Wilsher v. State

• Decision Date: 30 September 1992
• Citation: 611 So.2d 1175
• Parties: Janice Lawton WILSHER v. STATE of Alabama. CR 91-733.
• Court: Alabama Court of Criminal Appeals

Page 1175

611 So.2d 1175

Janice Lawton WILSHER v. STATE of Alabama.

CR 91-733.

Court of Criminal Appeals of Alabama.

Sept. 30, 1992.

Rehearing Denied Nov. 13, 1992.

Certiorari Denied Jan. 22, 1993

Alabama Supreme Court 1920345.

Banks T. Smith, Dothan, for appellant.

James H. Evans, Atty. Gen., and Robert C. Ward, Jr., Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The appellant, Janice Lawton Wilsher, was convicted of the unlawful possession of cocaine. She was sentenced to 15 years' imprisonment, was fined $500, and was ordered to pay $100 to the Crime Victims' Compensation Fund. Four issues are raised in this appeal.

I

The appellant's car was stopped on the basis of an informant's tip and a lump of crack cocaine weighing 6.587 grams was found therein. The appellant filed a motion to suppress the cocaine on the grounds that the warrantless search of her car was illegal. A pre-trial hearing was held on the matter and testimony was taken from two police officers. Neither party offered any argument after the testimony was taken and the trial court denied the motion without stating any reasons. In this appeal, the only issue raised concerning the alleged illegality of the search is the appellant's contention that the information provided by the informant was insufficient to justify the initial stop.

In reviewing a trial court's ruling on a motion to suppress, this Court may consider the evidence adduced both at the suppression hearing and at the trial. Henry v. State, 468 So.2d 896, 899 (Ala.Cr.App.1984), cert. denied, 468 So.2d 902 (Ala.1985). In this case, Dothan police corporal Governor Jackson testified at the pre-trial suppression hearing that, on August 9, 1990, he received information from an informant that "there would be a brown two-door Datsun parked at 1202 Robin Street ¹ and it would be leaving the residence and they would have crack cocaine in their possession. It would be a black female driving that vehicle." Supp.R. 12 (footnote added). This testimony indicates that there may have been more than one person leaving in the brown Datsun automobile. However, when asked by defense counsel during cross-examination, "What, basically, did [the informant] tell you," Jackson replied, "[a] black female driving a brown Datsun and gave me the tag number, would be leaving the residence and would be in possession of crack cocaine." Supp.R. 13-14. The informant did not identify the driver by name or give a physical description of the driver.

Corporal Jackson stated that this informant had provided him with reliable information approximately ten times in the past, that this informant had never given him "information that turned out to be false," Supp.R. 12, and that the information provided by this informant in the past had led to other arrests and convictions. He denied that any pending charges or evidence against the informant were "exchanged" for the information regarding the appellant, although he acknowledged that the informant had been paid for this information and for information provided in the past. Supp.R. 15. Jackson also testified that the informant "had been in the [Robin Street] residence" within the past 48 hours, Supp.R. 14, and that the information provided on August 9, 1990, "[a]lso involved individuals in the home," Supp.R. 16.

After receiving the telephone call from the informant and on the basis of the information imparted by the informant, Jackson went to "a wooded area on the dead end of Robin" so that he could watch the residence at 1202 Robin Street. R. 68. Upon his arrival around 4:00 p.m., Jackson saw the car described by the informant parked in the driveway of 1202 Robin Street.

Prior to going to Robin Street, Jackson had relayed the information he had received from the informant to Corporal Antonio Gonzales and Sergeant Duane Herring. About the same time that Jackson began his surveillance of the residence at 1202 Robin Street, Gonzales and Herring "set up an adjacent surveillance" on 6th Avenue, which adjoins Robin Street. R. 87. When Jackson observed the appellant get into the car described by the informant and drive away, he notified Gonzales and Herring of this fact by radio. Gonzales testified at the suppression hearing that he and Herring "pulled in behind" the appellant on 6th Avenue and shortly thereafter stopped her car. Supp.R. 5. Gonzales walked over to the appellant's car and observed her placing a cigarette pack under the front of her seat. The crack cocaine was found in this cigarette pack.

