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04/14/95 STEVE D. WEBSTER v. STATE

April 14, 1995

STEVE D. WEBSTER
v.
STATE



Appeal from Montgomery Circuit Court. (CC-94-376). Joseph Phelps, TRIAL JUDGE.

Released For Publication October 30, 1995.

Cobb, Judge. All the Judges concur.

The opinion of the court was delivered by: Cobb

COBB, JUDGE

This case was originally assigned to another Judge on the Court of Criminal Appeals. It was reassigned to Judge Cobb on January 17, 1995.

Steve D. Webster, the appellant, pleaded guilty to and was convicted of unlawful possession of a controlled substance, a violation of § 13A-12-212 Ala.Code, 1975. His sentence of five years in the penitentiary was split, and he was ordered to serve three years in the penitentiary and the remainder on probation. He reserved the right to appeal the denial of his motion to suppress evidence of the cocaine discovered in his vehicle on the grounds that it was the fruit of an illegal search. The substance of the appellant's argument on appeal is that the appellant's arrest, the impounding of his automobile, and the inventory search of his automobile were all done in bad faith for the sole purpose of investigating an informant's tip that the appellant was in possession of a large quantity of cocaine.

Detective Billy J. McCollough of the Montgomery Police Department's narcotics and intelligence bureau was informed by a reliable confidential informant that the appellant was selling drugs at a specific time and location. McCollough discovered that the appellant was subject to three outstanding capias arrest warrants for the misdemeanor of failure to pay municipal court fines. The municipal court confirmed this information and issued the warrants. "Once the capias warrant was issued, the officers were authorized to take the appellant into custody on that warrant." Fletcher v. State, 621 So. 2d 1010, 1023 (Ala.Cr.App. 1993). Section 15-10-3(a)(6), Ala.Code 1975, as amended May 17, 1989, provides that "(a) An officer may arrest any person without a warrant, on any day and at any time . . . (6) When he has actual knowledge that a warrant for the person's arrest for the commission of a felony or misdemeanor has been issued. . . ."

McCollough went to the location described by the informant with Officer O.D. Perkins and a police dog trained to detect narcotics. The appellant was sitting on the hood of his automobile, which was parked in a parking lot of a housing project known for its persistent crime problems. McCollough immediately informed the appellant that he was under arrest pursuant to the arrest warrants. R. 93. At the time of the arrest, the appellant's automobile was unlocked and the windows were rolled down. A cellular telephone, a leather jacket, and other valuable items were inside. The narcotics detection dog accompanying McCollough "alerted" at the driver's door. "An 'indication' by a trained drug detection dog has been held to constitute probable cause to search" an automobile without a warrant. Ynosencio v. State, 629 So. 2d 795, 798 (Ala.Cr.App. 1993) ("This exception applies even if the automobile is parked and stationary when the officers find it."). The officers testified that they wanted to "get out of the project" as quickly as possible for their "own safety," because, they said, typically, in this housing project, if police officers effect an arrest, a crowd gathers and "rocks are thrown" at the police officers. R. 64. They decided to take the appellant to McCollough's headquarters at the narcotics bureau located around the corner from the site of the arrest for booking and to impound the appellant's vehicle in order to conduct a search for drugs based on the probable cause created by the police dog's "alert" and for the vehicle's safekeeping. The appellant allowed McCollough to remove his car keys from his pocket so McCollough could drive the vehicle to the police station. At the station, the police dog was put inside the appellant's vehicle to search for drugs but "the dog didn't alert on the interior of the car." R. 67. Officer O. D. Perkins was advised by McCollough to "go ahead and do a vehicle inventory search" while the paperwork on the arrest warrant was conducted. R. 67. Perkins said that when he was inventorying the contents of the vehicle he was no longer searching for drugs. R. 69. Officer Perkins testified that when he reached behind the front seat to get a leather jacket that was in the car he "knocked the cover of the seatbelt rotor dispenser off," revealing a plastic baggie containing what appeared to be cocaine. R. 70. At that time the warrants pursuant to which he had been arrested were put aside and the appellant was charged with possession of a controlled substance. R. 15.

"In Scarbrough [v. State, 621 So. 2d 996 (Ala.Cr.App. 1992)], we adopted the 'objective' test set forth by the Fifth Circuit Court of Appeals with regard to determining the validity of an alleged pretextual arrest:

"'"Again and again in precisely the present context, the [Supreme] Court has told us that where police officers are objectively doing what they are legally authorized to do -- as in arresting [the defendant] pursuant to the valid warrant outstanding against him and interrogating him without coercion after reading him repeated Miranda warnings -- the results of their investigations are not to be called in question on the basis of any subjective intent with which they acted. . .

"'". . . The relevant principle of the Supreme Court is likewise: so long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry. . . . The correct rule is that, while a showing of objectively reasonable good faith on the part of the police officers will ordinarily redeem honest errors and prevent the application of the exclusionary rule, in a case where the officers have taken no action except what the law objectively allows[,] their subjective motives in doing so are not even relevant to the suppression inquiry. And the reason lies in the purpose of that rule: to deter unlawful actions by police. Where nothing has been done that is objectively unlawful, the exclusionary rule has no application and the intent with which they acted is of no consequence."

"'. . . .

" United States v. Causey, 834 F.2d 1179, 1184-85 (5th Cir. 1987) (emphasis in original) (footnotes omitted).' Scarbrough, 621 So. 2d at 1004. In this case, as in Scarbrough, 'the police did no more than they were legally entitled to do.' Id. at 1006. [The] investigator ... checked with the municipal clerk/magistrate to see if there were any outstanding warrants on the appellant. Although there were no outstanding warrants, it is clear that the appellant was in violation of his probation at that time. In fact the municipal clerk/magistrate testified that the capias warrant should have been issued 'a long time ago.' R. 766. Once the capias warrant was issued, the officers were authorized to take the appellant into custody on that warrant. After the appellant was in custody, his finger and palm prints were justifiably taken as part of ...


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