Warren v. State

Citation783 So.2d 74
PartiesGeorge Ester WARREN, Jr. v. STATE.
Decision Date02 October 1998
CourtAlabama Court of Criminal Appeals

Margaret Young Brown, Auburn, for appellant.

Bill Pryor, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, George Ester Warren, Jr., was convicted of the unlawful possession of cocaine, a violation of § 13A-12-212, Ala.Code 1975. He was sentenced to eight years' imprisonment. On appeal, Warren contends that the cocaine found in a small plastic container on his person was seized in violation of his Fourth Amendment rights and, therefore, that the trial court erred in denying his motion to suppress the cocaine evidence.

I. Standard of Review

Because the facts material to Warren's motion to suppress were undisputed, our review of the trial court's application of law to those undisputed facts is de novo. State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996).

II. Facts

John Toney, a captain in charge of the narcotics division of the Opelika Police Department, testified that on the afternoon of August 14, 1996, he received a telephone call from a confidential informant who told him that he was, at that moment, watching "four or five black males" who were standing around a white, "late '70s, early '80s model Nissan or Datsun" automobile parked in front of a residence on 548 Hardaway Circle and who were "possessing and selling narcotics from that car." (R. 102-04.) The informant told Captain Toney that he did not know the men, and he described them as "just the usual drug dealers." (R. 104.) He was able to provide Captain Toney with the license plate number of the white automobile, except for one letter.

Captain Toney testified that the informant was known to him and had on several occasions provided him with reliable information concerning illegal drug activity. Although Captain Toney was unsure whether the informant's prior tips had led to any arrests, he stated that he was unsure because the persons whom the informant had previously identified as participants in drug transactions "would always run" when approached by the police acting on those tips. (R. 99.) Captain Toney explained why he considered the informant to be reliable:

"[B]ased on the fact that we would respond —and the people would be there as described by the informant—however, we weren't able to catch them—we felt like the fact that they would run probably indicated that he was telling the truth."

(R. 102.)

After receiving the telephone tip from the informant on August 14, Captain Toney promptly relayed the information to Greg Wilson, a plainclothes detective with the police department's narcotics division, and instructed Detective Wilson to proceed to 548 Hardaway Circle to investigate. Without delay, Detective Wilson, accompanied by two other detectives, drove an unmarked police car to the given address on Hardaway Circle, where he saw four or five black males standing around a white car that matched the description the informant had provided to Captain Toney. After determining that the license plate number on the white car matched the partial tag number provided by the informant, Detective Wilson radioed for assistance and pulled his vehicle up to the white car. Detective Wilson and the two other detectives then got out of their vehicle and approached the men standing around the white car. One of those men was Warren.

Detective Wilson testified that after he and his fellow detectives identified themselves as police officers, they conducted "field interviews" of the men, which consisted of asking them their names and requesting to see their driver's licenses. At some point during the field interviews, the police officer whom Detective Warren had summoned on his radio also arrived on the scene. For their safety, the detectives and the officer determined to pat the men down for weapons. Detective Wilson conducted the patdown of Warren.

Detective Wilson testified that as he patted down the outer surface of Warren's clothing, he felt a small object in Warren's right front pants pocket that he immediately recognized as a "plastic box or container... like a candy container." (R. 120, 153.) Detective Wilson then reached into Warren's pocket and removed the object. When Detective Wilson removed the object from Warren's pocket, he found that it was a clear plastic container that contained several small rocks of what appeared to be crack cocaine. Warren was arrested for possession of cocaine.

The record indicates that the container retrieved from Warren's pocket was a small, clear plastic container ordinarily used to package "Tic-Tac" breath mints. (R. 144, 180, 190.) Forensic testing revealed that the small rocks found in the plastic container were crack cocaine.

Detective Wilson testified that he reached into Warren's pocket to retrieve the plastic container because, "[t]hrough my experience as being an investigator in narcotics, I believed that it did, in fact, contain drugs because I have run across the same type plastic containers in the past that have come off defendants that did, in fact, hold cocaine." (R. 120-21.) Detective Wilson estimated that on 4 or 5 occasions during the approximately 50 patdowns he had conducted during the previous 16 months, he had found similar plastic containers containing narcotics and stated that he had also recovered similar containers containing narcotics "from other defendants that were not taken from a patdown." (R. 162.)

