Reid v. State

• Decision Date: 16 October 1979
• Docket Number: 6 Div. 818
• Citation: 388 So.2d 202
• Parties: William Allen REID v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 202

388 So.2d 202

William Allen REID v. STATE.

6 Div. 818.

Court of Criminal Appeals of Alabama.

Oct. 16, 1979.

Rehearing Denied Nov. 20, 1979.

S. Palmer Keith, Jr. and F. Wayne Keith, Keith, Keith & Keith, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State, appellee.

TYSON, Judge.

The appellant was convicted for the robbery of a drug store and punishment was fixed by the jury at ten years in the state penitentiary. This appeal concerns the legality of a warrantless search of appellant's tool box on his pickup truck. Incriminating evidence was seized during the warrantless search and was introduced by the state over objection. We hold that the search was illegal within the parameters of the Fourth Amendment protection and that appellant's cause must be reversed and remanded for a new trial.

Larry Frank Doss, the state's first witness, testified that he was the owner of Doss Drugs in Morris, Alabama, and that at approximately 10:45 a. m. on April 1, 1976, the appellant came into his store and walked directly to the prescription counter. "He pulled back his jacket and took out a weapon and told me it was a holdup." A second individual then came in the drug store and walked over to the cash register where Mr. Doss' wife was standing. He, too, had a weapon.

The appellant then told Mr. Doss he wanted the narcotics, that "if I tried to set off any alarms or make any quick moves that I could be shot." Mr. Doss stated that he got the drugs for him, "some 50 milligram seconal capsules, some mepergan fortis capsules, some qualude tablets, some phenobarbital injections and some phenergan injection." These drugs were placed in a cardboard box and carried out along with approximately two hundred dollars cash from the cash register. After the narcotics and cash were taken, Mr. and Mrs. Doss were instructed to lie on the floor and not get up until the robbers were gone.

Mr. Doss testified that as he heard the car pull away he went to the door and tried to get a license number, but that the car was too far away. He did observe that the car was "gold or copper colored" and had what appeared to be a "leopard skin vinyl roof." Mr. Doss had seen the same automobile in front of the store immediately before the appellant entered the store. The get away car was headed in a southerly direction toward the point where Old Highway 31 intersects new Highway 31. Mr. Doss stated that he then called the Morris Police Department. The Kimberly Police arrived within five minutes, followed by the Morris Police and Jefferson County Sheriff's Department. Mr. Doss gave a description of the two robbers to the police.

Without question, the eyewitness testimony of Mr. Doss alone would have been sufficient to support the appellant's conviction for robbery. See Williams v. State, 367 So.2d 990 (Ala.Cr.App.); Arnold v. State, 348 So.2d 1092 (Ala.Cr.App.), cert. denied, 348 So.2d 1097 (Ala.1977). Each element necessary to support a robbery conviction was established. Gissendanner v. State, 338 So.2d 1025 (Ala.Cr.App.), cert. denied, 338 So.2d 1028 (Ala.1976); Tarver v. State, 53 Ala.App. 661, 303 So.2d 161 (1974).

However, the state did not rest at the conclusion of Mr. Doss' testimony, but proceeded to introduce the fruits of the robbery which the police subsequently recovered. The following evidence is pertinent to the illegal search of the appellant's tool box on his pickup truck which resulted in the seizure of contraband taken in the robbery. It is the introduction into evidence of this contraband which mandates a reversal of this cause.

James Nash testified he was a superintendent for the Pawnee Mining and Coal Service and was working in Morris the day of the robbery. He was working on a cut-off road straight across from where old Highway 31 intersects new Highway 31. Mr. Nash had seen a "green pickup truck with a DT tag" travel the cut-off road just prior to seeing some Jefferson County Sheriff's vehicles on the road. The truck also had a tool box on it and a CB antenna on the top of it. Mr. Nash had earlier seen the green pickup parked in a driveway along the cut-off road facing old Highway 31. The DT tag on the pickup was red and white and the tool box, which was sitting against the cab, was white. As Mr. Nash drove back down the road he noticed a "gold car" with a "checkered top" parked in the driveway where the green pickup had been. He later saw several county vehicles and police officers at the scene of the gold car. Mr. Nash stopped and had a conversation with the officers.

