Vogel v. State

• Citation: 426 So.2d 863
• Decision Date: 28 October 1980
• Docket Number: 3 Div. 146
• Parties: Gerald Len VOGEL and Robert Louis Vogel v. STATE
• Court: Alabama Court of Criminal Appeals

Page 863

426 So.2d 863

Gerald Len VOGEL and Robert Louis Vogel v. STATE

3 Div. 146.

Court of Criminal Appeals of Alabama.

Oct. 28, 1980.

Rehearing Denied Nov. 25, 1980.

Frank W. Riggs, Montgomery, for appellants.

Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Gerald Len Vogel and Robert Louis Vogel were each indicted in Montgomery County for fourteen counts of violating the Alabama Uniform Controlled Substances Act by being in possession of a number of different controlled substances seized by Montgomery police officers from the Vogels' car on May 30, 1979. § 20-2-70(a), Code of Alabama 1975. Because of the identical nature of the facts and issues, the two defendants agreed that their cases be consolidated for trial, and further waived a trial by jury, instead submitting their combined cases to the trial court for determination. Both defendants were found to be guilty as charged by the trial court with respect to eleven of the fourteen counts, and the court granted the State's motion to nol pros the remaining three counts as to each defendant. The court sentenced Gerald Vogel to consecutive terms of fifteen and five years imprisonment on the first two counts respectively, and imposed fifteen year terms for each of the remaining counts, to run concurrently with the initial consecutive terms. Robert Vogel was sentenced to three fifteen and one five year term, to be served consecutively, on the first four counts of his indictment, and to fifteen year terms for each of the remaining counts, to be served concurrently with the consecutive sentences. From such judgments and sentences, both Vogels now prosecute this appeal.

Initially, the trial court received evidence on appellants' motion to suppress the evidence of the drugs seized from the car, but appellants later agreed that the trial court consider such evidence in its determination of appellants' guilt or innocence. The first witness for the State was Officer L of the Montgomery Police Department, who testified that, on the morning of May 30, 1979, he and Officer P had been on routine patrol in their marked police vehicle on Narrow Lane Road south of Montgomery's Southern By-Pass. At approximately 10:00 o'clock, the officers turned onto Allenport Road, a dirt "circular type road" which intersects Narrow Lane Road in two places and apparently runs back to an abandoned or seldom used airstrip. Officer L described the area as somewhat rural and sparsely populated, with only a few houses and Conway Lumber Company in the immediate vicinity; it further appears that there were no inhabited structures along Allenport Road itself. As they drove down Allenport Road, Officer L stated, he noticed through some trees that an automobile was parked on a branch road leading to the airstrip. Officer L testified that he then turned the police car onto the branch road and drove toward the parked car and that as he did so, he saw "a subject throw a plastic bag down on the ground" (R. 10), and a second individual standing at the rear of the car with the trunk open. The officer stated that he had on several prior occasions run across persons "hunting squirrel out of season", "love making," "drinking beer," and the like (R. 9), and thus he stopped the police car, got out and approached the parked car. As he did so, he witnessed two individuals "appearing to fumble with something in the trunk," at which point Gerald Vogel walked around to the front of the car and Robert Vogel "slammed" the trunk lid shut "as if ... [to] get it closed before we got back there" (R. 11). Upon questioning, one of the pair stated that they were there to dump some trash, despite the posted signs prohibiting dumping, but would not do so now that the officers were there. Officer L testified that he glanced around the car, but that he saw no trash other than the plastic bag, so he asked Robert Vogel if he could look in the trunk, a request refused by Vogel. The officer stated that, after procuring identification from the two, and recognizing Robert Vogel's name from prior police contacts, and upon again being refused permission to examine the trunk, he told Officer P to radio for an investigator. Several minutes later, Investigator N arrived, and Officer L stated that he informed N of the situation; Robert Vogel again denied the officers permission to look in the trunk, stating that they would have to get a search warrant to do so. During this colloquy, Officer L testified, Gerald Vogel acted "fairly normal," while Robert was "extremely nervous" and "sweating heavily" and attempted to remain at or near the trunk at all times (R. 17).

