State v. Montgomery, CR-04-2011.

• Decision Date: 03 March 2006
• Docket Number: CR-04-2011.
• Citation: 968 So.2d 543
• Parties: STATE of Alabama v. Maurice MONTGOMERY.
• Court: Alabama Court of Criminal Appeals

968 So.2d 543

STATE of Alabama v. Maurice MONTGOMERY.

CR-04-2011.

Court of Criminal Appeals of Alabama.

March 3, 2006.

Rehearing Denied June 23, 2006.

Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellant.

Paul M. Harden, Jr., Monroeville, for appellee.

COBB, Judge.

Maurice Montgomery was indicted for one count of third-degree burglary. The State appeals from the trial court's order granting Maurice Montgomery's motion to suppress the confession that he made to police officers concerning his involvement in the burglary.

Facts

Tyrone Boykin, of the Conecuh County Sheriff's Department, was the only witness presented at the suppression hearing. He testified to the following.

On the evening of August 29, 2004, David Rankin, owner of Rankin's, a small general store in the Burnt Corn community of Conecuh County, telephoned authorities to report a burglary at his store. Sgt. Davis¹ was dispatched to the store; Boykin arrived approximately 30 minutes after Sgt. Davis. Upon arriving at the scene, Boykin observed that the door of the store had been kicked, someone had attempted to pry the door open, and a pair of shoes and one sock were lying in the store's parking lot. Boykin interviewed David Rankin. Rankin told Boykin that he was asleep in his room next to the store when he was awakened by a "lot of loud knocking" so he got up and went outside. (R. 7.) He told Boykin that he saw "what he thought was two subjects ... [and] one had a white shirt on." (R. 7.) Rankin stated that he "fired four or five [gun] shots." (R. 7.) Rankin also told Boykin that the shoes and sock were not lying in the parking lot when he closed the store and that when he fired the gun-shots, the individuals had run in the direction where the shoes and sock were later recovered.

As part of the investigation, Boykin contacted the "K-9 unit from Atmore." (R. 8.) Boykin testified that in Conecuh County the K-9 unit was referred to as "the dog wardens." (R. 8) He stated that about "a quarter of a mile" down the road from Rankin's store, the officers discovered an abandoned automobile parked on the side of the road. (R. 8.) It was determined from the license plate that this automobile was registered to Tyrone Stallworth, a suspect in the burglary.² (R. 20.) At approximately 12:30 a.m., the dog wardens arrived and were taken to the location of the shoes and sock. "[T]hey beg[a]n to track" at this time. (R. 9, 23.)³ Between 5:25 and 5:30 a.m., after tracking a distance of about four miles (R. 17), the dogs "c[a]me out on [Montgomery]" who was on the roadside with a juvenile. Boykin, who had been patrolling the roadways while maintaining radio contact with the dog wardens, was contacted and went to the scene. When Boykin arrived, Montgomery was lying face down on the ground and was handcuffed. (R. 13.) Boykin said that Montgomery and the juvenile were both wearing shoes.⁴ Boykin stated that Montgomery was not under arrest at this time. However, Boykin gave the following testimony regarding Montgomery's status:

"Q. [By defense attorney on cross-examination]: If Maurice Montgomery had gotten up and said `I'm leaving,' would you have stopped him?

"A. I would have had questions I would have had to ask him.

"Q. You would have held him. So he was not free to leave at the time you drove up and found him on the ground, was he?

"A. No, sir."

(R. 14.) At that time Boykin advised Montgomery of his Miranda⁵ rights and a Miranda "form" was reviewed with Montgomery. Regarding the burglary, Boykin said that Montgomery "talked briefly about it, but he didn't give a whole lot of details." (R. 11.)

Montgomery was taken to the jail facility in Evergreen. Boykin testified that Montgomery was not under arrest but that he was not free to leave the jail. Montgomery was again read his Miranda rights, and the officers again went over their standard Miranda form to assure that he understood his Miranda rights. The officers then took a statement from Montgomery in which he confessed to being involved in the burglary. Boykin stated that after Montgomery confessed, he was arrested for the burglary at Rankin's store.

Boykin testified that at the time Montgomery was handcuffed and taken to the jail, the only evidence Boykin had indicating that Montgomery had been involved in the burglary was that, after approximately four of five hours of tracking, the dog wardens had tracked Montgomery to the roadside location. (R. 18.) Boykin stated: "I didn't have nothing but the dogs tracking him," and Boykin said that he "needed [Montgomery's] confession in order to arrest him for burglary." (R. 19.) Boykin also confirmed that the only circumstance connecting Montgomery to the shoes and sock found in Rankin's parking lot was Rankin's statement that the suspects had run away from the store in the direction of the area in which the shoes and sock were found.

