Worthy v. State

• Decision Date: 06 April 2012
• Docket Number: CR–10–0044.
• Citation: 91 So.3d 762
• Parties: Alvin Lamar WORTHY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

91 So.3d 762

Alvin Lamar WORTHY

v.STATE of Alabama.

CR–10–0044.

Court of Criminal Appeals of Alabama.

April 29, 2011.

Rehearing Denied July 15, 2011.

Certiorari Denied April 6, 2012

Alabama Supreme Court 1101229.

Matthew Bruce Alfreds, Montgomery, for appellant.

Troy King and Luther Strange, attys. gen., and James H. Rutter III, asst. atty. gen., for appellee.

JOINER, Judge.

Alvin Lamar Worthy pleaded guilty to trafficking in marijuana in violation of § 13A–12–231, Ala.Code 1975. He was sentenced to 15 years' imprisonment and was ordered to pay a $25,000 fine, a $2,000 drug-demand-reduction assessment, a $100 forensic-trust assessment, a $50 crime victims compensation assessment, and court costs. Worthy reserved the right to appeal the trial court's denial of his motion to suppress the discovery of the marijuana that resulted in his arrest. This appeal ensued.

At Worthy's suppression hearing, Corporal J.J. Allen and Officer Jacob Smitherman of the Montgomery Police Department testified that on February 6, 2010, they were patrolling a stretch of Interstate 85 in Montgomery County when they observed a vehicle with a “tag applied for” license plate traveling on the highway. Both Allen and Smitherman were part of the police department's highway-safety team and were trained in traffic interdiction and observing indicators of criminal activity in roadside interviews. Allen drove his patrol car out of the median and pulled the vehicle over without incident. Worthy was the driver of the vehicle. Allen approached the passenger side of the vehicle and obtained Worthy's driver's license and a rental agreement for the vehicle.

According to Allen, the passenger ¹ in the vehicle appeared nervous and would not look at Allen as he talked. Worthy stated that he was traveling from Atlanta, Georgia. The passenger later stated that he had been asleep for most of the trip but that he and Worthy had been traveling from Augusta, Georgia. Allen asked Worthy to step out of his vehicle and wait in front of the patrol car while he ran a warrant check. After Worthy stepped out of his rental vehicle, Smitherman asked Worthy if he had any prior arrests. Worthy responded that he had previously been arrested on weapons charges.

Allen returned to his patrol car and ran a criminal-history check that found that Worthy had previously been arrested on weapons and drug charges. While in the patrol car, Allen inspected the vehicle-rental agreement, which revealed that the vehicle was three days past due to Enterprise Rent–a–Car.

While Allen was in the patrol car, Smitherman questioned Worthy on the identity of the passenger in his rental vehicle. Worthy stated that the passenger was his cousin but was unable to tell Smitherman the passenger's last name. According to Smitherman, Worthy's hands shook, and he repeatedly touched his hands to his face as Smitherman questioned him on his prior criminal history and the identity of his passenger.²

After Allen completed the criminal-history check, Smitherman explained the purpose of the highway-safety team to Worthy and asked him a series of questions regarding the trafficking of illegal contraband. Smitherman testified that when he asked Worthy if there was any marijuana in the vehicle, Worthy briefly paused and took a short breath before stating no, which was different from the manner in which he had answered the other questions put to him.

Smitherman then asked Worthy for permission to search his rental vehicle. After Worthy failed to consent to a search,³ a K–9 unit was called to the scene and performed a free-air search of the vehicle. After the dog alerted at the driver's side of the trunk, the trunk was searched and approximately five pounds of marijuana was discovered.

The sole issue Worthy raises on appeal is the legality of the search resulting in the discovery of the evidence forming the basis of his conviction.

“The trial court's ultimate legal conclusion on a motion to suppress as to whether a given set of facts constitutes reasonable suspicion of probable cause is reviewed de novo on appeal.” State v. Smith, 785 So.2d 1169, 1173 (Ala.Crim.App.2000) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). “ ‘Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the [appellate court] will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts.’ ” State v. Hill, 690 So.2d 1201, 1203 (Ala.1996) (quoting Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980)). Because only the arresting officers testified at Worthy's suppression hearing, and the evidence was thus undisputed, the decision of the trial court should be reviewed de novo. Hill, supra.

