Kinard v. State

• Citation: 335 So.2d 916
• Decision Date: 01 October 1975
• Docket Number: 1 Div. 576
• Parties: JOSEPH A. KINARD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 916

335 So.2d 916

JOSEPH A. KINARD v. STATE.

1 Div. 576.

Court of Criminal Appeals of Alabama.

Oct. 1, 1975.

Rehearing Denied Oct. 28, 1975.

Thomas M. Haas, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.

HARRIS, Judge.

By agreement appellant was put to trial upon a 'Solicitor's Complaint' which charged that he did unlawfully possess Marihuana for personal use.

Appellant demanded a trial by jury. The jury returned a verdict finding the defendant guilty of the unlawful possession of Marihuana for personal use as charged in the Solicitor's Complaint. The jury declined to assess a fine. The trial judge adjudged appellant guilty and sentenced him to imprisonment in the Mobile County Jail for six months.

Appellant made a pre-trial motion to suppress all the evidence taken from his person or his vehicle by law enforcement agents at or about the time of his arrest on the grounds that said evidence was illegally and improperly seized without a search warrant and without probable cause or legal excuse. A hearing on this motion was heard out of the presence and hearing of the jury.

The arresting officer, William Lundy, testified that he was employed by the Mobile Police Department on June 6, 1974, and had been so employed for about four years. Around 9:00 P.M., on that date, he was on Highway 90 around Azalea Road and stopped a van truck for an I.D. check, that he turned on his blue light and the van pulled over just east of Highway 90--just east of 65 on Highway 90, eastbound.

From the record:

'Q All right, sir. Would you please tell the Court what happened after you stopped that van?

'A I turned my blue lights on and the van pulled over just east of Highway 90--just east of 65 on Highway 90, eastbound. I got out of the car, Mr. Kinard got out of the driver's side of the van and started walking back towards me. We met between the van and the patrol car. I asked him for his identification and he showed me his driver's license. We walked around to the passenger's side and I opened the door on the passenger's side where Mathis was sitting in the driver's seat and Patsy Brunson was sitting on the cooler between the two seats right by the console.

'Q Was there a person that you later learned to be R. L. Dean in the back of the van?

'A Yes, sir; he was laying down in the back of the van.

'Q All right. When you referred to 'Mathis,' are you referring to James Matthews?

'A Right. James Matthews.

'Q All right. Now, please continue.

'A I shined my light in the van in front of James Matthews and the ash tray was open with--there was a cellophane bag with some small pills.

At this time, I got all of the subjects out of the van that were in the van, James Matthews, Patsy Brunson and R. L. Dean out of the back of the van. I asked them for their identification as they were standing beside the van. Each one of them gave me some form of identification.

At that time, my backup had arrived and we placed them in the back seat of my scout car. Then, we walked back up to the van, which my backup was Officer Robbins, and we got the cellophane bag out of the ash tray. Then, we reached up under the dash and got the rest of the stuff out.

'Q Tell the Judge what the rest of it was, if you remember.

'A To the best of my knowledge, it was a couple of prescription bottles with some pills in it and some more cellophane bags with other pills and some marijuana.

'Q What did you do then, if anything?

'A At that time we called for a C.I.D. Unit and a Sergeant had arrived.

'Q All right.

'A My Supervisor.'

On cross-examination he testified that he did not have an arrest warrant for anyone in the van and did not have a search warrant to search the van. He further stated that he did not stop the van because of any particular driving violation.

On re-direct examination he said he stopped the van to make an I.D. check and this was a normal function of his police duties from time to time. He further testified that when the driver of the van showed him his driver's license, he asked him who owned the van and he said he was the owner.

The court denied appellant's motion to suppress and the jury was brought back to the court room and the trial in chief got under way.

Officer Lundy testified to essentially the same facts before the jury as he gave on the motion to suppress as to stopping the van and the occupants thereof. In addition, he testified that it was a 1969 Ford van, tan in color, and had some type of build-up on the roof of it, and it stood out from other vans. That when he shined the light inside the van, he saw the ash tray was open and saw a cellophane bag in plain view with some small pink pills in it. He further stated that when the three men and woman were put in his scout car, that he told them they were under arrest. He said that the other contraband was up under the dash of the air conditioner duct. Aside from the pills he described the other material as follows:

'There was some ground leafy type material was in one bag and there was a partially smoked what--it looked like sort of a cigarette with some other ground leafy material with some seeds of some sort in it.'

