Racine v. State

• Decision Date: 25 September 1973
• Docket Number: 1 Div. 170
• Parties: Charles Edward RACINE, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 890

286 So.2d 890

51 Ala.App. 484

Charles Edward RACINE, Jr. v. STATE.

1 Div. 170.

Court of Criminal Appeals of Alabama.

Sept. 25, 1973.

Rehearing Denied Oct. 16, 1973.

Jasper B. Roberts, Montgomery, for appellant.

William J. Baxley, Atty. Gen. and Herbert H. Henry, Asst. Atty. Gen., for the State.

ALMON, Judge.

Appellant was convicted of possessing marijuana and subsequently sentenced to a ten year prison term.

Mobile Police Officer Charles Stuart, while patrolling an upper-class residential neighborhood, spotted appellant and one Paul Wesley Gentry, the driver, riding in an old automobile with loud mufflers. Appellant and companion each had long hair and appellant had a 'straggly beard.' The streets through the neighborhood were lightly travelled; the hour was late, 11:30 P.M.; and Officer Stuart, thoroughly familiar with habitual travelers through the neighborhood, surmised that appellant and companion were non-residents of the neighborhood. The facts permit the reasonable inference that Officer Stuart was motivated by suspicion when he 'put the blue light' on the automobile in which appellant was riding.

After the blue police light was energized, Gentry stopped his automobile and he and appellant alighted and walked toward the police car; whereupon, Gentry and appellant respectively displayed a driver's license and a draft card in response to Stuart's request for identification. Stuart then radioed police headquarters in an effort to determine whether or not any warrants concerning either of the two 'suspects' were outstanding. During the radio conversation, appellant ran to the Gentry automobile, retrieved therefrom a plastic bag and commenced a hasty retreat, during which he proceeded to empty contents from the bag. Soon thereafter, Stuart apprehended appellant by 'grabbing his arm' contemporaneous with which the bag 'fell' to the ground. Stuart picked up the bag and appellant spontaneously declared, 'There's nothing around here for miles now, man.'

Appellant and Gentry were taken to police headquarters where appellant was booked for vagrancy. Gentry was booked for carrying a concealed weapon.

The State made a proper showing of the chain of custody of the plastic bag and its contents, which culminated in an analysis by State Toxicologist Nelson Grubbs. Grubbs testified that the bag contained five milligrams of marijuana.

I

Appellant's plea of autrefois acquit lacked merit. The record shows that appellant was charged with vagrancy and, at some point in the prosecution, the State moved to have the case nol prossed. Whether jeopardy had attached need not concern us. Assuming arguendo that appellant had been placed in jeopardy on the vagrancy charge, we hold that former jeopardy is not an apt defense. The law is well settled that a plea of autrefois acquit is unavailing unless the present offense is precisely the same in law and fact as the former offense. Blevins v. State, 20 Ala.App. 229, 101 So. 478, cert. denied Ex Parte Blevins, 211 Ala. 615, 101 So. 482; Smith v. State, 256 Ala. 445, 55 So.2d 208.

Vagrancy, albeit an overbroad offense, is not constituted by possession of contraband. Vagrancy and possession of marijuana are not concentric offenses but are separate and distinct breaches of criminal responsibility. Neither is a lesser included offense of the other. Tit. 14, § 437, Code of Alabama 1940.

II

We next concern ourselves with the admissibility of evidence obtained subsequent to the 'stop' of the automobile. An investigatory detention, though technically a seizure of the person, may be based upon circumstances falling short of probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. It is incumbent upon us to pass upon the propriety of the 'stop' in light of the standards of Terry.

Officer Stuart had patrolled this particular residential neighborhood each night for more than a year next preceding the incident in question. He testified that he had become thoroughly familiar with the motorists who regularly travelled through the neighborhood; that the appellant and companion were strangers to the area; and, that he was under standing orders from his superiors to 'stop and check' suspicious individuals. In an attempt to bolster Stuart's reasonable cause to initiate the 'stop,' the State attempted during the following colloquy to show a rash of neighborhood burglaries which preceded appellant's detention:

'Q. Had they had any trouble that you had knowledge of in that area at that particular time . . .

'MR. HAAS: Object to that . . .

'MR. CLAY: Of course, Your Honor, it's on voir dire and I think the . . .

'THE COURT: Overrule.

'MR. HAAS: We except.

'MR. CLAY: What type of trouble had you had in that area?

'MR. HAAS: He never answered the question. I object to this question.

'MR. CLAY: Are you familiar with any specific crimes that have been committed in that area?

'MR. HAAS: Object.

'MR. CLAY: Are you familiar with the fact that there were a number of burglaries committed in the area at that time?

'MR. HAAS: He is leading the witness.

'THE COURT: Well, I never did have an opportunity to rule on the second objection you made concerning the crimes. Was that the question?

'MR. CLAY: Yes, sir.

'THE WITNESS: Committed in this area?

'MR. CLAY: Your Honor, if I might make a showing as to what I intend to show by Officer Stuart--I assume that the question will be raised by Mr. Haas--, but rather than go too far with the matter and have the Court rule on it in advance, I intend to show that he was patrolling in this particular area where they had had a number of burglaries in this particular neighborhood, that he was aware of this, and had been under orders to be under particular close scrutiny in this neighborhood, that he was doing this on the 24th of March and that he was familiar with the cars that generally came in and out of this rather quiet residential area, and on this particular occasion, saw an older model automobile with the Defendant and another friend of his, long-hair types. There again is the grounds with the other information he had, plus the late hour of night, to give him sufficient cause and reasonable suspicion to stop these individuals. That would be the intention of my showing these other matters, and I think it is proper in this particular instance to even go into hearsay matters to determine whether he had reasons sufficient to stop these people.

'MR. HAAS: Can we proceed on a question and answer basis? I am willing to 'THE COURT: Well, I think all the State was doing was stating what he hoped to show. Of course, the jury is outside so it has no effect on them. Go ahead and ask on each individual question what you want to, Mr. Clay. Then, Mr. Haas, if you have any objection to each individual question, you should make it at that time.

'MR. CLAY: All right. You stated that you had worked in this same are for a period of a year, approximately, prior to that time?

'A. Yes, sir.

'Q. From your working out there, were you generally familiar with the automobiles that you saw in that area?

'A. Yes, sir.

'Q. And had there been any particular problems, any crimes committed, to your knowledge, in that area?

'MR. HAAS: Object to that; immaterial and irrelevant.

'THE COURT: I am going to sustain the objection.

'MR. CLAY: Your Honor, of course, I will submit to the Court that this is material as to whether he had reasonable grounds to stop this man. Assuming that he is going to object to it, which I would think Mr. Haas knows I would have to show all of these things to show that the man had reasonable grounds to stop this individual . . .

'THE COURT: Well, you asked him--I believe your question was, had there been any particular crimes. Is that right?

'MR. CLAY: To his knowledge.

'THE COURT: I am going to sustain the objection as to the way the question is worded.' (R. 60--62)

We hold the proffered testimony to have been admissible during the in-camera proceedings to establish reasonable grounds for the 'stop.' The prosecution made no contention that the proffered evidence was admissible during the trial in chief and, indeed the evidence was admissible for no purpose other than establishing the reasonable cause to justify the investigatory stop.

Even without the benefit of the proffered evidence, the trial court was justified in inferring that the neighborhood had been infested with...