State v. Jemison

• Decision Date: 17 December 2010
• Docket Number: CR–09–0399.
• Citation: 66 So.3d 832
• Parties: STATE of Alabamav.Dandre Shamar JEMISON.
• Court: Alabama Court of Criminal Appeals

66 So.3d 832

STATE of Alabama

v.Dandre Shamar JEMISON.

CR–09–0399.

Court of Criminal Appeals of Alabama.

Dec. 17, 2010.

Troy King, atty. gen., and Andy Scott Poole, asst. atty. gen., for appellant.Amy Hayes Naylor, Clanton, for appellee.

On Application for Rehearing

KELLUM, Judge.

The opinion released on July 30, 2010, is withdrawn and the following opinion is substituted therefor.

Dandre Shamar Jemison was arrested and charged with one count of unlawful possession of a controlled substance—N–Benzylpiperazine—a violation of § 13A–12–212, Ala.Code 1975, and one count of driving while his license was suspended, a violation of § 32–6–19, Ala.Code 1975. Jemison filed a motion to suppress the package of “Ecstasy” ¹ pills recovered by police during what Jemison alleged was an illegal detention and search. Following an evidentiary hearing, the circuit court granted Jemison's motion to suppress. Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the circuit court's ruling.

The State presented the following evidence at the suppression hearing. On October 12, 2008, Clanton Police Officer David Clackley was patrolling the Second Avenue and Martin Luther King, Jr. Street area of Clanton to watch a residence reportedly involved in drug activity. Officer Clackley drove away from the area for a short period, and when he returned he saw a vehicle, later determined to be being driven by Jemison, drive away from the residence. Officer Clackley followed the vehicle approximately four blocks “just to see what the situation was and check on the status of the driver and see if there were any violations to make a traffic stop.” (R. 7.) Officer Clackley observed “a DVD player or some type of in-dash screen” in Jemison's car, recorded Jemison's license-plate number, and called in the license-plate number to a police dispatcher. According to Officer Clackley, he was about to initiate a traffic stop as the vehicle approached the end of the street and appeared to prepare to be making a right turn; however, Jemison abruptly pulled forward into the driveway of a house across the street, which it was later revealed belonged to Jemison's uncle, and “bumped” a vehicle parked in the driveway in the process. Again, Officer Clackley did not initiate a traffic stop, but instead made a right turn and stopped his vehicle approximately 30 feet from the front door of the house. Officer Clackley testified that he believed Jemison pulled into the driveway because he knew a police vehicle was driving behind him; Officer Clackley wanted to “see if in fact that was [Jamison's] residence or whoever came to the door allowed him to come in or turn him away.” (R. 9.)

Jemison got out of the car, approached the front door of the house, and began looking in his pocket as if he were trying to locate a key. After a few moments, Jemison looked back over his shoulder at Officer Clackley and began walking toward the rear of the house. Office Clackley explained:

“At this time, I didn't know if it was actually his house, whose house it was, or if any criminal acts had occurred prior to me getting there.

“....

“I rolled my window down and I said, ‘Hey, man, do you live here? Can I talk to you for a second,’ to confirm that he lived there, make sure he wasn't drunk or whatever the case may be, make sure he wasn't fixing to break into the house, which is a possibility. And when I said that, he got real nervous and he picked up his pace. As he was walking he said, ‘Man, I got to go.’ I said, ‘I need to talk to you for a second and make sure you live here.’ He said, ‘Man, I got to go,’ and he took off running around the back of the house.”

(R. 11.) Officer Clackley ran after Jemison and caught up with him approximately four or five blocks from the house, then placed him in custody. By this time, another officer had arrived on scene and transported Jemison back to Jemison's vehicle so that Officer Clackley could retrace the steps of Jemison's flight. Officer Clackley explained that he retraced Jemison's steps because

“[a]t this point, I wasn't exactly sure what [Jemison's] reason for running was. I knew he ran. I've been a police officer for ten years. I know that people don't just run to be running. I wanted to go back, backtrack where we had ran. I started from where I caught him and check the area to see if there [was] any evidence [Jemison] disposed of, whether it be a gun, evidence of a burglary, a robbery, drugs, whatever.”

