Rieber v. State, CR-91-1500

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: MONTIEL; BOWEN, P.J., concurs in part and concurs in the result in part with opinion, in which TAYLOR; BOWEN
• Citation: 663 So.2d 985
• Parties: Jeffery Day RIEBER v. STATE.
• Docket Number: CR-91-1500
• Decision Date: 17 June 1994

Page 985

663 So.2d 985 Jeffery Day RIEBER
v.
STATE. CR-91-1500. Court of Criminal Appeals of Alabama. June 17, 1994.
Rehearing Denied Nov. 10, 1994.

Page 987

Richard Kempaner and Don Moran, Huntsville, for appellant.

James H. Evans, Atty. Gen., and Beth Hughes, Asst. Atty. Gen., for appellee.

MONTIEL, Judge.

Jeffery Day Rieber was indicted for murder made capital because it was committed during the course of a robbery in the first or second degree, in violation of § 13A-5-40(a)(2), Code of Alabama 1975. The jury found the appellant guilty of the capital offense as charged in the indictment. Following the sentencing hearing, the jury, by a vote of 7 to 5, recommended that the appellant be sentenced to life imprisonment without the possibility of parole. The trial court declined to accept the jury's recommendation and sentenced the appellant to death.

At approximately 5:00 p.m. on October 9, 1990, Allen Wayne Gentle stopped at the Mobil Mart convenience store in Huntsville, Alabama. While inside the store, Gentle saw and spoke to the appellant. Gentle and the appellant had attended the same high school several years earlier. When Gentle went to the counter, Glenda Craig, the cashier, asked him several questions. Gentle responded, "Rieber" and "I don't think he would do nothing like that." (R. 488-89.)

About three hours later, Glenda Craig was found lying on the floor of the Mobil Mart behind the cash register. She had been shot twice. Although Craig was alive when she was found, she died of the gunshot wounds shortly thereafter.

Later that night, the videotape from a surveillance camera at the Mobil Mart was taken into custody by the police. The tape showed a man entering the Mobil Mart at 7:55 p.m. and approaching the counter where Craig was standing. The man shot Craig and she fell to the floor. The man then took money from the cash register and reached over the counter and shot Craig again. The police showed Gentle the tape that night. The tape confirmed that the appellant and Gentle had been in the store around 5:00 that evening and Gentle identified the appellant as the man who entered the store at 7:55 and shot Craig.

Tommy Erskine testified that several days before this offense occurred, he went to the Mobil Mart. Erskine noticed the appellant sitting in a car outside the store. He said that when he went inside, Glenda Craig spoke to him and that she appeared very nervous and afraid. Erskine suggested she call the police and he left when the appellant entered the store. Erskine testified that after he got home, he decided to return to the store because he felt uneasy about what had happened. When he got to the store and did not see the appellant's car, he started to leave. He said that as he was driving away, he saw the appellant's car drive by the store. Erskine testified that he went in the store and told Craig to call the police because the appellant was patrolling the store.

I

The appellant contends that his arrest and the subsequent search of his residence and automobile were illegal. The offense occurred around 8:00 p.m. on October 9, 1990. The officers returned to the scene at approximately 10:50 p.m. after viewing the videotape. At that point, the appellant had been identified as the man on the tape by Wayne Gentle. Around midnight, Officer Guthrie, who knew the appellant, was summoned to the Mobil Mart and asked to identify the individual on the videotape. Guthrie then went to the police station, where he obtained

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a file on the appellant, which contained a photograph and a home address. At approximately 3:00 a.m. on October 10, 1990, Officers Parker, Sharp, Renfroe, and Nunley of the Huntsville Police Department, along with Officers Collie and Guthrie of the Madison County Sheriff's Department, went to the address listed in the appellant's file. A SWAT team accompanied the officers. The SWAT team surrounded the residence, a mobile home, while the officers stayed at a location approximately 3/10ths of a mile away. Officer Guthrie telephoned the residence and spoke to the appellant. Guthrie told the appellant that the police wanted to talk to him concerning the events at the Mobil Mart. Guthrie told the appellant that his residence was completely surrounded by police officers and that he was to come out and follow the officers' instructions. At this time, the appellant came out of the residence and then went back inside. Guthrie then telephoned the residence again. The appellant answered and his mother, Janice Ellis, took the telephone away from him and asked Guthrie what was going on. Guthrie told her that the police wanted to question the appellant and that he needed to go outside and follow the police officers' instructions and that some officers would come to her residence a short time later and explain the situation to her. The appellant then came out of the house. At approximately 3:27 a.m., the appellant was taken into custody and was transported to the police station. Officer Renfroe spoke to the appellant's mother shortly after the appellant was taken into custody. He advised her that the appellant was a suspect in a robbery-murder that had occurred on the previous night. Renfroe asked Ellis if the mobile home belonged to her and she replied that it did. Renfroe told her that the officers would like to search the mobile home. Ellis gave them permission to search the mobile home and she signed a permission to search without a search warrant form. Shauna Rieber, the appellant's sister, also signed the form. Shauna Rieber told the officers that on that particular night, she was sleeping in the appellant's bedroom and he was sleeping in hers.

