October 3, 2014
Keith A. Hebert
State of Alabama
Amended August 18, 2015.
from Russell Circuit Court. (CC-13-147).
Appellant: Sirena L. Saunders, Phenix City.
Appellee: Luther Strange, atty. gen., and Stephen N. Dodd,
asst. atty. gen.
Judge. Kellum and Burke, JJ., concur. Windom, P.J., and
Joiner, J., concur in the result.
A. Hebert was charged with possession of a controlled
substance, a violation of § 13A-12-212, Ala. Code 1975.
He filed a pretrial motion to suppress drug evidence seized
during a traffic stop. The trial court denied the motion
following a hearing. Hebert then pleaded guilty to the
charge, reserving for appeal the trial court's denial of
the motion to suppress. The trial court sentenced Hebert, as
a habitual felony offender, to 15 years in prison.
following testimony was presented at the hearing on
Hebert's motion to suppress. Russell County Sheriff's
Deputy Charles Hall executed a traffic stop because the
driver had failed to signal before making a turn. Hebert was
driving the vehicle and Karen Singleton was a passenger. Hall
testified that Hebert pulled promptly to the side of the road
when Hall activated the blue lights on his cruiser. Hall
testified that he ran the license plate on an Internet Web
site that " pulls up the person it belongs to," and
that indicated the owner was " a medium threat
level." (R. 6.) He stated that, because of the elevated
threat level presented by Hebert indicated on the Web site,
he used more caution than he would have had the threat level
approached the car and obtained Hebert's license,
registration, and proof of insurance. Hebert seemed nervous,
Hall said, so he asked Hebert to step out of the car. Hebert
complied. Hall asked him whether he had any weapons on his
and Hebert said he had a knife. Hall patted Hebert down and
recovered four folding knives. He then directed Hebert to
stand at the rear of Hebert's car. He was not placed in
handcuffs. Hall asked Singleton to step out of the car and
asked her whether she had any weapons on her person.
Singleton told Hall that she had no weapons, and he then
directed her to move to the rear of Hebert's car. Hall
stated that, while Hebert was standing by the car, he
appeared very nervous and " kind of aggressive,"
and he moved around a lot. (R. 10.) Hall completed the
traffic citation and gave it to Hebert.
testified that, once a citation is issued, he usually
releases the motorist, and the motorist is free to leave. At
that point in some traffic stops, Hall testified, he
sometimes asks for consent to search the cockpit area of the
vehicle for officer safety. Hall asked Hebert for permission
to search the vehicle, but Hebert refused, said he was
leaving, and walked toward his vehicle. Hall testified that
he was in fear for his safety because Hebert was trying to
get back to his vehicle and because Hall did not know what
was in the vehicle. Therefore, Hall stated, he stopped Hebert
and told him he was not leaving, handcuffed him, and placed
him in the patrol car. Hall told Hebert that he was not under
arrest, but that " [h]e was being detained for
observation." (R. 16.) Hall explained the reasons he
placed Hebert in handcuffs:
" Because he was trying to -- when I told him -- I asked
him about the weapons and he was acting real nervous and then
he said he was leaving and go[ing] to the vehicle, I was in
fear for my safety. And they teach us that on a traffic stop,
anybody can get caught in an area where they can get a
weapon, they could do harm to me if I'm by myself trying
to get them out of a vehicle."
(R. 17.) When he testified on cross-examination that he had
detained Hebert for officer safety, he again explained,
" I didn't know what was in the vehicle and the way
he was acting when he went towards the vehicle, for officer
safety." (R. 23.) He later stated that he had suspicions
of further criminal activity " from how he was acting
nervous and wanting to get to the vehicle, and I already
found four knives on him, and his past criminal record."
remained at the rear of Hebert's car while Hall
handcuffed and detained Hebert. Hall testified that he asked
Hebert and Singleton whether there was anything in the
vehicle that he needed to know about before he searched it
for weapons, and Singleton told him there was a glass pipe
under the front passenger seat. Hall told Singleton to get
the pipe, and she walked to the vehicle by herself and
reached under the passenger seat for the pipe, which she then
brought back to Hall. Hall was asked on cross-examination
whether, when he told Singleton to return to the car to get
the pipe, he was concerned that Singleton could get a gun or
other weapon that she could use to hurt him. He testified
that he was concerned about officer safety, but that he
watched her while she retrieved the pipe.
stated that he believed the pipe was of the type used to
smoke methamphetamine, and he noted a white residue inside
the pipe. Hall testified that he then asked them whether
there was anything else in the vehicle he needed to know
about, and Hebert told him that a bag of methamphetamine was
under the floor mat on the driver's side of the vehicle.