He further testified they turned over to Sergeant Moore at the scene everything they removed from the van; that he took the four occupants of the van downtown, to the Detective Division of the Mobile Police Department. The van was towed to an uptown garage.

Police Officer Robert Moore testified that he worked in the Criminal Investigation Division of the Mobile Police Department and had been so employed for twelve years, that on the night of May 6, 1974, he was on routine patrol and received a call by radio to meet Officer Lundy. When he arrived at the scene, Lundy told him what he had and showed him the pills he had found and how he had found them. Moore told Lundy they had probable cause to search the rest of the van. He said, 'I was standing right behind Officer Lundy and Officer Robbin when they took assortment of pills and green plant material from underneath the dash in the air conditioner fan.' He said he had a conversation with the defendant in which the defendant admitted ownership of the van.

Moore further testified that he took everything that was removed from the van and carried it to Police Headquarters and turned it over to Officer Ronnie Meiers the next day. He stated that he advised each of the four occupants of the van of their rights individually. Moore said it was standard procedure when booking people who were under arrest to have them empty their pockets; that appellant had a wallet, keys, and there was $192.00 in his wallet.

All of the above testimony was strenuously objected to by appellant's counsel. The objections were overruled.

Dr. Nelson E. Grubbs, Assistant State Toxicologist in charge of the Mobile laboratory, was called as a witness for the state. At this point it was made known to the court that a stipulation had been entered into between the prosecutor and defense counsel that if Police Officer Ronnie Meiers was present, he would testify that Officer Moore gave him everything that was found and removed from the van and he delivered them to the toxicologist, Dr. Nelson Grubbs.

From the record:

'THE COURT: Members of the jury, what a stipulation is, of course, would be an area where both sides of the case would say, we agree that these facts are part of the facts to be submitted to the The qualifications of the toxicologist were admitted by defense counsel and he testified that he received a package from Officer Meiers. He identified state's Exhibit Number 1 as a plastic brown vial with a green top on it containing nine grams of Marihuana seeds and some packing material on top of it. He identified state's Exhibit Number 2 as a plastic bag containing ground leaf material of Marihuana and ground seeds of Marihuana, and state's Exhibit Number 3 containing the flowering top of Marihuana and a cigarette butt, commonly called a roach. These exhibits were introduced in evidence over objections of defense counsel that the proper predicate had not been laid, the proper identification had not been made, and the evidence was seized illegally by the officer. These objections were overruled as the toxicologist had testified that these exhibits had been in his exclusive possession since he received them and were not available to anyone else except Mrs. Pillman an employee of the laboratory who worked directly under his supervision.

jury, so you don't have to worry about them. In other words, it is more or less stipulating as to certain evidence for you to receive and accept as a part of the evidence in this case. And what Mr. Haas said and what Mr. Valeska said about the stipulation would be for you to accept as evidence in the case in determining--in making your decision. All right, go ahead.'

Mrs. Alilee Pillman was called as a witness for the state and testified that she was employed by the State Department of Toxicology and Criminal Investigation in Mobile County. Defense counsel also admitted her qualifications.

This witness was shown state's Exhibits 4, 5 and 6. She stated she received them from Officer Meier on May 7, 1974. She stated she made an examination and analysis of the contents of these exhibits and found Exhibit Number 4 contained gleanings of Marihuana. That Number 5 contained tablets of butysol sodium, a derivative of barbituric acid, and that Exhibit Number 6 contained lysergic acid, diethylamide, and phencyclidine. That the common names for these drugs are LSD and PCP. These exhibits were received in evidence over heated objections of appellant.

Sergeant Robert Moore was recalled and testified that all of the above drugs were removed from the van at the scene where Officer Lundy had stopped it. He further testified that appellant was re-advised of his rights at Police Headquarters and told the officer that he understood his rights and that the van...