Sergeant George R. Munkus of the Jefferson County Sheriff's Department testified that on April 1, 1976, he received a radio broadcast concerning a robbery at Doss Drugs in Morris. He was working in the detective division, plain clothes, in the Center Point area. Sergeant Munkus stated that he proceeded toward Morris looking for a "copper or brown Cougar automobile", but received a radio description while in transit of a "green Ford pickup with red and white license plates with the letters DT." Sergeant Munkus testified that he turned around and subsequently located the pickup truck at approximately 11:30 a. m. in front of apartment 119-F, Center Crest Apartments in Center Point. He just had "a hunch" that appellant would be "staying in that area." Sergeant Munkus placed the vehicle under surveillance and called headquarters for backup units.

Sergeant Munkus testified, on voir dire and during his examination in chief, that from his surveillance position he observed three subjects, including the appellant, come out of apartment 119-F and one of the subjects move a '57 Chevrolet station wagon across the parking lot. The three subjects returned to the apartment and approximately three minutes later came out together a second time. This time one of the subjects proceeded to leave the apartment in the '57 station wagon. Sergeant Munkus next saw the appellant place "something" in the tool box of the green pickup truck. The appellant and the other subject then proceeded to leave in a pink Thunderbird. As the two vehicles left the apartment parking lot, "I radioed the patrol unit to stop these people and question them and bring them back around to the apartment."

Officer David Webster of the Jefferson County Sheriff's Department testified on voir dire that five to seven patrol cars had formed a blockade near the exit to the Center Crest Apartments and that approximately ten deputies were there when the three subjects were stopped as they were leaving.

Sergeant Munkus admitted that the three subjects were "in the custody" of the deputies when they were brought back around to the apartment, that the focus of investigation had "centered in on them." "I went over there and identified myself and told them I was investigating a robbery of a drug store and asked for identification." The three subjects were identified as the appellant, and Jimmy and Joseph Carlisle. "Q What happened at that point?

"A I asked who owned the truck and Mr. Reid said he did. Green Ford pickup."

"Q Did you ask Mr. Reid any other questions?

"A I asked him what he had placed in the tool box.

"Q What was his reply?

"A He said he had placed a box in the tool box.

"Q What happened at that point?

"A I said, 'what was in the box?', and he did not reply.

"Q Didn't say anything?

"A Did not."

The tool box was then unlocked. The evidence is controverted as to who actually unlocked the tool box, Sergeant Munkus or the appellant; however, Sergeant Munkus admitted that he raised the lid on the tool box.

"Q Was anyone there at the scene besides yourself, Allen Reid, Jimmy and Joseph Carlisle when you opened that box?

"A Sergeant Butler was there I know. There were numerous deputy sheriffs there."

"Q What happened at that point?

"A I looked in the tool box and observed a brown bottle, appeared to have assorted tablets and pills in it, and also a brown cardboard box.

"Q What happened then?

"A I advised the subjects they were under arrest for investigation for robbery."

"Q You actually arrested them for robbery then?

"A Investigation and charge of robbery and placed them under arrest, gave them their rights and handcuffed them at that time.

"Q So, you made an arrest incident to a search, is that correct?

"A After the search, yes, sir."

We find it unnecessary to recite further facts regarding the search of appellant's tool box. Suffice it to say that no warrant was obtained for this search, and, that the cardboard box containing the bottle of pills and tablets taken from Doss Drugs, state's exhibit 1, was subsequently admitted over objection.

At trial, during the hearing on the motion to suppress the illegally seized evidence, the state argued that the appellant gave the officers "implied consent" to conduct the search. On appeal the state, in addition, argues there were exigent circumstances, viz; the inherent mobility of the appellant's truck, which justified the warrantless search. Under the facts and circumstances of this case we hold that these arguments are not valid.

I

Warrantless searches are per se unreasonable under the Fourth and Fourteenth Amendments subject to only 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, 585 (1967); Herriott v. State, 337 So.2d 165, 168 (Ala.Cr.App.) cert. denied, 337 So.2d 171 (Ala.1976).

Mr. Justice Bloodworth of our Supreme Court in the often cited opinion of Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973), enumerates the exceptions to the warrant requirement in the following language:

"Notwithstanding the United States Supreme Court's assertion that its cases on the subject of the extent of a search which may be made without a warrant following a lawful arrest 'cannot be satisfactorily reconciled,' it now seems to be fairly well established that there are at least six exceptions under which...