R.W. v. State

• Decision Date: 13 May 2005
• Docket Number: CR-03-1801.
• Citation: 913 So.2d 505
• Parties: R.W. v. STATE of Alabama.
• Court: Alabama Supreme Court

913 So.2d 505

R.W. v. STATE of Alabama.

CR-03-1801.

Court of Criminal Appeals of Alabama.

January 28, 2005.

Rehearing Denied March 4, 2005.

Certiorari Denied May 13, 2005 Alabama Supreme Court 1040888.

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Tobie J. Smith, Birmingham, for appellant.

Troy King, atty. gen., and Nancy M. Kirby, deputy atty. gen., for appellee.

SHAW, Judge.

R.W. was adjudicated delinquent on the underlying charges of unlawful possession of marijuana in the second degree, a violation of § 13A-12-214, Ala.Code 1975, and carrying a concealed weapon (i.e., a pistol) without a license, a violation of § 13A-11-73, Ala.Code 1975. He was placed on probation and was ordered to complete the HIT ("High Intensity Training") program. Before pleading true to the charges, R.W. expressly reserved the right to appeal the juvenile court's denial of his motion to suppress both the pistol and the marijuana.

At the suppression hearing, Steve Drummer, a patrol officer with the Birmingham Police Department, testified that on June 25, 2004, a radio dispatcher notified him and three other officers that a report had been received that several young men were using illegal drugs on the porch of a residence in southwest Birmingham.¹ Officer Drummer stated that the area in which the residence was located was a high-crime area known for "a lot of drug activity" and that recently there had been a lot of burglaries in the area as well. (R. 17.) According to Officer Drummer, in the seven to eight months before this incident, he had made arrests and had participated in criminal investigations in that area on numerous occasions, although never at the particular residence involved in this incident. However, Officer Drummer said that approximately one block from the residence involved in the report was a residence well known as a place where "crackheads" congregate "to smoke their drugs." (R. 17.)

Officer Drummer testified that when he and the other officers arrived at the residence, four to five young males were sitting on the front porch of the residence, one of whom was R.W. Officer Drummer stated that he got out of his police car and walked up the driveway, positioning himself on the side of the porch, while the other officers approached the men and began talking to them about the report of drug activity. Officer Drummer testified that all of the men on the front porch were "fidgeting" and "were nervous about something," which, he said, indicated "[t]hat something is going on, some kind of activity is going on" (R. 19), but that it was not unusual for young males to be nervous when approached by four police officers. With respect to R.W., Officer Drummer stated that although R.W. appeared to be nervous about something — he said R.W. was initially "leaned over" with "his hands up under his shirt" and that R.W. then "put his hands down" (R. 8) — R.W. made no "furtive" movements and it was not his impression that R.W. was trying to hide something. (R. 10.)

While at the scene, Officer Drummer said, the officers found a "roach," i.e., the end of a burnt marijuana cigarette, in a flowerbed near the porch. Officer Drummer did not testify as to who found the "roach" or exactly when it was found; he only stated that the "roach" was found before the officers began conducting patdown searches of the men on the porch. Officer Drummer testified that when the officers began patting down the men on the porch, he instructed R.W. to come to him and turn around so that he could conduct a patdown of R.W. Officer Drummer explained:

"[R.W.'s counsel]: Did you say anything to [R.W.]?

"[Officer Drummer]: I asked him to stand up and walk to me which he did. He did comply with that.

"[R.W.'s counsel]: And what was your purpose in asking him to walk to you?

"[Officer Drummer]: Because at that time the other officers were dealing with the other suspects. And I called him to me which he — like I said, he stepped off the porch and walked toward me. When he came to me, I asked him to turn around. I had not put my hands [on] him to pat search him yet or anything.

"[R.W.'s counsel]: May I return to the question I just asked though. What was your purpose when you called him to you?

"[Officer Drummer]: Because of the other suspects were being called to be pat searched and no one had got to him yet. So, I called him to me.

"[R.W.'s counsel]: So you could pat search him?

"[Officer Drummer]: So I can pat search him.

"[R.W.'s counsel]: So, at the time that you instructed [R.W.] to stand up and come toward you, it wasn't so you could question him about the drug activity you had heard about, is that correct?

"[Officer Drummer]: That question had already been stated by other officers before I said anything to him.

"[R.W.'s counsel]: Were you aware of anything revealed during that questioning that would — any facts that were indicated during that questioning that would suggest that [R.W.] was in possession of contraband or a weapon?

