Lewis v. State

• Decision Date: 08 September 1987
• Docket Number: 4 Div. 808
• Citation: 518 So.2d 214
• Parties: Anthony Dewayne LEWIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 214

518 So.2d 214

Anthony Dewayne LEWIS v. STATE.

4 Div. 808.

Court of Criminal Appeals of Alabama.

Sept. 8, 1987.

Rehearing Denied Oct. 13, 1987.

Certiorari Denied Dec. 18, 1987

Alabama Supreme Court 87-51.

Charles H. McDougle, Jr., Dothan, for appellant.

Don Siegelman, Atty. Gen., and Brenda Dunn Watson, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, Anthony Dewayne Lewis, was found guilty of possession of marijuana, in violation of § 20-2-70, Code of Alabama (1975), and sentenced to 10 years' imprisonment pursuant to the Habitual Felony Offender Act and fined $5,000.

On July 3, 1986, Investigator Wesley Earl Woodham and Investigator Corporal Devane, of the Narcotics Division of the City of Dothan Police Department, drove to McRae Homes, an apartment complex. Investigator Woodham testified that he had previously received information and complaints concerning drug activity allegedly occurring in the playground area of McRae Homes. At approximately 7:55 p.m., with "about an hour's more of daylight left" the two officers drove to McRae Homes in an unmarked black Oldsmobile. The officers were not in uniform. Investigator Woodham testified that the playground area is located in the center of the apartment complex and is visible from several locations. He testified that, in the center of the playground area, he observed three black males and recognized the appellant. Investigator Woodham testified that he was using "pretty powerful binoculars, seven fifty" and was able to see the males closely. The officers observed the appellant take "some type of cigarette" and "toked on the cigarette." As the appellant did this, he looked around the playground area and then began to hand the cigarette to the male who was standing at his side. The officers in their vehicle then jumped the curb and drove towards the play ground. There were no bushes or obstacles blocking the officers' vision. Investigator Woodham testified that the other black male who had reached out to get the cigarette observed the vehicle, "which is known to be a narcotics investigation car," driving toward them and dropped his hand. The appellant then observed the vehicle approaching, threw the cigarette on the ground and stepped on it. When the vehicle stopped, Investigator Woodham walked to the area where the appellant had stepped on the cigarette, reached down and picked it up. He testified that it was still smoldering. Investigator Woodham searched the vicinity and determined that there were no other cigarettes present and took the three males into custody. Two of them, including the appellant, were arrested for possession of marijuana. Investigator Woodham testified that, although he was not certain upon his approach that the appellant was smoking a marijuana cigarette, he believed that such was the case, stating "[t]he unique charasteristic is the way you smoked a hand-rolled cigarette." When he picked up the hand-rolled cigarette, he testified that it was pinched in at one end and, through the other end, he was able to observe a "greenish, brown vegetable material" which he believed to be marijuana. He placed the cigarette in an evidence envelope which he carried in the police vehicle, taped the envelope shut, and initialed over the tape.

A criminalist specializing in drug chemistry testified that Investigator Woodham turned the evidence envelope over to him. The criminalist testified that he examined the plant material and found that it was marijuana. He further testified that it weighed less than a tenth of a gram.

I

The appellant argues that the evidence of marijuana should have been suppressed because it was obtained by an unconstitutional search and seizure in that there was no probable cause, nor were the police in a location in which they had a right to be for the purposes of the "plain view" exception of a warrantless search and seizure. However, under the facts of this case, the existence of probable cause need not be determined, because the act of dropping the cigarette into the park constituted an abandonment. Carlisle v. State, [Ms. 6 Div. 987, June 30, 1987] (Ala.Cr.App.1987). The facts of this case are distinguishable from those of Carlisle in that in Carlisle the bag containing marijuana was dropped into the median of a public street, whereas in the case at hand, the cigarette was dropped into the playground of an apartment complex. While the playground was private property, it was nevertheless "in a place accessible to the general public." W. LaFave, Search and Seizure (2d ed. 1987), § 2.6(b) at 466.

"The great majority of the court decisions having to do with the abandonment of effects and of search and seizure contexts are similar ... in that it appears the defendant tried to dispose of certain incriminating objects upon the lawful approach of or pursuit by the police. Thus, effects have been held to be abandoned when they were thrown from a car or motorcycle, when they were dropped to the ground by a pedestrian, when they were left behind in a place accessible to the general public, and when they were thrown out of the window of a residence."

