Lippold v. State, 7 Div. 598

• Decision Date: 21 November 1978
• Docket Number: 7 Div. 598
• Citation: 365 So.2d 1015
• Parties: Russell R. LIPPOLD v. STATE. ,A.
• Court: Alabama Court of Criminal Appeals

Page 1015

365 So.2d 1015

Russell R. LIPPOLD v. STATE.

7 Div. 598, 7 Div. 598A.

Court of Criminal Appeals of Alabama.

Nov. 21, 1978.

Rehearing Denied Dec. 19, 1978.

David A. Rains and William D. Scruggs, Jr., of Scruggs, Rains & Wilson, Fort Payne, for appellant.

William J. Baxley, Atty. Gen. and James F. Hampton, Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

Russell R. Lippold and Patricia Ann Kerley Gregg were charged by indictment with the first degree murder of Lester Gordon Mullins by shooting him with a gun. Because the appellant was fourteen years of age at the time of the incident in question, the Circuit Court heard a motion to transfer the cause to the Juvenile Court, and after a determination in that court of incorrigibility the cause was then transferred to the Circuit Court for trial as an adult. The jury found the appellant guilty of murder in the first degree and fixed punishment at life imprisonment in the penitentiary. The trial court then set sentence in accordance with this verdict.

The indictment and ensuing trial arose from an incident which occurred during the The appellant, Russell R. Lippold, age fourteen, and his companion, Patricia Ann Kerley Gregg, age twenty-six, were arrested by Ohio State Trooper Robert K. Sikes shortly after 11:00 on the evening of May 24, 1977, at a rest stop on Interstate 75, near Dayton, Ohio. There Gregg and Lippold were found in a brown and beige 1977 pickup truck with a Kentucky license tag, No. FEO-261. Following the arrest of the occupants and the seizure of the items contained in the truck by Trooper Sikes, Lippold and Gregg were returned to Alabama for trial. Thereafter, several issues arose during trial which will be set out and discussed in this opinion.

early morning hours of May 24, 1977, at an Amoco station, just off Interstate 59, near Collinsville, Alabama, in DeKalb County. There Lester Gordon Mullins, the attendant at the service station, was found dead at about 2:30 or 3:00 a. m. The cash register drawer was open and the proceeds were missing.

I THE INVENTORY SEARCH

At trial, Trooper Robert K. Sikes testified that, shortly after 11:00 p. m. on May 24, 1977, he observed a brown and beige Chevrolet pickup truck parked in a rest stop area. He stated that the truck bore a Kentucky license plate, No. FEO-261. Trooper Sikes noted that the rest stop area is designed so that normally a vehicle is pulled in and parked with the rear of the vehicle facing outward. He testified that, on the evening in question, the truck above-described was "backed in" and parked at a point near a drinking fountain where the troopers are required to sign a sheet and register. Trooper Sikes related that it is a requirement of the Ohio State Troopers' regulations for a routine check to be made of all out-of-state vehicles to determine if any among those reported are stolen or if they contain missing persons.

Upon receipt of information from Headquarters that the truck in question had been reported as stolen in Kentucky, Trooper Sikes radioed for assistance of other officers. Upon arrival of the additional officers, they approached the vehicle and observed the appellant, Russell Lippold, seated on the passenger's side and his companion, Patricia Gregg, seated under the steering wheel. Trooper Sikes related that he was on the right side of the vehicle and a fellow trooper on the left when they awoke the occupants and directed them to raise their hands and slowly alight from the truck. Gregg and Lippold followed instructions, were handcuffed, and their persons searched. Trooper Sikes stated that he immediately gave a Miranda warning before handcuffing the two individuals. Trooper Sikes then called for a wrecker to tow the truck, and while awaiting arrival of the wrecker, pursuant to Ohio State Troopers' regulations, he conducted an inventory search of the vehicle as to its contents. Sikes related that both the occupants had been removed from the truck and upon investigation he observed a twelve gauge shotgun lying on the floorboard of the truck with a part of same extending from underneath the front seat. Sikes related that he removed a pocketknife from the appellant's pocket, then continued to search the truck. The items contained therein were inventoried. Sikes related that he found one shell inside the shotgun and seventeen additional shells in the glove compartment. He stated that these shells were twelve gauge, No. 4, shot. Sikes described the shotgun as having a sawed-off barrel, with part of the handle also sawed-off. He stated that a type of padding was "taped to the handle where the butt was." Sikes further related that a machete, a knife, some bed clothing, and a type of feed were also found in the truck. Sikes indicated that he kept the sawed-off shotgun and shells in his possession until they were delivered to Alabama Investigator Bethune, who came to the Miami County, Ohio, Sheriff's Office in Troy on May 26, 1977. Trooper Sikes indicated that all of the items were retained in his possession and under his control until they were delivered to Investigator Bethune.

Investigator Gerald Bethune from the DeKalb County Sheriff's Office testified State Toxicologist Brent Wheeler testified that, on May 31, 1977, he received a "Mariton 12-gauge single barrel shotgun with a 161/4 inch barrel, bearing the serial number 24135" from State Investigator Bethune. He also received some "12-gauge Remington Mohawk # 4 shot, all of which were unfired," together with two five dollar bills, and a red, white and blue, short sleeved uniform shirt. Mr. Wheeler indicated that he performed certain test for fingerprints, and test-fired the shotgun. He stated that other than that all the items were in the same condition as when he received them from Investigator Bethune. In comparing the wadding removed from the body of the victim with the wadding used in the shells delivered to him by Bethune, Wheeler determined they were made by the same manufacturer and were of the same size as that in the "12-gauge # 4 shot" shells delivered to him by Bethune.

that he received the shotgun and other stated items from Ohio State Trooper Sikes on May 26, 1977, in Troy, Ohio, and subsequently delivered the shotgun to Brent Wheeler of the Alabama Toxicology Department in Huntsville, Alabama, as well as the seventeen shells found in the glove compartment of the truck and the one shell found in the chamber of the shotgun. Investigator Bethune also identified the photographs made of the 1977 brown and beige Chevrolet pickup truck, bearing a Kentucky license plate, No. FEO-261, which he had taken off the vehicle. He stated that he had visited with the owner of the truck in Cynthiana, Kentucky, on June 7, 1977, and made photographs of the truck. Bethune indicated that the shotgun shells bore the trade name, "Mohawk," which is manufactured by Remington.

At trial, counsel challenged the admission of the above-listed items as being based upon an illegal search and seizure without probable cause or without a warrant.

The State countered this argument by pointing out that Ohio State Trooper Sikes was following department regulations when making an inventory search of the vehicle after it had been determined to be a stolen vehicle from Kentucky. The initial charge against the two occupants, Lippold and Gregg was car theft.

Moreover, the State pointed out at trial and on appeal that the appellant, Lippold, and his companion, Patricia Gregg, had no standing to challenge the seizures by Trooper Sikes.

The United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), in discussing inventory searches, stated:

"This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are 'effects' and thus within the reach of the Fourth Amendment, Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 417 U.S. 583, 589, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); Cady v. Dombrowski, 413 U.S., at 439-440, 93 S.Ct. at 2527; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419 (1970).

"The reason for this well-settled distinction is twofold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S.Ct. 2022, 2034, 29 L.Ed.2d 564 (1971). But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, 399 U.S., at 51-52, 90 S.Ct. at 1981; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office. In discharging their varied "The expectation of privacy as to autos is further diminished by the obviously public nature of automobile travel. Only two Terms ago, the Court noted:

responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Cady v. Dombrowski, supra, 413 U.S. at 442, 93 S.Ct. at 2528. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other...