State v. Mitchell

• Decision Date: 14 August 1998
• Citation: 722 So.2d 814
• Parties: STATE v. Victor MITCHELL.
• Court: Alabama Court of Criminal Appeals

722 So.2d 814

STATE v. Victor MITCHELL.

CR-97-0229.

Court of Criminal Appeals of Alabama.

August 14, 1998.

Bill Pryor, atty. gen., and James B. Prude, asst. atty. gen., for appellant.

No brief filed for appellee.

BROWN, Judge.

The state appeals from the trial court's order granting the motion to suppress evidence filed by the appellant, Victor Mitchell. The appellant was charged with unlawful possession of a controlled substance, specifically cocaine, a violation of § 13A-12-212, Code of Alabama 1975, with resisting arrest, a violation of § 13A-10-41, Code of Alabama 1975, and with public intoxication, a violation of § 13A-11-10, Code of Alabama 1975.

The appellant filed a written motion to suppress the cocaine. In support of his motion, he argued:

"1. That the Defendant's arrest was illegal and improper in violation of the United States Constitution, Alabama Constitution, and case law against unreasonable searches, seizures, and arrest.

"2. That the Defendant's seizure and subsequent arrest for public intoxication was without probable cause and without a warrant.

"3. That no public offense was committed in the presence of law enforcement prior to his arrest for public intoxication and in fact no crime had been committed.

"4. That the initial contact with the Defendant violates Terry v. Ohio [392 U.S. 1 (1968) ] and case law forbidding illegal searches, seizure and detentions without probable cause."

(C.R.43.)

The following evidence was elicited at the hearing on the motion to suppress. Around 9:30 p.m. on May 15, 1996, Officer Michael Neville, of the Decatur Police Department, was proceeding north on Central Parkway, when he noticed a vehicle "stopped in the middle of the road with the hazards going." (R. 6.) Neville testified that parking a vehicle in the middle of the road is a "crime." Neville saw a man, who was later identified as the appellant, and woman standing beside the vehicle. The couple appeared to be arguing and Neville suspected that some sort of domestic dispute might be in progress. The grass median dividing the highway prevented Neville from immediately turning his vehicle around, so he drove past the couple, turned his vehicle around, and drove back to the couple's car. As Neville parked his car, the woman got into the automobile, and the appellant walked away from the scene. Neville radioed for assistance.

When Neville approached the woman, she assured him that she had not been harmed. She told Neville that she and the appellant had been arguing and that the appellant had wanted to get away from the argument. She had been trying to convince the appellant to get back into their vehicle. Neville did not pursue the appellant.

Officer James Tilley responded to Neville's request for assistance. When he approached the scene, Neville motioned for him to follow the appellant. Tilley observed the appellant staggering down the median, near the edge of the road. Tilley testified that there was at that time a "large flow of traffic" (R. 50) on the road. He saw the appellant stumble a few times. Tilley believed that the appellant "could have very easily slipped off in the traffic." (R. 72.) Based upon his observations, he suspected that the appellant might be intoxicated. Tilley stopped his vehicle and approached the appellant.

When Tilley got near the appellant, he noticed that the appellant smelled of alcohol, that he was glassy-eyed, and that his speech was very slurred. Tilley testified:

"[A]s I'm talking with him, I started making it known to him that I was suspecting him of being intoxicated to a point that I was going to arrest him, and he reached to his pocket, his left front breast pocket, of his shirt and he actually pulled out a couple of [crack] rocks and dropped them, and I grabbed ahold of them and a fight ensued."

(R. 56.)

Defense counsel questioned Tilley at to why the substance of his suppression hearing testimony was not included in the affidavit prepared by the narcotics investigator, Larry Greene, to support the arrest warrant for unlawful possession of a controlled substance.¹ During this line of questioning, the following occurred:

"Q: You do have in that affidavit at least he was purportedly staggering. You don't have anything in there about speech being slurred or him displaying crack rocks to you or trying to dispose of them, do you?

"A: This is not my affidavit.

"Q: Well, Larry Greene goes out and— that is an affidavit for unlawful possession of narcotics, isn't it?

"A: I believe so. Yes, sir.

"Q: Okay. You don't think that information would be important to the warrant magistrate?

"A: If it was my affidavit—

"....

"Q: Bottom line it is not in there.

"A: It is in there about the staggering.

"Q: Right. Just the staggering. The stuff about the crack ... and the resistance, it is not in there, is it?

"A: No.

