King v. State

6 So. 3d 30, 2008 Ala. Crim. App. LEXIS 66, 2008 WL 902902
CourtCourt of Criminal Appeals of Alabama
DecidedApril 4, 2008
DocketCR-06-1269
StatusPublished

This text of 6 So. 3d 30 (King 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
King v. State, 6 So. 3d 30, 2008 Ala. Crim. App. LEXIS 66, 2008 WL 902902 (Ala. Ct. App. 2008).

Opinions

PER CURIAM.

The appellant, Ragon King, pleaded guilty to the unlawful possession of a controlled substance, methamphetamine, a violation of § 13A-12-212, Ala.Code 1975, and was sentenced to six years in prison. Before pleading guilty King specifically reserved his right to appeal the circuit court’s ruling denying his motion to suppress.

At the suppression hearing, Sgt. Mike Parrish of the Chambers County Sheriffs Department testified that he received numerous complaints from Gabriel Wayne Hornsby’s neighbors about unusual activity at Hornsby’s house. The complaints were based on the heavy traffic to and from his residence and a pervasive chemical odor emanating from the residence. Sgt. Parrish and Deputy Terry Wood set up surveillance on the house and saw the heavy traffic. On one occasion they smelled the distinct odor of anhydrous ammonia — a chemical commonly used in the production of methamphetamine. Sgt. Parrish obtained a search warrant for the premises.

On May 12, 2006, Sgt. Parrish and Deputy Wood went to Hornsby’s house to execute the search warrant. While waiting for backup officers, Sgt. Parrish and Deputy Wood saw King and Elise Escalera leave the residence, enter a vehicle, and drive up to the mailbox in front of the house. As King started to drive away from the mailbox, Sgt. Parrish and Deputy Wood stopped the vehicle. Deputy Wood informed King of the purpose for the stop and asked him to get out of the vehicle. Deputy Wood advised King that he was going to conduct a patdown search for weapons. The patdown search initially revealed a pocketknife. Deputy Wood then felt an object that he could not identify. When Deputy Wood asked King what was in his pocket King responded that he had just put his pants on and did not know. King then gave Deputy Wood permission to retrieve the object. Deputy Wood retrieved a closed black film canister and opened it. The canister contained what Deputy Wood recognized as metham-phetamines and a pink tablet. Deputy Wood then arrested King.

“ ‘This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute.’ State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004). ‘A trial court’s ultimate legal conclusion on a motion to suppress based on a given set of facts is a question of law that is reviewed de novo on appeal.’ State v. Hargett, 935 So.2d 1200, 1204 (Ala.Crim.App.2005).”

Marshall v. State, 992 So.2d 762, 767 (Ala.Crim.App.2007).

I.

King contends that the initial traffic stop and the subsequent search of his person were without probable cause and that they exceeded the scope of the search warrant. Specifically, King argues that police could not search him because he was not on the premises named in the search warrant nor was he specifically named in the search warrant.

The search warrant provided for a search of “[t]he premises known as the residence of Gabriel Wayne Hornsby ... located at 7255 County Road 114, Lafayette, Chambers County, Alabama. The search warrant is to include the premises described, the curtilage, any outbuildings and vehicles on the curtilage, the persons of Gabriel Wayne Hornsby....” (emphasis added). The property to be searched for and seized was listed specifi[33]*33cally as: “methamphetamine, clandestine laboratory equipment, drug paraphernalia, and U.S. Currency derived from the sale of such.”

“ ‘A search warrant authorizing a search of certain premises generally includes any vehicles located within its curti-lage if the objects of the search might be located therein.’ ” English v. State, 603 So.2d 1128, 1130 (Ala.Crim.App.1992), quoting United States v. Gottschalk, 915 F.2d 1459, 1461 (10th Cir.1990). When Sgt. Parrish and Deputy Wood arrived to execute the search warrant, King’s vehicle was parked within the curtilage of Horns-by’s residence. Thus, the vehicle was within the scope of the search warrant. “A valid search warrant authorizing the search of vehicles on the subject property permits the search of vehicles arriving on that property during the course of the search, so long as those vehicles could reasonably contain items the officers are searching for.” United States v. Tamari, 454 F.3d 1259, 1263 (11th Cir.2006). The circuit court did not err when it denied King’s motion to suppress on these grounds.

II.

King next argues that the trial court erred in denying his motion to suppress because, he argues, the search of his person was outside the scope of the search warrant and was conducted without his consent. It is undisputed that King gave his consent for Deputy Wood to retrieve the object; however, King argues that Deputy Wood exceeded the scope of his consent when he opened the film canister.

“A consensual search is reasonable if the search is within the scope of the consent given. United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir.1992). The scope of a person’s consent is determined by whether it is objectively reasonable for the police to believe that the consent permitted them to search where they did. Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). ...
“The scope of a search may be further defined during the course of the search by the passive acquiescence of the person whose property is being searched. See e.g., United States v. DeWitt, 946 F.2d 1497, 1501 (10th Cir.1991) (officer’s placement of his hand in cleft between back seat cushions of car did not exceed scope of consent, where defendant did not object until after discovery of narcotics), cert. denied, 502 U.S. 1118, 112 S.Ct. 1233, 117 L.Ed.2d 467 (1992); United States v. Alfaro, 935 F.2d 64, 67 (5th Cir.1991) (defendant fails to withdraw consent where he asks to go outside to talk to another but makes no protest). Cf. United States v. Patacchia, 602 F.2d 218, 219 (9th Cir.1979) (saying T would but I can’t’ open car trunk, is not consent where prior consent not given).”

Grinton v. Commonwealth, 14 Va.App. 846, 850-51, 419 S.E.2d 860, 862-63 (1992). “ ‘The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?’” Bender v. State, 687 So.2d 219, 221 (Ala.Crim.App.1996), quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991).

At the suppression hearing Deputy Wood testified that he asked King for permission to retrieve the unidentified object from his pocket to determine what it was and that the appellant consented.

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Related

United States v. Jesus Tamari
454 F.3d 1259 (Eleventh Circuit, 2006)
Florida v. Jimeno
500 U.S. 248 (Supreme Court, 1991)
United States v. Bruce T. Gottschalk
915 F.2d 1459 (Tenth Circuit, 1990)
United States v. Daniel Alfaro
935 F.2d 64 (Fifth Circuit, 1991)
United States v. Elsie Martinez
949 F.2d 1117 (Eleventh Circuit, 1992)
United States v. Elvis A. Garrido-Santana
360 F.3d 565 (Sixth Circuit, 2004)
Tillman v. State
647 So. 2d 7 (Court of Criminal Appeals of Alabama, 1994)
Grinton v. Commonwealth
419 S.E.2d 860 (Court of Appeals of Virginia, 1992)
State v. Hargett
935 So. 2d 1200 (Court of Criminal Appeals of Alabama, 2005)
Cannon v. State
985 So. 2d 968 (Court of Criminal Appeals of Alabama, 2007)
State v. Skaggs
903 So. 2d 180 (Court of Criminal Appeals of Alabama, 2004)
Bender v. State
687 So. 2d 219 (Court of Criminal Appeals of Alabama, 1996)
Marshall v. State
992 So. 2d 762 (Court of Criminal Appeals of Alabama, 2007)
English v. State
603 So. 2d 1128 (Court of Criminal Appeals of Alabama, 1992)

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Bluebook (online)
6 So. 3d 30, 2008 Ala. Crim. App. LEXIS 66, 2008 WL 902902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-v-state-alacrimapp-2008.