Rel 04/04/2008
Notice: This opinion is subject to formal revision before publication in the advance
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before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2007-2008
_________________________
CR-06-1269
_________________________
Ragon King
v.
State of Alabama
Appeal from Chambers Circuit Court
(CC-07-108)
PER CURIAM.
The appellant, Ragon King, pleaded guilty to the unlawful
possession
of
a
controlled
substance,
methamphetamine,
a
violation of § 13A-12-212, Ala. Code 1975, and was sentenced
to
six
years
in
prison.
Before
pleading
guilty
King
CR-06-1269
specifically reserved his right to appeal the circuit court's
ruling denying his motion to suppress.
At the suppression hearing, Sgt. Mike Parrish of the
Chambers
County
received
numerous
Sheriff's
Department
complaints
from
testified
Gabriel
Wayne
that
he
Hornsby's
neighbors about unusual activity at Hornsby's house.
The
complaints were based on the heavy traffic to and from his
residence and a pervasive chemical odor emanating from the
residence.
Sgt.
Parrish
and
Deputy
Terry
Wood
surveillance on the house and saw the heavy traffic.
set
up
On one
occasion the distinct odor of anhydrous ammonia -- a chemical
commonly used in the production of methamphetamine.
Sgt.
Parrish obtained a search warrant for the premises.
On May 12, 2006, Sgt. Parrish and Deputy Wood went to
Hornsby's house to execute the search warrant.
While waiting
for backup officers, Sgt. Parrish and Deputy Wood saw King and
Elise Escalera leave the residence, enter a vehicle, and drive
up to the mailbox in front of the house. As King started to
drive away from the mailbox, Sgt. Parrish and Deputy Wood
stopped the vehicle.
Deputy Wood informed King of the purpose
for the stop and asked him to get out of the vehicle.
2
Deputy
CR-06-1269
Wood advised King that he was going to conduct a patdown
search for weapons.
pocketknife.
not identify.
The patdown search initially revealed a
Deputy Wood then felt an object that he could
When Deputy Wood asked King what was in his
pocket King responded that he had just put his pants on and
did
not
know.
King
retrieve the object.
then
gave
Deputy
Wood
permission
to
Deputy Wood retrieved a closed black
film canister and opened it.
The canister contained what
Deputy Wood recognized as methamphetamines and a pink tablet.
Deputy Wood then arrested King.
"'This Court reviews de novo a circuit court's
decision on a motion to suppress evidence when the
facts are not in dispute.' State v. Skaggs, 903 So.
2d 180, 181 (Ala.Crim.App. 2004). '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.' State v.
Hargett, 935 So. 2d 1200, 1204 (Ala.Crim.App.
2005)."
Marshall v. State, [Ms. CR-05-1035, August 31, 2007] ___ So.
2d ___, ___ (Ala.Crim.App. 2007).
I.
King
contends
that
the
initial
traffic
stop
and
the
subsequent search of his person were without probable cause
and
that
they
exceeded
the
scope
3
of
the
search
warrant.
CR-06-1269
Specifically, King argues that police could not search him
because he was not on the premises named in the search warrant
nor was he specifically named in the search warrant.
The
search
warrant
provided
for
a
search
of
"[t]he
premises known as the residence of Gabriel Wayne Hornsby ...
located at 7255 County Road 114, Lafayette, Chambers County,
Alabama. ...
The search warrant is to include the premises
described, the curtilage, any outbuildings and vehicles on the
curtilage, the persons of Gabriel Wayne Hornsby...." (emphasis
added).
The property to be searched for and seized was listed
specifically
as:
"methamphetamine,
clandestine
laboratory
equipment, drug paraphernalia, and U.S. Currency derived from
the sale of such."
"'A
search
warrant
authorizing
a
search
of
certain
premises generally includes any vehicles located within its
curtilage
if
the
objects
of
the
search
might
be
located
therein.'" English v. State, 603 So. 2d 1128, 1130 (Ala. Crim.
App. 1992), quoting United States v. Gottschalk, 915 F.2d
1459, 1461 (10th Cir. 1990).
When Sgt. Parrish and Deputy
Wood arrived to execute the search warrant, King's vehicle was
parked within the curtilage of Hornsby's residence.
4
Thus, the
CR-06-1269
vehicle was within the scope of the search warrant.
search
warrant
authorizing
the
search
of
vehicles
"A valid
on
the
subject property permits the search of vehicles arriving on
that property during the course of the search, so long as
those vehicles could reasonably contain items the officers are
searching for."
