State v. Green

• Decision Date: 04 April 2008
• Docket Number: CR-06-1871.
• Parties: STATE of Alabama v. Trevis GREEN.
• Court: Alabama Court of Criminal Appeals

992 So.2d 82

STATE of Alabama v. Trevis GREEN.

CR-06-1871.

Court of Criminal Appeals of Alabama.

April 4, 2008.

Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellant.

Mary Bernice Sellers, Montgomery, for appellee.

PER CURIAM.

The State of Alabama appeals the circuit court's ruling granting Trevis Green's motion to suppress evidence seized from his vehicle as a result of an investigatory stop.

On May 12, 2006, at around 8:30 p.m. the police were called to a laundromat on Woodley Road. There were several females at the laundromat, who spoke little English but who apparently told police that three or four black males had entered the laundromat, had held guns on them, and had demanded money. According to the females, when they did not understand what the men were saying the men began hitting them.

A be-on-the-lookout ("BOLO") was immediately broadcast to Montgomery police describing the suspects who had been involved in the robberies. According to the initial dispatch there were two suspects— both black males. A second dispatch stated that there were four black males and a third dispatch stated there were three black males. The car the black males were driving was described as gray or dark gray and possibly heading south from the laundromat.

Within six minutes of hearing the BOLO, a Montgomery police officer, Officer A.D. Ferguson, saw a vehicle leave a gas station near the scene of the robberies. The officer stopped the vehicle, based on the BOLO, because it was the same color as the vehicle seen leaving the scene of the robberies and because the four individuals in the vehicle were of the same gender and race as the suspects described in the BOLO. As he was stopping the vehicle, Officer Ferguson saw a male later determined to be Green and a passenger lean over as though they were putting something between the seats. When conducting a search for weapons Officer Ferguson discovered a Crown Royal brand whiskey bag. The bag contained 68 grams of marijuana packaged for individual sale. The four men in Green's car were taken to the laundromat where the female victims remained. None of the men was identified as having been involved in the robberies.

In October 2006, Green was indicted for possession of marijuana in the first degree, a violation of § 13A-12-213, Ala.Code 1975. Before trial Green moved the circuit court to suppress the marijuana on the grounds that Officer Ferguson had stopped Green's vehicle without reasonable suspicion or probable cause. The circuit court granted Green's motion to suppress after briefs were filed on the issue by Green and the State. The State appealed pursuant to Rule 15.7, Ala.R.Crim.P.

On appeal, the State argues that the circuit court's ruling was erroneous because, it argues, Officer Ferguson had reasonable suspicion to stop Green's vehicle.

It is well established that a police officer may make a brief investigatory stop of an individual based upon a "reasonable suspicion" of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In R.W. v. State, 913 So.2d 505, 510-11 (Ala.Crim.App.2005), we stated the following concerning "reasonable suspicion":

"[R]easonable suspicion is determined not by looking at each circumstance individually, but by looking at the totality of the circumstances surrounding the incident. As explained by the United States Supreme Court:

"`When discussing how reviewing courts should make reasonable-suspicion determinations, we have said repeatedly that they must look at the "totality of the circumstances" of each case to see whether the detaining officer has a "particularized and objective basis" for suspecting legal wrongdoing. See, e.g., [United States v. Cortez, 449 U.S. 411] at 417-418 [(1981)]. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might well elude an untrained person." Id., at 418. See also Ornelas v. United States, 517 U.S. 690, 699 (1996) (reviewing court must give "due weight" to factual inferences drawn by resident judges and local law enforcement officers). Although an officer's reliance on a mere "`hunch'" is insufficient to justify a stop, Terry [v. Ohio, 392 U.S. 1] at 27 [(1968)], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [United States v.] Sokolow, [490 U.S. 1] at 7 [(1989)].

"`....

