these prior encounters with the truck Agent Burchett held a meeting on January 16, 1980, with Agent Kirk, Agent Presnell and Agent Little, all employees of the Alcoholic Beverage Control Board, to discuss a joint plan to follow the truck on its suspected route through Tennessee back into Alabama. At the meeting, the type and description of the vehicle were discussed and a plan developed to follow the vehicle into Tennessee and back into Alabama.
On January 17, 1980, the truck with the boxes from the State liquor store left that store at approximately 9:40 a. m. Agent Burchett followed the truck but lost sight of it. He radioed to Agents Presnell and Kirk that "the truck was coming." As the truck in question passed they followed the truck on Highway 64 until it reached Lauderdale County, Alabama, at which time they stopped the truck. Lauderdale County is a dry county. Agent Kirk told appellant that he believed that there was probable cause to believe there was liquor in the back of the truck and that they were going to search it. Agent Kirk got the keys from the truck and opened the back end and threw back the tarpaulin where thirty-three (33) cases of whiskey and a case of wine were found. Appellant was then arrested and the liquor was confiscated.
At the trial appellant objected to the introduction of the contents of the search and the objection was overruled. Appellant contends that this ruling was in error.
A search conducted under exigent circumstances where there is probable cause falls within one of the exceptions to the requirement of a search warrant before conducting a search. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Daniels v. State, 290 Ala. 316, 276 So.2d 441; Baker v. State, Ala.Cr.App., 340 So.2d 854; Richardson v. State, Ala.Cr.App., 376 So.2d 205.
Exigent circumstances justify a warrantless search of an automobile stopped on the highway where there is probable cause, because the car is movable, the occupants would be alerted, and the contents may never be found again if a search warrant is required. Chambers v. Maroney, supra. It is also not practicable to obtain a search warrant for an automobile stopped on the highway because the vehicle can be quickly moved out of the jurisdiction or locality in which the warrant is sought. Carroll v. United States, supra.
In this case the truck in question was under surveillance between two states and at least three counties of Alabama. The agents had no way of knowing for sure where the truck was going. The liquor on the truck did not become contraband until it entered a dry county. It would have been impractical to obtain a search warrant under the circumstances. The truck was capable of moving out of the dry county or to a location to dispose of the liquor. The opportunity for a search was fleeting and exigent circumstances existed, coupled with probable cause.
At the time the search took place there was probable cause to suspect that liquor was in the truck in question. Boxes were seen by Officer Burchett being loaded from the State liquor store on the truck in question. It can be inferred that boxes taken from a store that only sells liquor would contain liquor.
The truck in question was known prior to this occasion to all the agents on the case. It had been described in a meeting the day before. The truck's description was quite distinctive. Agent Kirk and Agent Presnell had been placed on a specific route appellant was expected to take. It was not necessary for Agent Burchett to describe again the truck in question over the radio to Agent Kirk. Agent Kirk and Agent Presnell could assume Agent Burchett was referring to the truck which was the subject of the investigation when he said that "the truck" was coming.
Appellant did not testify nor was any evidence offered in his behalf.
When an officer who has probable cause to suspect that a vehicle is carrying contraband radioes ahead to have it stopped the other officers who stop the automobile have probable cause to arrest without a warrant and the ensuing search is valid. Cook v. State, 56 Ala.App. 250, 320 So.2d 764; Brown v. State, 55 Ala.App. 615, 318 So.2d 311.
Appellant next contends that § 28-4-200 of the Code of Alabama (1975), the violation of which is a misdemeanor, should have been the statute controlling rather than § 28-4-115, which is a felony because the liquor being transported was "Alabama tax-paid" and therefore not included in the liquors "prohibited by law in Alabama" as referred to in § 28-4-115.
§ 28-4-115 of the Code of Alabama was passed by the Alabama Legislature in 1927 as part of the "prohibition laws." In 1936 when the "Alabama Beverage Control Act" was passed § 28-4-115 was not repealed but limited in its application to what the Alabama Legislature termed "dry counties." 1936-1937 Alabama Acts, Ex.Sess., No. 66, § 51, p. 82 now § 28-2-1(b) of the Code of Alabama (1975).
§ 28-4-115 of the Code of Alabama (1975) provides:
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