Schultz v. State, 2 Div. 325

• Decision Date: 31 May 1983
• Docket Number: 2 Div. 325
• Parties: Martha Franklin SCHULTZ v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 670

437 So.2d 670

Martha Franklin SCHULTZ v. STATE.

2 Div. 325.

Court of Criminal Appeals of Alabama.

May 31, 1983.

Rehearing Denied July 5, 1983.

Certiorari Denied Sept. 2, 1983

Alabama Supreme Court 82-983 & 82-1025.

Bill Kominos, Ariton, for appellant.

Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.

ON REHEARING

BOWEN, Presiding Judge.

This Court originally reversed defendant's conviction for possession of marijuana, finding that the evidence introduced at trial was the product of an illegal seizure. We held that Dallas County Sheriff's deputies Wayne Odom and Dale Maddox did not have adequate grounds for an investigatory stop of defendant's vehicle based solely on their testimony of having seen the headlights of a car moving slowly down a dirt road separating two cotton fields at 10:30 p.m. Since the initial stopping of the vehicle was unreasonable, the officers had no authority to seize a manila folder, filled with what appeared to be marijuana, in plain view on the car seat.

I

On application for rehearing, the Attorney General filed a motion to supplement the record to incorporate a transcript of defendant's preliminary hearing, which was not included in the record on appeal submitted to this Court. That motion is due to be granted because the record clearly shows that the trial judge considered the preliminary hearing transcript in making his determination of probable cause. At trial, defense counsel told the court that he was "willing to submit these motions (to suppress) to you (trial judge) on the transcript already prepared and let you decide on that basis." The trial judge stated that he would "consider the transcript of the testimony taken at the preliminary hearing ... for purposes of this suppression motion." The transcript was then marked "for identification."

We have granted the application for rehearing and have withdrawn our original opinion because the additional evidence adduced at the preliminary hearing provides "specific and articulable facts" upon which to base a reasonable suspicion that the occupants of defendant's vehicle had committed or were about to commit an offense. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968).

At the preliminary hearing, Deputy Odom testified as follows:

"A. We had a lot of complaints about night hunting around that area. We didn't know if people were night hunting or what.

"Q. Did you suspect that they might be night hunters?

"A. Exactly what we thought to start with.

"Q. That's exactly what you thought to start with?

"A. Yes."

Odom also testified that the vehicle "was moving awfully slow. I mean it wouldn't even register on the speedometer, it was that slow."

In our judgment, the complaints of night hunting in the area, combined with the deputies' observation of the car moving slowly through the fields with its headlights on, gave rise to more than an "inarticulate hunch" that something was amiss, see Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. at 1880, and established an "objective basis for suspecting (the defendant) of criminal activity", see United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981), i.e., of hunting at night. See also Langley v. State, 383 So.2d 868, 869 (Ala.Cr.App.), cert. denied, 383 So.2d 873 (Ala.1980).

At least three Alabama statutes specifically prohibit hunting at night. See Alabama Code Sections 9-11-235; -242; -251 (1975). A violation of any of these sections constitutes a misdemeanor. Section 9-11-252. Hunting any protected game, except deer, at night can result in a fine of $250 to $500 and possible revocation of a hunting license for one year. Alabama Code Sections 9-11-235; -242. The penalty for hunting deer at night is a minimum $500 fine, mandatory revocation of hunting license, and imprisonment for up to ten days in the county jail. Alabama Code Section 9-11-252.

County sheriffs are, by statute, authorized to enforce the game and fish laws, specifically those provisions proscribing night hunting, and to seize any vehicle or hunting equipment used in such illegal activity. Alabama Code Section 9-11-252.1(b) (1975). In addition, statutory authority for the type of investigatory detention approved in Terry v. Ohio, supra, is found in Section 15-5-30, Code of Alabama 1975.

"A sheriff or other officer acting as sheriff, his deputy or any constable, acting within their respective counties, ... 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."

