Murray v. State

• Citation: 396 So.2d 125
• Decision Date: 25 November 1980
• Docket Number: 8 Div. 301
• Parties: Thomas Martin MURRAY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 125

396 So.2d 125

Thomas Martin MURRAY v. STATE.

8 Div. 301.

Court of Criminal Appeals of Alabama.

Nov. 25, 1980.

Rehearing Denied Jan. 20, 1981.

Jerry R. Knight of Hardwick, Knight & Belser, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

BOOKOUT, Judge.

Appellant was adjudged guilty of felony possession of marijuana. At a subsequent probation hearing, the trial judge sentenced him to a term of six years in the penitentiary. The sentence was reduced to three months in the county jail at hard labor with a suspension of the balance of the six year term. The trial judge also placed the appellant on probation for five years and fined him $5,000. Because the key issue in this case involves the warrantless search of the appellant's automobile, it is necessary to go into the facts and circumstances leading up to and surrounding the search.

On the morning of July 19, 1978, Robert Grant, a Hartselle police officer assigned to the Morgan County Drug Unit, received a telephone call from an unidentified female informant. The anonymous caller told him that Thomas Martin Murray from St. Petersburg, Florida, was in the Decatur area transporting and selling large quantities of marijuana. She apprised Officer Grant that appellant would be driving a 1973 Mazda automobile containing approximately 100 pounds of marijuana. She further identified two local buyers: John Strome and an undisclosed person who was still under investigation by law enforcement agencies at the time of trial. She did not explain to Officer Grant how she secured her information. Grant admitted that the unidentified female informer had never tipped the police before and did not know prior to appellant's arrest whether she was a habitual liar or whether she was a trustworthy, credible person.

Immediately following the informant's call, Grant telephoned the St. Petersburg police narcotics division. He spoke with Detective Jim Rainey who informed him that the appellant had been under investigation since 1974 for narcotics trafficking. However, Detective Rainey did not confirm appellant's ownership of a Mazda automobile and failed to recognize the names of the two Decatur buyers revealed by the informant.

Neither the appellant, Strome, nor the undisclosed buyer was under investigation by Decatur authorities before this telephone tip although the undisclosed buyer was a suspect in other illegal activities. Later, on the same day, Grant did verify the undisclosed buyer's address furnished by the unidentified informant.

At approximately 9:30 a. m. on July 20, 1978, Deputy Walter Price of the Morgan County Sheriff's Department received a telephone call from an unidentified female informant. Officer Grant was in his office when the call came in, and it was Deputy Price's opinion that the same woman placed both of those calls. She related that the appellant lived at 406 Bradley Street, S.W., in Decatur, and that he drove a 1973 Mazda automobile with blue tinted windows. She disclosed that the appellant had arrived in the Decatur area the night before and would depart around noon that day en route to Florida with a large quantity of marijuana in the trunk of the car. She told the deputy sheriff that Strome owned a white Honda automobile and worked at Champion Paper Company. She also gave an approximate address of both Strome and the undisclosed buyer. Deputy Price conceded that he did not know the identity of the informer and had never spoken with her before this particular telephone call. He had never heard of John Strome or the appellant until Officer Grant recounted his telephone conversation of the day before to him.

After the second telephone tip, Deputy Price and Officer Grant proceeded to the Bradley Street address where they observed a white Honda, a gold Ford Fiesta, and a blue Mazda with blue tinted windows parked in the front yard. They ran a registration check on the license plate of the Mazda which revealed that the automobile was registered to Thomas Martin Murray residing at 406 Bradley Street, S.W., Decatur, Alabama. Around 10:00 a. m. they set up a surveillance of the residence accompanied by Jim Cox and Tom Little of the Alabama Alcoholic Beverage Control Board and Decatur policeman Ed Taylor.

At 11:30 a. m. a woman with a small child walked out of the house and drove away in the gold Ford Fiesta. A few minutes later the appellant emerged from the house and removed two large bags of dog food from the trunk of the white Honda and leaned them against the closed garage door. He also took out a small brown paper bag and carried it to the blue Mazda. He then got under the car and lay there for a few minutes appearing "to be doing something under the front end of the Mazda." Then he got up, put the paper bag into the trunk of the Mazda, opened the garage door, placed the dog food inside the garage, and went back inside the house. Shortly after noon the appellant appeared outside again, closed the trunk of the Mazda, and walked to the next-door residence of an off-duty deputy sheriff to help him start his car. After a short time he returned to his residence and, just as appellant started to go inside the house, the woman and child reappeared in the gold Ford Fiesta, and he walked back into the yard. Another man, identified later as John Strome, came out of the house and stood by his car while he watched the appellant turn the Mazda around and back the vehicle partially into the garage. The surveillance team saw the appellant moving around the open trunk in the rear of the garage before he closed the trunk. Then both men went inside the house. At 12:55 p. m. they both walked outside again. Appellant procured a Doberman pinscher from his back yard, put the dog in the back seat of the Mazda, and drove away.

Agent Cox radioed this information to the other investigators. Agent Little and Officer Taylor began following the appellant's vehicle as soon as it left Bradley Street. A few miles away, on Highway 67 in Morgan County two turnoffs before reaching I-65, they turned on the blue light and stopped the appellant. The appellant pulled off the road and walked to the back of his automobile where the police vehicle had stopped. Appellant gave the officers his Florida driver's license upon their request, although they never told the appellant why they were stopping him.

Deputy Price drove up and, after identifying himself, asked the appellant if he could search the Mazda. Deputy Price admitted that the appellant answered, "I would rather you wouldn't," but, nevertheless, the deputy sheriff walked to the driver's side of the car to take the keys out of the ignition. He considered the large Doberman pinscher in the back seat and inquired whether the dog would bite, whereupon the appellant said that it would. The appellant then reached in the car himself and removed the keys and handed them to the deputy. Deputy Price opened the trunk and discovered an 18 X 20 , 40 pound cube of plant material which appellant's counsel stipulated at trial was marijuana. Deputy Price then placed the appellant under arrest for felony possession of marijuana.

At the conclusion of the State's case, appellant's motion to exclude the evidence on the ground the State failed to prove a prima facie case was denied. Appellant rested his case without testifying and without presenting any witnesses on his behalf.

Appellant contends that the trial court committed reversible error by admitting into evidence, over objection, testimony and physical evidence which were the "fruits" of an illegal warrantless search of his automobile.

It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is "per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Those exceptions are succinctly set out in Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973):

"(1) In 'plain view,' see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);

"(2) With 'consent' voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);

"(3) As 'incident to a lawful arrest,' see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);

"(4) In 'hot pursuit' or 'emergency' situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947); State v. Sutton (Mo.1970) 454 S.W.2d 481;

"(5) Where 'exigent circumstances' exist coincidental with 'probable cause' (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and,

"(6) In 'stop and frisk' situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)." (Footnote omitted.)

Because the search at issue in this case was conducted without a warrant issued upon probable cause, it can pass constitutional muster only if it is shown that it falls within one or more of the above exceptions. The burden is on the State to make such a showing. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Gaioni v. Folmar, 460 F.Supp. 10 (D.C.Ala.1978); Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520 (1970); Adair v. State, 53 Ala.App. 251, 298 So.2d 671 (1974); Kelley v. State, 55 Ala.App. 402, 316 So.2d 233 (1975); Minnifield v. State, Ala.Cr.App., 390 So.2d 1146 (1980). The State argues that the case sub judice falls within both the consent exception and the probable cause/exigent circumstances exception to the warrant requirement.

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