"`We think that the approach taken by the Court of Appeals here departs sharply from the teachings of these cases. The court's evaluation and rejection of seven of the listed factors in isolation from each other does not take into account the "totality of the circumstances," as our cases have understood that phrase. The court appeared to believe that each observation by [the arresting officer] that was by itself readily susceptible to an innocent explanation was entitled to "no weight." See [United States v. Arvizu,] 232 F.3d [1241] at 1249-1251 [(9th Cir.2000)]. Terry, however, precludes this sort of divide-and-conquer analysis. The officer in Terry observed the petitioner and his companions repeatedly walk back and forth, look into a store window, and confer with one another. Although each of the series of acts was "perhaps innocent in itself," we held that, taken together, they "warranted further investigation." 392 U.S., at 22. See also Sokolow, supra, at 9 (holding that factors which by themselves were "quite consistent with innocent travel" collectively amounted to reasonable suspicion).'

"United States v. Arvizu, 534 U.S. 266, 273-75, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)."

The United States Supreme Court in United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), stated:

"The Fourth Amendment requires `some minimal level of objective justification' for making the stop. INS v. Delgado, 466 U.S. 210, 217 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means `a fair probability that contraband or evidence of a crime will be found,' Illinois v. Gates, 462 U.S. 213, 238 (1983), and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause, see United States v. Montoya de Hernandez, 473 U.S. 531, 541, 544 (1985)."

When determining the validity of a stop of a vehicle based on police dispatches we consider the following:

"In reaching a well-founded suspicion to stop a vehicle pursuant to a BOLO, a police officer should consider several factors, including: 1) the length of time since the offense, 2) the distance from the offense, 3) the route of flight, 4) the specificity of the description of the vehicle and its occupants, and 5) the source of the BOLO information."

State v. Wise, 603 So.2d 61, 63 (Fla.Dist. Ct.App.1992). "The presence of three persons in the car, rather than two, is a discrepancy that might reasonably be explained in any number of ways and does not defeat the assessment that [the police officer] had reasonable grounds to investigate further." United States v. Hurst, 228 F.3d 751, 757 (6th Cir.2000).

Here, it appears that the robbery occurred mere minutes before Officer Ferguson stopped Green's vehicle. The State asserts in its brief in opposition to Green's motion to suppress that Green's vehicle was stopped approximately 1.3 miles from the laundromat where the robberies occurred.¹ The dispatches identified the vehicle as a gray or dark gray car with two to four black males in the vehicle. Apparently the source of the dispatches was the victims' descriptions of the robbers to police.² Officer Ferguson stopped the vehicle approximately six minutes after the BOLO was issued.

Although probable cause did not exist to stop Green's vehicle, we hold that the facts were minimally sufficient, based on the totality-of-the-circumstances, to establish a reasonable suspicion for Officer Ferguson to stop Green's vehicle to investigate possible criminal activity.

Accordingly, the circuit court's order granting Green's motion to suppress the marijuana seized as a result of the investigatory stop is due to be reversed and the cause remanded.

REVERSED AND REMANDED.

McMILLAN and WISE, JJ., concur.

BASCHAB, P.J., concurs in the result, with opinion.

SHAW, J., concurs in the result.

WELCH, J., dissents, with opinion.

BASCHAB, Presiding Judge, concurring in the result.

I agree with the conclusion in the main opinion that we should reverse the trial court's order granting the appellee's motion to dismiss and remand this case for further proceedings. However, for the reasons set forth herein, I do not believe that it is appropriate to address the merits of the motion to suppress at this time. Therefore, I respectfully concur in the result.

The appellee filed a motion to suppress on February 15, 2007, and a brief in support of his motion on March 7, 2007. In May 2007, the State filed a "State's Memorandum in Response to Defendant's Motion to Suppress Evidence." On July 13, 2007, the trial court entered an order stating:

"This Court, having reviewed the Defendant's Motion to Suppress and the State's response to Defendant's to Defendant's Motion to Suppress, hereby grants the Defendant's Motion to Suppress."

(C.R. 32.)

In this case, neither the appellee nor the prosecutor submitted any affidavits in support of their pleadings. Also, the record does not indicate that the parties entered into a stipulation of facts regarding the motion to suppress. Finally, the trial court did not conduct a hearing on the motion. Therefore, there was not any evidence before the trial court regarding the motion to suppress, and the trial court improperly granted the appellee's motion to suppress based on the unverified assertions of defense counsel and the...