Tice v. State

• Decision Date: 06 May 1980
• Docket Number: 3 Div. 140
• Citation: 386 So.2d 1180
• Parties: Chester TICE, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1180

386 So.2d 1180

Chester TICE, alias v. STATE.

3 Div. 140.

Court of Criminal Appeals of Alabama.

May 6, 1980.

Rehearing Denied May 27, 1980.

David G. Flack, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., Thomas R. Allison, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Second degree burglary and grand larceny; sentence: ten years imprisonment.

Around 1:00 p. m. on March 2, 1979, the appellant broke into and entered Apartment 101-A of the Vieux Carre' apartment complex in Montgomery. Within minutes after his departure, he was apprehended and arrested by Montgomery Police Detectives W. T. Sheriff and J. L. Roy who had him under observation throughout the morning.

I

Counsel for the appellant filed a motion to suppress "evidence oral and tangible obtained directly or indirectly from Defendant." Appellant contends that the trial court erred in denying that motion. Specifically, he asserts (1) that there was no probable cause to arrest him, consequently any evidence obtained as a result thereof was inadmissible, and (2) that his confession was involuntary and unintelligently made.

A

During a hearing on appellant's motion to suppress, Montgomery Police Detective W. T. Sheriff testified that he and his partner, Detective J. L. Roy, observed the appellant throughout the morning on March 2. Detective Sheriff stated that the appellant was under observation because he was a suspect in various burglaries. After following the appellant from his home to various places, he observed the appellant leave his home around 12:30 or 1:00 p. m. and drive to the Vieux Carre' apartments. He and his partner parked across the street and photographed the appellant's actions. He saw the appellant exit his car, walk around an apartment building, return to his car, attach a utility belt with tools to his waist and enter the apartment building. Within three to four minutes, the appellant exited carrying a brown paper sack. After removing his utility belt and placing it and the sack in his car, the appellant drove away. The detectives immediately apprehended him. Their inspection of the paper sack revealed the contents to be a collection of various old coins.

The utility belt and tools (including a pipe wrench) and the door knob to the burglarized apartment were admitted into evidence without objection or by stipulation of appellant's counsel. Likewise, a group of photographs illustrating appellant's actions after he had exited from the apartment building were admitted into evidence without objection.

An officer may arrest without a warrant when "a felony has been committed and he has reasonable cause to believe that the person arrested committed it." Section 15-10-3, Code of Ala.1975. The rule of reasonable or probable cause is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). As defined in Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959):

"Probable cause exists where 'the facts and circumstances within their (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. . . ." (Citation omitted.)

In determining whether there is probable cause to arrest, it is not necessary that the officer have before him evidence that would support a conviction for the offense. He need only have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the accused had committed or was committing an offense. The officer's good faith in making the arrest alone is not sufficient. Braxton v. State, Ala.Cr.App., 350 So.2d 753 (1977).

In the instant case Detective Sheriff suspected that the appellant had been involved in numerous unsolved burglaries. While mere suspicion or knowledge of an accused's reputation alone are not enough to negate the warrant requirements of the Fourth Amendment, they are factors to be considered in determining whether probable cause existed for the arrest. Young v. State, Ala.Cr.App., 372 So.2d 409 (1979); Knight v. State, Ala.Cr.App., 346 So.2d 478, cert. denied, Ala., 346 So.2d 483 (1977). In Young the officers observed no conduct out of the ordinary which would lead a prudent person to believe a felony was being committed. In that case the officers acted only on the suspect's reputation and upon their own suspicions. In the instant case the appellant's conduct observed by the officers was substantially more incriminating than that observed in Young, supra.

Detective Sheriff knew the appellant did not reside at the Vieux Carre' apartments. His observations of the appellant's actions at the apartment complex revealed that the appellant first walked around the apartment building apparently "casing" it. Appellant returned to his car and placed the utility belt with tools around his waist, reentered the apartment building, and after a brief time exited carrying a brown paper sack with which he had not previously entered. He then got in his car and drove away. Based upon Detective Sheriff's observation of appellant, he had facts and circumstances within his knowledge to lead him or any other prudent person to believe that the appellant had committed a burglary. The actions of the two officers here evidenced good police work. We find that appellant's arrest was legal and that the evidence, procured as a result of such, was not rendered inadmissible on the basis of a lack of probable cause.

B

Appellant next asserts that the trial court erred in denying his motion to suppress his confession on the ground that it was involuntarily and unintelligently given. Appellant contends that he was suffering from alcoholism and was intoxicated to such an extent that he could not voluntarily waive his Miranda rights.

Detective Sheriff testified that after the appellant was apprehended and arrested around 1:30 p. m. he was transported to police headquarters. There he read the appellant his Miranda rights. Around 2:15 p. m. the appellant read and then signed a waiver of rights form which also contained the Miranda warning. That form was introduced into evidence without objection. Detective Sheriff testified that no reward was offered or threat made to induce the appellant to make a statement. He said that the appellant then made an inculpatory statement and signed it at 4:45 p. m.

Detective Sheriff stated that although he was aware that the appellant frequented bars he had no knowledge of his drinking habits. Neither did he see the appellant take a drink on March 2 although the appellant told him he had been drinking. He testified that no deal was made for the appellant to be released on bond and no promise of leniency was made if the appellant would aid in their investigation of numerous unsolved burglaries in exchange for his statement. The appellant did in fact help solve many of those burglaries, but his assistance in that matter was requested after the instant statement had been made and signed.

The appellant presented several witnesses who testified about alcoholism in general as well as his specific drinking habits and problems. His wife, Lela Tice, testified that he had not been regularly employed during the prior year. She said the appellant had a drinking problem and would normally begin drinking after she left home for work each morning. Mrs. Tice testified that around 2:30 p. m. on March 2 she was notified by her son of her husband's arrest and, after getting off work around 4:00 p. m., went to see him at city hall. She spoke to Lieutenant T. J. McClain who told her that they were attempting to sober up the appellant, that they did not need him in jail, but needed him on the outside to help them. Mrs. Tice was later allowed to post bond for the appellant.

Clarence Cook, appellant's probation officer, testified that it was within his discretion to allow a parole violator, as was the appellant, to be released on bond. He said no deal was arranged with him in exchange for the appellant's release. He stated that on March 13 he arrested the appellant for violation of his parole. In a report dated March 12, Cook stated that the detectives involved in appellant's case noted that the appellant had been drinking heavily, but was not "staggering drunk" and that the appellant committed the instant offense while under the influence of alcohol.

Lieutenant T. J. McClain testified that on March 2 he transported the appellant from the scene of the arrest to city hall. He stated that at that time he read appellant his Miranda rights. While Lieutenant McClain was not involved in the investigation of the case or the interrogation of the appellant which resulted in his making a statement, he did ask Clarence Cook not to arrest the appellant if he cooperated with the police, but rather to allow his wife to post bond. Lieutenant McClain testified that he made no deal with the appellant to arrange for bond in exchange for his statement. He stated that in his opinion the appellant was not intoxicated on March 2.

Dr. Norman D. Huggins, a practicing psychiatrist from Birmingham whose chosen field of expertise is in the area of alcohol and drug abuse, testified to the general symptoms and effects that excessive amounts of alcohol may have on certain individuals. Dr. Huggins stated that the degree of such effect would depend upon one's cultural background, physical condition, past history of alcohol consumption, quantity of alcohol consumed, time in which it was consumed, and food consumption prior to, during or after the time of alcohol consumption. He testified that whether one could consciously waive his Miranda rights would depend upon his tolerance to alcohol with one having a higher tolerance being more capable of functioning normally than one with a lower tolerance.

...