Kaercher v. State
| Decision Date | 25 August 1989 |
| Docket Number | 6 Div. 581 |
| Citation | 554 So.2d 1143 |
| Parties | Lawrence Allen KAERCHER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
We withdraw our opinion of October 11, 1988, and substitute the following therefor.
On original submission, we remanded this case pursuant to our opinion in Hergott v. State, 554 So.2d 1139 (Ala.Cr.App.1988), which is a companion case. We remanded Hergott because the record was inadequate to determine the sole issue of whether the warrantless search of Hergott's property and the subsequent seizure of marijuana thereon were constitutional. We have since reviewed the state's application for rehearing in the instant case and have concluded that the resolution of the issue in Hergott is not necessary for the disposition of this case.
The record reflects that Sheriff Harvey Walker of Winston County, in response to a tip from an informant, dispatched Investigator Jerry Thorn to the Pebble School Community of Winston County to look for a "large patch" of marijuana that was reportedly growing on property that was owned, or formerly owned, by Elmer Thrasher. Thorn drew a rough map of the area from the tax assessor's records, and then he and Officer James Horsley of the Conservation Department proceeded to the area to look for the marijuana. Unsure of the exact location of the property, the officers drove around the general area, passed two homes, and then stopped at what they later learned to be the home of Richard Hergott. Horsley jumped the fence surrounding the house and knocked on the front door, planning to inquire about the exact location of the Thrasher property. No one responded, and Horsley proceeded to the rear of the house, where he had observed two vehicles parked near a shed or workshop-type building. The door of the shed was open, and Horsley thought that someone might be inside, but he got no response when he called out. He proceeded down a trail road a few yards past the shed to a fence and closed gate, beyond which he could see a barn or greenhouse-type building, to see if anyone was there. As he stood at the gate, he observed some potted marijuana plants on the back side of a garden, which was situated behind the Hergott house and within the fence that surrounded the house and the shed.
Horsley returned to his vehicle, where Thorn was waiting, and after contacting Sheriff Walker, they set up surveillance of the house from across the road. Minutes later, Richard James Hergott drove up to the house, and the officers approached him. Thorn informed Hergott that marijuana had been found in the garden, and then he read him his Miranda rights. Hergott admitted that the marijuana was his, and he was placed under arrest. Sheriff Walker arrived and, after the marijuana from the garden, consisting of approximately 40 chest-high plants, was loaded in a patrol car, he proceeded to transport Hergott to jail.
At some point after Hergott's arrest, appellant, Larry Allen Kaercher, walked up to the officers from the direction of the greenhouse or barn, behind Hergott's property. He told the officers that he owned the property behind the Hergott property and that he had been down in the pasture running horses. The officers later determined that the greenhouse and the property on which it was located belonged to appellant and Daniel S. Brodhead. The officers informed appellant that Hergott had been arrested and, after he inquired about how to get Hergott out of jail, appellant drove away in a red Nissan Pathfinder vehicle.
Thorn and Horsley decided to continue to look for the "large patch" of marijuana that the informer had reported was in the area. Horsley planned to walk through the woods between Hergott's house and the old Pebble School, and Thorn was to drive around on the road and pick him up at a designated point beyond the woods. Horsley crossed the fence at the rear of Hergott's property and, when he was approximately 50 yards from the greenhouse or barn, on appellant's and Brodhead's property, he observed, through its lattice-work siding, what he thought was marijuana growing inside. He walked up to within a few feet of the building, and he positively identified the plants inside as marijuana. Horsley summoned Thorn and Sheriff Walker back to the scene and, thereafter, the officers began searching for appellant.
The officers located appellant's residence, some distance from Hergott's house, but found no one at home. As Horsley was leaving appellant's house, he observed truck tracks leading from the house through a kudzu patch. He followed the tracks and found marijuana on the ground and in pots approximately 150 yards from the house. The record indicates that this marijuana found 150 yards from appellant's residence was discovered prior to the seizure of the marijuana in the barn. Appellant's property, near his residence, was again searched the following day, and over 2,900 marijuana plants were found in the woods. Subsequently, appellant's residence was also searched, pursuant to a warrant.
Prior to this final search of appellant's residence and surrounding property, the officers learned that the red Nissan Pathfinder that appellant had been driving earlier was located at the home of Brodhead. When the officers arrived at the Brodheads' home, Becky Brodhead, Brodhead's wife, informed them that the vehicle was in the garage, and she opened it and allowed them to go inside. The vehicle was locked, but the officers could see boxes and bags inside. One bag had a stem protruding from within, and Horsley recognized it as being the stem of a marijuana plant. Becky Brodhead did not have a key, so the officers had the vehicle towed to the sheriff's office, where it was searched the following day, after a warrant was obtained. The boxes and bags contained 29 pounds of marijuana.
Shortly after the three defendants (Hergott, Kaercher, and Brodhead) were arrested and before they were indicted, appellant (Kaercher) and Hergott moved for a preliminary hearing. The motion was granted, and a consolidated hearing was held in the District Court of Winston County for Kaercher and Hergott. At this preliminary hearing, the officers involved in the investigations testified, but the defendants did not testify or present any evidence. Upon conclusion of the hearing, the district court found probable cause to bind Kaercher and Hergott over to the grand jury.
Subsequently, appellant, Brodhead, and Hergott were indicted for trafficking in cannabis. They entered pleas of not guilty and filed motions to suppress the evidence obtained by the state as a result of the searches and seizures, claiming that their Fourth Amendment rights had been violated. Appellant's motion to suppress was general and conclusory and did not address any specific contraband or property. Hergott's motion to suppress was specifically addressed to the marijuana discovered on his property, and he claimed that because it was within his curtilage, its seizure without a warrant violated his constitutional rights, requiring its suppression. Brodhead's motion to suppress, like Kaercher's, was general and conclusory. No hearings were ever held on the motions to suppress.
As a result of plea bargaining, the defendants ultimately withdrew their pleas of not guilty, entered guilty pleas to trafficking in cannabis, and reserved the right to appeal the trial court's ruling denying their motions to suppress. The three defendants were charged separately with having in their possession more than 2.2 pounds of cannabis "at or near" their property. In the consolidated guilty-plea proceedings, the trial court, in establishing a factual basis for the pleas, asked Hergott what he had done. Hergott replied, "I was growing marijuana on my property." Hergott also admitted that the marijuana was in excess of 2.2 pounds. To the same question, appellant replied, "I had marijuana growing on property in Winston County." He also admitted that it was in excess of 2.2 pounds. Brodhead stated, "I had marijuana growing on my property in Winston County." He admitted that it was in excess of 2.2 pounds. This admission was qualified by Brodhead's attorney when he stated in effect, to the trial court during the colloquy, that his client was agreeing to "a general possession plea" to "2.2 pounds."
As part of the plea bargain, it was agreed that the three defendants would have the right to appeal the denial of their motions to suppress. The parties stipulated, with the court's approval, that a transcript of the preliminary hearing held for Hergott and appellant would be filed and considered as evidence in support of the motions to suppress; that the trial court would deny the motions; and that the transcript of the preliminary hearing would become the record for purposes of appeal to this court. Brodhead agreed to this procedure even though he had not been a party to the preliminary hearing. Appellant's attorney stated his understanding of this proceeding, as follows:
1 (Emphasis added.)
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