State of Alabama v. Michael Shane Taylor

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REL: 03/26/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-08-1936 S t a t e o f Alabama v. M i c h a e l Shane Appeal KELLUM, Shane of unlawful hydrocodone 1 975, from Montgomery C i r c u i t (CC-09-1011) Court Judge. Michael count Taylor Taylor was a r r e s t e d possession -- a v i o l a t i o n a n d one c o u n t of and charged w i t h one of a c o n t r o l l e d substance of § 13A-12-212(a)(1), the unlawful possession -- Ala. Code of drug CR-08-1936 paraphernalia, Taylor filed traffic stop a violation a motion i n which were d i s c o v e r e d the circuit by the court court's The 2008, evidence hydrocodone and Following granted an seized drug the the paraphernalia motion C r i m . P., A l a . R. 1975. from evidentiary Taylor's hearing, to suppress. State appeals the ruling. f o l l o w i n g e v i d e n c e was suppression 3, suppress police. P u r s u a n t t o R u l e 15.7, circuit to o f §13A-12-260(c), A l a . Code hearing. Officer At J.M. presented approximately Butterbrodt by the 5:00 and State a.m. Officer on at the February Chris Page the Montgomery P o l i c e Department were p a t r o l l i n g the and Hale of initiated Street area of Montgomery traffic stop of a v e h i c l e being vehicle had no headlights, stopping parked drug the v e h i c l e , the d r i v e n by although officers they Taylor i t was had because dark. observed a r r e s t had approach and the already they had house. b e e n made b y witnessed Officer w h i c h o c c u p a n t of the c a r had was not well l i t and the someone g e t Butterbrodt could of at which the not car 2 o b s c u r e d by a that and identify approached the house because h i s v i e w was the vehicle police earlier out a Before the i n f r o n t o f a h o u s e known f o r d r u g a c t i v i t y evening area when Decatur a the tree. CR-08-1936 Taylor of could insurance not proof asked T a y l o r to step o u t s i d e the v e h i c l e . Officer Butterbrodt or being search given person, and one Taylor placed Taylor Officer under At the s u p p r e s s i o n that he patdown removed search told that was hearing, from officer based suspicious solely Officer that, the something; they identity." pointed (R. lack to the to they have any Outside that Taylor 3 and also be to pipe crack on in pipe present conducted and I feel ID them, was Taylor why dangerous as trying a police to hiding suspicion Officer a identification, be his i f When a s k e d could on testified see armed " t h a t ' s how identification, fact crack at the time. could 13.) of and Taylor know, don't a illegal found the vehicle safety explained, you had asking patdown, Officer Butterbrodt inability his Butterbrodt officer, Taylor's on that the anything he Butterbrodt a c t u a l l y possessed i d e n t i f i c a t i o n he During i f he h a d him without arrest. Taylor for person consent. asked Taylor of h i s p o c k e t s . and Taylor's Taylor's Officer Butterbrodt his of stop, or Butterbrodt a patdown traffic identification Officer for the either and conducted during produce hide their based upon Butterbrodt also apprehended in a high- CR-08-1936 crime area in dangerous. incident he his fear Taylor because upon from Taylor report any concerned the the for his Page not admitted or said that from protective a that did observations and and for safety was identification. not include that led his to him in be safety. i t was not police policy v e h i c l e j u s t because the typically that patdown identification he identification cannot individual conducted present O f f i c e r Page's person's information, information and to t e s t i f i e d that present Page was arrest indicated present remove someone f r o m h i s o r h e r granting and also t e s t i f i e d that while failure additional