State v. McPherson
| Decision Date | 28 May 2004 |
| Parties | STATE of Alabama v. Curtis McPHERSON. |
| Court | Alabama Court of Criminal Appeals |
Troy King and William H. Pryor, Jr., attys. gen., and J. Thomas Leverette, asst. atty. gen., for appellant.
C. Brandon Sellers III, Greenville, for appellee.
The State appeals from the trial court's order suppressing evidence a law enforcement officer seized from the vehicle and person of the appellee, Curtis McPherson, during a traffic stop. The appellee filed a pretrial motion to suppress in which he argued that the law enforcement officer detained him for an unreasonable period of time during a traffic stop; that the officer did not have reasonable suspicion to detain him while waiting on a K-9 unit to respond; and that any evidence the officer seized pursuant to the illegal detention should be suppressed. After conducting a hearing, the trial court granted the appellee's suppression motion. This appeal followed.
Trooper Jesse Peoples testified that he had been with the Alabama Department of Public Safety since 1989 and was involved in highway patrol and criminal interdiction; that, shortly after 10:00 a.m. on September 11, 2002, the appellee drove up behind him on I-65 with the headlights on his vehicle on bright; that the appellee changed from the right lane to the left lane without giving a signal; that the appellee passed him and changed from the left lane to the right lane without giving a signal; that he stopped the appellee for making an improper lane change; that he approached the appellee's vehicle, asked the appellee for his driver's license, and told the appellee why he had stopped him; that the appellee gave him his driver's license and told him that he was not thinking; that he asked the appellee to step back to his patrol vehicle; that, as they were sitting in his vehicle and talking, the appellee would not make eye contact with him and kept staring out the front window; that he could see the appellee's carotid pulse, which was exaggerated; that the appellee's voice was cracking and quivering; that, while he was talking to the appellee, he was checking the appellee's driver's license; that the appellee did not have proper insurance; that, at some point, he told the appellee he would write him a warning ticket; that the appellee's level of nervousness did not decrease when he told him he was only getting a warning ticket; that most people become less nervous at that point; that he asked the appellee if he had a gun, and the appellee told him he had one; that he asked the appellee if he had a gun permit, and the appellee gave him a facially valid permit; that he subsequently retrieved the gun from the appellee's vehicle and called it in to find out if it was stolen; that, even after he had retrieved the gun, the appellee's level of nervousness did not decrease; that he asked the appellee if there was anything else in the vehicle; that he asked the appellee if he would mind if he searched the vehicle, and the appellee said, "`I would rather you not'"; that he asked the appellee again, and the appellee said, "`[M]an, you don't understand'"; that, when the appellee said that, his voice was quivering and he was almost to the point of tears; that the appellee did not tell him what he did not understand; that, in fourteen years, he had dealt with thousands of people, and the appellee's level of nervousness was more elevated than that of a normal motorist; that he would not have felt safe returning the gun to the appellee and wanted to alleviate his fears and concerns before he returned the gun to the appellee; that he then called Chris Brown, a K-9 unit who was in the area, for back-up; and that, during a subsequent search, he found drugs in the glove compartment of the vehicle. (R. 14, 25-26.) Peoples also testified that, at the time he called Brown, he had all of the information he needed to write the warning ticket; that the entire stop lasted between twenty-eight and twenty-nine minutes; that that was normal for the type of stop involved in this case; that he did not let the appellee sign the warning until they went to the Alabama Bureau of Investigation office; and that the appellee was not free to leave because the traffic stop was not completed until after he had been arrested.
Trooper Chris Brown, a K-9 officer with the Alabama Department of Public Safety, testified that, on September 11, 2002, he responded to Peoples' call for back-up; that Peoples told him he needed to use his dog; that he walked his dog around the appellee's vehicle; that the dog alerted on the right rear and left rear doors of the vehicle; that he advised Peoples about the positive response on the vehicle; and that he saw Peoples search the vehicle.
A videotape of the traffic stop was admitted into evidence during the hearing on the appellee's motion to suppress, and we have reviewed it. The appellee was not visible during the majority of the videotape; in fact, the only time the videotape shows the appellee before Brown arrived was when the appellee walked from his vehicle to the patrol vehicle. Also, during much of the videotape, the appellee's voice is barely audible. However, the videotape shows that Peoples initiated the traffic stop at 10:03 a.m.; that, after the appellee stopped, Peoples approached his vehicle, asked him for his driver's license, and asked him to come back to his patrol vehicle; that, at 10:05 a.m., Peoples told the appellee he was going to write him a warning; that Peoples subsequently contacted the dispatcher and gave her the appellee's driver's license and license tag numbers; that, after Peoples received some initial information from the dispatcher, he asked the dispatcher to run some type of a check; that, while waiting for the results of that check, Peoples chatted with the appellee about various subjects; that, at 10:11 a.m., the dispatcher contacted Peoples with more information; that Peoples then commented on the appellee's nervousness and asked the appellee if he had any weapons; that the appellee said he had a gun, and Peoples got the gun out of the appellee's vehicle; that Peoples then asked the appellee if he had anything else in the vehicle, and the appellee said that he did not; that Peoples asked the appellee if he minded if he looked in the vehicle, and the appellee said that there was not anything else in the vehicle; that, at that point, Peoples asked the dispatcher to check the serial number on the gun to find out if it was stolen; that, while waiting for that information, Peoples again asked the appellee if he had a problem with him searching his vehicle, and, after the appellee responded, he commented on the appellee's nervousness; that the appellee, in a highly agitated voice, said that Peoples did not understand; that, at 10:16 a.m., Peoples contacted Brown; that the dispatcher subsequently contacted Peoples, and Peoples again gave her the gun's serial number; that, at 10:17 a.m., the dispatcher told him that the gun was not on file; that, at that point, Peoples asked for the appellee's social security number and height and then asked the appellee to give him his driver's license again; that Peoples told the appellee he needed to get the vehicle identification number for the vehicle; that, at 10:19 a.m., he asked the appellee for his insurance card and discovered that it was expired; that, at 10:22 a.m., Brown arrived and conducted a walk around of the vehicle with his dog; that, at 10:24 a.m., Brown completed the walk around of the vehicle and told Peoples and the appellee that the dog had given a positive response; and that Peoples then searched the appellee's vehicle.
The State argues that the trial court erroneously granted the appellee's motion to suppress. Specifically, it contends that Peoples lawfully detained the appellee while waiting for Brown to respond because Peoples had reasonable suspicion that criminal activity was afoot. Because the facts in this case are not in dispute, we apply a de novo standard of review. See State v. Otwell, 733 So.2d 950 (Ala.Crim.App.1999).
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