Sterling v. State

• Citation: 421 So.2d 1375
• Decision Date: 02 November 1982
• Docket Number: 8 Div. 713
• Parties: Gregory STERLING v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 1375

421 So.2d 1375

Gregory STERLING v. STATE of Alabama.

8 Div. 713.

Court of Criminal Appeals of Alabama.

Nov. 2, 1982.

John Mark McDaniel and Marc Sandlin of McDaniel & McDaniel, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Gregory Sterling was indicted for trafficking in cannabis in violation of § 20-2-80, Code of Alabama 1975. The appellant was found "guilty as charged in the indictment" and the trial court sentenced him to five years' imprisonment and a fine of $25,000.

Immediately preceding the trial in this case, the trial judge held a hearing to consider the appellant's motion to suppress the State's evidence. This averred that the search and seizure of the automobile driven by the appellant occurred without a warrant and allegedly without justification.

Agent Parker, a special agent with the Organized Crime Bureau of the Huntsville Police Department testified that at approximately 10:00 p.m. on July 28, 1981, he received information from a confidential informant that he had seen three subjects selling marijuana at the Earl Street Community Center on Indiana Street. He specifically identified one of the subjects as Thelonious Strickland. This informant had supplied Agent Parker with information on several occasions in the past and Agent Parker knew the information he had provided had been reliable.

After receiving this information, Agent Parker drove to the Earl Street Community Center with Agents Green and Taylor, also special agents with the Huntsville Organized Crime Bureau. When they arrived there, Agents Parker and Taylor got out of the car and hid in some bushes while Agent Green remained in the car to communicate with police headquarters. Agent Parker testified that he observed three suspects in the community center parking lot standing beneath a street light. During fifteen to twenty minutes of surveillance, Agents Parker and Taylor observed three separate exchanges between the three suspects and three separate individuals. Each transaction consisted of an individual who would approach the three suspects, the suspects would scan the street, the individual would give Strickland something, Strickland would give the individual something in return, the individual would put something in his pocket and walk away.

After the last transaction, the three suspects began walking toward an automobile parked near the agent's surveillance position. All three of the suspects appeared to be scanning the area and the agents observed the appellant smoking what appeared to be a marijuana cigarette. When the three arrived at the automobile, the appellant got in the driver's seat. At this point, the police identified themselves as police officers. The appellant started the ignition and the other two suspects ran. Agent Taylor pointed his shotgun in the car and told the appellant to turn off the motor, which he did. The other two suspects were subdued and apprehended. All three agents testified they detected the odor of burning marijuana coming from the interior of the automobile. From the outside of the automobile, the officers were able to see what they believed was a burning marijuana cigarette on the transmission floorboard (hump) and, also, an unlit marijuana cigarette on the driver's side of the front seat. The three suspects were then placed under arrest for possession of marijuana and were searched. A small manilla envelope containing green plant material was found on the appellant. This manilla envelope is commonly known as a "nickel bag of marijuana" and is used for sale. Agent Taylor read the suspects their Miranda rights.

The agents impounded the automobile pursuant to Huntsville Police Department policy and conducted an inventory of the contents of the automobile. Several .25 caliber bullets and a holster were found on the front seat. The appellant told the agents he did not own the automobile, that it belonged to his uncle and he had not given him the trunk key. The agents then opened the trunk electronically from inside the passenger compartment and found two grocery bags; one open and one closed. Within these two bags were five plastic bags containing green plant material. The open bag contained three of the plastic bags while the closed bag contained two. The officers took these bags into possession. The officers testified that the appellant asked them for his straw hat which they found in the trunk along with some more clothes and some .25 caliber bullets.

The trial judge, after hearing the testimony of the three agents, denied the appellant's motion to suppress the evidence and his trial began later that day.

At the trial, Agents Parker, Green and Taylor testified to basically the same facts which they had given at the motion to suppress hearing. The only other witness for the State was Martha Odum, who is a criminalist with the State Department of Forensic Sciences.

She testified she received five plastic bags containing green plant material enclosed in a larger plastic bag from Agent Taylor on July 29, 1981. The total weight of the five bags was 4.9 pounds and the weight of the individual bags ranged from 14.9 ounces to 16 ounces. She testified she determined that the plant material contained in the manilla envelope, the cigarette butt, the hand-rolled cigarette and the five bags was marijuana.

Appellant testified in his own behalf at this trial. He stated he had borrowed the car from his uncle in Chattanooga the day before his arrest. He denied knowledge of anything in the trunk because his uncle had not given him a trunk key. Appellant testified he went to the community center to look for his brother, Thelonious Strickland. After talking for a while at the community center, they walked to his uncle's car parked down the street. As he got in the car, he saw the police chasing his two companions. He said one of the officers stuck a shotgun through the car window and he got out. He denied that his straw hat was in the trunk or that he had asked for it. He admitted pleading guilty to altering United States currency in 1976. He denied he had been smoking anything, and claimed there was nothing burning in the car when he was arrested. Lastly, he testified that he knew his brother had sold marijuana at the community center in the past.

I

Appellant contends the police lacked sufficient probable cause to effectuate his arrest and conducted an unreasonable search and seizure of the automobile which he was driving. Therefore, the appellant's motion to suppress should have been granted.

Since both of appellant's contentions hinge on whether the initial stop and seizure was reasonable, we discuss this issue first.

In stopping and frisk situations, courts have used a balancing test in determining the reasonableness of police conduct. The necessity of the stop and seizure must be viewed in light of the particular invasion which the stop and seizure involves. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The governmental interest which allows official intrusion upon a private citizen's Fourth Amendment rights is that of effective law enforcement. The individual citizen is protected against unreasonable searches and seizures. However, in certain situations, not only is an invasive stop reasonable, but is merely a minor inconvenience and a petty indignity compared to the government's greater interest in crime prevention and detection. Terry v. Ohio, supra.

In justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, supra. The appropriate question to ask is "... [W]ould the facts available to the officer at the moment of the seizure or the search 'warrant a man of reasonable caution in the belief' that the action taken was appropriate?". Terry v. Ohio, supra; Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

Section 15-5-30 of the Code of Alabama 1975, allows the police, without probable cause, to "stop any person ... in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him, his name, address and an explanation of his actions." This statute gives the police authority to stop and detain a person briefly for questioning based on a suspicion that the person might be engaged in criminal activity. We believe the informant's tip, along with the observation of appellant's actions, gave the police agents valid reason to believe appellant was involved in some type of criminal activity. The officers acted properly by stopping and seizing the appellant and conducting further investigation into his activities.

A

Thus, we must examine the lawfulness of the appellant's arrest. Appellant contends the police did not have sufficient probable cause to arrest him.

Section 15-10-3, Code of Alabama, is the governing statute for warrantless arrests. This statute clearly allows an officer to make a warrantless arrest if he has reasonable and probable cause to effect that arrest. Whether the warrantless arrest was lawful depends upon whether "at the moment the arrest was made, the officers had probable cause to make it." White v. State, 45 Ala.App. 1, 221 So.2d 117 (1969). We hold this arrest valid.

Now, we must examine the reasonableness of the search of the automobile which the appellant was driving and the search of his person.

The constitutional provision involved in this case is the Fourth Amendment to the United States Constitution. This amendment, of course, does not require that every search be made with a warrant. It only prohibits unreasonable searches and seizures. The reasonableness of the search and seizure must be examined rather than the reasonableness of the opportunity to procure a warrant. South Dakota v. Opperman,...