State v. Ellis

• Decision Date: 01 October 2010
• Docket Number: CR–09–0083.
• Citation: 71 So.3d 41
• Parties: STATE of Alabamav.David R. ELLIS.
• Court: Alabama Court of Criminal Appeals

71 So.3d 41

STATE of Alabama

v.David R. ELLIS.

CR–09–0083.

Court of Criminal Appeals of Alabama.

Oct. 1, 2010.

Troy King, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellant.Benjamin E. Schoettker, Montgomery, for appellee.PER CURIAM.

The State of Alabama, pursuant to Rule 15.7, Ala. R.Crim. P., appeals the circuit court's order granting David R. Ellis's motion to suppress the illegal drugs discovered in his vehicle.

In January 2009, Ellis was indicted for the unlawful possession of a controlled substance and for second-degree possession of marijuana. The circuit court granted Ellis's motion to suppress and allowed the State to nol-pros the charges.

In June 2009, Ellis was reindicted for the unlawful possession of cocaine, a violation of § 13A–12–212(a)(1), Ala.Code 1975, and for the unlawful possession of marijuana, a violation of § 13A–12–214, Ala.Code 1975. Ellis moved to suppress the drugs that were discovered in his vehicle. On September 14, 2009, the circuit court granted Ellis's motion to suppress.

The State moved the court to vacate its order because, it said, it was not served with a copy of that order. On September 28, 2009, the circuit court granted the State's motion to vacate and reissued its earlier order granting Ellis's motion to suppress. The State filed this appeal pursuant to Rule 15.7, Ala. R.Crim. P., within seven days of the issuance of the new order.¹

Ellis argued in his motion to suppress that the traffic stop leading to the discovery of the drugs in his vehicle was illegal and that there was no probable cause for his further detention and the search of his vehicle. The State argued that the stop was lawful based on Cpl. Wesley Richerson's observance of the vehicle crossing the center line and swerving and that Ellis consented to the search of his vehicle.

At the suppression hearing, the only witness to testify was Cpl. Richerson, a canine handler with the Montgomery County Sheriff's Office. Cpl. Richerson testified that on August 16, 2008, he was checking the grounds at Macon East Academy off Vaughn Road, because there had been several burglaries in the area, when he noticed a vehicle, a Cadillac Escalade, that was later identified as Ellis's, drive past his location three times. Cpl. Richerson pulled out behind the Escalade and was running the license tag on the vehicle when he observed the Escalade swerve and cross the center line of the road several times. The Escalade then suddenly pulled off the road onto the shoulder and came to a complete stop. Cpl. Richerson pulled in behind the vehicle and activated his emergency lights.

Cpl. Richerson approached the vehicle's driver side and noticed a strong odor of alcohol on Ellis's person. Cpl. Richerson asked Ellis if he had been drinking and Ellis replied that he had. Ellis said that he had been talking on his cellular telephone and looking for a residence in the area. Cpl. Richerson radioed for back-up. When back-up arrived he asked Ellis to exit his vehicle so that he could perform several field-sobriety tests and a portable breath test (“PBT test”) on him. The breath test detected the presence of alcohol, but Cpl. Richerson testified that, based on Ellis's performance on the field-sobriety tests, he did not believe that Ellis was under the influence of alcohol sufficient enough to arrest him for that offense.

Cpl. Richerson further testified that he advised Ellis to contact someone to come and pick him up. Ellis signed his traffic citation. Cpl. Richerson then asked if he could search the Escalade, and, he testified, Ellis gave his consent. Cpl. Richerson said that if Ellis had responded no, Ellis would have been free to go at that time.

Cpl. Richerson got his K–9 partner, Fax, out of his patrol car and walked the dog around the exterior of the Escalade. Fax alerted for the presence of narcotics on the driver's door of the Escalade. Cpl. Richerson opened the door and allowed the dog to enter the vehicle. The canine then alerted to the presence of contraband in the center console. Cpl. Richerson opened the center console and found cocaine and marijuana.

During questioning by the circuit court, Cpl. Richerson testified that Ellis had a pistol in his vehicle and that he had a permit to carry the weapon. However, there is no testimony as to when Cpl. Richerson was made aware of the pistol—before or after the search of the vehicle was conducted.