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct investigatory stops of persons or vehicles if they have a "reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur. See generally Caffie v. State, 516 So.2d 822, 825-26 (Ala.Cr.App.1986), [affirmed], 516 So.2d 831 (Ala.1987)." Lamar v. State, 578 So.2d 1382, 1385 (Ala.Cr.App.), cert. denied, 596 So.2d 659 (Ala.1991). "Reasonable suspicion is a less demanding standard than probable cause," Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990), requiring only that the detaining officers "have a particularized and objective basis for suspecting the person detained of criminal activity," Webb v. State, 500 So.2d 1280, 1281 (Ala.Cr.App.), cert. denied, 500 So.2d 1282 (Ala.1986).

It is well settled that "[i]nformation provided by a reliable informant can provide the reasonable suspicion required to justify a Terry stop." Lamar v. State, 578 So.2d at 1385 and authorities cited therein. Whether the information provided by an informant in a particular case is sufficient to establish reasonable suspicion is to be determined by applying the "totality of the circumstances" test set out in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Alabama v. White, 496 U.S. at 330-31, 110 S.Ct. at 2416. Under this test, which was formulated in the context of probable cause, the informant's "veracity," "reliability," and "basis of knowledge" are "highly relevant" factors to be considered. Gates, 462 U.S. at 230, 103 S.Ct. at 2328. However, because reasonable suspicion is a lower standard, there need not be as strong a showing with regard to these factors as is required for the establishment of probable cause, Alabama v. White, 496 U.S. at 330-31, 110 S.Ct. at 2415.

In this case, Corporal Jackson's testimony that he had received information that proved to be true from this particular informant approximately ten times in the past and that the information provided by this informant had led to arrests and convictions clearly established that the informant was reliable. See Moynes v. State, 568 So.2d 392, 393 (Ala.Cr.App.1990). Jackson's testimony also established the basis of the informant's knowledge: he or she had been inside the residence at 1202 Robin Street within the previous 48 hours. ² Further, most of the information provided by the informant was verified prior to the stop of the appellant's car. Jackson went to 1202 Robin Street, where he observed the brown Datsun in the driveway, just as described by the informant. Shortly thereafter, a black female came out of the residence at 1202 Robin Street and got into the brown Datsun, just as described by the informant.

"Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by the police and its degree of reliability. Both factors--quantity and quality--are considered in the 'totality of the circumstances--the whole picture,' United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable."

Alabama v. White, 496 U.S. at 330, 110 S.Ct. at 2416. Conversely, where, as here, the tip is shown to have a high degree of reliability, reasonable suspicion may be established by less detailed information.

In this case, the informant stated that a brown Datsun with a specific tag number was at the residence at 1202 Robin Street, that a black female would leave the residence in this vehicle, and that this female would be carrying cocaine. This is very similar in quantity to the information provided by the informant in Atwell v. State, 594 So.2d 202 (Ala.Cr.App.1991), cert. denied, 594 So.2d 214 (Ala.1992). In Atwell, a reliable informant told a deputy sheriff

" 'that the driver of a white in color Chevrolet pickup truck, which had an aluminum boat in the bed of that truck would be in possession of a quantity of marijuana ... estimated ... to be around five pounds.' The informant also told [the deputy] that 'the truck would be in the vicinity of Saint Elmo and Highway 90.' "

594 So.2d at 207. As in this case, "[t]he informant [in Atwell ] did not provide any other information, such as the driver's intended destination, the direction in which he would be traveling, a physical description of the driver, or the driver's name." Id.

We held in Atwell "that the deputies had at least reasonable suspicion to stop the appellants' truck." Id. at 211. Although the primary question in Atwell was the reliability of the tip, ³ our holding, of necessity, implicitly recognizes that the quantity of the information received was sufficient to establish reasonable suspicion. We reach the same conclusion in this case. The reliability of the informant coupled with the quantity of information provided and the officer's verification of most of that information was sufficient to establish the reasonable suspicion necessary to justify the initial stop of the appellant's car.

As part of this issue, the appellant argues that the trial court erred in denying her motion to reopen the suppression hearing. The record contains a written "Motion...