The defense argued at the suppression hearing that dog-tracking evidence cannot establish probable cause. The trial court considered the argument in the following context without objection:

"THE COURT: Let's assume that they'll [dog trainers] say exactly what they always say, which is, they train the dogs—

"....

"— and once they put the dog on a scent, he is infallible and will find the person that's there.

"....

"I assume the dog wardens would testify that they started at the store and the dog bayed and made the type— engaged in the type of behavior that told them they were on track all the way down until they found [Montgomery].

"....

"If they testified to that, the question is: Is that probable cause to arrest for this burglary?"

(R. 21-22.)

After taking this question under advisement, the trial court granted Montgomery's motion to suppress by noting "Granted" on the face of the motion. (CR. 8.)

Issue

The State argues that dog-tracking evidence alone can establish probable cause to arrest, and, thus, that the trial court erred in granting the motion to suppress.

Standard Of Review

"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). "A trial court's ultimate legal conclusion on a motion to suppress based on a given set of facts is a question of law that is reviewed de novo on appeal. See State v. Smith, 785 So.2d 1169 (Ala.Crim.App. 2000)." State v. Hargett, 935 So.2d 1200, 1204 (Ala.Crim.App.2005). Here, the facts are uncontested; the only issue is the circuit court's application of the law to those facts. Analysis

First, despite Boykin's assertion that Montgomery was not under arrest when he was seized by officers, the facts indicate that Montgomery was placed under arrest when he was seized at the roadside. "An individual has been arrested when he is not free to go, whether or not formal words of arrest are used." Michele G. Hermann, Search and Seizure Checklists, § 4.1 (Thompson West 2006).

"`A determination of "custody" is not based on "the subjective evaluation of the situation by the defendant or the police officers." Davis [v. Allsbrooks, 778 F.2d 168,] at 171 [(4th Cir.1985)]. Where there has not been a formal arrest (as here), an objective test is used to determine whether the suspect's freedom of action has been restricted by the police in any significant manner. Davis, supra at 171; [United States v.] Miller, [587 F.Supp. 1296, 1299 (W.D.Pa.1984)]; Warrick [v. State, 460 So.2d 320, 322 (Ala.Cr.App.1984)]; Hall [v. State, 399 So.2d 348, 351 (Ala.Cr.App.1981)]. "The only relevant inquiry is how a reasonable man in the suspect's position would have understood his position." United States v. Jonas, 786 F.2d 1019, 1022 (11th Cir.1986) (quoting Berkemer v. McCarty, 468 U.S. 420, [442], 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984)).'"

Barksdale v. State, 788 So.2d 898, 903 (Ala.Crim.App.2000)(quoting Hooks v. State, 534 So.2d 329, 348 (Ala.Crim.App. 1987), aff'd, 534 So.2d 371 (Ala.1988)).

"Probable cause to support a warrantless arrest must exist at the time of the arrest. Davis v. State, 507 So.2d 1023 (Ala.Cr.App.1986). Probable cause exists if facts and circumstances known to the arresting officer are sufficient to warrant a person of reasonable caution to believe that the suspect has committed a crime. United States v. Rollins, 699 F.2d 530 (11th Cir.) cert. denied, 464 U.S. 933, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). `In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act....' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1891 (1949). `"The substance of all the definitions of probable cause is a reasonable ground for belief of guilt."' Id. `Probable cause to arrest is measured against an objective standard and, if the standard is met, it is unnecessary that the officer subjectively believe that he has a basis for the arrest.' Cox v. State, 489 So.2d 612 (Ala.Cr.App.1985). The officer need not have enough evidence or information to support a conviction in order to have probable cause for arrest. Only a probability, not a prima facie showing, of criminal activity is the standard of probable cause. Stone v. State, 501 So.2d 562 (Ala.Cr.App.1986). `"[P]robable cause may emanate from the collective knowledge of the police...."' Ex parte Boyd, 542 So.2d 1276, 1284 (Ala.1989) (citations omitted)."

Dixon v. State, 588 So.2d 903, 906 (Ala. 1991).

Here, when the dog wardens tracked the scent to Montgomery, he was seized by officers, handcuffed, "Mirandized," and taken to the jail facility without the option of leaving. Essentially, from the moment the dog wardens tracked the scent the dogs had been given to Montgomery,...