Lamar v. State

• Decision Date: 01 February 1991
• Citation: 578 So.2d 1382
• Parties: Early David LAMAR v. STATE. CR 89-316.
• Court: Alabama Court of Criminal Appeals

Page 1382

578 So.2d 1382

Early David LAMAR v. STATE.

CR 89-316.

Court of Criminal Appeals of Alabama.

Feb. 1, 1991.

Rehearing Denied March 15, 1991.

Wanda M. Rabren, Andalusia, for appellant.

Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Early David Lamar was charged by indictment with the unlawful possession of cocaine. His first trial, which took place on January 22, 1990, was terminated when the trial court granted Lamar's motion for a mistrial. On February 28, 1990, he was retried and convicted. He was subsequently sentenced as a habitual offender to 10 years' imprisonment and was fined $2500. Lamar raises five issues in this appeal from his conviction.

I

Lamar contends that the trial court erred in denying his motion to suppress the cocaine. The basis of this argument appears to be a claim that there was no probable cause for his warrantless arrest.

The events that gave rise to Lamar's prosecution occurred around 1:30 or 2:00 on the morning of December 20, 1988. Isaac Lewis, who was an investigator with the Opp Police Department at the time of the offense, testified at the suppression hearing that he received information from a reliable informant ¹ that the defendant was at the Hideaway Club and was in possession of illegal drugs. The informant described the vehicle Lamar was driving, an Oldsmobile Cutlass, and also provided a tag number for this vehicle. Investigator Lewis and Officer Larry Wicker drove to the Hideaway Club, but were unable to locate a vehicle matching the informant's description. The officers began looking for the vehicle in the neighboring area and very quickly located it parked in front of a residence on Hardin Street, only some two blocks from the Hideaway Club. The officers pulled in approximately a block away and ascertained that the tag number of the vehicle matched that provided by the informant. They also observed that the car was occupied by one person, although they were unable, from that distance, to identify the occupant as the defendant, and they observed that there were other persons around the car.

Shortly thereafter, a second car, a Pontiac, pulled up behind the Cutlass. A white Chevrolet then passed slowly by the officer's vehicle, with the driver looking closely at the officers, one of whom was in uniform. The Chevrolet stopped next to the Cutlass and a conversation ensued between the occupant of the Chevrolet and the persons around the Cutlass. The officers were unable to positively ascertain whether the driver of the Cutlass was a participant in this conversation. The persons in and around the vehicles looked at the officers' vehicle; then the Cutlass pulled off, followed by the Pontiac and the Chevrolet. The Pontiac appeared to be flashing its lights at the Cutlass. The officers pulled in behind the three vehicles, but did not turn on their blue light or siren. After following the three cars a short distance, the officers attempted to pass the Chevrolet and the Pontiac in order to stop the Cutlass. However, both the Pontiac and the Chevrolet were being driven in the center of the road and the drivers of those vehicles did not yield to the officers. At that point Investigator Lewis turned on the siren briefly.

The three cars ahead of the officers' vehicle were proceeding very slowly. Officer Wicker stated that he got out of his vehicle and ran past the last car, shouting for the defendant to stop. When Wicker was approximately five feet from the Cutlass, he observed Lamar open his car door and drop something into the street. Wicker retrieved the items, a paper towel and a plastic box containing what appeared to him to be rock cocaine. Lamar appeared to lean over in the seat and his vehicle rear-ended a pickup truck parked on the side of the street. A back-up unit had arrived on the scene by this time.

Although the officers involved indicated that Lamar was not arrested for any offense at this time, one of the back-up officers testified that he "put the handcuffs on [Lamar]." "Generally and except in the most exceptional circumstances, a person must be considered under arrest once he has been handcuffed". Bradley v. State, 494 So.2d 750, 759 (Ala.Cr.App.1985), affirmed, 494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). Because there was no further testimony by the officers as to what other actions they took at the time Lamar was handcuffed or immediately thereafter, this Court can conclude only that Lamar was arrested at the time he was handcuffed. Compare Darden v. State, 571 So.2d 1272 (Ala.Cr.App.), cert. denied, 571 So.2d 1280 (Ala.1990) (wherein this Court found that defendant was not arrested when handcuffed where defendant had voluntarily agreed to go to police station and officer explained that he was required to handcuff defendant in order to transport defendant in police car). However, contrary to Lamar's assertions, it is clear that his arrest did not take place until sometime after his car had rear-ended another vehicle.