Hall walked to the vehicle to retrieve the bag, and he then
observed a six-inch hunting knife between the driver's
door and the seat, and two more knives in the cockpit area
within arm's reach of the driver. Hebert claimed
ownership of the methamphetamine. Hall arrested him for
possession of drug paraphernalia and for possession of
methamphetamine. Hall also stated that the pipe provided
probable cause to arrest Hebert, and that he would have
searched the car and found the methamphetamine and the knives
when the car was searched incident to the arrest even if
Hebert had not told him about the methamphetamine.
testified that as soon as Hall made the traffic stop he asked
them to get out of the car, and they got out and walked to
the back of the car. She testified that their small dog got
out of the car and was running around in the street. She
testified that she and Hebert were nervous because the dog
was barking and running around. Singleton said that Hall gave
Hebert the ticket and returned his license and registration,
and they started to walk toward the car so they could leave.
Hall then asked for permission to search the car; she said
she and Hebert both refused to consent to the search, but,
she said, Hall went to the driver's side of the car and
began searching. Singleton testified that Hebert asked Hall
why he was searching the car. She said that Hall initially
stated he was searching the vehicle for drugs, but he then
said he was searching for weapons. He then handcuffed Hebert
and placed him in the back of the patrol car, and he
continued to search inside the car. Singleton testified that,
while Hall was moving items around inside the car, she told
him that she had something in the car, and he told her to get
it. She retrieved the glass pipe from beneath the passenger
seat and gave it to Hall. She testified that Hall did not
then ask them whether there was anything else in the car that
he needed to know about, and that Hebert did not tell Hall
about the bag of methamphetamine under the seat. Singleton
testified that the pipe and the methamphetamine belonged to
her, and she said that she informed Hall of this.
the foregoing testimony was presented, the trial court heard
arguments from the parties. The State argued that, because
Hebert seemed to be anxious to get back into his vehicle
after he received the citation, Hall feared for his safety at
that point and decided to further detain Hebert. The State
noted that Singleton and Hebert told him about the pipe and
the methamphetamine, and he said that the pipe provided
probable cause to search the vehicle. The State further
argued that, regardless of what Hebert told him, Hall was
going to search the vehicle for additional weapons.
argued that Alabama law provides that, once a traffic
offender signs the traffic citation, he is free to leave and
may be further detained only if the officer has probable
cause to arrest him for another offense, or if the officer
has a reasonable suspicion that the traffic offender is
involved in other criminal activity. He argued that Hall
admitted that he initially did not have probable cause to
search the vehicle, and that Hebert's nervousness and
desire to return to his vehicle after he received the
citation did not provide a reasonable suspicion that he was
involved in other criminal activity.
trial court denied the motion to suppress.
contends that the trial court erred in denying his motion to
suppress because, he says, he had the right to return to his
vehicle and to refuse Hall's request to search once Hall
issued the citation. He further argues that Hall did not have
probable cause to search or reasonable suspicion justifying
further detention after the traffic stop concluded, and
that, therefore, the warrantless search was unreasonable.
" 'In reviewing a trial court's ruling on a
motion to suppress, this Court reviews the trial court's
findings of fact under an abuse-of-discretion standard of
review. " When evidence is presented ore tenus to the
trial court, the court's findings of fact based on that
evidence are presumed to be correct," Ex parte
Perkins, 646 So.2d 46, 47 (Ala. 1994); " [w]e
indulge a presumption that the trial court properly ruled on
the weight and probative force of the evidence,"
Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.
1985), aff'd, 494 So.2d 772 (Ala. 1986); and we make
" 'all the reasonable inferences and credibility
choices supportive of the decision of the trial
court.'" Kennedy v. State, 640 So.2d 22, 26
(Ala.Crim.App. 1993), quoting Bradley, 494 So.2d at 761.
" [A]ny conflicts in the testimony or credibility of
witnesses during a suppression hearing is a matter for
resolution by the trial court.... Absent a gross abuse of
discretion, a trial court's resolution of [such]
conflict[s] should not be reversed on appeal."
