State v. Calhoun

• Decision Date: 21 November 1986
• Citation: 502 So.2d 808
• Parties: Ex parte State of Alabama. (Re STATE of Alabama v. Bobby CALHOUN and Malcolm Schartau). 85-594.
• Court: Alabama Supreme Court

Page 808

502 So.2d 808

Ex parte State of Alabama (Re STATE of Alabama v. Bobby CALHOUN and Malcolm Schartau).

85-594.

Supreme Court of Alabama.

Nov. 21, 1986.

Rehearing Denied Jan. 9, 1987.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for petitioner.

Don P. Bennett of Herring & Bennett, Dothan, for respondent Bobby Calhoun.

W. Terry Bullard, Dothan, for respondent Malcolm Schartau.

BEATTY, Justice.

This is a search and seizure case.

For the sake of clarity, we reiterate the facts which were revealed at the hearing on the defendants' motion to suppress, as set out in the opinion of the Court of Criminal Appeals, in State v. Calhoun, 502 So.2d 795 (Ala.Crim.App.1986):

"Sometime between 1:00 and 2:00 on the afternoon of February 4, 1985, John Givens, a narcotics officer with the Dothan Police Department, received a phone call at his house from a confidential informant. The informant had provided Givens with information in the past and the information had been reliable. Givens had made cases from information received from this informant in the past and convictions had been obtained from this informant.

"The informant told Givens that Calhoun and Schartau would be '... together that evening and that they would be making a trip to an area in Wicksburg--unknown--just in the Wicksburg area, and they would be buying dope--marijuana, particularly.' (R. 5-6). The informant said that the appellees would leave Coy's Gameroom that night in a maroon El Camino and would return to Coy's after making the buy.

"Shortly after the call, Givens and Officer White of the Dothan Police Department, met the informant at the K-Mart parking lot in Dothan. Two other people were present at the meeting at the K-Mart parking lot. One was an unidentified female and the other was Susan Norton, a friend of the informant's and appellee Schartau's wife.

"At the meeting in the parking lot, White and Givens remained in their vehicle while the informant talked to them through the window. Givens and White asked the informant if they could make a purchase from the appellees. The informant replied that this was unlikely since the appellees did not know them or might recognize them as narcotics agents.

"At this point, a plan was conceived whereby the officers would supply Norton with $40 which she would give to her husband so that he could purchase marijuana for her and deliver it to her at Coy's Gameroom.

"Givens and White then returned to the police station. The informant, Norton and the unidentified female also came to the station. There, Givens gave the informant the $40. From this point, there was no further contact between the officers and the informant or Norton until after the arrest of the appellees.

"That night, Officers Givens and White drove to Coy's Gameroom and parked. At some point, the maroon El Camino left Coy's. The officers followed this vehicle on Highway 84 around the circle and determined it was going towards Wicksburg. The officers then returned to Coy's and waited until the El Camino returned.

"When this vehicle got back to the parking lot of Coy's, the officers approached the vehicle. Officer Givens approached the driver's side of the vehicle, identified himself to the driver, advised him of his information and told the driver to get out of the vehicle. The driver was Calhoun. When Calhoun exited the vehicle, Givens could see two hand-rolled marijuana cigarettes in Calhoun's shirt pocket.

"As White approached the passenger side of the vehicle, he saw the passenger (Schartau) shut the glove box. After Schartau got out of the vehicle, White searched Schartau and found a cigarette pack in his shirt pocket with two hand-rolled marijuana cigarettes in it. White further searched the vehicle and found a plastic bag containing plant material in the glove box.

"The appellees were then placed under arrest for possession of marijuana."

The Court of Criminal Appeals affirmed the trial court's ruling and decided that the police did not have probable cause to search either of the defendants.

As to Calhoun, the Court of Criminal Appeals reasoned that the "only information the officers had concerning Calhoun was that he would be with Schartau on the night in question." It held that the mere fact that Calhoun was to accompany Schartau on his trip to purchase the marijuana was not enough to amount to either probable cause to arrest or search, or to a "reasonable suspicion" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Therefore, that court concluded that the officers had no authority to order Calhoun out of the car. Because the marijuana cigarettes in Calhoun's shirt pocket could not be seen until after he had gotten out of the car, the plain view doctrine clearly could not justify his arrest or the seizure of the marijuana.

