Richardson v. City of Trussville

• Decision Date: 10 December 1985
• Docket Number: 6 Div. 595
• Parties: Larry RICHARDSON v. The CITY OF TRUSSVILLE.
• Court: Alabama Court of Criminal Appeals

Page 625

492 So.2d 625

Larry RICHARDSON v. The CITY OF TRUSSVILLE.

6 Div. 595.

Court of Criminal Appeals of Alabama.

Dec. 10, 1985.

On Return to Remand

April 22, 1986.

Rehearing Denied May 27, 1986.

Certiorari Denied July 25, 1986

Alabama Supreme Court 85-1026.

L. Dan Turberville, Birmingham, for appellant.

Burgin H. Kent of Bishop, Colvin & Johnson, Birmingham, for appellee.

BOWEN, Presiding Judge.

Larry Richardson was charged with driving under the influence of alcohol. After a trial in the circuit court, he was convicted and fined $1,500 and sentenced to ten days' hard labor in the City Jail. Three issues are raised on appeal.

I

Richardson maintains that the trial court erred in denying his motion to exclude the City's evidence and his motion for a directed verdict because the police had no probable cause to believe that he was involved in criminal activity.

Trussville Police Officer Harry Humber testified that early on the morning of November 27, 1983, he, along with his partner, Lawrence McKelvy, observed an automobile in the parking lot of a dentist's office. Humber stated that since there had been previous burglaries at the dentist's office, he and Officer McKelvy decided to check out the automobile. Upon their arrival, the car was in the process of pulling out of the driveway. Officer Humber stopped the car and asked the driver "what he was doing there." According to Officer Humber, Richardson's speech was slurred. Officer Humber testified, "The subject had a strong odor of alcoholic beverage about his person. There was a mixed drink in a plastic cup in the vehicle that was visible. I asked the subject to step out of the car. The subject was very uncoordinated. He appeared to be highly intoxicated." Officer Humber arrested Richardson for DUI and transported him to the police station where a PEI test was conducted. Test results showed Richardson's blood-alcohol content at .13 percent.

Officer McKelvy verified Officer Humber's account of the stop and arrest. He confirmed that Richardson's speech was slurred and that he was "unsteady on his feet."

The evidence shows that Richardson was stopped because he was in the parking lot of a dentist's office that had been previously burglarized. The trial judge found that the stopping was justified and merely constituted "good law enforcement." We agree because a police officer does not need probable cause to stop a person for questioning; he need only be able to articulate specific facts and inferences that lead to a reasonable suspicion of criminal activity.

In Brooks v. State, 460 So.2d 242 (Ala.Cr.App.1984), a State Capitol police officer observed unusual activity in a State building parking lot. That reason, coupled with the fact that there had recently been a rash of break-ins involving cars at the State complex, prompted further investigation. In Brooks, we held that a police officer may stop an individual to make an investigation even though probable cause does not exist for an arrest. 460 So.2d at 243. See also Spradley v. State, 414 So.2d 170, 173 (Ala.Cr.App.1982), and Minnifield v. State, 390 So.2d 1146, 1151 (Ala.Cr.App.), cert. denied, 390 So.2d 1154 (Ala.1980).

The United States Supreme Court answered a similar issue in Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), when it recognized that,

"a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest."

Terry went on to hold that a stop is permissible "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot." Terry, 392 U.S. at 30, 88 S.Ct. at 1884, 20 L.Ed.2d 889.

Moreover, the Alabama Legislature enacted specific legislation dealing with the "A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, any marshal, deputy marshal or policeman of any incorporated city or town within the limits of the county or any highway patrolman or state trooper may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions."

powers of law enforcement officers to investigate suspected criminal activity. Section 15-5-30, Code of Alabama 1975, reads:

Given the late hour Richardson's car was observed in the dentist's office parking lot and the fact that both police officers had been called to burglaries at that particular office in recent months preceding the date in question, we believe that reasonable grounds existed for the officers to suspect that the individual in the automobile might be involved in criminal activity and that further investigation was warranted.

"A policeman who lacks the precise level of information necessary for probable cause to arrest is not required simply to shrug his shoulders and allow a crime to occur or a criminal to escape, and a brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." 6A C.J.S. Arrest § 38 (1975).

The action of the police officers in the present case was an effort "to maintain the status quo momentarily while obtaining more information." Only when Richardson spoke in a slurred manner in response to the officer's question as to the reason he was in the parking lot did the officer suspect Richardson was driving under the influence of alcohol.

The officers' suspicion of Richardson's intoxicated condition ripened into probable cause when Richardson complied with the officer's request and got out of his car. Richardson stumbled and the odor of alcohol was on his breath. A drink had been observed in the car. At that point, the officers were under a duty to detain Richardson and transport him to City Jail for testing. Therefore, both the arrest and the investigation leading up to the arrest were legally and properly executed.

II

Richardson maintains that the trial court erred to reversal in not granting a motion for mistrial and another motion requesting that the trial judge recuse himself. Both motions are grounded on the trial judge's statement that he would impose a stiffer sentence upon conviction in the trial de novo than the sentence imposed by the municipal court.

In the trial held in the municipal court, Richardson received a $700 fine and thirty days' imprisonment. He appealed to the circuit court where, after a trial de novo, he was sentenced to ten days' imprisonment and fined $1,500.

It is a "flagrant violation of the Fourteenth Amendment for a state trial court to follow an announced practice of imposing a heavier sentence upon every reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside." North Carolina v. Pearce, 395 U.S. 711, 723-24, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656 (1969). It is no less a violation of due process when a harsher sentence is imposed upon a defendant for having successfully pursued a statutory right of appeal or collateral remedy. Id. To insure the absence of vindictiveness at resentencing, Pearce requires "that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear." Id. at 725-26, 89 S.Ct. at 2080-81, 23 L.Ed.2d 656.

However, the danger of vindictive sentencing is not inherent in a two-tiered trial de novo system such as that found in this state so that "Pearce does not apply to a sentence after an appeal and a trial de novo Here, the evidence of vindictiveness on the part of the judge at the trial de novo is clear. The record reflects the following comments prior to the sentencing aspect of the trial:

in a two-tier system for adjudicating criminal offenses. Colten v. Kentucky, 407 U.S. 104, 112-120, 92 S.Ct. 1953, 1958-1962, 32 L.Ed.2d 584 (1972)." Hardy v. State, 455 So.2d 265, 268 (Ala.Cr.App.1984); Clark v. City of Mobile, 357 So.2d 675, 677-78 (Ala.Cr.App.), cert. denied, 357 So.2d 680 (Ala.1978); A Campbell, Law of Sentencing § 42 (1978). Nevertheless, even in such a system, the possibility exists that a "defendant might prove actual vindictiveness and thereby establish a due process violation." Wasman v. United States, 468 U.S. 559, 104 S.Ct. 3217, 3222, 82 L.Ed.2d 424 (1984).

"THE COURT: When I call this docket on these municipalities I said, gentlemen, when I try these cases they're going...