United States v. Tamari, 454 F.3d 1259, 1263
(11th Cir. 2006).
The circuit court did not err when it
denied King's motion to suppress on these grounds.
II.
King next argues that the trial court erred in denying
his motion to suppress because, he argues, the search of his
person was outside the scope of the search warrant and was
conducted without his consent.
It is undisputed that King
gave his consent for Deputy Wood to retrieve
the object;
however, King argues that Deputy Wood exceeded the scope of
his consent when he opened the film canister.
"A consensual search is reasonable if the search
is within the scope of the consent given. United
States v. Martinez, 949 F.2d 1117, 1119 (11th Cir.
1992).
The scope of a person's consent is
determined by whether it is objectively reasonable
for the police to believe that the consent permitted
them to search where they did. Florida v. Jimeno,
500 U.S. 248, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d
297 (1991). ...
5
CR-06-1269
"The scope of a search may be further defined
during the course of the search by the passive
acquiescence of the person whose property is being
searched.
See e.g., United State v. DeWitt, 946
F.2d 1497, 1501 (10th Cir. 1991) (officer's
placement of his hand in cleft between back seat
cushions of car did not exceed scope of consent,
where defendant did not object until after discovery
of narcotics), cert. denied, 502 U.S. 1118, 112
S.Ct. 1233, 117 L.Ed.2d 467 (1992); United States v.
Alfaro, 935 F.2d 64, 67 (5th Cir. 1991) (defendant
fails to withdraw consent where he asks to go
outside to talk to another but makes no protest).
Cf. United States v. Patacchia, 602 F.2d 218, 219
(9th Cir. 1979) (saying 'I would but I can't' open
car trunk, is not consent where prior consent not
given)."
Grinton v. Commonwealth, 14 Va.App. 846, 850-51, 419 S.E.2d
860, 862-63 (1992). "'The standard for measuring the scope of
a suspect's consent under the Fourth Amendment is that of
"objective"
reasonableness
--
what
would
the
typical
reasonable person have understood by the exchange between the
officer and the suspect?'" Bender v. State, 687 So. 2d 219,
221 (Ala.Crim.App. 1996), quoting Florida v. Jimeno, 500 U.S.
248, 250 (1991).
At the suppression hearing Deputy Wood testified that he
asked King for permission to retrieve the unidentified object
from
his
pocket
to
appellant consented.
determine
what
it
was
and
that
the
During the suppression hearing, defense
6
CR-06-1269
counsel argued that Deputy Wood had permission to retrieve the
canister, but not to investigate what it was.
The following
transpired at the suppression hearing:
"[DEFENSE COUNSEL]: You got the film canister
out. It has got a top on it. You are holding it in
your hand. What did you do with it?
"DEPUTY WOOD: I checked to see what was inside
in case it was something that was going to harm me.
"[DEFENSE COUNSEL]: Did you ask him permission
to open that up?
"DEPUTY WOOD: I asked for permission to retrieve
it and find out what it was.
"[DEFENSE COUNSEL]: You said you asked him
permission to –- Well, you asked him. From what I
remember, you said, 'What else is in your pocket?'
"DEPUTY WOOD: Yes.
"[DEFENSE COUNSEL]: He said, 'I don't know.
just put my pants on. I'm not sure what it is.'
I
"DEPUTY WOOD: Um-hum.
"[DEFENSE COUNSEL]: You said, 'Do you mind if I
retrieve it?'
"DEPUTY WOOD: Retrieve it and find out what it
was.
"[DEFENSE COUNSEL]: So you want to retrieve it
and find out what it is instead of just retrieve it?
"DEPUTY WOOD: I pulled it from his pocket to
find out what it was.
7
CR-06-1269
"[DEFENSE COUNSEL]: Okay.
Now, you asked him
permission to take out the knife and he said yes?
"DEPUTY WOOD: Yes, um-hum.
"[DEFENSE COUNSEL]: You asked him permission to
take the canister out of his pocket. He said, yes.
Did you ask him for permission to open and see what
was inside?
"DEPUTY WOOD: I felt that me trying to find out
what it was included me being able to open it and
make sure there was nothing inside of it.
"[DEFENSE COUNSEL]: So you didn't feel like you
needed to ask him to open it?
"DEPUTY WOOD: No, I didn't."
