State v. Butler, 3 Div. 55

• Decision Date: 11 December 1984
• Docket Number: 3 Div. 55
• Citation: 461 So.2d 922
• Parties: STATE of Alabama v. Michael BUTLER.
• Court: Alabama Court of Criminal Appeals

Page 922

461 So.2d 922

STATE of Alabama v. Michael BUTLER.

3 Div. 55.

Court of Criminal Appeals of Alabama.

Dec. 11, 1984.

James H. Evans, Dist. Atty. and Dennis R. Pierson, Deputy Dist. Atty., for appellant.

Eugene W. Reese of Reese & Addison, Montgomery, for appellee.

HARRIS, Judge.

Michael Butler was indicted on four separate cases of robbery, first degree. These cases were consolidated for trial. On April 9, 1984, Butler filed a motion to suppress statements he made to officers of the Montgomery Police Department. A suppression hearing was held in Montgomery Circuit Court on June 5, 1984. The motion was denied on June 11, 1984. On June 13, 1984, Butler filed an amendment to his motion to suppress, alleging that his statements given to officers of the Montgomery Police Department were obtained as the product of an illegal arrest not based on probable cause. Butler, also on that date, filed a motion to re-consider the order denying his motion to suppress.

On July 2, 1984, a hearing was held on Butler's amended motion. On July 9, 1984, Butler's motion to suppress was granted. Pursuant to A.R.Crim.P.Temp 17, the State appealed from the pre-trial order suppressing Butler's confession as a product of an illegal arrest. Investigators Smith and Perdue of the Montgomery Police Department testified at the suppression hearing that a number of robberies had occurred in the Montgomery area involving a small black male wearing a ski mask and armed with a small caliber revolver. Officer Mason of the Millbrook Police Department testified that he received a telephone call on January 22, 1984, from a person identified as Lanette Singleton. This informant stated that she had overheard someone say that he had heard Lacy Butler and Michael Butler had committed a robbery. She stated that Lacy and Michael had bought a red Chevrolet Monte Carlo and were going to leave town for North Carolina. Lanette Singleton was not a police informant. This information was passed along to an Officer Owens, also with the Millbrook police.

Officer Owens admitted that neither he nor any other officer went out and talked with Lanette Singleton, or the individual that had actually overheard the conversation. He was never able to corroborate the statement that was passed along to him. Owens shared this information with the Montgomery and the Prattville Police Departments.

Officer Allen, of the Prattville Police Department, testified that on February 6, 1984, he received information that a robbery had occurred in Montgomery. He also received information that Michael Butler and Lacy Butler were suspects. Allen testified that he stopped a red Pontiac Grand Prix travelling in excess of the speed limit between Prattville and Montgomery on U.S. Highway 31. Butler was driving the car and when Allen asked for his identification, he could not produce any. Butler told Allen his name was Lane Fedderson. Butler was charged with driving without a license and giving false identification. Allen then turned Butler over to Montgomery Police. Butler was not charged with any of the robberies at that time.

Investigator Smith testified that Michael Butler was considered a suspect based on his physical description and the information from Lanette Singleton in Millbrook. Smith admitted that he had never talked with Lanette Singleton to verify the information that had been passed along to him.

Butler was arrested on a capias warrant on February 20, 1984, due to his failure to pay court costs on an unrelated misdemeanor offense. Butler was released from the Montgomery County jail on February 21, 1984. At 4:15 p.m., after he was completely released from custody, Investigators Smith and Perdue approached Butler at the jail desk and told him that they "needed to question him regarding some robberies that had occurred" in the Montgomery area. Smith testified that Butler said, "Sure, or okay, something to that effect." Butler was handcuffed before being placed in the police car. In the car, Butler was read his Miranda rights and was only told that the conversation would wait until they got downtown.

Butler remained handcuffed once they reached headquarters and until he was taken upstairs to the Investigative Division, at which time the handcuffs were removed and the investigators began questioning him.

