State v. Washington

623 So. 2d 392, 1993 Ala. Crim. App. LEXIS 229
CourtCourt of Criminal Appeals of Alabama
DecidedMarch 5, 1993
DocketCR 91-1660
StatusPublished

This text of 623 So. 2d 392 (State v. Washington) 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. Washington, 623 So. 2d 392, 1993 Ala. Crim. App. LEXIS 229 (Ala. Ct. App. 1993).

Opinion

BOWEN, Presiding Judge.

Josh B. Washington was indicted for possession of cocaine. He filed a pre-trial motion to suppress the cocaine, alleging that its seizure was the result of an illegal detention and search. After an evidentiary hearing, the trial court entered an order granting the motion to suppress. The State appeals from this order, pursuant to Rule 15.7, A.R.Crim.P. The judgment of the trial court is affirmed.

At the suppression hearing, Alabama State Trooper William D. Eller testified that early on the morning of April 14, 1991, he was operating a stationary radar on Interstate 65 approximately two miles south of Hope Hull, Alabama, where the speed limit is 65 m.p.h. Trooper Eller’s patrol car was equipped with a video camera that was automatically activated whenever the car’s blue lights were turned on.

At approximately 2:30 a.m., Trooper Eller stopped a northbound automobile that had produced a radar reading of 80 m.p.h. The defendant was the driver and the sole occupant of this car. In making the stop, Trooper Eller turned on his car’s blue lights, which activated the video camera. Eller testified that, after the defendant was stopped, he approached the defendant’s car and asked for the defendant’s driver’s license. He also informed the defendant that he had been stopped for speeding. According to Eller,

“[the defendant] gave me just a piece of paper, a temporary Louisiana driver’s license. It didn’t have a picture on it or anything. I asked him for further I.D. which he said that he didn’t have. I had also noticed that it was a rental car. It had a temporary plate on it in the window taped to the window. I asked him for a rental agreement which he gave me. And at that time I asked him to come back and have a seat in my patrol car.” R. 33.

The video tape from the camera in Eller’s patrol car visually depicts, without relevant sound, the defendant’s car as it stops just ahead of the patrol car, Eller’s approach to the defendant’s car, and Eller’s return to his patrol car accompanied by the defendant. Once Trooper Eller and the defendant are in [394]*394the patrol car, their conversation is recorded on the tape, although the tape continues to portray the defendant’s car. The video tape was played at the suppression hearing and was admitted into evidence. Consequently, both the trial court and this Court have had the rare opportunity to hear a large part of the actual conversation between Trooper El-ler and the defendant.

Eller and the defendant reached the patrol car at 2:34 a.m.1 Eller asked the defendant if the Louisiana license was the only identification that he had. The defendant initially said that it was, then stated that his employee identification with his photograph on it was in the ear. There was no response by Eller, who testified at the suppression hearing that “for [his own] safety, once [he] get[s] somebody stopped, [he is] leery of letting somebody else go back up to the car.” R. 45^16. Eller also asked the defendant what state the license had been issued in and for his date of birth. The defendant promptly answered both questions.

At 2:35:36 a.m.,2 after the above exchange, Eller asked the dispatch operator to check the defendant’s license in Louisiana. Thereafter, in response to Eller’s 'questions, the defendant stated that his mother-in-law had rented the car, that he was on his way to Atlanta, Georgia, that he was in the audiovisual business, that his company’s headquarters were in Atlanta, and that he went back and forth to Atlanta for various shows. At 2:38:36 a.m., the dispatch operator reported that the defendant’s Louisiana license was valid. At 2:39 a.m., Eller requested a “QH” on the defendant’s license. Eller asked the defendant how long he would be in Atlanta and the defendant replied that he would be there until Monday morning. Eller then observed aloud that the rental agreement had only the renter’s name as an authorized driver. At Eller’s request, the defendant provided his mother-in-law’s telephone number. At 2:41:08 a.m., the dispatch operator reported “Negative in Alabama. NCIC files are [unintelligible word].” The defendant stated that the rental agreement should have him listed as an additional driver.

Thereafter, in response to Eller’s questions or comments, the defendant provided the name of the company by which he was employed and the company’s Atlanta and New Orleans addresses; explained why he had a temporary driver’s license;3 and stated that he had been in the audio-visual business for two years, but had been involved in the music industry for much longer. The defendant offered to give Trooper Eller the name of his supervisor and his work telephone number, but this information was declined by Eller. The defendant also informed Eller that he was to meet with singer Bobby Brown while in Atlanta and that he hoped that Brown would record one of his songs.

At 2:45:18 a.m., Trooper Eller began explaining the Uniform Traffic Ticket and Citation (UTTC) to the defendant. The defendant signed the UTTC, then asked some questions regarding payment of the ticket, which Eller answered. At 2:46:03 a.m., Eller stated: “There’s your copy of your ticket.” Immediately thereafter, at 2:46:11 a.m., Trooper Eller said, “We have a lot of problems with people hauling drugs up and down the interstates. Would you object to my looking in your car?” The defendant first answered no, then asked, “Is there a specific reason, something you looking for?” Trooper Eller replied, “Well, no. It’s just like what I explained to you just a second ago. We have a problem with people hauling drugs up and down the interstate. You know, illegal weapons and cash and stuff like that and out here on the interstates we just try to catch them out here and I just wondered if you’d mind if I search your car and make sure you don’t have nothing like that in your car.”

[395]*395When the defendant asked if he had to give Eller permission, Eller responded, “No, that’s up to you. I’ll explain this form.” Instead of explaining the consent- form, however, Eller then asked, “Have you ever been in jail for drugs or anything like that?” When the defendant acknowledged that he had been arrested, Eller probed further: “What for?” The defendant answered that he was arrested for possession of cocaine. At this point, 2:49:17 a.m., Trooper Eller requested the dispatch operator to run an “EPIC check” on the defendant.

There followed conversation indicating reluctance on the part of the defendant to permit Eller to search his car. The defendant asked if he could contact his attorney but was told by Eller that there was no way for him to do so. When the defendant asked if Eller could detain him if he refused to consent to the search, Eller replied, “Yes, for a little while, if that’s what I choose to do.” At 2:55:33 a.m., the defendant refused to consent to the search of his car. At 2:55:54 a.m., Trooper Eller radioed for a canine unit to be sent to the scene. While waiting for the canine unit to arrive, Eller learned that the defendant had two prior drug convictions.

At 3:29 a.m., Officer Craig Carr and a drug dog arrived on the scene. The dog alerted at the driver’s door of the defendant’s ear. Officer Carr testified that he searched the interior of the car and found approximately .2 grams of cocaine “wrapped inside a dollar bill in a notebook” in the front seat of the car. R. 20, 28. A search of the trunk revealed two “wad[s] of cash” inside a clothes bag. R. 26-27.

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Bluebook (online)
623 So. 2d 392, 1993 Ala. Crim. App. LEXIS 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washington-alacrimapp-1993.