Smith v. State

• Decision Date: 31 July 1984
• Docket Number: 6 Div. 415
• Citation: 472 So.2d 677
• Parties: Dorothy SMITH, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 677

472 So.2d 677

Dorothy SMITH, alias v. STATE.

6 Div. 415.

Court of Criminal Appeals of Alabama.

July 31, 1984.

Murray P. Stovall, III, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Susan McKinney, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Dorothy Smith was indicted on one charge of possession of marijuana and one charge of possession of tablets containing pentazocine. The two cases were consolidated for trial and the jury found the appellant "guilty as charged" in each indictment. The trial judge sentenced the appellant to 15 years in the penitentiary in each case, said sentences to run concurrently with one another.

I

Prior to trial, an evidentiary hearing was conducted on the appellant's motion to suppress. The appellant contends that such motion should have been granted by the trial judge. She argues that there was an illegal search and seizure which resulted in her arrest.

At the suppression hearing, Birmingham Police Officer Jimmy Wesson testified that at approximately 11:30 a.m. on February 23, 1983, he and his partner had set up surveillance on a known "confidence man, bunco artist." He stated that he and his partner were in an unmarked police car. He stated that while they were watching this individual, a white Toyota automobile with Ohio license plates pulled up and the individual entered the car. He stated that the white Toyota was being driven by the appellant. He stated that the individual remained in the car approximately five minutes, then exited the car. He stated that the appellant and her companion drove away. Officer Wesson stated that he and his partner, Bob Berry, followed this automobile. He stated that after driving around several blocks in downtown Birmingham, the appellant pulled her car over to a bus stop where an elderly black female was standing. He stated that he observed the appellant lean across her automobile to the passenger side, and that she had an envelope in her hand. He stated that the elderly female pedestrian came towards the car and leaned down, then straightened up with a shocked look on her face and walked away from the car. Officer Wesson further stated that this scenerio was one of a classic "pigeon drop confidence game" which is commonly used on the street to try and swindle people out of money. He further stated that the "pigeon drop" is commonly played on elderly persons. Officer Wesson testified that after the elderly woman walked away, the appellant pulled back out into traffic and sped off. He stated that they again followed the appellant over several blocks, then she again stopped. He stated that the appellant's companion, another black female, left the car and approached an elderly female standing outside of a local business. He stated that the elderly female walked away from appellant's companion and she returned to the car. He stated that the women left the scene and drove to Parisian's where appellant's companion exited the car and went in the store. The appellant left, drove around, and then returned to pick up her friend.

Officer Wesson testified that he had worked the Bunco division for approximately six years, and in his opinion the appellant had been attempting, or had perpetrated, a "flim-flam." He stated that when the appellant left Parisian's he radioed the head of the Bunco detail, Sergeant R.K. Hutchcraft. He further stated that as they were following the appellant he saw Sergeant Hutchcraft and another officer. He stated that he radioed to them a description of the car, the tag number, and his opinion of what had been taking place. He stated that Sergeant Hutchcraft pulled in behind the appellant and they followed her to the Hyatt House parking lot where the appellant pulled in and parked her car. He stated that Sergeant Hutchcraft pulled his car in behind the appellant. He stated that Sergeant Hutchcraft and his partner, George Wiggins, got out of their car and approached the appellant who was still in her car. He further stated that he left the parking lot to try and find the appellant's victims. He stated that when he could not find them he returned to the Hyatt House and the appellant was in Sergeant Hutchcraft's police car. He further testified that it was his intention to detain the appellant to investigate the "flim-flam" activity he had observed. He also stated that he had observed this "pigeon drop" game played on many occasions.

George Wiggins testified that he was employed by the Birmingham Police Department. He stated that on February 23, 1983, he and Sergeant R.K. Hutchcraft responded to a call by Officer Wesson. He stated that he and Hutchcraft joined Wesson in following the appellant's car, after appellant had left Parisian's. He stated that she was driving a white Toyota with Ohio license plates. He stated that they followed the appellant to the Hyatt House parking lot, where she parked her car. Wiggins stated that he pulled up behind the appellant and that he and Hutchcraft exited the police car. He stated that he walked to the appellant's car and she began to roll the window down. He further stated that he showed the appellant his identification, told her who he was, and asked her to step out of the car.

Officer Wiggins testified that he stepped back to the rear of the door to the automobile and was watching the appellant as she exited the car. He stated that, as she was exiting the automobile, he observed a small "baggie" with a brownish green substance in it on the floorboard of the car next to her feet. He stated that he picked this "baggie" up, and from his experience as a police officer, he determined it to be marijuana. He further stated that he could smell a faint odor of burnt marijuana, which he was familiar with through his experience, coming from the appellant's car. He stated that he placed the appellant under arrest for violation of the Alabama Uniform Controlled Substances Act. Wiggins further testified that it was his intention upon approaching the appellant's car to investigate what Officer Wesson had earlier observed--"to ascertain what they were doing and ... I.D. them." He also stated that he transported the appellant to the Birmingham City Jail.

Linda Knaffl testified that she was employed as a Birmingham Police Officer and that she was assigned to the City Jail. She stated that on February 23, 1983, at 1:45 p.m., she booked the appellant into jail. She stated that since the appellant was being charged with a felony, she was required to change clothes. She stated that during such procedure, the appellant had to remove her street clothes and put on a felony outfit--a white dress. She stated that she took the appellant into the nurse's office where they were alone. She stated that the appellant took her clothes off and as she did so Knaffl observed that nothing was hidden in the appellant's bra. Knaffl said she asked the appellant to pull her panties down, which appellant did, and at this time Knaffl observed something white in the appellant's vagina. She stated that she asked the appellant to remove this object, which she did, and it turned out to be a bottle containing peach-colored tablets. She stated that she asked the appellant if there was anything else inside her, to which the appellant responded that there was not. Officer Knaffl stated that she then told appellant to bend over, and she observed something else white. She stated that the appellant removed this object also and it was another bottle containing peach-colored pills.

(A)

The trial judge denied appellant's motion to suppress this evidence. The first thing we must determine in evaluating the correctness of the trial judge's denial of the motion to suppress is whether the officers had reasonable suspicion to stop and question the appellant.

It is clear that stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Vogel v. State, 426 So.2d 863 (Ala.Crim.App.1980), affirmed, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335; Johnson v. State, 406 So.2d 446 (Ala.Crim.App.1981); Miller v. State, 423 So.2d 1377 (Ala.Crim.App.1982); Kemp v. State, 434 So.2d 298 (Ala.Crim.App.1983). However, it is well recognized that police may constitutionally detain an individual for brief periods of questioning "on a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Fennell v. State, 51 Ala.App. 23, 282 So.2d 373, cert. denied, 291 Ala. 778, 282 So.2d 379 (1973); Vogel v. State, supra. In Terry v. Ohio, the United States Supreme Court formulated the concept of the investigatory stop based on reasonable suspicion. In certain instances, a police officer may stop a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. "While the officer making the stop is not required to possess a level of knowledge amounting to probable cause, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), he 'must be able to point to specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant investigating.' Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880." Miller v. State, supra; Kemp v. State, supra; Kitchens v. State, 445 So.2d 1000 (Ala.Crim.App.1984).

Although Terry [v. Ohio, supra] was factually concerned with stops of pedestrians, the concept of the investigatory stop has been extended to stops of vehicles by subsequent decisions of the United States Supreme Court and the courts of this State. See Delaware v. Prouse, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Minnifield v. State, 390 So.2d 1146 (Ala.C...