Mewbourn v. State, 6 Div. 318

• Decision Date: 29 June 1990
• Docket Number: 6 Div. 318,6 Div. 320
• Citation: 570 So.2d 805
• Parties: James MEWBOURN v. STATE. Elbert SUGGS v. STATE. ,
• Court: Alabama Court of Criminal Appeals

Page 805

570 So.2d 805

James MEWBOURN v. STATE.

Elbert SUGGS v. STATE.

6 Div. 318, 6 Div. 320.

Court of Criminal Appeals of Alabama.

June 29, 1990.

Rehearing Denied Aug. 24, 1990.

Certiorari Denied Nov. 16, 1990

Alabama Supreme Court 89-1802 and 89-1803.

David Cromwell Johnson, Birmingham, for appellant Suggs.

Richard S. Jaffe of Jaffe, Burton & Digiorgio, Birmingham, for appellant Mewbourn.

Don Siegelman, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee in 6 Div. 318.

Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee in 6 Div. 320.

BOWEN, Judge.

James Mewbourn and Elbert ("Dale") Suggs were separately charged in two-count indictments with trafficking in cocaine and possession of marihuana. Both filed motions to suppress, which were denied after a hearing. Mewbourn and Suggs then pleaded guilty to the trafficking charges, although reserving the right to appeal the denial of their motions to suppress. The possession counts were nol-prossed on motion of the State. Both Mewbourn and Suggs were sentenced to three years' imprisonment and were fined $50,000. Because the charges arose out of the same facts and because the dispositive issues in each case are the same, we have elected to dispose of both cases with one opinion.

Three Jefferson County deputy sheriffs testified at the preliminary hearing. The transcript of this hearing was offered as evidence at the hearing on the motions to suppress. From this transcript we glean the following facts:

On September 11, 1987, Sgt. Charles Horton of the Jefferson County Sheriff's Department met with a reliable informant who stated that he had overheard a conversation between James Mewbourn and Dale Suggs. According to the informant, Suggs told Mewbourn that they could leave by boat on Saturday, September 12, "to go to Mobile and pick up a load of cocaine." This informant stated that he had been present at a certain barbecue restaurant "a couple of days before 9-11-87 and had seen Dale Suggs and James Mewbourn with cocaine." The informant also told Sgt. Horton that a boat with registration number AL4967SB was docked at Clevenger's Marina. After meeting with the informant, Horton went to the marina, where he observed and photographed a houseboat with registration number AL4967SB. He learned from other officers that this boat had been purchased by Suggs from Captain Willie Hughes of the West Jefferson Correctional Facility some three weeks previously.

On Saturday, September 12, Sgt. Horton again went to the marina. The houseboat was gone, but a Lincoln automobile bearing a Mississippi license plate was parked about 20 yards from the dock where the houseboat had been. This car was registered to Mewbourn. Horton had personally observed this same automobile parked at Suggs' residence on prior occasions.

Horton checked the marina at 7:20 a.m. and 5:10 p.m. on Sunday and at 9:15 a.m. and 2:00 p.m. on Monday and found the houseboat still absent and the Lincoln still parked near the dock. At 2:45 p.m. on Monday, he met again with his informant, who stated that Suggs and Mewbourn would return from Mobile that week and would have cocaine in their possession.

On Tuesday morning Sgt. Horton obtained a search warrant for the houseboat. ¹ At 12:45 p.m. Tuesday and 7:00 a.m. Wednesday, he checked the marina and found the scene unchanged. On Thursday morning Deputy Kilborn and FBI agents "flew the river looking for the boat with registration number Alabama 4967SB." This boat was located "approximately thirty miles north of Mobile headed north." Sgt. Horton checked the marina at 6:30 a.m. and 5:00 p.m. on Friday and found no change. He met with his informant again on Saturday morning at 7:40 a.m. The informant stated that he had learned that Suggs and Mewbourn would return to the marina that day. At no time during the three meetings with Horton did the informant ever specify the quantity of cocaine which Suggs and Mewbourn would have or the type of container(s) in which the cocaine would be transported.

At 11:35 a.m. on Saturday, Sgt. Horton and Deputy Kilborn observed the houseboat enter the Holt Lock and Dam near Tuscaloosa. On the boat were Suggs, Mewbourn, and Billy Dill. Horton and Kilborn then drove to Lock 17, where they observed the arrival of the houseboat at 3:45 p.m. At 6:30 p.m., the houseboat "got completely through Lock 17" and was thereafter followed up the river to the marina by Deputy Billy James and another officer in a fishing boat.

After the houseboat docked, Deputy James observed Mewbourn step off the boat carrying a blue suitcase, which he placed on the dock. Mewbourn then backed the Lincoln down to the dock. Dill placed some coolers and fishing rods on the dock and Suggs placed a suitcase and an orange thermos on the dock. Mewbourn and Dill loaded these items into the Lincoln while Suggs locked the houseboat. All three men then got into the Lincoln, with Mewbourn in the driver's seat. As the Lincoln began to move, 15 officers (one Customs official, four FBI agents, and ten Jefferson County deputy sheriffs), some with guns drawn, converged on the vehicle and ordered the three occupants to exit the car. The search warrant for the houseboat was served on Suggs, and both the boat and the Lincoln were searched. No controlled substances were found on the houseboat. However, cocaine and marihuana were found in the Lincoln. The marihuana was found in the blue suitcase which Mewbourn had placed in the back seat of the car, and the cocaine was found in the orange thermos located in the trunk.

I

The defendants argue that the warrantless search of the car violated their Fourth Amendment rights. We disagree.

"It is well established that, although the Fourth Amendment prohibits only unreasonable searches, all searches without a warrant are deemed per se unreasonable unless they fall within certain recognized exceptions to the warrant requirement." McClellan v. State, 415 So.2d 1238, 1239 (Ala.Cr.App.1982). One of the recognized exceptions is the automobile or vehicle exception. First set forth by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the rationale behind this exception was discussed at length in California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985):

"[A]lthough ready mobility alone was perhaps the original justification for the vehicle exception, our later cases have made clear that ready mobility is not the only basis for the exception. The reasons for the vehicle exception, we have said, are twofold. [South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976) ]. '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.' Ibid.

"Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception. See, e.g., Cady v. Dombrowski, [413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) ]. In some cases, the configuration of the vehicle contributed to the lower expectations of privacy.... But even when enclosed 'repository' areas have been involved, we have concluded that the lesser expectations of privacy warrant application of the exception....

"These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways. Cady v. Dombrowski, supra, 413 U.S., at 440-441, 93 S.Ct., at 2527-2528. As we explained in South Dakota v. Opperman, an inventory search case:

" '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 violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.' 428 U.S., at 368, 96 S.Ct., at 3096.

"The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, 'individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate's prior evaluation of those facts.' [United States v. Ross, 456 U.S. 798, 806 n. 8, 102 S.Ct. 2157, 2163 n. 8, 72 L.Ed.2d 572 (1982) ]. In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.

"When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes--temporary or otherwise--the two justifications for the vehicle exception come into play. First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable."

Carney, 471 U.S. at 391-93, 105 S.Ct. at 2069-70 (emphasis added, footnote omitted).

In the present case, the Lincoln was found stationary in a place not regularly used for residential...