Officer L then testified that, prior to the arrival of Investigator N, he looked into the interior of the car and saw three "Army type duffel bags" stuffed with "brick" shaped objects lying on the back seat, and a police scanner and walkie-talkie in the front seat area. After N arrived, Officer L stated that he examined the plastic bag which had been discarded and was lying on the ground, and deduced from the affixed price tag that it might have come from Conway Lumber Company, a store located at one intersection of Allenport and Narrow Lane Roads. Leaving P, N and the two appellants, Officer L drove to Conway and showed an employee the plastic bag, and, according to L, the employee stated that two white males driving a gold car had earlier entered the store at two different times and purchased duffel bags. The employee placed the times of these visits to have been within thirty minutes of the officer's visit, and identified the bags as three plain and two camouflaged canvas duffel bags. The two males had then driven down Allenport Road toward the airstrip. Officer L then testified that he returned with this information to the scene of the parked car and talked with N, and both decided that Robert Vogel would be arrested for littering. After doing this, the officers attempted to open the trunk to look for "the trash that would have been involved with the bag that we found" (R. 21), but Robert Vogel resisted their attempts and finally was handcuffed. Robert Vogel continued to interfere by blocking access to the trunk, according to Officer L, so he was placed in the back of the police car; from there he escaped and returned to the trunk of his car, and removed the keys from the trunk lock. Officer L testified that he located the keys behind the back seat of the police car, but Robert Vogel had rendered them unusable, and the trunk could not then be opened. During all of this, L stated, Gerald Vogel had not been placed under arrest.

At this point, L and N entered the car and removed the duffel bags, and upon opening them discovered the controlled substances. Both Vogels were then transported to the police station, and the car towed there by a wrecker. Officer L stated that, at the time, he thought that the bags contained marijuana bricks because of the rectangular imprints, but that in any event he "knew there was something wrong" (R. 27). Under questioning from the court, Officer L stated that he did not believe that appellants had purchased several "seven or eight dollar" duffel bags "to put old trash in to throw out on the ground" (R. 31). He also stated that, from his police experience, he knew generally what a brick of compressed marijuana looked like. Officer L then testified that he and Officer N executed affidavits and secured a search warrant for the trunk of the car. He also identified a number of photographs of the scene and the car, and identified the plastic bag he had picked up.

On cross-examination by counsel for appellants, Officer L acknowledged that, at the time he had had no reports of any burglaries or robberies in the area, but that he did not remember telling Officer P to radio for a property crimes investigator. He further stated that he did not remember calling the plastic bag to the attention of Officer P as they approached appellants' car, although he reiterated that he had definitely seen Robert Vogel toss the bag onto the ground. Officer L testified that he only mentioned the bag to the Vogels some twenty minutes after he first talked to them in connection with Robert's arrest for littering. He further stated that he summoned Investigator N for "investigative advice" in regard to the car, but that he did not know that N was a property crimes investigator.

Officer L further stated under questioning from the court that he knew of Robert Vogel's past brushes with the law involving buying, receiving and concealing stolen property, and drugs. He also stated that he was familiar from his training with the use of isolated airstrips as a "way out for contraband" (R. 61).

On re-direct examination, the officer testified that he knew that appellants had purchased five bags, but that only three were visible inside the car. On re-cross, he acknowledged that neither appellant had told him that the bags contained trash.

Montgomery Police Investigator N testified that, on May 30, 1979, he had been summoned by radio to the Allenport Road area and that, upon arrival, he had occasion to see appellants, as well as Officers L and P. He stated that, upon looking into the parked car at the scene, he saw a police scanner and three duffel bags filled with rectangular objects. Further, Investigator N said, he asked Robert Vogel for permission to look into the trunk, which permission was denied by Vogel, who told N to get a search warrant. At that point, Officer L showed N the plastic bag, and then left the scene to go to Conway Lumber Company. Investigator N stated that, during this time, Robert Vogel was extremely nervous and paced about. Upon L's return from Conway, Robert Vogel was placed under arrest for littering, and the keys to the car removed from his pocket. Investigator N further stated that he had formed an opinion that the bags in the back seat area contained "kilo bricks of marijuana" (R....