"Q: And at that point in time you placed him under arrest, is that correct?

"A: For public intoxication.

"Q: That is right. And the for—let me ask you this: had you already placed him under arrest for public intoxication prior to him I guess purportedly displaying these crack rocks to you?

"A: Yes, sir. When he realized I was going to put him under arrest for public intoxication and when I told him that I believed he had had too much to drink to be out here walking in the public, that is when he started his movements.

"Q. Did he bolt?

"A. No, sir. He tried to get the stuff out of his pocket.

"....

"Q: And did he pull any crack rocks from any other place on his person?

"A: I don't recall. I just believe it was his shirt pocket.

"Q: All right.

"A: It was two baggies of crack.

"Q. And now in Mr. Greene's affidavit he states, `Officer Tilley conducted a search of Mr. Mitchell and found two baggies full of crack cocaine in his shirt pocket.' Okay. Now, I want to make sure. Now, is that what happened, or had they been taken out and put on the ground by Mr. Mitchell?

"A. He was—he was under arrest for public intoxication.

"Q: Answer my question, Jim?

"A: I just did.

"Q: No, you didn't. I asked you whether or not what happened in this affidavit—Larry Greene's affidavit admittedly—

"A: I don't know about Larry Greene's affidavit.

"Q: Did you tell Larry Greene this?

"A: No, sir.

"Q: What did you tell him?

"A: I gave him my report. He takes the information from that.

"Q: Okay. Well, have you got your report with you?

"A: I do not know.

"Q: Okay. And I guess Mr. Greene is wrong about that scenario?

"A: Sir, I don't know.

"Q: Did you put in your report that you conducted a search or that you retrieved them from Mr. Mitchell [who was] trying to take them out of his pocket or from the ground?

"A: Well, if somebody is under arrest I'll do a search, yes, sir.

"Q. Okay. Well, which did you do? I'm kind of confused about your testimony here?

"A. He was under arrest, and I searched him, but he had already tried to take it out and get rid of it. The search was in relation to his actions basically that he was trying to get rid of the evidence."

(R. 57-62.)

During the prosecution's examination of Tilley, the following occurred:

"Q: And then you placed him—began to place him under arrest for public intoxication, he resisted arrest, is that correct?

"A. What he was doing is he was trying to get rid of the evidence in his pocket, and when I went to stop him that is when he started—

"Q: And part of your duties as a police officer when you're called upon to investigate things of this nature and place individuals under arrest, you talk with the investigating officer, an officer who is assigned to investigate that case, is that correct?

"A: Sometimes—

"Q: Once the recommendation is made?

"A: Well, generally if there [are] narcotics involved we do a report and hand it in. If the narcotics officer has any question, he will come up and ask us. Generally when he reads our report he will take that and ask the questions to the individual, but he wants to make sure the subject understands what is being said. He generally waits until the next day.

"Q: You were shown an affidavit prepared by an investigator in this case, Officer Larry Greene, weren't you, by the defendant's attorney?

"A: Yes.

"Q: That is not your affidavit, and that is something Larry Greene himself wrote up and swore to?

"A: Yes, ma'am. I have never seen that.

"Q: And it is not true that that affidavit would contain any and all observations made by you on the night of the arrest of this defendant, is that correct?

"A: I wouldn't think so.

"....

"THE COURT: Officer Greene or Investigator Greene wasn't on the scene, right?

"THE WITNESS: No ma'am.

"THE COURT: And so whatever information he had that he completed that affidavit would have come from you or your report?

"THE WITNESS: Well, he would—normally, Your Honor, in the affidavit he would take out the main points that he felt he needed. I don't know how he does his affidavits. I know that—you know, I don't know if he puts everything that would relate to a case in there. I don't know how he does his affidavits.

"THE COURT: But in your report would you have put in your report that you seized the evidence, the drugs, pursuant to a search or pursuant to the fact that the defendant had them out of his pocket and was throwing them on the ground?

"THE WITNESS: Again, Your Honor, as far as that particular report goes, I would probably put in the order of events that it happened, but sometimes in a report you just put things that would spark your memory to refresh you. That is basically what we use it for, not verbatim because there [are] a lot of things, you know, that we understand. When we read a couple of lines we will know what happened in that incident.

"THE COURT: So would it not be more likely that if the defendant had taken it out of his pocket and in your clear sight and tried to throw it on the ground, would you not have put that information in your report?

"A. I may have, Your Honor. That seems like it would be something—

"THE COURT: That would be more likely than just

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