“ ‘Whether there is probable cause to merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Probable cause exists where all the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.” Sheridan v. State, 591 So.2d 129, 130 (Ala.Crim.App.1991).’ ”

Woods v. State, 695 So.2d 636, 640 (Ala.Crim.App.1996). “Sufficient probability, not certainty ..., is the touchstone under the Fourth Amendment.” Allen v. State, 689 So.2d 212, 216 (Ala.Crim.App.1995).

“ ‘ “This court has long held that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. See, e.g., Chevere v. State, 607 So.2d 361, 368 (Ala.Cr.App.1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985); Chevere, supra, 607 So.2d at 368.” ’

“State v. Mitchell, 722 So.2d 814 (Ala.Cr.App.1998), quoting Rokitski v. State, 715 So.2d 859 (Ala.Cr.App.1997).”

State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999). Another recognized exception to the warrant requirement is the “automobile exception,” which allows law enforcement to search an automobile based on probable cause alone. Harris v. State, 948 So.2d 583 (Ala.Crim.App.2006).

“ ‘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.Crim.App.1986), [affirmed], 516 So.2d 831 (Ala.1987).” Lamar v. State, 578 So.2d 1382, 1385 (Ala.Crim.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.Crim.App.), cert. denied, 500 So.2d 1282 (Ala.1986).’ ”

State v. Davis, 7 So.3d 468, 470 (Ala.Crim.App.2008).

In the present case, “although the appellant correctly notes that none of these factors alone would have justified searching his car, we must look at the totality of the circumstances when determining whether reasonable suspicion exists.” Owen v. State, 726 So.2d 745, 747 (Ala.Crim.App.1998).

This court has previously stated that “unless coupled with additional and objectively suspicious factors, nervousness in the presence of a police officer and/or failure to make eye contact do not establish reasonable suspicion to believe that the person is engaged in criminal activity.” Peters v. State, 859 So.2d 451, 454 (Ala.Crim.App.2003). However, “[w]hile we have held that nervousness alone may not be sufficient to constitute reasonable suspicion, see State v. Washington, 623 So.2d 392 (Ala.Crim.App.1993), it is a ‘pertinent factor.’ ” Camp v. State, 983 So.2d 1141, 1146 (Ala.Crim.App.2007).

“This Court has repeatedly held that ‘ “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” ’ State v. McPherson, 892 So.2d 448, 454 (Ala.Crim.App.2004), quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570, (2000). See also Smith v. State, 19 So.3d 912 (Ala.Crim.App.2009); W.D.H. v. State, 16 So.3d 121 (Ala.Crim.App.2008); and Camp v. State, 983 So.2d 1141 (Ala.Crim.App.2007) (all quoting Wardlow to support the same proposition).”

State v. Jemison, 66 So.3d 832 (Ala.Crim.App.2010).

The nervousness Allen and Smitherman detected from Worthy and his passenger is by itself insufficient to create a reasonable suspicion justifying further detention. Nonetheless, this nervous behavior combined with Worthy's evasiveness regarding the identity of his passenger, the conflicting stories by Worthy and his passenger regarding the starting point of their trip, Worthy's failure to disclose his prior marijuana arrest, and the fact that the rental car Worthy was driving was three days overdue combine to create a reasonable suspicion of concealment of criminal activity.

In Peters, this Court stated that the mere fact that a driver and his passenger gave different travel destinations does not establish reasonable suspicion to detain. Peters, 859 So.2d at 456. Differing accounts of the source of a trip and a driver's inability to identify his passenger's last name, however, are pertinent factors contributing to a reasonable suspicion of involvement in criminal activity. See United States v. Hardy, 855 F.2d 753, 758 (11th Cir.1988).

A defendant's prior arrest record alone is not a sufficiently “particularized and...