Sheely v. State, 629 So.2d 23, 29 (Ala.Crim.App.
1993) (citations omitted). .... " '" [W]hen the
trial court improperly applies the law to the facts, no
presumption of correctness exists as to the court's
judgment." '" Ex parte Jackson, 886
So.2d 155, 159 (Ala. 2004), quoting State v. Hill,
690 So.2d 1201, 1203 (Ala. 1996)], quoting in turn Ex
parte Agee, 669 So.2d 102, 104 (Ala. 1995). A trial
court's ultimate legal conclusion on a motion to suppress
based on a given set of facts is a question of law that is
reviewed de novo on appeal. See State v. Smith, 785
So.2d 1169 (Ala.Crim.App. 2000).'"
C.B.D. v. State, 90 So.3d 227, 237 (Ala.Crim.App.
2011), quoting State v. Hargett, 935 So.2d 1200,
1203-04 (Ala.Crim.App. 2005).
of this appeal turns on whether Hebert was lawfully detained
after Hall had issued the traffic citation. Established law
in Alabama provides that a motorist who has been stopped for
a traffic violation is permitted to leave after the officer
issues the citation and that any further detention must be
based on a legally recognized exception to that general rule.
We have stated:
" Once the traffic offender signs the UTTC [Uniform
Traffic Ticket and Citation], the arresting officer is to
'forthwith release him from custody.' §
32-1-4(a)[, Ala. Code 1975]. The officer may further detain
the driver only if he has probable cause to arrest the driver
for some other non-traffic offense, see Hawkins v.
State, 585 So.2d 154 (Ala. 1991), or has a reasonable
suspicion of the driver's involvement in some other
criminal activity justifying further detention for
investigatory purposes under Terry v. Ohio[, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], see
United States v. Tapia, 912 F.2d 1367 (11th Cir.
" 'Reasonable suspicion is a less demanding standard
than probable cause.' Alabama v. White, 496 U.S.
325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301 (1990).
However, reasonable suspicion exists only if the officer has
'specific, particularized, and articulable reasons
indicating that the person [stopped] may be involved in
criminal activity,' Hickman v. State, 548 So.2d
1077, 1080 (Ala. Cr. App. 1989). 'To determine whether
reasonable suspicion existed for a particular stop, the
totality of the circumstances, as known to the officer at the
inception of the stop, [or, in this case, at the time of the
continued detention,] must be considered.' Arnold v.
State, 601 So.2d 145, 149 (Ala. Cr. App. 1992) (emphasis
added [in Washington]).
Accord Lamar v. State, 578 So.2d 1382, 1385 (Ala.
Cr. App.), cert. denied, 596 So.2d 659 (1991)."
State v. Washington, 623 So.2d 392, 395-96
(Ala.Crim.App. 1993), quoted in State v. Hale, 990
So.2d 450, 453 (Ala.Crim.App. 2008), and Peters v.
State, 859 So.2d 451, 453-54 (Ala.Crim.App. 2003).
testified that he did not have probable cause to detain
Hebert after he completed the citation. When asked on
cross-examination whether he had any suspicion that Hebert
was involved in some other criminal activity, Hall replied:
" Just from how he was acting nervous and wanting to get
to the vehicle, and I already found four knives on him, and
his past criminal record." (R. 24.) None of Hall's
expressed reasons for his concern, alone or combined,
provided a reasonable suspicion of further criminal activity
that would support Hebert's continued detention.
Peters v. State, presented similar circumstances,
and we stated in that case:
" The prevailing view is that 'unless coupled with
additional and objectively suspicious factors, nervousness in
the presence of a police officer and/or failure to make eye
contact do not establish reasonable suspicion to believe that
the person is engaged in criminal activity.' [State
v. Washington, 623 So.2d 392, 398 (Ala.Crim.App. 1993).]
The fact that Peters was agitated at being stopped is
insufficient to supply a reasonable suspicion of criminal
activity. Likewise, the fact that Peters tried to get out of
the patrol car without signing his citation or receiving a
copy of it does not rise to the level of reasonable
suspicion. Peters may have thought the traffic stop was
concluded, and it might not have occurred to him that he
needed to sign the citation or receive his copy."