Although the defendant's vehicle was in an open cotton field on private property three or four hundred yards from the highway, its headlights and its movement (the very things which, in connection with the night hunting complaints, made it suspicious) were clearly visible from the public roadway from which it was sighted by the deputies. Under these circumstances, the vehicle was in a public place within the meaning of Section 15-5-30. Compare Warren v. City of Auburn, 337 So.2d 1319 (Ala.1976) (the defendant drinking beer in yard of his apartment house was in a "public place", for purposes of public intoxication ordinance, because he and his beer can could be observed from a public street); Lee v. State, 136 Ala. 31, 33 So. 894 (1903) (dice players forty yards from highway were in a "public place", within the meaning of gaming statute, because their activities were visible to persons traveling the highway); and Henderson v. State, 59 Ala. 89 (1877) (gamblers in bushes on edge of field forty yards from road were in a "public place" because they were in view of a path used by schoolchildren); with Smith v. State, 23 Ala. 39 (1853) (hollow located 100-115 yards from main road and not visible from highway was not a "public place"); Taylor v. State, 22 Ala. 15 (1853) (field surrounded by forest one mile from highway not a "public place" because not visible from public roadway); and Bythwood v. State, 20 Ala. 47 (1852) (hollow in the woods 400 yards from highway and out of sight not a "public place").

There can be no serious question that a misdemeanor such as a game and fish law violation is a "public offense" within the meaning of Section 15-5-30. Section 1-1-5, Code of Alabama 1975, defined a "public offense" as "an act or omission forbidden by law and punishable as provided in this Code." Although that section was repealed by the new Criminal Code, 1977 Ala. Acts 812, No. 607, Section 9901 (January 1, 1980), misdemeanors have routinely been classified as "public offenses" in Alabama and other jurisdictions. See Starnes v. State, 30 Ala.App. 156, 2 So.2d 333 (1941); People v. Tuck, 142 Cal.Rptr. 362, 75 Cal.App.3d 639, 644 (1977); Smith v. Hubbard, 253 Minn. 215, 91 N.W.2d 756, 761 (1958).

In addition, although the question has not been addressed in Alabama, other jurisdictions have applied the same Fourth Amendment standards generally applicable to automobile searches to searches of vehicles involved in suspected game law violations. See United States v. Stricklin, 534 F.2d 1386 (10th Cir.), cert. denied, 429 U.S. 831, 97 S.Ct. 92, 50 L.Ed.2d 95 (1976); State v. Pearce, 318 So.2d 455 (Fla.Dist.Ct.App.1975); State v. Brumley, 95 Idaho 919, 523 P.2d 522 (1974); State v. Hillock, 384 A.2d 437 (Me.1978); Daugherty v. State, 40 Md.App. 535, 392 A.2d 1165 (Ct.Spec.App.1978); State v. Dickenson, 43 Or.App. 1023, 607 P.2d 754 (Ct.App.1979); State v. Odam, 40 Or.App. 551, 595 P.2d 1277 (Ct.App.1979), affirmed, 290 Or. 160, 619 P.2d 647 (1980); Gonzalez v. State, 588 S.W.2d 355 (Tex.Cr.App.1979).

In United States v. Stricklin, supra, a game and fish officer patrolling a thinly-populated ranch and recreation area at night saw a light on the horizon and later observed automobile headlights illuminating roadside areas. The Tenth Circuit Court of Appeals approved the detention of the vehicle on suspicion of night hunting and upheld the subsequent search which uncovered marijuana.

In State v. Hillock, supra, a game warden observed the defendant's vehicle being driven on a little-used road at night in an area where deer were known to abound at a time when officers had heard complaints of night hunting in the area. The Supreme Court of Maine upheld the stop of the vehicle based on a Terry v. Ohio type state statute and observed the following:

"At the time appellants were stopped, Warden Ford had knowledge and could have articulated if he had been asked, that the area was one in which a crime was being committed by someone, i.e. night-hunting, and that the road was one little used for legitimate purposes after dark. As a result of this perfectly proper investigative stop, he observed the light and the gun in plain view." 384 A.2d at 441. (Emphasis in original).

In our judgment, therefore, the deputies here had "specific and articulable facts", Terry v. Ohio, supra, upon which to base their suspicions of night hunting. The vehicle stop was justified and the subsequent finding of marijuana was incident to the plain-view exception to the warrant requirement. See Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

II

The defendant contends that the court erred by denying her motion to produce a sample of the marijuana for independent testing and analysis.

However, the record reveals that the court ordered a sample of the material "to be delivered to a testing facility of defendant's choice", and directed her attorney to provide the court with the name of a laboratory. The court stated for the record that the defendant's attorney had not been denied inspection of the evidence but was "free to look at it any time ... wherever it was."

The record only supports a finding that the defendant did not avail herself of the opportunity to have the material tested. She cannot now be heard to complain that her rights...