Miller v. State

423 So. 2d 1377, 1982 Ala. Crim. App. LEXIS 3334
Court of Criminal Appeals of Alabama·Decided December 28, 1982·Published·Cited by 4 cases

Opinion

423 So.2d 1377 (1982)

Raymond MILLER
v.
STATE.

3 Div. 490.

Court of Criminal Appeals of Alabama.

July 27, 1982.
Rehearing Denied August 24, 1982.
Certiorari Denied November 19, 1982.
On Return to Remand December 28, 1982.

*1378 Richard A. Lawrence, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appellee.

Alabama Supreme Court 81-1025.

DeCARLO, Judge.

Burglary, third degree; thirteen months.

After waiving a jury trial, the appellant was tried by a judge and found guilty of third degree burglary. Prior to trial an evidentiary hearing was conducted on appellant's motion to suppress. The motion was denied and the testimony taken at the hearing was adopted in the non-jury trial on the stipulation of the parties.

At the suppression hearing, Montgomery Police Officer Michael Patterson testified that early on the morning of July 4, 1981, he and his partner were patrolling an area in Montgomery, Alabama, described by Patterson as a "high crime area." At approximately 1:10 A.M. they saw a vehicle with a large air conditioner protruding from its open trunk proceeding ahead of them. The officers turned on their blue light and stopped the vehicle, which was occupied by the appellant, his sister, and one Curtis Lewis.

Patterson asked the three to step out of the vehicle and explained to Curtis Lewis, the driver of the vehicle, that he had stopped the car in order to inquire about the air conditioner protruding from the trunk. The appellant, Raymond Miller, at that time voluntarily stated that he got the air conditioner from his aunt and gave the officers his aunt's telephone number so they could confirm this.

According to Patterson, he radioed the "Desk" and requested that the aunt be called. Subsequently, he received from the "Desk" the information that the only person answering at that number was a child who did not know anything about the air conditioner. Patterson relayed this information to the appellant and the appellant then volunteered to take the officers to his aunt's residence. Appellant and his companions re-entered their vehicle and Officer *1379 Patterson and his partner followed the trio some four or five blocks to a residence at 2569 Lark Drive.

On their arrival, Patterson went to the house and knocked on the door while the appellant and his companions remained in their car. The only person at the house was a child. Patterson questioned the child about an air conditioner and the child stated that their air conditioner was kept in a storage area at the rear of the house. At Patterson's request, the child showed him the storage area and Patterson observed an air conditioner in the storage area.

As Patterson was returning to the patrol car, he noticed that a window in the house next door was "standing open." No lights were on in the house. Patterson inspected the area around the window and observed where air conditioner mounts had been. He also found, on the ground below, "cardboard fillers" that had been used between an air conditioner and the window. He then returned to the vehicle occupied by the appellant and his companions and informed them that they would be detained until a detective unit arrived. Patterson testified that their car was in a lighted area and that he observed cardboard filler attached to the air conditioner in the open trunk. This cardboard filler matched the filler found on the ground under the open window of the house next door to the house appellant identified as his aunt's house.

The appellant testified at the hearing that he told the officers that he had obtained the air conditioner from his aunt. He admitted, however, that he later told the officers that he had purchased the air conditioner from "[a] black dude with a big truck with big tires on the back of it." The appellant also testified that he took the officers to his aunt's house at their request, rather than volunteering to do so. However, he admitted that the house to which he led the officers was not his aunt's house, but instead was occupied by his girl friend, Antoinetta Johnson.

At the non-jury trial, the air conditioner was shown to be the property of the estate of Belinda Huett and to have a value of approximately $500.

Janet Miller, the sister of the appellant, was called as the court's witness. She testified that the car stopped by Patterson and his partner belonged to her and was being driven by Lewis with her consent. She further testified that she had been with Curtis Lewis, Antoinetta Johnson, and the appellant on the evening of July 3, 1981, and that the four had gone to Johnson's house at 2569 Lark Drive. Ms. Miller acknowledged that she had given a statement to the police in which she had stated that the air conditioner had been placed in the trunk while the four people were at Johnson's house.

I

Appellant maintains that he was subjected to unreasonable seizure contrary to the Fourth Amendment of the United States Constitution when the vehicle in which he was a passenger was stopped by the Montgomery Police. He argues that the officers did not have a "reasonable suspicion" to justify the stopping or seizure of the vehicle and that the incriminating evidence developed as a result of this seizure was inadmissible.

Stopping an automobile and detaining its occupants is clearly a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Johnson v. State, 406 So.2d 446 (Ala.Cr.App.1981). It is well established, however, that all seizures are not contrary to the Fourth Amendment—only unreasonable seizures are prohibited. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).

Prior to Terry v. Ohio, supra, a warrantless seizure was reasonable under the Fourth Amendment only if it was based upon probable cause. Dunaway v. New York, 442 U.S. 200,99 S.Ct. 2248, 60 L.Ed.2d *1380 824 (1979). In Terry, the United States Supreme Court formulated the concept of the "investigatory stop" based on "reasonable suspicion." In certain circumstances, a police officer may stop a person for "purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 at 22, 88 S.Ct. at 1880. While the officer making the stop is not required to possess a level of knowledge amounting to probable cause, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), he "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts reasonably warrant investigating." Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880.

Although Terry was factually concerned with stops of pedestrians, the concept of the investigatory stop has been extended to stops of vehicles. Delaware v. Prouse, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Minnifield v. State,

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Miller v. State, 423 So. 2d 1377, 1982 Ala. Crim. App. LEXIS 3334 (Ala. Ct. App. 1982).

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