Officer On armed vehicle d i d not Taylor's Butterbrodt Officer Taylor safety, his concern for o f f i c e r Officer could that report prepared after Taylor's concerns of o f f i c e r based of Officer Butterbrodt removed search support and the t h e n t r y and proof of officer verify be verified will the the vehicle and place person insurance. will i t . to take the Only i f the officer remove the that person in custody. August 27, Taylor's 2009, motion the circuit to court suppress 4 the issued an order evidence found CR-08-1936 pursuant following to the police search. The c i r c u i t court made t h e findings of fact: " [ T a y l o r ] was i n a n a r e a known f o r i t s c r i m i n a l a c t i v i t y and O f f i c e r B u t t e r b r o d t observed Defendant T a y l o r a p p r o a c h t h e d o o r w a y o f a home t h a t was known for i t s drug activity. The o f f i c e r never saw D e f e n d a n t T a y l o r p u r c h a s e n a r c o t i c s f r o m t h e home. As D e f e n d a n t T a y l o r was l e a v i n g s a i d r e s i d e n c e h e was s t o p p e d f o r driving without headlights. As a r e s u l t o f s a i d s t o p , D e f e n d a n t T a y l o r was a s k e d t o s t e p o u t o f h i s v e h i c l e a f t e r he made i t known t h a t he h a d no p r o o f o f i n s u r a n c e o r i d e n t i f i c a t i o n . The o f f i c e r subsequently conducted a pat-down search o f [Taylor]. This search lead t o the removal of a crack pipe from Defendant T a y l o r . "This c o u r t notes t h a t t h e [ S ] t a t e o f Alabama a s k e d O f f i c e r B u t t e r b r o d t , '... W i t h r e g a r d t o t h e pat-down and him e l i c i t i n g t h e c o m m e n t , was t h e comment made b e f o r e o r a f t e r t h e p a t - d o w n ? ' The Officer responded, 'During t h e pat-down.' This Court notes t h a t t h e r e was no c o n s e n t g i v e n b y Defendant Taylor to O f f i c e r B u t t e r b r o d t t o conduct s a i d pat-down and i n a d d i t i o n , t h e o f f i c e r s t a t e d t h a t t h e p u r p o s e o f t h e p a t - d o w n s e a r c h was f o r weapons. H o w e v e r , t h e r e was no i n d i c a t i o n that [Taylor] posed a t h r e a t t o the o f f i c e r or that [Taylor] h a d any weapons on h i s p e r s o n . The testimony from Officer Butterbrodt stated that [Taylor] was pulled over immediately a n d was t r u t h f u l and c o o p e r a t i v e w i t h t h e o f f i c e r . Also, t h e r e was no t e s t i m o n y that [ T a y l o r ] was a c t i n g e r r a t i c or nervous. Moreover, during the testimony o f O f f i c e r [ P a g e ] , who was t h e S t a t e o f A l a b a m a ' s s e c o n d w i t n e s s , he s t a t e d t h a t h i s n o r m a l p r o t o c o l f o r a c q u i r i n g i d e n t i f i c a t i o n f r o m a n i n d i v i d u a l who 1 The circuit court incorrectly identified the second w i t n e s s f o r t h e S t a t e as " O f f i c e r C a l d w e l l . " The w i t n e s s t o whom t h e c i r c u i t c o u r t w a s r e f e r r i n g w a s O f f i c e r C h r i s P a g e . 1 5 CR-08-1936 h a s n o n e a f t e r a s t o p h a s b e e n made, i s t o t a k e t h e name, social security, and other relevant information to verify the truthfulness of the stopped individual. "The S t a t e o f A l a b a m a , a t t h e i n s t r u c t i o n o f t h i s Court, provided caselaw to support the v a l i d i t y of t h e pat-down c o n d u c t e d by O f f i c e r B u t t e r b r o d t , h o w e v e r t h e s e c a s e s , a l t h o u g h s i m i l a r , a r e n o t on point with the issue of controversy regarding the case at b a r . "Therefore t h i s Court, a f t e r weighing a l l of the t e s t i m o n y , as w e l l as t h e c a s e l a w p r o v i d e d by t h e S t a t e , h e r e b y GRANTS t h e M o t i o n t o S u p p r e s s . " (C. 16-18.) On This appeal, appeal the ensued. State argues the Specifically, the State contends that the f a c t o r s observed sufficient In 2009), to j u s t i f y State this v. Court gave rise to p a t t i n g down Landrum, 18 So. a to court granted Butterbrodt motion circuit erroneously Officer Taylor's that reasonable suppress. suspicion Taylor. 