State v. Otwell, CR-97-2378.

• Decision Date: 26 March 1999
• Docket Number: No. CR-97-2378.,CR-97-2378.
• Citation: State v. Otwell, 733 So.2d 950 (Ala. Crim. App. 1999)
• Parties: STATE v. Timothy Gerald OTWELL.
• Court: Alabama Court of Criminal Appeals

733 So.2d 950

STATE v. Timothy Gerald OTWELL.

No. CR-97-2378.

Court of Criminal Appeals of Alabama.

March 26, 1999.

Bill Pryor, atty. gen., and Thomas F. Parker IV, asst. atty. gen., for appellant.

Bruce A. Gardner, Huntsville, for appellee.

COBB, Judge.

The state appeals from the trial court's order granting defendant's motion to suppress certain evidence. The defendant was charged with unlawful possession of a controlled substance, specifically cocaine, in violation of § 13A-12-212, Code of Alabama 1975.

The following evidence was elicited at the hearing on the motion to suppress. On March 11, 1996, between 11:00 p.m. and 11:30 p.m., narcotics investigator Michael Alexander Salomonsky and investigator John Peterson, of the Madison County Sheriff's Department, were in the parking lot of Chick's Lounge on routine patrol. Salomonsky and Peterson were informed that drug transactions had taken place in the parking lot and Salomonsky had already made several drug arrests in that parking lot. Salomonsky testified that as he was driving through the parking lot he noticed a Nissan pickup truck; a male was standing near the passenger window, leaning in and out of the window of the truck. Salomonsky stopped his car so he could watch. Two males inside the truck appeared to be talking to the male standing at the passenger window. The passenger then placed a white object inside a plastic bag on the dashboard.

At this point, Salomonsky got out of his car and approached the passenger side of the Nissan pickup truck. As he approached the truck, Salomonsky clearly saw and identified the white substance inside the plastic bag as cocaine. Salomonsky pulled his badge from his shirt, identified himself as a sheriff's deputy, and instructed the male outside the truck and the two males inside the automobile to put up their hands. The passenger grabbed the bag of cocaine on the dashboard and threw it down on the passenger-side floorboard. Again, Salomonsky instructed all three men "to put their hands up." (R. 8.) The passenger complied. However, Otwell, who was in the driver's seat of the truck, did not put up his hands. Otwell appeared to be fumbling in the center console area of the truck. Investigator Salomonsky drew his weapon and Otwell then complied with Salomonsky's order to raise his hands.

After Officer Salomonsky looked in the automobile and saw the cocaine on the floorboard, he made the passenger get out of the automobile, handcuffed him, and gave him to Investigator Peterson. Then, Salomonsky went around the truck and handcuffed Otwell. Salomonsky searched the truck and found two more bags of cocaine in the center area of the truck where Otwell was fumbling before he raised his hands. Salomonsky also found a firearm, a mirror, and a razor blade.

The trial court granted Otwell's motion to suppress without making any findings of fact. The prosecutor asked the court to state its grounds for granting the motion to suppress. The judge responded "I don't think there's enough testimony concerning —let me say this. His type of testimony with respect to how he made this arrest and how he made a determination as to exactly what this substance was, this alleged substance, is not sufficient to make it admissible at trial." (R. 20.) Consequently, the trial judge dismissed the case.

In reviewing a decision of a trial court on a motion to suppress evidence, in a case in which the facts are not in dispute, we apply a de novo standard of review. See State v. Hill, 690 So.2d 1201 (Ala. 1996); Barnes v. State, 704 So.2d 487 (Ala. Cr.App.1997). In this case, Investigator Salomonsky was the only witness who testified at the suppression hearing. Therefore, the facts are not in dispute, but rather, the application of the law to those facts is in dispute. Therefore, we will apply a de novo standard of review.

The state contends that the trial court erred in granting the defendant's motion to suppress. In support of its position, the state maintains that Investigator Salomonsky's seizure of the cocaine found on the floorboard of the automobile was proper based upon the plain-view exception to the search warrant requirement. The state also contends that the other two bags of cocaine found in the center area of the automobile were properly seized based upon the incident-to-a-lawful-arrest exception to the search warrant requirement.

"`This court has long held that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. See, e.g., Chevere v. State, 607 So.2d 361, 368 (Ala.Cr.App.1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985); Chevere, supra, 607 So.2d at 368.'"

State v. Mitchell, 722 So.2d 814 (Ala.Cr. App.1998), quoting Rokitski v. State, 715 So.2d 859 (Ala.Cr.App.1997).

In order to decide whether the cocaine was lawfully seized, we must determine whether the elements of the plain-view exception are satisfied. The plain view exception to the search warrant requirement "`permits a warrantless seizure of evidence if the seizing officer (1) has prior justification for the intrusion, (2) comes upon the evidence inadvertently, and (3) immediately recognizes the objects discovered as evidence of wrongdoing.'" Smith v. State, 472 So.2d 677, 682-83 (Ala.Cr. App.1984), quoting Herrin v. State, 349 So.2d 103 (Ala.Cr.App.1977). In 1990, however, the United State Supreme Court abandoned the inadvertent requirement for the plain-view search. Gilbert v. State, 686 So.2d 266, 267 (Ala.Civ.App.1996) (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)).

In explaining the rationale behind this rule, the United States Supreme Court explained that "if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no search within the meaning of the Fourth Amendment— or at least no search independent of the initial intrusion that gave the officers their vantage point." Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

"`Although an officer may seize contraband which is in plain view without obtaining a warrant, this doctrine applies only when the officer has a legal right to be at his viewpoint.'" Duck v. State, 518 So.2d 857, 859 (Ala.Cr.App.1987), quoting State v. Morsman, 394 So.2d 408 (Fla. 1981). Thus, if an officer is in a public place and the contraband is in plain view, the exception is applicable.

Under the facts of this case, the requirement of justification for the intrusion is satisfied. Investigators Salomonsky and Peterson were in a public parking lot. Because the officers were lawfully in a public place, no invasion of privacy occurred and the intrusion was justified.

As to the last requirement—that the evidence observed must be immediately apparent—the officer need not identify the object as contraband immediately. Allen v. State, 689 So.2d 212, 215-16 (Ala.Cr. App.1995). In Allen, this court explained "[t]here is no requirement under the plain view doctrine, however, that the officer recognize the object as contraband upon first glance, or that any information gained from additional looking must be ignored, or that the officer cannot mull over what has been seen before concluding that it is in fact contraband. Nor is it necessary that the officer recognize with certainty that the object is contraband. Rather, the officer must only have probable cause to believe that the object is contraband." Id.

In a similar case, a police officer inadvertently discovered marijuana in the defendant's automobile. Smith v. State, 472 So.2d 677, 681 (Ala.Cr.App.1984). In Smith the third prong of the plain view exception was...