State v. Perry

66 So. 3d 291, 2010 Ala. Crim. App. LEXIS 126, 2010 WL 5130859
CourtCourt of Criminal Appeals of Alabama
DecidedDecember 17, 2010
DocketCR-09-1329
StatusPublished
Cited by4 cases

This text of 66 So. 3d 291 (State v. Perry) 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
State v. Perry, 66 So. 3d 291, 2010 Ala. Crim. App. LEXIS 126, 2010 WL 5130859 (Ala. Ct. App. 2010).

Opinion

KELLUM, Judge.

Jerome Corvisky Perry was arrested and charged with unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Ala.Code 1975. Perry filed a pretrial motion to suppress the evidence seized from him — plastic bags filled with marijuana — by law-enforcement officials during a traffic stop carried out at a driver’s license checkpoint. Following an evi-dentiary hearing, the trial court granted Perry’s motion to suppress. Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the trial court’s ruling.

The following pertinent evidence was presented by the State at the suppression hearing. On August 6, 2009, Officer Stuart Upshaw of the Montgomery Police Department (“MPD”) was assisting a special operations unit in conducting a driver’s license checkpoint at an apartment complex when he encountered Perry at the checkpoint. As Officer Upshaw ap[293]*293proached Perry’s vehicle, he could smell the odor of marijuana emanating from Perry’s vehicle. Perry did not have in the vehicle his driver’s license or proof of insurance. Officer Upshaw asked Perry to step out of his vehicle so that he could conduct a patdown search. As Perry stepped out of the vehicle, Officer Upshaw observed that Perry’s left hand remained in his left pant pocket, which Officer Up-shaw found suspicious. While patting Perry down, Officer Upshaw felt a hard object approximately 3 or 4 inches long and removed it from Perry’s left pocket. Officer Upshaw testified that he did not immediately recognize what the object was once he felt it in Perry’s pocket. The object turned out to be a yellow, rectangular sandwich-bag box containing small plastic bags holding what Officer Upshaw believed to be marijuana.

The circuit court questioned Officer Up-shaw extensively as to why the officer believed he needed to conduct a patdown search of Perry for weapons. At one point, Officer Upshaw testified that after smelling marijuana, he did not intend to place Perry under arrest “at that point.” (R. 8.) The circuit court ultimately suppressed the drugs seized as the result of Perry’s traffic stop. Although the circuit court did not issue written findings of fact, it is clear from the record of the suppression hearing that the circuit court suppressed the drug evidence on the grounds that Officer Upshaw did not testify that he believed the object in Perry’s pocket to be a weapon and thus, did not have the requisite reasonable suspicion to seize the object pursuant to a Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “patdown” search. The State appealed.1

In State v. Landrum, 18 So.3d 424 (Ala.Crim.App.2009), this Court explained:

“ ‘This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).’ State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004). In State v. Hill, 690 So.2d 1201 (Ala.1996), the trial court granted a motion to suppress following a hearing at which it heard only the testimony of one police officer. Regarding the applicable standard of review, the Alabama Supreme Court stated, in pertinent part, as follows:
“ ‘ “Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme 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.” Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted). The trial judge’s ruling in this case was based upon his interpretation of the term “reasonable suspicion” as applied to an undisputed set of facts; the proper interpretation is a question of law.’
“State v. Hill, 690 So.2d at 1203-04.”

18 So.3d at 426. Because the evidence presented at the suppression hearing is not in dispute, the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at [294]*294the suppression hearing, and we afford no presumption in favor of the circuit court’s ruling.

This Court has recognized that a traffic stop is “ ‘ “more analogous” to the brief investigative detention authorized in Terry [v. Ohio, 392 U.S. 1 (1968) ]’ ” than custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala.Crim.App.1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala.Cr.App.1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala.Crim.App.1989), quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “Under Terry [v. Ohio, 392 U.S. 1 (1968) ], law-enforcement officers may stop a vehicle for investigatory purposes based on a traffic violation. State v. Rodgers, 903 So.2d 176, 178 (Ala.Crim.App.2004).” J.T.C. v. State, 990 So.2d 444, 447 (Ala.Crim.App.2008).

“ ‘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).’ State v. Stallworth, 645 So.2d 323, 325 (Ala.Cr.App.1994).”

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).

“Warrantless searches are per se unreasonable, unless they fall within a recognized exception. Ex parte Hilley, 484 So.2d 485 (Ala.1985). Those exceptions include: objects in plain view, consensual searches, a search incident to a lawful arrest, hot pursuit or emergency situations, probable cause coupled with exigent circumstances, and a Terry ‘stop and frisk’ situation. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard v. State, 335 So.2d 924 (Ala.1976).”

Ex parte Tucker, 667 So.2d 1339, 1343 (Ala.1995).

Here, upon confronting Perry during a traffic stop, Officer Upshaw smelled marijuana emanating from Perry’s vehicle. This Court has repeatedly held that a police officer has probable cause to search a vehicle or a suspect after the officer smells the odor of marijuana. See, e.g., Blake v.

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Bluebook (online)
66 So. 3d 291, 2010 Ala. Crim. App. LEXIS 126, 2010 WL 5130859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-perry-alacrimapp-2010.