In the first bedroom, the police found a T-shirt, a pair of jeans, and some tennis shoes on the floor. These items were in plain view from the hallway and were similar to the clothes worn by the gunman in the videotape. Under a blanket in a bassinet in the room, the police found a baseball cap. The police also received permission from Ellis to search her vehicle, a 1980 Lincoln Town Car. Nothing of evidentiary value was found in Ellis's vehicle.

At the police station, the appellant made a statement after he was advised of his Miranda rights. The appellant told the officers that on the previous night, he was wearing jeans and a T-shirt with the words "anything goes" written on it. He told the officers that these clothes were on the floor in his bedroom. He then told the officers that there was a gun in the glove compartment of his car and some money under a mattress in his sister's bedroom and that a friend had given him both the gun and the money the night before and he was keeping them for his friend. The appellant denied involvement in the offense. The officers telephoned the officers who were conducting the search at the appellant's residence and instructed them about the clothes and the money and told them to impound the appellant's vehicle. The officers looked under the mattress in the back bedroom and found $292 in cash. $506 had been taken from the Mobil Mart. The vehicle was impounded. Later that day, a search warrant was obtained for the vehicle and a search of the vehicle revealed a .22 caliber revolver gun and 18 rounds of ammunition in the glove compartment. There were two spent rounds in the weapon.

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the United States Supreme Court held that the Fourth Amendment prohibits the police from entering an individual's residence without his consent to make a routine warrantless felony arrest. However, "such an entry may be proper where probable cause to arrest the suspect exists and there are exigent circumstances making it impossible or imprudent for a warrant to be obtained." Bush v. State, 523 So.2d 538 (Ala.Crim.App.1988).

The State initially argues that Payton does not apply because, it argues, the appellant

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was not arrested inside his residence. This argument is without merit. When, as in this case, the individual leaves his residence as a result of a show of force by the police, it cannot be said that the individual left his residence voluntarily. Hamm v. State, 564 So.2d 453, 458, n. 2 (Ala.Crim.App.1989), aff'd 564 So.2d 469, cert. denied, 498 U.S. 1008, 111 S.Ct. 572, 112 L.Ed.2d 579 (1990). It is clear that the appellant's arrest occurred only after the SWAT team surrounded the appellant's residence. The officers admitted that the appellant was not free to leave and that they intended to arrest him when he came out of the mobile home. The appellant came out only after he was summoned by a telephone call from the police officers in the middle of the night, telling him that the house was surrounded and that it would be best if he would come out and follow police instructions once he was outside. The police officers, by their actions, constructively entered the appellant's residence to make the arrest. Hamm. The circumstances of this case clearly indicate that the appellant left his residence only under coercion from the police. See United States v. Al-Azzawy, 784 F.2d 890 (9th Cir.1985), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986); United States v. Maez, 872 F.2d 1444 (10th Cir.1989); United States v. Morgan, 743 F.2d 1158 (6th Cir.1984), cert. denied, 471 U.S. 1061, 105 S.Ct. 2126, 85 L.Ed.2d 490 (1985); United States v. Johnson, 626 F.2d 753 (9th Cir.1980), cert. denied, 454 U.S. 814, 102 S.Ct. 89, 70 L.Ed.2d 82 (1981), aff'd, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

Therefore, because the appellant was effectively subjected to a warrantless and nonconsensual arrest in his residence, we must now consider whether there was probable cause to make the arrest and whether there were exigent circumstances to justify the arrest. Clearly, the police had probable cause to make the arrest. The appellant was identified by a high school classmate as the man on the videotape taken from the...