Payton v. State

• Citation: 47 Ala.App. 347,254 So.2d 351
• Decision Date: 02 November 1971
• Docket Number: 3 Div. 53
• Parties: Billy PAYTON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 351

254 So.2d 351

47 Ala.App. 347

Billy PAYTON v. STATE.

3 Div. 53.

Court of Criminal Appeals of Alabama.

Nov. 2, 1971.

L. H. Walden, Montgomery, for appellant.

MacDonald Gallion, Atty. Gen., and Jasper B. Roberts, Asst. Atty. Gen., for the State.

ALMON, Judge.

Appellant was convicted in the Circuit Court of Autauga County of grand larceny and sentenced to six years in the penitentiary. From that judgment he appeals.

The evidence showed that appellant and two other men, Robert L. Combs and Ronald Butler, were stopped and arrested in the City of Montgomery by Montgomery City Police acting on a police radio dispatch. The police officers found two rifles and two shotguns in the rear floorboard of appellant's automobile and approximately forty or fifty other similar type guns in the trunk. At no time during the arrest or search of appellant's automobile trunk did the police officers have either an arrest or search warrant. These rifles and shotguns, etc., were later identified as those taken from a hardware store in Prattville.

Before trial appellant moved to suppress evidence of the guns contending that the arrest and search were illegal. At the hearing on appellant's motion to suppress, the evidence tended to show that the day after the guns were reported stolen in Prattville, Officer Cecil H. Humphrey of the Montgomery Police Department received a telephone call from an informer. This informer told Officer Humphrey that three men, one named Butler and two others who used to be policemen, were en route to Fleming Road in Montgomery with four guns in the automobile, two rifles and two shotguns, and approximately forty to fifty guns in the trunk. The informer told Officer Humphrey that he had actually seen the guns in the automobile. He further stated that these men would be in a pink Ambassador automobile and gave the license tag number.

Officer Humphrey testified that the informer had given him reliable information on four or five different occasions and that the information had led to subsequent convictions in court. Acting on this information Officer Humphrey caused a police radio dispatch to be issued calling for the arrest of the occupants of this particular automobile.

Officers Luther M. Mears and Tom Lenyo, acting in response to the radio dispatch, apprehended appellant, Robert Combs and Ronald Butler near the intersection of Court Street and Fleming Road. They were in a 1965 pink Rambler. Officer Mears ordered appellant and his two companions out of their automobile and immediately placed them under arrest. In the process he observed two rifles and two shotguns on the rear floorboard of appellant's automobile. Soon thereafter Officer Humphrey and another police officer arrived at the scene of the arrest and after a conversation Officer Humphrey asked appellant if it would be all right if he looked in the trunk of the automobile, to which appellant replied, 'The keys are in the switch.' The search of the trunk revealed forty or fifty guns, identified as those stolen from a hardware store in Prattville.

The evidence further showed that the appellant was a former member of the Montgomery Police Department and knew both Officers Mears and Humphrey. At one time he was on the same shift with Mears and that Mears was familiar with appellant's automobile.

The appellant, Robert Combs and Ronald Butler each testified at the hearing on the motion to suppress the evidence. Their testimony was to the effect that they had bought the guns in question for $750.00 and were attempting to make a sale. Each denied being involved in the taking of the guns from the hardware store. All three testified that Officer Humphrey did not ask permission to look in the trunk of the automobile.

Hearsay information from an unidentified informer may be the basis for a finding of probable cause provided some of the underlying circumstances from which the informer concluded the stolen guns were in appellant's possession and further provided there is some basis for determining that the information is reliable. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Here a reliable informer, who had previously furnished police with information on four or five different occasions which subsequently led to convictions, reported to the police that he had just seen the stolen guns in appellant's possession and gave details as to exact location of the guns in the automobile and where appellant and his companions could be located.

Moreover, where the initial impetus for an arrest is an informer's tip, information gathered by the arresting officers can be used to sustain a finding of probable cause. This additional information acquired at the time of arrest must in some way however be corroborative of the informer's tip. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Clenney v. State, 281 Ala. 9, 198 So.2d 293.

When Officer Mears and his companion arrested appellant and when Officer Humphrey, who caused the radio dispatch to be issued, arrived at the scene of the arrest certainly the situation they observed there was exactly as the informer said it would be.

We conclude there was ample probable cause to arrest appellant without a warrant. Tit. 15, § 154, Code of Alabama, 1940.

There is of course no problem whatsoever with the seizure of the four guns on the rear floorboard of app...