As to Schartau, the Court of Criminal Appeals concluded that, although the officers had not been given enough information to meet the probable cause standard, their information did rise to the level of creating a "reasonable suspicion" under Terry v. Ohio. Therefore, that court found the officers could "stop" him by ordering him out of the car. However, the court concluded that the ensuing search was improper because (1) there was no probable cause and (2) the officers were not looking for weapons, but for drugs. The court reasoned that Terry v. Ohio did not allow that type of search.

Whether it is decided that the information given to the officers implicated both defendants or only one defendant, the initial question before this Court will not change. That question is: Was the information given to the officers, along with its subsequent partial corroboration, enough to establish probable cause to arrest any defendant? On this issue, we must agree that the Court of Criminal Appeals has followed the proper analysis and reached the correct conclusion, i.e., that no probable cause existed. The police officers simply left too many important questions unanswered, the most important question being, as explained by the Court of Criminal Appeals, whether Schartau ever received the money he needed to purchase the marijuana:

"Therefore, the officers' verification of a few, innocuous details of the tip was not sufficient corroboration to establish probable cause particularly since several important details were not confirmed.

"The informant failed to supply the police with any facts which would provide a basis of knowledge for his tip. In fact, it seems unlikely that there was a basis of knowledge for this tip at the time it was related to the police that afternoon.

"Givens repeatedly testified that Schartau could not buy the marijuana without the money that was supplied by the police and he knew that Schartau did not have any marijuana or money at the time of the informant's tip. (R. 46) Therefore, if Schartau could only buy marijuana if he was supplied money by the police, it can hardly be said that, at the time of the tip, there was a basis of knowledge that Schartau would be purchasing marijuana. Furthermore, the basis of knowledge for the tip could not be inferred from the tip itself since we have already stated the tip was very general in detail.

"As the United States Supreme Court stated in [Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ], probable cause deals with 'probabilities.' However, in this case, there were no probabilities, only suspicions.

"The police, in order to justify a warrantless arrest of Schartau, had to rely on the assumption that the informant would give the money to Norton, Norton would give it to Schartau and he would agree to purchase the marijuana in the precise manner related in the tip. These assumptions are too tenuous on which to sustain a finding of probable cause. If the informant or Norton could have somehow confirmed the fact that Schartau received the money supplied by the police, probable cause would most likely have been established, considering all of the other circumstances. If the officers had known Schartau received the money and had agreed to the arrangement, they would have had facts within their knowledge, at the time of the arrest, which would have justified a reasonable man in the belief that Schartau had committed a crime. However, after the informant received the money from the officers, there was no further contact between the officers and the informant or Norton until after the arrest.

"After examining all the circumstances in this case, in light of the totality of circumstances analysis set out in Gates supra, we hold that the officers did not have probable cause to arrest Schartau. Therefore, any evidence seized by the officers as a result of a search of Schartau incident to a lawful arrest was not admissible."

We agree with the decision of the Court of Criminal Appeals that no probable cause existed on the basis of the information given to the police by the informant. The Court of Criminal Appeals also found that the information given to the police, when coupled with the independent corroboration of certain of these details and given the surrounding circumstances, amounted at least to a "reasonable suspicion" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We must also agree with this conclusion and, for the sake of brevity, refer those interested to the discussion of this issue that is set out in the opinion of the Court of Criminal Appeals. See State v. Calhoun, supra. However, we cannot agree that this "reasonable suspicion" pertained only to Schartau, because we are of the opinion that the officers had a sufficient basis to supsect Calhoun as well as Schartau of criminal activity.

On the basis of a review of the testimony given by Officer Givens at the suppression hearing, we conclude that the information given to the police implicated both Calhoun and Schartau equally. The pertinent portions of this testimony follow:

"Q. Now,...