The State argues on appeal that the circuit court erred in granting Ellis's motion to suppress the cocaine and marijuana. Specifically, the State argues that reasonable suspicion or probable cause was not required for Cpl. Richerson to search Ellis's vehicle because Ellis consented to the search. Ellis argues on appeal that he was seized after the traffic stop was complete; therefore, he argues, his consent was not voluntary.

The circuit court based its ruling on the motion to suppress on the fact that Cpl. Richerson had no reason to ask Ellis for his consent to search the vehicle. The following occurred at the end of the suppression hearing:

“The Court: [W]hat reason are you asking though?

“[Cpl. Richerson]: Well, he's already—

“The Court: Just to ask?

“[Cpl. Richerson]: No. He's already—

“The Court: I mean, why are you asking ? You've got to have a reason.

“[Cpl. Richerson]: Yes, ma'am.

“The Court: You can't just everybody who drives up—I mean, I understand you've got a K–9 and you can just say, hey, I'll just ask him for consent to search because I can. I mean, what reason did you have?”

(R. 15.)

As the Alabama Supreme Court stated in State v. Hill, 690 So.2d 1201 (Ala.1996):

“The trial judge made his ruling following a hearing at which he heard oral testimony only from Officer Bailey. We stated in Ex parte Agee, 669 So.2d 102 (Ala.1995):

“ ‘Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court's conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).’ ”

“669 So.2d at 104. ‘Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts.’ Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted). The trial judge's ruling in this case was based upon his interpretation of the term ‘reasonable suspicion’ as applied to an undisputed set of facts; the proper interpretation is a question of law.”

690 So.2d at 1203–04.

Though Cpl. Richerson's testimony is confusing at times, there were no discrepancies or factual disputes in his testimony. The only point that was not fully explained at the suppression hearing was whether the friend that Ellis had called was present at the time that Cpl. Richerson asked Ellis for his consent to search his vehicle. Based on the circuit court's comments during its questioning of Cpl. Richerson, it appears that this individual had not yet arrived at the scene. Accordingly, we apply the de novo standard of review when reviewing the validity of the circuit court's ruling in this case. See State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004) (“This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute.”).

“[B]ecause a routine traffic stop is a limited form of seizure, it is analogous to an investigative detention, and we have therefore held that a traffic stop will be governed by the standard set forth in Terry v. Ohio, 392 U.S. 1 [ (1968) ].” J.T.C. v. State, 990 So.2d 444, 447 (Ala.Crim.App.2008).

“ ‘ Terry sets up a two-prong test of the reasonableness of investigatory detentions and weapons searches. First, we must decide whether the detention was justified at its inception.... Second, the officer's actions must be reasonably related in scope to the circumstances which justified the interference in the first place. At both stages, the reasonableness of the officer's suspicions is judged by an objective standard taking the totality of the circumstances and information available to the officers into account.’ United States v. Johnson, 364 F.3d 1185, 1189 (10th Cir.2004) (quotations and citations omitted).”

United States v. Sanchez, 519 F.3d 1208, 1212–13 (10th Cir.2008).

First, Cpl. Richerson stopped Ellis, he said, because he observed Ellis cross over the center line multiple times while he was driving. Section 32–5A–88, Ala.Code 1975, defines the traffic infraction of “improper lane usage.” “[A] traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation ....” United States v. Botero–Ospina, 71 F.3d 783, 787 (10th Cir.1995).

Second, the stop “may not last any longer than necessary to process the traffic violation unless there is articulable suspicion of other illegal activity.” United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir.2001). When Cpl. Richerson approached Ellis's vehicle. he noticed a strong smell of alcohol on Ellis's person. “Therefore, when [Cpl. Richerson] smelled alcohol coming from the vehicle [Ellis] had been driving, he had reasonable suspicion to detain [Ellis] in order to investigate.” Miller v. Harget, 458 F.3d 1251, 1259 (11th Cir.2006).

“Following a traffic stop, an officer is not required to close his or her eyes to all offenses that are not traffic related. State v. MacDonald, 253 Kan. 320, 324, 856 P.2d 116 (1993). [The officer] was permitted to concurrently investigate the source of the odor of alcohol and other observable indicia of...