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10/21/94 CEDRICK HUFFMAN v. STATE

October 21, 1994

CEDRICK HUFFMAN
v.
STATE



Appeal from Montgomery Circuit Court. (CC-94-394). William Gordon, TRIAL JUDGE.

Released for Publication March 4, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, Cedrick Huffman, pleaded guilty to possession of a controlled substance, cocaine, in violation of § 13A-12-212, Code of Alabama 1975, and possession of marijuana for personal use in violation of § 13A-12-214. He was sentenced to 18 months' imprisonment in the penitentiary in both cases, the sentences to be served concurrently. The sentences were suspended and he was placed on supervised probation for 18 months. Before pleading guilty, the appellant had moved to suppress certain evidence. The trial court denied his motion and he reserved the right to appeal as to that issue.

The state's evidence tended to show that at 1:30 a.m. on December 11, 1993, Corporal Huey D. Thornton and Officer Dale W. O'Banion of the Montgomery Police Department were on routine patrol on Edgemont Avenue in Montgomery, Alabama. As they passed an Amoco gasoline station and food shop, the officers noticed an automobile, in which the appellant and another occupant were sitting, parked in the last stall of the car wash adjacent to the Amoco station. Although the car wash was available for use 24 hours a day, the Amoco station was closed. Both officers testified that there was no water on the ground and that no one was attempting to wash the car parked in the stall. The officers became suspicious because there had been several burglaries at this Amoco station recently. Also, both officers testified that this area was known for drug activity. In fact, Corporal Thornton had made a drug arrest in that same car wash. The officers decided to investigate. They drove toward the car wash and parked behind the car. The appellant got out of the passenger's side of the car and began walking toward the officer's car in what Corporal Thornton described as an "aggressive manner." Thornton told the appellant to step back towards his vehicle. Based on the appellant's behavior and the circumstances surrounding the incident, Thornton decided to search the appellant for weapons. Thornton testified that as he was patting down the appellant, he felt a hard lump, which he recognized as a rock of crack cocaine. He seized the rock, along with some cocaine in powder form and some marijuana, and placed the appellant under arrest. A subsequent search of the car revealed a .38 caliber revolver.

The appellant contends that the trial court erred in denying his motion to suppress evidence of the drugs seized as a result of the stop. More specifically, he contends that the initial stop and pat down by police and the resulting seizure of drugs violated his Fourth Amendment rights under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The appellant preserved this issue by reserving the right to appeal his adverse ruling at the time of entering his plea. Prim v. State, 616 So.2d 381, 382 (Ala. Cr. App. 1993).

The appellant first contends that the stop and pat down by the police was illegal because, he says, they did not have a reasonable suspicion to believe the appellant had been involved in criminal activity, as required by Terry. In Worthy v. State, 473 So.2d 634, 636 (Ala. Cr. App. 1985), this court summarized the standards required by Terry and the cases following Terry.

"In Terry, it was held that

"'where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or other's safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.' 392 U.S. at 30, 88 S.Ct. at 1884-85.

"In order to justify the brief investigatory detention of an individual, a police officer does not have to have probable cause to arrest the person for a crime. Terry, 392 U.S. at 27, 88 S.Ct. at 1883; Spradley v. State, 414 So.2d 170, 173 (Ala. Cr. App. 1982). Although there is 'no simple shorthand verbal formula which can adequately express the grounds for a Terry stop', 3 LaFave, [Search and Seizure ] at § 9.3, p. 40, 1985 Pocket Part, 'the essence of all that has been written is that the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.' United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)."

473 So.2d at 636-37.

The officers' testimony revealed that they had a reasonable suspicion that the appellant was involved in criminal activity.

Corporal Thornton testified that the appellant was sitting in a car at 1:30 a.m. near an Amoco service station that Thornton knew to be closed, that had been burglarized several times recently, and that was in an area known to be an area of drug activity. Furthermore, Corporal Thornton testified that the appellant walked toward the officer's car in an "aggressive manner." This court has repeatedly held that similar facts, when the court considers the totality of the circumstances, are sufficient to give police a reasonable suspicion that criminal activity is afoot. State v. Richardson, 616 So.2d 400 (Ala. Cr. App. 1993); Richardson v. City of Trussville, 492 ...


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