Allen v. State

689 So. 2d 212, 1995 WL 774498
CourtCourt of Criminal Appeals of Alabama
DecidedFebruary 7, 1997
DocketCR-94-1724
StatusPublished
Cited by28 cases

This text of 689 So. 2d 212 (Allen v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. State, 689 So. 2d 212, 1995 WL 774498 (Ala. Ct. App. 1997).

Opinion

689 So.2d 212 (1995)

Willie T. ALLEN, Jr., alias
v.
STATE.

CR-94-1724.

Court of Criminal Appeals of Alabama.

December 29, 1995.
Rehearing Denied March 8, 1996.
Certiorari Quashed February 7, 1997.

George Nassaney, Tuscaloosa, for Appellant.

Jeff Sessions, Atty. Gen., and Margaret Childers, Asst. Atty. Gen., for Appellee.

Alabama Supreme Court 1950998.

*213 COBB, Judge.

The appellant, Willie T. Allen, Jr., pleaded guilty to unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Code of Alabama 1975. He was sentenced to 15 years in the penitentiary pursuant to the Habitual Felony Offender Act. Before pleading guilty, the appellant had moved to suppress certain evidence. The trial court denied his motion, and he specifically reserved the right to appeal as to that issue.

The State's evidence at the suppression hearing tended to show the following: On January 21, 1994, officers from the Tuscaloosa Police Department and the Alcoholic Beverage Control Board executed a search warrant at the residence of Viola Mills in Tuscaloosa. Officer A.W. Clark of the Tuscaloosa Police Department testified that police suspected that the residence was a "shot house," where alcoholic beverages were sold illegally. Clark stated that when he and the other officers drove up to the front of the residence, the front door was open. The officers identified themselves as police and stated that they had a search warrant.

Officer Clark testified that when he entered the house he saw the appellant sitting on a couch. The appellant was holding his right hand under a cushion. Clark testified that he told the appellant to stand up so he could frisk him for weapons. He stated that he did so because weapons are commonly found during the execution of search warrants.

Clark stated that he started frisking the appellant around his waist and moved to his rear pants pockets. Clark demonstrated to the trial court the method he used to frisk the appellant, and the court put the following statement on the record:

"THE COURT: Let the record show that Officer Clark is showing rather than a patting movement where he would move his hands up and down making contact with his back pocket, he's showing he was more or less sliding it or moving it around maintaining contact on the pocket at all times."

Officer Clark testified that, through the appellant's clothes, he felt a package containing a leafy substance that he believed to be marijuana. He said that he asked the appellant if the substance was marijuana and that the appellant told him it was. Clark removed the package and placed the appellant under arrest.

On cross-examination Clark testified that the marijuana was in a small manila envelope about two inches by three inches in size and that the envelope was folded in half. Clark stated that he was not sure how many times he moved his hand over the envelope before he realized that it was not a weapon, but that it was probably more than once. He stated that he moved his hand over the item more than once to make sure that the envelope did not "contain a razor blade," which, he testified, drug users often carry. However, he testified that when he realized that it was not a weapon, he simultaneously realized that it was a "dime bag" of marijuana. Clark stated that he had felt marijuana packaged this way on hundreds of occasions. The envelope contained about three grams of marijuana.

The appellant contends on appeal that the frisk and the subsequent seizure of the marijuana violated his Fourth Amendment rights under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). We disagree.

Generally, a Terry patdown must be strictly "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby." Terry, 392 U.S. at 26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908. In Minnesota v. Dickerson the United States Supreme Court recognized a "plain feel" exception to the Fourth Amendment protection analogous to the "plain view" exception. The court stated:

"If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified *214 by the same practical considerations that inhere in the plain view context."

508 U.S. at 375-76, 113 S.Ct. at 2137, 124 L.Ed.2d at 346. (Emphasis added.)

The Supreme Court in Dickerson did not intend that the plain feel doctrine should be construed without reference to the standards for a "protective search" set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Although the Supreme Court in Dickerson recognized the plain feel doctrine, it ultimately concluded, under the facts of that case, that the evidence (a lump of crack cocaine detected in the defendant's pocket by an officer in the course of conducting a patdown) was illegally seized, because the officer's patdown of the defendant before his seizure of the cocaine exceeded the permissible scope of Terry. Under Terry, an officer may conduct a protective patdown search of a suspect "to determine whether the person is in fact carrying a weapon." Terry, 392 U.S. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 908. However, because the court in Dickerson found that the officer's patdown exceeded the purposes of a protective search before he recognized the object in the defendant's pocket as contraband, the plain feel doctrine could not salvage the officer's subsequent seizure of the contraband. Although the Supreme Court, in ruling that the officer's actions were unconstitutional, emphasized the fact that the officer testified that he had manipulated the object in the defendant's pocket, by squeezing it and sliding it through his fingers, before concluding that the object was a lump of crack cocaine and then seizing it, it is clear that the factor that actually rendered the officer's actions unconstitutional was the officer's testimony that he continued to squeeze, to slide, and to manipulate the object in the defendant's pocket even though it was "a pocket which the officer already knew contained no weapon." Dickerson, 508 U.S. at 378, 113 S.Ct. at 2138, 124 L.Ed.2d at 347 (emphasis added). The court stated that "the dispositive question before this Court is whether the officer who conducted the search was acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent's jacket was contraband." Dickerson, 508 U.S. at 377, 113 S.Ct. at 2138, 124 L.Ed.2d at 347. In reaching its conclusion that the officer's actions exceeded the lawful bounds set by Terry, the court pointed to the evidence in the record indicating that the officer never actually believed that the object he felt in the defendant's pocket might be a weapon. Id. The officer's actions went beyond the scope of Terry because he continued his patdown beyond the point that it could be justified as a protective search.

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Cite This Page — Counsel Stack

Bluebook (online)
689 So. 2d 212, 1995 WL 774498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-state-alacrimapp-1997.