Although the trial court, when denying Warren's motion to suppress, found that the plastic container recovered from Warren's pocket was approximately the size of a box of razor blades, the record reflects that Detective Wilson stated, on both direct and cross-examination, that he reached into Warrens's pocket to retrieve the container because he believed it contained narcotics and not because he believed the container was a weapon or that it might contain something that could be used as a weapon.

III. Issues Raised by Warren

Warren argues (1) that under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police lacked a reasonable suspicion to justify the initial investigatory stop on the street and (2) that, even if the initial investigatory stop was justified under the circumstances, Detective Wilson's act of reaching into Warren's pants pocket to retrieve the plastic container containing the cocaine exceeded the legitimate scope of a protective patdown permitted under Terry.

IV. Discussion

Subject to certain specifically established exceptions, searches conducted "`outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.'" Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See Ex parte Hilley, 484 So.2d 485 (Ala.1985). One exception is the investigatory stop and protective patdown (commonly called the "stop and frisk") situation recognized by the United States Supreme Court in Terry v. Ohio.

In Terry, the Supreme Court held that "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot," the officer may conduct a brief investigatory stop of the suspicious person and make "reasonable inquiries" aimed at dispelling his suspicions. 392 U.S. at 30, 88 S.Ct. 1868; see Huffman v. State, 651 So.2d 78, 79 (Ala.Cr. App.1994). See also Adams v. Williams, 407 U.S. 143, 145-46, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). An investigatory stop does not violate the Fourth Amendment if an officer has a "reasonable suspicion," supported by particular and articulable facts, that a person he encounters has been engaged in, is currently engaged in, or is about to engage in criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. 1868; see Hill, supra, 690 So.2d at 1204-05.

The Supreme Court further held in Terry that "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others," the officer may, for purposes of protection, conduct a limited patdown of the individual "to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." 392 U.S. at 24, 88 S.Ct. 1868; see Huffman, 651 So.2d at 79-80. The purpose of a protective patdown "is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Adams, 407 U.S. at 146, 92 S.Ct. 1921; see Terry, 392 U.S. at 26-27, 88 S.Ct. 1868.

A. Justification for the Investigatory Stop

Warren argues that the investigatory stop by the police was unlawful because, he says, the police lacked a reasonable suspicion to believe he had been involved in criminal activity, as required by Terry.

In Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), the United States Supreme Court recognized:

"Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different is quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause."

496 U.S. at 330, 110 S.Ct. 2412. See Hill, 690 So.2d at 1204.

In determining whether an investigatory stop is supported by a reasonable suspicion:

"[T]he totality of the circumstances—the whole picture—must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal.
"... The analysis proceeds with various objective observations, information from police reports,

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6 cases
  • Ex parte Warren
    • United States
    • Supreme Court of Alabama
    • September 8, 2000
    ...the trial court erred in denying his motion to suppress the cocaine evidence. The Court of Criminal Appeals affirmed. Warren v. State, 783 So.2d 74 (Ala.Crim.App.1998). This Court granted certiorari review to determine whether the Court of Criminal Appeals erred in holding that the trial co......
  • Vinson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 26, 2000
    ...(1968). See e.g., Ford v. State, 680 So.2d 948, 951 (Ala.Crim.App. 1995), cert. denied, 680 So.2d 952 (Ala. 1996)." Warren v. State, 783 So.2d 74, 81 (Ala. Crim.App.1998). This court has determined that police officers have a right to conduct a protective patdown of a suspect, regardless of......
  • T.A.P. v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 10, 2010
    ...of cash. “It has been recognized that ‘weapons and violence are frequently associated with drug transactions.’ ” Warren v. State, 783 So.2d 74, 80–81 (Ala.Crim.App.1998), rev'd on other grounds, 783 So.2d 86 (Ala.2000) (quoting United States v. Brown, 913 F.2d 570, 572 (8th Cir.1990)). Inde......
  • T.A.P v. State Of Ala.
    • United States
    • Alabama Court of Criminal Appeals
    • October 1, 2010
    ...of cash. "It has been recognized that 'weapons and violence are frequently associated with drug transactions.'" Warren v. State, 783 So. 2d 74, 80-81 (Ala. Crim. App. 1998), rev'd on other grounds, 783 So. 2d 86 (Ala. 2000) (quoting United States v. Brown, 913 F.2d 570, 572 (8th Cir. 1990))......
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