from Pike Circuit Court (CC-17-251 and CC-17-252)
to a negotiated plea agreement, the appellant, Dwaun
Manriquez Tolbert, pleaded guilty to robbery in the first
degree, see § 13A-8-41, Ala. Code 1975, and to breaking
and entering a motor vehicle, see § 13A-8-11, Ala. Code
1975. The circuit court sentenced Tolbert to 240 months'
imprisonment for the robbery conviction and 60 months'
imprisonment for the breaking-and-entering conviction; the
sentence was split and he was ordered to serve 3 years'
imprisonment, followed by 24 months' supervised
probation. The circuit court ordered Tolbert to pay $3, 250
in restitution, $50 to the crime victims compensation fund
and court costs.
pleading guilty, Tolbert reserved for appellate review the
circuit court's denial of his motion to suppress the
evidence found as a result of the warrantless search of the
content of his cellular telephone found at the crime scene.
circuit court conducted a suppression hearing on January 30,
2018. At the hearing, Detective Terry Miles with the Troy
Police Department testified that on December 18, 2016, he was
assigned to investigate a robbery that took place at the
Courtyard Marriott motel in Troy. Steven Smith, who was
visiting from Florida, parked in the parking lot next to the
door of his motel room. Detective Miles testified that Smith
took some of his property into the motel room and, when he
returned to the car to get some more things, Smith saw a
black male sitting in his car. When Smith told the man to get
out of his car, the man pointed a gun at Smith and took
Smith's iPhone cellular telephone, as well as other
property that was in Smith's car before fleeing the scene
on foot. A K9 unit was called and was dispatched in the
direction in which the perpetrator ran, but the dogs lost the
scent around the M section of the Oak Grove Apartments.
Detective Miles also "pinged" Smith's cellular
telephone, and it appeared around apartment M-4 of the Oak
following day, Smith found a cellular telephone in his car
and telephoned Detective Miles. Detective Miles picked up the
cellular telephone, put a property receipt on it, and logged
it into evidence. Detective Miles testified that he then
contacted the district attorney's office and was told
that he did not need a search warrant for the phone, but that
he should contact the district court judge to verify that.
Detective Miles then contacted the judge, who explained that
Detective Miles would not need a search warrant if he used
the telephone only to identify the owner.
Miles testified that he was unable to obtain the name of the
owner of the cellular telephone from the "My
Information" section on the telephone but did find the
telephone number. Detective Miles then took a picture of the
telephone number and scrolled through some of the photographs
saved on the telephone in order to determine the owner of the
cellular telephone. Detective Miles testified that he
recognized the people in the pictures as Tolbert and his
girlfriend, Octavia Brunson. Detective Miles subsequently
learned that Brunson lived in apartment M-4 and that Tolbert
lived there with her.
Miles obtained a search warrant for Brunson's apartment.
During the search of the apartment, Detective Miles found all
of Smith's stolen property, with the exception of a
computer. When interviewing Tolbert, Detective Miles learned
that Tolbert's cellular telephone number was the same as
the number for the cellular telephone found in Smith's
sole contention on appeal is that the circuit court erred
when it denied his motion to suppress evidence of the
contents of his cellular telephone and all the evidence
obtained as a result of the warrantless search of his
cellular telephone. Specifically, Tolbert contends that the
warrantless search was unreasonable because, he says, none of
the exceptions to the warrant requirement apply, he "had
a subjective and objective expectation of privacy over the
contents of his cell phone," and leaving his cellular
telephone at the crime scene did not evidence his intent to
relinquish his expectation of privacy in the contents of the
cellular telephone. (Tolbert's brief, p. 14.) The State
contends that Tolbert abandoned his cellular telephone when
he left it at the scene of the crime and, therefore, that
Tolbert no longer had an expectation of privacy in his
telephone after he left it in Smith's car.
Court reviews de novo a circuit court's decision on a
motion to suppress evidence when the facts are not in
dispute. See State v. Hill, 690 So.2d 1201, 1203
(Ala. 1996); State v. Otwell, 733 So.2d 950, 952
(Ala.Crim.App.1999)." State v. Skaggs, 903
So.2d 180, 181 (Ala.Crim.App.2004). In the instant case, the
facts are uncontested; the only issue is the circuit
court's application of the law to those facts. Therefore,
this Court affords no presumption in favor of the circuit
searches are per se unreasonable, unless they fall within one
of the recognized exceptions to the warrant requirement.
Urioso v. State, 910 So.2d 158, 159
(Ala.Crim.App.2005); Baird v. State, 849 So.2d 223,
229 (Ala.Crim.App.2002); Chevere v. State, 607 So.2d
361, 368 (Ala.Crim.App.1992).
"Those exceptions include: objects in plain view,
consensual searches, a search incident to a lawful arrest,
hot pursuit or emergency situations, probable cause coupled
with exigent circumstances, and a Terry [v.
Ohio, 392 U.S. 1 (1968)] 'stop and frisk'
situation. Daniels v. State, 290 Ala. 316, 276 So.2d
441 (1973). Where a search is executed without a warrant, the
burden falls upon the State to show that the search falls
within an exception. Kinard v. State, 335 So.2d 924
Ex parte Tucker, 667 So.2d 1339, 1343 (Ala. 1995).
is well settled that "'[a] warrantless search or
seizure of property that has been "abandoned" does
not violate the fourth amendment. See e.g. Abel
v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698,
4 L.Ed.2d 668 (1960).'" Smith v.State, 557 So.2d 1322, 1325
(Ala.Crim.App.1989)(quoting Un ...