(R. 12.) While he was retracing their steps, Officer Clackley found a small plastic bag filled with small, different colored pills around the corner of the house approximately 20 feet from Jemison's vehicle. Officer Clackley testified that although he did not see Jemison drop the bag of pills, the bag of pills was recovered along the route Jemison ran as he ran from the officer. The pills were later field-tested by the Department of Forensic Sciences and were determined to be Ecstasy, a controlled substance. Officer Clackley proceeded to search Jemison's vehicle, in which he found approximately $9,000 in cash.

During the direct examination of Officer Clackley, the trial court questioned him about why he arrested Jemison. Officer Clackley explained that he arrested Jemison because he believed that Jemison's flight down the center of a public street constituted disorderly conduct, specifically, “under the subsection of blocking or interrupting a pedestrian or vehicle or traffic in a public highway.” (R. 18.) Furthermore, Officer Clackley stated he wanted to determine “what, if any, criminal activity [Jemison] had partaken in prior to running from [Officer Clackley]” and “why exactly [Jemison] did run.” (R. 18, 19.) When asked by the State if he would have continued with his investigatory stop even if he did not charge Jemison with disorderly conduct, Officer Clackley said, “Oh, yes, definitely. Could have been a stolen vehicle, could have just performed a robbery. Really I had no idea when he initially ran why exactly he was running.” (R. 20.) Officer Clackley admitted that when he initiated contact with Jemison, he believed Jemison “had committed, was committing, or was about to commit” some offense. (R. 21.)

When asked on cross-examination whether he stopped Jemison to investigate Jemison's vehicle bumping the other vehicle parked in the driveway into which Jemison pulled his car, Officer Clackley explained:

“The whole situation led me to believe that something was going on with him, whether he had been drunk, stolen vehicle, just committed domestic violence. I really had no clue as to what was going on. The bumping into the other vehicle was a major indicator to me something was going on in this situation.”

(R. 22.) Officer Clackley admitted that he did not reference the bumping of the parked vehicle in his incident report but explained that he did not do so because neither car was damaged. In asking for clarification regarding why Officer Clackley initiated contact with Jemison, Officer Clackley and defense counsel had the following exchange:

“[Defense counsel]: So tell me now, because I'm confused, what was the original basis upon which you had to initiate contact with my client? What was your reasoning?

“[Officer Clackley]: Like I said, it wasn't a traffic stop. I simply asked him if I could speak with him. I never commanded him to stop and talk to me. When I asked, ‘Hey, man, can I talk to you a minute,’ he fled. In my experience, when people run from me upon a simple question—

“[Defense counsel]: You never ordered him to stop and talk to you?

“[Officer Clackley]: Once when we got on Taylor Avenue is when I started giving commands.

“[Defense counsel]: I'm trying to understand the disorderly conduct. If you had not instructed him that he had to stay there and talk with you and if there was no custodial situation, what was the basis upon your chase of him at this point?

“[Officer Clackley]: I have as much a right to run as he does. Once I observed him running in the highway, then he was violating the section that I charged him with, which was disorderly conduct. Up to that point we were both just going for a run.

“[Defense counsel]: Up to that point, you were just going for a run?

“[Officer Clackley]: Yes, ma'am. I was observing him.”

(R. 24–25.)

On December 16, 2009, the trial court granted Jemison's motion to suppress without explanation. This appeal ensued.

In State v. Landrum, 18 So.3d 424 (Ala.Crim.App.2009), this Court explained:

“ ‘This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).’ State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004). In State v. Hill, 690 So.2d 1201 (Ala.1996), the trial court granted a motion to suppress following a hearing at which it heard only the testimony of one police officer. Regarding the applicable standard of review, the Alabama Supreme Court stated, in pertinent part, as follows:

“ ‘ “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.’

“ State v. Hill, 690 So.2d at 1203–04.”

18 So.3d at 426. Because the evidence presented at the suppression hearing is not in dispute, the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the circuit court's ruling.

Initially, we note that the circuit court offered no explanation...