Lamar did not testify at the suppression hearing, but testified in his own defense at trial, asserting that the drugs belonged to the driver of the Pontiac, Curtis Fitzpatrick, and that Fitzpatrick was trying to throw the drugs to him. Lamar stated that he was not arrested at the scene for a drug offense, but was arrested for driving under the influence. He also testified that he had been at the Hideaway Club, where he consumed a beer, and that, just prior to being stopped by the officers, he had drunk "a cup of whiskey" which he had in his car. ²

"Probable cause to arrest requires the 'knowledge of facts and circumstances which are reasonably trustworthy and which would lead a prudent man to believe that the accused had committed the offense [for which he is arrested].' Blanco v. State, 515 So.2d 115, 119 (Ala.Cr.App.1987). It is axiomatic that '[p]robable cause deals with probabilities, not legal technicalities. It is grounded upon those practical, factual considerations of everyday life upon which reasonable and prudent men act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1948).' Carter v. State, 405 So.2d 957, 959 (Ala.Cr.App.), cert. denied, 405 So.2d 962 (Ala.1981). 'Probable cause does not require an officer to compile an airtight case against a suspect.' Williams v. State, 440 So.2d 1139, 1145 (Ala.Cr.App.1983). However, a mere suspicion on the part of the officer that the suspect committed a crime will not suffice. Moore v. State, 415 So.2d 1210, 1216 (Ala.Cr.App.), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982). Whether probable cause existed for a particular arrest 'must be determined from the facts of each case.' Waldrop v. State, 462 So.2d 1021, 1029 (Ala.Cr.App.1984), cert. denied, 472 U.S. 1019, 105 S.Ct. 3483, 87 L.Ed.2d 618 (1985)."

Dixon v. State [Ms.Cr.App. 3 Div. 414, September 21, 1990] (Ala.Cr.App.1990). Applying these principles to the present case, we find that, by the time Lamar was handcuffed, the officers had probable cause to arrest him for the offense of possession of cocaine.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court established the concept of the investigatory stop based, not on probable cause, but on reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur. See generally Caffie v. State, 516 So.2d 822, 825-26 (Ala.Cr.App.1986), cert. denied, 516 So.2d 831 (Ala.1987). The standard of reasonable suspicion is less rigorous than the standard of probable cause, see Fowler v. State, 453 So.2d 1089, 1091 (Ala.Cr.App.1984); Crawley v. State, 440 So.2d 1148, 1149 (Ala.Cr.App.1983), requiring only that the officers have "specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity," Hickman v. State, 548 So.2d 1077, 1080 (Ala.Cr.App.1989). "To determine whether an officer's suspicion of criminal activity was reasonable, a court must evaluate the totality of the circumstances as they appeared to the officer at the time of the stop." United States v. Ocampo, 890 F.2d 1363, 1368 (7th Cir.1989). Information provided by a reliable informant can provide the reasonable suspicion required to justify a Terry stop. Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612 (1972); State v. Calhoun, 502 So.2d 795, 805 (Ala.Cr.App.), affirmed in part, reversed in part on other grounds, 502 So.2d 808 (Ala.1986); State v. Kennedy, 107 Wash.2d 1, 7, 726 P.2d 445, 449 (1986). See State v. Calhoun, 502 So.2d 808, 813 (Ala.1986). See generally 3 W. LaFave Search and Seizure § 9.3(e) (2d ed. 1987).

In this case, the officers received information from a reliable informant that Lamar was in possession of drugs at a specified location and was in a specifically described vehicle. While the officers did not find Lamar at the specified location, compare Shute v. State, 469 So.2d 670, 672 (Ala.Cr.App.1984) (officers originally observed defendant in location indicated by reliable informant), and were unable to ascertain that Lamar was the occupant of the specifically described Cutlass, they did find the car, which the informant had specifically described, only a short distance from the location specified by the informant. At that time, they did not attempt to stop the Cutlass. As the trial court noted, "[I]nstead of doing that, ... [the officers] sat there and watched and ... were seeking further corroboration and the activity that they then observed matched up with exactly the type of thing that would be going on if somebody was out on the street involved in drug activity at that time of morning."

The activity observed by the officers included the following: (1) A second car pulled in behind the Cutlass. (2) Shortly thereafter, a Chevrolet passed slowly by the officers and stopped next to the Cutlass. The driver of the...