859 So.2d at 454.
to Hall, Hebert was very nervous during the stop, but Hall
did not assert that Hebert was uncooperative. Although
nervousness and evasiveness, together, can lead to reasonable
suspicion, Peters, 859 So.2d at 455, Hall testified only that
Hebert had been very nervous, and did not testify that Hebert
was evasive during the stop. Furthermore, unlike Peters,
Hebert waited until he had received the traffic citation
before he began to walk to his car. Moreover, every motorist
returns to his vehicle when a traffic stop has been
completed, so Hebert's walk toward his vehicle provided
no legal justification for further detention. Hall's
remaining reasons for continuing to detain Hebert --
Hebert's criminal record and the facts that Hebert had
been in possession of four knives and that Hall did not know
what Hebert might have inside his car -- do not constitute
the necessary particularized and articulable reasons
indicating that Hebert might have been involved in criminal
activity. Particularized, articulable reasons are necessary
to create a reasonable suspicion of a driver's
involvement in other criminal activity and to support further
detention of a driver for investigatory purposes. " A
detaining officer 'must be able to articulate something
more than an " inchoate and unparticularized suspicion
or 'hunch.'" [Terry v. Ohio, 392 U.S.]
at 27, 88 S.Ct. [at] 1883 [(1968)].'" Washington at
399, quoted in Peters, 859 So.2d at 455. Hall articulated
nothing more than a hunch.
Hall did not have sufficient reasonable suspicion to detain
Hebert after the traffic stop had concluded. The
methamphetamine and the paraphernalia obtained during that
illegal detention should have been suppressed, as Hebert
argued in the court below.
State argues that Hall had been conducting an investigation
pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968),
and that, even after Hall issued the citation, the Terry
" based on the corollary Michigan v. Long [,
463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983),] sense
of concern for officer safety during a Terry encounter.
Deputy Hall's continued concern for officer safety was
based on: a) the ... automated 'medium threat level'
computer advisory he received; b) Hebert's extreme
nervousness; c) the fact that Hall's 'pat down'
of Hebert had produced at least one pocket knife; and, d) the
fact that, by walking away and attempting to re-enter his
vehicle, Hebert was creating an environment posing a
potential threat to officer safety."
(State's brief at pp. 13-14)(footnote omitted).
State then argues that one of two scenarios existed: either
Hall was conducting a permissible search of the interior of
Hebert's car pursuant to Michigan v. Long, 463
U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), when
Singleton voluntarily produced the drug paraphernalia, which
then provided probable cause for the continued search of the
car and the seizure of the package of methamphetamine; or
that during the time Hall had Hebert in investigative custody
pursuant to Terry v. Ohio, Hall deceived Singleton
into producing the paraphernalia, which then provided
probable cause for him to search the car, where he discovered
the methamphetamine. (State's brief, at p. 15.) Both
arguments fail to support the trial court's ruling
because Hall did not have the necessary reasonable suspicion
to detain Hebert after the traffic stop had concluded.
State's characterization of Hebert's detention as an
ongoing Terry investigation or a " reasonable suspicion
investigative custody (protective detention) of Hebert's
person pursuant to Terry v. Ohio, 392 U.S. 1, 30, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968)," State's brief,
at 15, is not an accurate representation of the facts in the
record. Hall's testimony established that the purpose of
the traffic stop had been completed and that he had issued a
citation to Hebert. The custodial detention that followed was
not part of an " ongoing" Terry investigation that
somehow permissibly ripened into a combination of a Terry
investigation and an officer-safety investigation permitted
by Michigan v. Long.
Michigan v. Long, the United States Supreme Court held:
" [T]he search of the passenger compartment of an
automobile, limited to those areas in which a weapon may be
placed or hidden, is permissible if the police officer
possesses a reasonable belief based on 'specific and
articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant' the
officers in believing that the suspect is dangerous and the
suspect may gain immediate control of weapons. See Terry, 392
U.S., at 21, 88 S.Ct., at 1880. '[T]he issue is whether a
reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was
in danger.' Id., at 27, 88 S.Ct., at 1883."
463 U.S. at 1049-50 (footnote omitted).
Terry holds that a protective search is permissible only if
there is a reasonable belief that the suspect is armed and
presently dangerous. Terry, 392 U.S. at 30. The United States
Supreme Court in Terry further explained:
" The scheme of the Fourth Amendment becomes meaningful
only when it is assured that at some point the conduct of
those charged with enforcing the laws can be subjected to the
neutral scrutiny of a judge who must evaluate the
reasonableness of a particular search or seizure in light of
the particular circumstances. And in making that assessment
it is imperative that the facts be judged against an
objective standard: would the facts available to the officer
at the moment of the seizure or the search 'warrant a man
of reasonable caution in the belief' that the action
taken was appropriate? Cf. Carroll v. United States,
267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, T.D. 3686 (1925);
Beck v. State of Ohio, 379 U.S. 89, 96-97, 85 S.Ct.
