Oliver v. State, 8 Div. 160

CourtAlabama Court of Criminal Appeals
Citation479 So.2d 1385
Docket Number8 Div. 160
PartiesZollie Donnis OLIVER v. STATE.
Decision Date20 August 1985

Larry C. Odom, Red Bay, for appellant.

Charles A. Graddick, Atty. Gen., and Glenn L. Davidson, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Zollie Donnis Oliver, was indicted by the November 1983 term of the Franklin County Grand Jury for possession of 197.4 grams of marijuana. On February 8, 1984, a jury was struck and sworn, after which a hearing on appellant's motion to suppress was held outside the presence of the jury. At the conclusion of this hearing the court declared a mistrial due to the absence of a witness who was scheduled to testify for both the State and appellant. On May 11, 1984, another jury was empanelled and a trial was held. Appellant was found guilty as charged in the indictment. On May 14, 1984, the court sentenced appellant to eighteen years in the penitentiary and fined him $10,000, upon application of the Habitual Felony Offender Act. This appeal followed.

Appellant first contests the lawfulness of the search and seizure of six bags of marijuana found on appellant's person, and ten bags of marijuana found in a "cooler" at appellant's feet. The State argues that the search and seizure fall with the purview of the plain view doctrine.

Deputy Robert Hill, part-time employee of the Sheriff's Department, testified that he and Deputy Harry Hubbard spotted a blue van while out on patrol. They had previously received a report of a van being driven recklessly in the area, but were in that area in response to an unrelated call. They followed the van for approximately one-half mile and observed erratic driving, more specifically, that the vehicle was driving down the center of the road and "not on his side." Hill acknowledged that the road was filled with potholes and somewhat rough, but these factors were taken into consideration before the decision was made to stop the van. After stopping the vehicle, Hubbard spoke with the driver, Tim Oliver, appellant's son, and Deputy Hill approached from the passenger side and spoke with appellant. As Hill approached, he observed beer cans and a styrofoam cooler, with the side broken off, in the back of the van. 1

As Hill spoke with appellant, he observed a clear plastic bag protruding from around appellant's waist. Hill observed a green leafy material in the bag, which he recognized as marijuana. Hill subsequently removed the bag and asked appellant to step out of the van. A search of appellant's person revealed the presence of five more bags of marijuana. Hill then opened the cooler, which was located at appellant's feet in the van, and discovered ten more bags of marijuana. Appellant and his son were then arrested for illegal possession of alcohol and the officers told appellant and his son that one or both of them would be charged with possession of marijuana when they discovered "who the marijuana belonged to."

We find that the seizure of marijuana from appellant's person was justified under the "plain view" exception to the warrant requirement and that the seizure of marijuana located in the van was justified under the "exigent circumstances coincidental with probable cause" exception. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). "Each exception has its own applicability to a given set of fact situations involving warrantless searches.... Each must be separately analyzed and supported by their own guidelines in order to justify a warrantless search." Sterling v. State, 421 So.2d 1375, 1380 (Ala.Crim.App.1982). A list of exceptions to the warrant requirement is stated in Daniels and Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980), aff'd, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1983).

The "plain view" exception to the warrant requirement permits a warrantless seizure of evidence if "the seizing officer (1) has prior justification for the intrusion, (2) comes upon the evidence inadvertently, and (3) immediately recognizes the object discovered as evidence of wrongdoing." Myers v. State, 431 So.2d 1342, 1344 (Ala.Crim.App.1982), writ quashed, 431 So.2d 1346 (Ala.1983); Spann v. State, [Ms. 4 Div. 382, June 11, 1985] (Ala.Crim.App.1985). Appellant argues that reliance on an anonymous tip does not justify the stopping of his vehicle. The testimony of Hill and Hubbard clearly shows that the van was stopped due to its being erratically driven to such an extent that the deputies suspected the driver of being intoxicated. The officers were clearly justified in stopping the vehicle to investigate a possible traffic violation, which they had probable cause to believe was occurring, based on their observations. There is nothing in the record to suggest that Hill was searching for marijuana when he approached appellant and observed the bag in the waistband of appellant's pants. Hill was merely assisting Hubbard. When Hill observed the plastic bag he noticed a green leafy material which he recognized as marijuana. The trial court specifically questioned Hill concerning his ability to identify marijuana and was apparently satisfied with his credentials, as we are. Thus, the State has proven all the elements necessary to justify a warrantless search of appellant's person based on the plain view exception to the warrant requirement. See Herrin v. State, 349 So.2d 103 (Ala.Crim.App.), cert. denied, 349 So.2d 110 (Ala.1977). There is nothing, however, to suggest that the marijuana contained in the cooler was open to the view of Hill as he spoke with appellant. This second seizure must therefore be sustained on other grounds.