Smith and Perdue both testified that Butler was not under arrest at this time. They again read Butler his Miranda rights at 4:30 before the questioning began. The interrogation in Room 210 continued until after 11:00 p.m., for some six and a half hours. Butler repeatedly said that he had no knowledge or information concerning any of the robberies. Butler was again advised of his rights and finally he confessed at 11:07 p.m. to the robbery on February 6, 1984, after being told by the investigators that none of his alibis checked out. Perdue testified that, when Butler confessed, he was then placed under arrest and removed to the city jail.

On February 24, 1984, Investigator Barnes of the Montgomery Police Department, checked Butler out of the jail to question him further concerning three other robberies. After being advised of his rights, Butler confessed to these robberies too.

In the appeal from the Montgomery Circuit Court's order suppressing Butler's confession, the District Attorney submits that Butler voluntarily accompanied the investigators from the county jail and was free to leave at any time. Butler's handcuffing was "standard police policy," and a mere procedural requirement for "any individual riding in a police vehicle."

An arrest is complete when one's liberty of movement has been restricted. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). An arrest:

"consists in taking, under real or assumed authority, custody of another person for purposes of holding or detaining him to answer a criminal charge or civil demand."

Glass v. State, 424 So.2d 687, 689 (Ala.Cr.App.1982). An actual arrest is accomplished when an individual's "freedom of movement" is curtailed. Foy v. State, 387 So.2d 321, 324 (Ala.Cr.App.1980); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

The District Attorney mistakenly relies upon United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), for the assertion that the case at bar is an example of a person voluntarily accompanying a law enforcement officer to another location for questioning, not an arrest. The present facts are clearly distinguishable from those in Mendenhall, supra. Justice Powell, writing for the plurality on this specific point stated:

"Unlike the petitioner in Terry, [v. Ohio, 392 U.S. 1] at 7 [88 S.Ct. 1868, 20 L.Ed.2d 889], the respondent was not physically restrained. The agents did not display weapons. The questioning was brief. In these circumstances, the respondent could not reasonably have felt frightened or isolated from assistance."

Mendenhall, supra, at 563, 100 S.Ct. at 1882. Justice Powell also noted that the question whether respondent could have thought she was free to "walk away" when approached by the two government agents in the airport was "extremely close." Id., at 561, 100 S.Ct. at 1880.

In this case, Michael Butler was approached by the two police officers while he was still inside the county jail, at the front desk. The officers told him that they "needed to talk with him about some robberies." They took him outside, handcuffed him, and placed him in the back of a police vehicle. When Butler inquired about the particulars, the officers read him his Miranda rights and told him they would handle it when they got downtown. Still handcuffed, Butler was taken out of the vehicle and led upstairs to a second floor room. Butler was questioned for almost six and a half hours in that room with the door closed.

It is readily apparent that any person in Butler's shoes would have reasonably believed that he had been arrested. His "freedom of movement" had been effectively curtailed when he was handcuffed and taken to police headquarters. Glass, supra, at 690.

The officers' testimony that they did not arrest Butler until after he had confessed is "not determinative of whether or not he was actually arrested." McCants v. State, 459 So.2d 992 (Ala.Cr.App.1984); Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The issue of whether an arrest occurred is not based on the police officer's "unarticulated plan," but rather "how a reasonable man in the suspect's position would have understood his situation." Berkemer, supra, 104 S.Ct. at 3152; McCants, supra.

The District Attorney's contention that there was no arrest of Michael Butler is not substantiated by the facts of this case. Having determined that there was an arrest, we must now determine whether there was probable cause to effectuate that arrest.

The District Attorney asserts that the information Officer Mason received from Lanette Singleton was sufficient to give the Montgomery Police probable cause to arrest Michael Butler. Lanette Singleton's statement, that she had heard from someone else that he heard another party talking about a robbery that Michael Butler was supposed to have committed, was at least triple hearsay when it reached the Millbrook Police. The record shows that this statement was never verified by any police officer and no conversation took place with Lanette Singleton beyond the initial telephone conversation with the police dispatcher. The record indicates that Michael Butler was not a suspect in any of the robberies in the Montgomery area until the Millbrook Police received the telephone call from Lanette Singleton.

Two recent cases with almost identical facts, Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982), and Ex parte Meeks, 434 So.2d 844 (Ala.1983), present striking illustrations to consider. In Taylor, following a number of robberies in the Montgomery area, an inmate incarcerated on an unrelated...