(R. 25-28.)
There was no testimony indicating that Deputy
King objected when Officer Wood opened the film canister or
that King revoked his consent at any time.
The circuit court, when denying the motion to suppress,
stated that it was reasonable for Deputy Wood to believe that
the consent to retrieve the canister also encompassed the
consent to open it.
We agree with the circuit court that a
reasonable person would have understood that retrieving the
object, the black film canister, and finding out what it was,
would of necessity, include opening the canister.
Therefore,
we hold that Deputy Wood's search did not exceed the scope of
8
CR-06-1269
King's consent, and the circuit court correctly denied King's
motion to suppress.
For these reasons, we affirm King's conviction for the
unlawful possession of a controlled substance.
AFFIRMED.
Baschab, P.J., and McMillan and Wise, JJ., concur.
Shaw,
J., concurs in the result. Welch, J., dissents, with opinion.
WELCH, Judge, dissenting.
I
agree
with
that
portion
of
the
majority's
opinion
holding that the initial stop of King's vehicle was valid
pursuant to a properly executed search warrant.
However, as
discussed below, I do not believe that Deputy Terry Wood had
consent to open the film canister he removed from King's
pocket during a patdown search.
King's
motion
to
suppress
was
Therefore, I believe that
due
to
be
granted,
and
I
respectfully dissent.
The
majority
holds
that
it
was
reasonable
for
the
arresting officer, Deputy Wood, to believe that the scope of
King's
consent
to
retrieve
the
pocket
included opening the canister.
9
film
canister
from
King's
However, I do not
CR-06-1269
believe that the record supports this view.
Deputy
Wood
testified as follows regarding his obtaining consent to search
King's person.
"Q. [The prosecutor:] Okay. What did you ask Mr. King?
"A. [Deputy Wood:] I advised Mr. King our reasons
for being there.
I advised him of the search
warrant. I asked him if he would to step out of the
vehicle.
"Q. Did he do so?
"A. Yes, he did.
"Q. Okay. What did you do at that point?
"A. I asked Mr. King did he have anything on him
that I needed to know about as far as weapons or
anything. I advised him that I was going to pat him
down for weapons."
(R. 21.)(Emphasis added.)
Here, Deputy Wood told King that the search of King's
person
was
generally
for
weapons.
defined
by
"'[T]he
its
expressed
scope
of
a
object.'"
search
is
Tillman
v.
State, 647 So. 2d 7, 11 (Ala. Crim. App. 1994)(quoting Florida
v.
Jimeno,
500
U.S.
248,
251
(1991));
United
States
v.
Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004)("Generally,
the expressed object of the search defines the scope of that
search.").
I
do
not
believe
10
that
it
was
objectively
CR-06-1269
reasonable for Deputy Wood to conclude that he had consent to
open the film canister after having informed King that he was
searching for a weapon.
Only by engagement of "'fanciful
speculation'" could a film canister be considered a dangerous
weapon or to be concealing a dangerous weapon.
4 Wayne R.
LaFave, Search and Seizure § 9.6(d), p. 671 (4th ed. 2004).
For
supporting
cases
see
9.6(d), p. 771 n. 258.
engage.
2007]
4
LaFave,
Search
and
Seizure
§
In such speculation I decline to
See, e.g., Cannon v. State, [Ms. CR-04-1982, May 25,
So. 2d
,
(Ala. Crim. App. 2007)(contents of
film canister removed from suspect's pocket suppressed where
"nothing
in
the
record
show[ed]
that
the
nature
of
the
contraband found in the canister was immediately apparent when
[the officer] pulled it from Cannon's pocket").
do
not
believe
that
the
alleged
"passive
Moreover, I
acquiescence"
referred to by the majority has application in this case.
Unlike cases cited by the majority involving searches for
contraband, a Terry patdown is a limited search, conducted
solely to protect the safety of law enforcement.
Its scope
should never exceed what is necessary to protect the safety of
11
CR-06-1269
officers.
Thus, I do not agree that King consented to Deputy
Wood's opening of the canister.
Absent consent, a container taken during a Terry patdown
should not be opened "unless it might contain a weapon, a
judgment which the officer should be expected to make on the
basis of its size, weight and feel."
4 W. LaFave, Search and
Seizure § 9.6(d), pp. 669-71 (quoting Model
Code of Pre-
Arraignment Procedure § 110.2(4) (1975)).
Based on the above, I respectfully dissent.
12
