White v. State

495 So. 2d 718, 1986 Ala. Crim. App. LEXIS 6530
Court of Criminal Appeals of Alabama·Decided August 12, 1986·No. 4 Div. 379·Published·Cited by 2 cases

Opinion

McMILLAN, Judge.

This appeal follows a conviction for possession of marijuana in violation of § 20-2-70(a), Code of Alabama (1975), and a sentence of two years and six months’ imprisonment. For the reasons outlined below, the trial court’s decision is due to be reversed.

On April 27, 1984, Officer Donald Valen-za of the Houston County Sheriff’s Department arrested appellant pursuant to a warrant sworn out by appellant’s ex-wife for non-support. Appellant and his present wife had arrived at the ex-wife’s home in a Dodge van, whereupon Officer Yalenza observed the appellant emerge from the van with a can of untaxed beer. According to Officer Valenza’s testimony, his observation of the untaxed beer in the appellant’s possession led him to believe that the van might contain other prohibited beverages. At police headquarters, he asked the appellant for permission to search the van. Either the appellant or his present wife initially objected, but subsequently agreed to the search when Officer Valenza indicated that he could obtain a search warrant. Both appellant and his wife then executed a consent form allowing the police to search the van. As a result of the search, the officers found non-taxed alcoholic beverages, a tin box containing a residue of marijuana, and marijuana cigarettes or “roaches” in a cigarette pack in the console. The appellant admitted that the marijuana belonged to him.

The issues raised by this appeal concern the validity of the consent to search the van. First, the appellant contends that the consent given by himself and his wife was coerced and not voluntary. Second, he argues that because the consent was involuntary, and there was no search warrant, the arresting officer must have had probable cause together with exigent circumstances necessitating the search in order to proceed with it; appellant alleges that the officers had neither. Last, appellant claims that even if the consent was not coerced, it was limited to a search for those items for which the officers could have obtained a warrant. Following the appellant’s three-staged contentions, we will consider the validity of each issue in sequence.

I.

“[A]ll searches without a warrant are deemed ‘per se unreasonable’ unless they fall within certain recognized exceptions to the warrant requirement.” Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967). There are several recognized [720]*720exceptions to the requirement of a search warrant, namely: (1) consent, (2) exigent circumstances together with probable cause, (3) plain view, (4) incident to a lawful arrest, (5) stop and frisk, and (6) hot pursuit in emergency situations. Ex parte Hilley, supra, at 488; Dale v. State, 466 So.2d 196 (Ala.Cr.App.1985) at 198-199 (also includes [7] inventory search as an exception). Thus, if the appellant’s consent was voluntary and valid, it will constitute an exception to the requirement that there should have been a warrant issued to permit the search. However, the consent given by the appellant and his wife was, in fact, coerced. The consent form was signed after Officer Valenza stated that he could get a search warrant.

“When relying on consent to justify a search, the burden is on the State to show that the consent was freely and voluntarily given.” Hollander v. State, 418 So.2d 970, 972 (Ala.Cr.App.1982), citing Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). The State argues that “[t]he trial court is in the best position to determine the voluntariness of the consent, Scott v. State, 409 So.2d 978 (Ala.Cr.App.1981), and is to make this determination from the totality of the circumstances involved. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).” Hollander, supra, at 972. In Scott, although the evidence on the consent theory was sharply in conflict, the trial court, through its careful evaluation of the facts and circumstances, as mandated by Schneckloth, concluded that the defendant consented rather than submitted to “intimidation factors.” Ibid, at 981. In Hollander, supra, this court upheld the trial court’s “totality of the circumstances” analysis in determining that consent was voluntary where the appellant alleged differently because he was not reread his Miranda rights prior to the search. He had already been advised of these rights and “signed a waiver of [them]. He was informed of the object of the search before he consented. No threats or promises were made to appellant, nor was he told that he had to consent. In fact, the consent to search form read to and signed by appellant stated that he had the right to refuse to consent to the search.” Hollander, supra, at 972. The above are all factors to be considered by the trial judge. The appellant in the case at bar alleges that his consent was involuntary because he was in custody and the arresting officer stated that he could get a warrant. However, custody is only a consideration “ ‘ ... in the overall judgment,’ [and] ‘not to be given controlling significance.’ ” United States v. Smith, 543 F.2d 1141, 1146 (5th Cir.1976), quoting United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

As in the instant case, a special problem and consideration in evaluating circumstances in a consent case becomes especially apparent where the appellant was in custody at the time of consent: the problem of determining whether the individual was consenting or, in fact, submitting to the search. “ ‘ “We must, we find, be guided by the holding in Bumper that a consent which is actually simple acquiescence to lawful authority is not voluntary and, when the defendant is in custody, by the concern expressed in Schneckloth that ‘in examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.’ ” ’ ” Gass v. State, 372 So.2d 904, 907 (Ala.Cr.App.1979), quoting Herriott v. State, 337 So.2d 165 (Ala.Cr.App.1976), cert. denied, 337 So.2d 171 (Ala.1976). This court has addressed a case involving the consent issue surrounded by circumstances indentical to the present case in that “the purported consent was obtained after the officer expressed to the accused some reference to an alternative of procuring a search warrant.” Whitener v. State, 390 So.2d 1136, 1142 (Ala.Cr.App.1980). Following the logic of the United States Supreme Court in Bumper v. North Carolina, supra, this court, per Judge Clark, has indicated that “when an officer obtains the consent of an accused to [721]*721a search of his person or property solely by reason of his representation to him that he will obtain a search warrant, such consent is not voluntarily and freely given unless a warrant can be issued based upon probable cause.” Whitener, supra, at 1143.

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White v. State, 495 So. 2d 718, 1986 Ala. Crim. App. LEXIS 6530 (Ala. Ct. App. 1986).

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