Id.

Thus, the Supreme Court has determined that a warrantless seizure of abandoned property by the police does not violate the Fourth Amendment. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).

" 'When individuals voluntarily abandon property, they forfeit any expectation of privacy in it that they might have had. United States v. Berd, 634 F.2d 979, 987 (5th Cir.1981). Therefore, a warrantless search or seizure of abandoned property is not unreasonable under the fourth amendment. [Citations omitted.] The existence of police pursuit or investigation at the time of abandonment does not of itself render the abandonment involuntary. United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973) see generally, e.g., Berd, 634 F.2d at 987; United States v. Canady, 615 F.2d 694 (5th Cir.), cert. denied, 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); United States v. Williams, 569 F.2d 823 (5th Cir.1978); [United States v.] D'Avanzo, 443 F.2d 1224 [ (2nd Cir.), cert. denied, 404 U.S. 850 [92 S.Ct. 86, 30 L.Ed.2d 89] (1971) ].

" 'The test for abandonment is whether an individual has retained any reasonable expectation of privacy in the object. [Citation omitted.] This determination is to be made by objective standards. United States v. Kendall, 655 F.2d 199, 201 (9th Cir.1981), cert. denied, 455 U.S. 941, 102 S.Ct. 1434, 71 L.Ed.2d 652 (1982). An expectation of privacy is a question of intent, which "may be inferred from words spoken, acts done, and other objective facts." '

"United States v. Jones, 707 F.2d 1169, 1172 (10th Cir.1983), cert. denied, 464 U.S. 859 [104 S.Ct. 184, 78 L.Ed.2d 163] (1983). See also State v. Reed, 284 So.2d 574, 575 (La.1973)."

Carlisle v. State, supra, slip op. at 3-4.

In the case sub judice, when the appellant dropped the cigarette and stepped on it, the police officers reasonably inferred that the appellant intended to abandon the cigarette.

In order for disposal of property to be held abandoned for purposes of Fourth Amendment analysis, the act disposing of the property must not have been the result of an illegal detention or unlawful police conduct. Carlisle v. State, supra; United States v. Beck, 602 F.2d 726 (5th Cir.1979); United States v. Koessel, 706 F.2d 271 (8th Cir.1983). " 'If the officer does nothing, or if he simply places the individual under surveillance, in the belief that he may possibly witness some criminal activity, then there will no issue of unreasonableness.' " W. LaFave, supra, at 473, quoting Mascolo, The Role of Abandonment in the Law of Search and Seizure: An Application of Misdirected Emphasis, 20 Buff.L.Rev. 399 (1971).

The officers clearly had the right to be present at the playground, despite the fact that the last complaint concerning drug activity in that location was received several hours prior to the officers driving to McRae Homes. Investigator Woodham testified that they were continually receiving these complaints and, therefore, he could have reasonably expected that the drug activity was a frequent occurrence. Furthermore, the officers had the right to approach and question the appellant in that the stop was based on specific, objective facts. Terry v. Ohio, 392 U.S. 1, 88 S.Ct 1503, 20 L.Ed.2d 381 (1968). Cf. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). Specifically, the officers were acting on the basis of a number of specific complaints. Moreover, Investigator Woodham testified that, before approaching the appellant, he observed him smoke the cigarette and attempt to pass it in a manner common to marijuana use. The appellant then, upon seeing the police officers' approach, quickly stepped on the cigarette. Such "furtive gestures" may properly be taken into account in determining whether probable cause exists. See, e.g., United States v. Green, 670 F.2d 1148 (D.C.Cir.1981) (probable cause found where three people were exchanging items on the street and their movements suggested an attempt to conceal the object of their transaction).

"As the Supreme Court concluded in Peters v. New York, [392 U.S. 40, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968) ],

" 'deliberately furtive actions * * * at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.'

"Thus, if the police see a person in possession of a highly suspicious object or some object which is not identifiable but which, because of other circumstances, is reasonably suspected to be contraband, and then observe that person make an apparent attempt to conceal that object from police view, probable cause is then present."

W. LaFave, Search and Seizure (2d ed. 1987), § 3.6(d) at 58.

Thus,...