223, 229, 13 L.Ed.2d 142 (1964). Anything less would invite
intrusions upon constitutionally guaranteed rights based on
nothing more substantial than inarticulate hunches, a result
this Court has consistently refused to sanction. See, e.g.,
Beck v. Ohio, supra; Rios v. United States,
364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Henry
v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d
134 (1959). And simple 'good faith on the part of the
arresting officer is not enough.' .... If subjective good
faith alone were the test, the protections of the Fourth
Amendment would evaporate, and the people would be
'secure in their persons, houses, papers and
effects,' only in the discretion of the police.'
Beck v. Ohio, supra, at 97, 85 S.Ct. at 229."
Terry, 392 U.S. at 21-22 (footnotes omitted).
record belies any argument that the ongoing detention after
the traffic stop was based on Hall's reasonable belief
that Hebert had weapons in the car and that he was dangerous.
During his testimony at the hearing, Hall listed several
reasons for detaining Hebert after he had issued the traffic
citation, and he listed those reasons in various
combinations. Those reasons, in whatever combination Hall
listed them at various points in his testimony, were based on
Hall's stated concern for his safety. Hall testified that
he was concerned for his safety because Hebert appeared to
want to return to his car quickly, because he was uncertain
about what Hebert might have had inside the vehicle, because
Hebert had been very nervous during the traffic stop, because
Hebert had been carrying four folding knives, and because of
Hebert's past criminal record.
before Hall began writing the traffic citation he was aware
of Hebert's criminal history and that Hebert had been in
possession of four folding knives, yet after he patted down
Hebert's person, Hall did not search inside the vehicle
in the area within Hebert's wingspan. Rather, Hall did
not stop Hebert and place him in handcuffs based on any
safety concerns until after Hall had issued the traffic
citation, had asked for consent to search the car, and had
been denied consent to search. Thus, the primary reasons for
Hall's safety concerns existed before the traffic stop
was completed, but Hall acted on those concerns only after
Hebert had denied Hall's request for consent to search.
" A defendant's ultimate refusal to consent to a
search of the vehicle cannot be considered as a factor in the
officer's determination of reasonable suspicion."
Peters, 859 So.2d at 454.
Hall's stated concern that Hebert had additional weapons
in the vehicle
does not rise to the level of reasonable suspicion in light
of the fact that, after he placed Hebert in handcuffs, he
permitted Singleton to return to the car by herself and to
reach under the seat, where she would have had access to any
weapons inside the car. Finally, when Hall explained why he
had detained Hebert, he stated that officers are taught to be
cautious during traffic stops because " anybody can get
caught in an area where they can get a weapon, they could do
harm to me if I'm by myself trying to get them out of a
vehicle." (R. 17)(emphasis added). Hebert had fully
cooperated with Hall when Hall directed him to get out of the
vehicle and to stand behind it while Hall completed the
citation. There clearly was no possible risk of harm to Hall
as a result of difficulty getting Hebert out of the vehicle.
facts available to Hall when he prevented Hebert from
returning to his vehicle and placed him in the patrol car in
handcuffs did not reasonably warrant a belief that Hebert was
armed and dangerous and that the seizure was necessary to
protect Hall's safety. Therefore, we conclude that Hall
did not have sufficient reasonable suspicion to detain Hebert
following the traffic stop. The trial court erred when it
denied Hebert's motion to suppress. The judgment is
reversed and the cause is remanded to the circuit court for
proceedings consistent with this opinion.
and Burke, JJ., concur. Windom, P.J., and Joiner, J., concur
in the result.
The State did not present evidence at the
hearing about Hebert's prior record, or about the reason
Hall's computerized search listed Hebert as a medium
threat level. The record includes the State's notice of
intent to introduce prior convictions in the event Hebert
testified at trial, however, and that notice included a 2002
conviction for first-degree possession of marijuana; a 2003
conviction for first-degree possession of a forged
instrument; and a 2009 conviction for first-degree possession