"[Officer Drummer]: As far as him being in possession, no. But as far as him being at that place where drug activity was going on, yes, because an officer had already questioned those other guys and they had found what they call on the street a roach. Like, you know, someone had been smoking marijuana over there.

"[R.W.'s counsel]: So, your decision to call him to you so that you could conduct a patdown search of him was based on basically the fact that he was present at a place where you had reason to believe drug activity was going on?

"[Officer Drummer]: Basically, I called him to me — Like I said, the other officers had the other suspects, for my safety to pat search him and their safety also. I was not going to let him sit there while everybody else got pat searched and nobody paying attention to him. Ain't no telling what would have happened.

"[R.W.'s counsel]: So, at that moment would it be accurate to say that you did not have any strong real suspicion that [R.W.] had a weapon on him? You wondered whether he might and were concerned that he might, but you didn't actually suspect at that time, is that correct?

"[Officer Drummer]: No, I did not."

(R. 10-12.) Later, Officer Drummer testified as follows regarding the reason for conducting the patdown:

"[Prosecutor]: So, when you got there you discussed the defendant having his hands under his shirt and he appeared to be nervous?

"[Officer Drummer]: Yes, ma'am.

"[Prosecutor]: Is that what prompted you to do a weapons patdown?

"[Officer Drummer]: That's what prompted me because not just him but all the other suspects were — like I said, as we say on the street, fidgeting. They were nervous about something.

"[Prosecutor]: And in your experience nervousness equates to what?

"[Officer Drummer]: That something is going on, some kind of activity is going on.

"[Prosecutor]: Okay. So, all the other people you said were being patted down and the other officers had already found a roach on the porch, is that right?

"[Officer Drummer]: They found it on the — it was like a little — where they had flowers — where it used to be flowers, it was over in that area which was right in front of me. I was in the driveway.

"[Prosecutor]: So there was already — by the time you called [R.W.] to be searched — to be patted down there was already a discovery of drug paraphernalia or drugs?

"[Officer Drummer]: Yes, ma'am."

(R. 18-19.)

Officer Drummer testified that after R.W. came off the porch and turned around as instructed, he immediately saw a weapon in the back pocket of R.W.'s shorts. Officer Drummer said that R.W. was wearing denim shorts that were very baggy with large back pockets; that although R.W.'s T-shirt was not tucked into his shorts, it was not covering his back pockets; and that the weapon was plainly visible inside the pocket once R.W. turned around. At that point, Officer Drummer said, he seized the weapon, secured it, and placed R.W. under arrest. Incident to that arrest, Officer Drummer searched R.W.'s person and found two bags of marijuana in the right front pocket of his shorts.

On appeal, R.W. contends that the juvenile court erred in denying his motion to suppress both the pistol and the marijuana for several reasons. First, R.W. argues that the juvenile court's finding that the pistol was in plain view before the patdown was conducted was erroneous because, he says, the patdown effectively began when Officer Drummer ordered him to come off the porch and turn around to submit to the patdown. The fact that Officer Drummer had not physically patted him down before the gun was discovered, R.W. argues, does not mean he had not been seized within the meaning of the Fourth Amendment. Second, R.W. argues that the juvenile court's finding that Officer Drummer was justified in patting him down was erroneous because, he says, Officer Drummer had no reasonable suspicion that he was armed or engaged in criminal activity and, thus, the discovery of the pistol was illegal. Third, R.W. argues that because the patdown and discovery of the pistol were illegal, his arrest was illegal, and the marijuana found during the search of his person incident to that arrest was "fruit of the poisonous tree."

Initially, we note that the standard of review in this case is de novo because the evidence at the suppression hearing was undisputed; Officer Drummer was the only witness to testify at the hearing, see State v. Hill, 690 So.2d 1201 (Ala.1996), and Barnes v. State, 704 So.2d 487 (Ala.Crim.App.1997), and no facts were presented at the suppression hearing that conflicted with or undermined his testimony, see State v. Ivey, 709 So.2d 502 (Ala.Crim.App.1997).

We find it unnecessary to determine whether the juvenile court's finding that the pistol was discovered in plain view before the patdown was conducted was correct. Assuming, for the purposes of this appeal, that the patdown effectively began when Officer Drummer ordered R.W. to come off the porch and turn around, as R.W. argues, w...