The "exigent circumstances coincidental with probable cause" exception to the warrant requirement expressed in Carroll v. United States, supra, authorizes the warrantless search of a vehicle when the police initially have probable cause to believe that the vehicle contains contraband or evidence of a crime, and if exigent circumstances exist. See Spann. Hill clearly had probable cause to authorize a search of the vehicle based upon his lawful observation of marijuana on appellant's person. In Sterling, 421 So.2d at 1381, this court stated, "Once evidence of marijuana is lawfully observed by a police officer in any part of the automobile, the entire vehicle, including the trunk may be searched." See also Ross v. United States, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Jones v. State, 432 So.2d 19 (Ala.Crim.App.1983). Having sufficient probable cause to search the vehicle, there was no error in Hill's opening the cooler to determine its contents. The court in Ross, 456 U.S. at 823-825, 102 S.Ct. at 2172-2173, clearly defined the limits of a search authorized by the Carroll exception, stating:

"The scope of a warrantless search based on probable cause is no narrower--and no broader--than the scope of a search authorized by a warrant supported by probable cause. Only the prior approval of the magistrate is waived; the search otherwise is as the magistrate could authorize.

"The scope of a warrantless search of an automobile ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found.

"....

"... If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search."

The object of the search in the case at bar was marijuana, which could easily have been, and was, concealed in the cooler located at appellant's feet. A warrant issued by a magistrate would have authorized a search of the cooler, as a place "in which there is probable cause to believe that it may be found."

Probable cause having been shown to exist, there must also be a showing of exigent circumstances. "Exigent circumstances exist whenever an object to be searched is mobile or moveable, such as an automobile." Spencer v. Town of Gordo, 389 So.2d 182, 184 (Ala.Crim.App.1980); see also Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Etheridge v. State, 414 So.2d 157 (Ala.Crim.App.1982); Rickman v. State, 361 So.2d 28 (Ala.1978). The State established that the cooler was located in the van at the time Hill opened it to determine its contents.

We hold that Hill's seizure of the marijuana was justified under the principles expressed above. We find no error in the trial court's ruling of admissibility as to this evidence.

II

Appellant next contends that double jeopardy considerations bar a second trial after a mistrial has been declared due to the absence of a witness required to be present at appellant's insistence. On February 8, 1984, a jury was struck and sworn to try this cause. A hearing on appellant's motion to suppress was held outside the presence of the jury. This motion was denied. At the conclusion of the motion to suppress proceedings, the trial court declared a mistrial due to the unavailability of Hubbard. The trial court stated:

"The State indicated prior to the discharge of the jury that they were ready to try the case without Mr. Hubbard as a witness. The Defendant requested Mr. Hubbard's presence. Based on the testimony that I have heard up until now on motion to suppress, there is a question as to whether or not Mr. Hubbard might be needed by the State, as well as by the Defense, but it is my understanding that the Defense was not ready to try the case without Mr. Hubbard. Is that correct?

"MR. ODEM (Defense counsel): That's correct.

"THE COURT: Neither one of you asked for a continuance, or asked the Court to do what the Court did, but it is my understanding that the Defense was not ready to try the case...

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