3d 424 ( A l a . Crim. explained: " ' T h i s C o u r t r e v i e w s de novo a c i r c u i t c o u r t ' s d e c i s i o n on a m o t i o n t o s u p p r e s s e v i d e n c e when t h e facts are not i n dispute. See S t a t e v . H i l l , 690 So. 2 d 1 2 0 1 , 1 2 0 3 ( A l a . 1 9 9 6 ) ; S t a t e v . O t w e l l , 733 So. 2 d 9 5 0 , 952 ( A l a . C r i m . A p p . 1 9 9 9 ) . ' S t a t e v. S k a g g s , 903 So. 2 d 1 8 0 , 181 ( A l a . C r i m . A p p . 2 0 0 4 ) . I n S t a t e v . H i l l , 690 S o . 2 d 1 2 0 1 ( A l a . 1 9 9 6 ) , t h e t r i a l court granted a motion t o suppress f o l l o w i n g a hearing a t which i t heard only the testimony of one police officer. Regarding the applicable 6 by App. CR-08-1936 standard of review, the Alabama Supreme s t a t e d , i n p e r t i n e n t p a r t , as f o l l o w s : Court "'"Where t h e evidence before the trial c o u r t was u n d i s p u t e d t h e o r e t e n u s r u l e i s i n a p p l i c a b l e , and t h e Supreme C o u r t will s i t i n j u d g m e n t on t h e e v i d e n c e de n o v o , i n d u l g i n g no p r e s u m p t i o n i n favor of the trial c o u r t ' s a p p l i c a t i o n of the law to those f a c t s . " S t i l e s v . B r o w n , 380 So. 2 d 7 9 2 , 794 ( A l a . 1980) (citations omitted). The t r i a l j u d g e ' s r u l i n g i n t h i s c a s e was b a s e d upon h i s i n t e r p r e t a t i o n of the term "reasonable s u s p i c i o n " as a p p l i e d t o an undisputed set of facts; the proper i n t e r p r e t a t i o n i s a q u e s t i o n of law.' "State 18 So. v. 690 at 3d Hill, 426. Because suppression this Court law to the afford no hearing facts Terry 889 occurring, So. 2d stops 2d at the 1203-04." evidence circuit at the Ohio, law of presented i n d i s p u t e , the 392 suppression circuit U.S. enforcement persons only or 1, 88 court's S.Ct. or i s about to occur."'" (Ala. Crim. 1175, 1179 App. (Ala. S t a t e v. 7 App. 1992), the and 1868, may Davis, we 20 conduct have occurred, 2 0 0 8 ) , q u o t i n g W i l s h e r v. Crim. before ruling. i f they s u s p i c i o n t h a t c r i m i n a l a c t i v i t y has the applied hearing, officers vehicles at issue court correctly i n f a v o r of the v. (1968), "reasonable 470 presented presumption investigatory 468, i s not i s whether the "'Under L.Ed.2d So. a is 7 So. 3d State, 611 quoting in turn CR-08-1936 other cases. Terry, the officer himself and others search When of the an officer "'"'"is i n the outer stops a entitled area clothing suspect for the pursuant protection to conduct a c a r e f u l l y of such persons i n an 392 U.S. So. 2d State, a t 30, 3, 9 803 turn other Crim. App. any Terry 88 S.Ct. (Ala. Crim. So. 2d 579, cases. In 2000), this search At 1884-85.'"'" App. 582 v. to [Terry,] State, 884 2 0 0 3 ) , q u o t i n g R i d d l e s p r i g g e r v. (Ala. Crim. State Court w o u l d be Smith of limited attempt d i s c o v e r w e a p o n s w h i c h m i g h t be u s e d t o a s s a u l t h i m . " to v. Hails, App. 814 e x p l a i n e d the 2001), quoting So. 2d standards 98 0 (Ala. by which judged: " ' P o l i c e may c o n d u c t a p a t d o w n s e a r c h without a warrant i f , under the t o t a l i t y of the circumstances, the officer has an a r t i c u l a b l e , reasonable suspicion that a p e r s o n i s i n v o l v e d i n c r i m i n a l a c t i v i t y and t h a t he i s a r m e d . T e r r y v . O h i o , 392 U.S. 1, 88 S . C t . 1868, 20 L . E d . 2 d 889 (1968). The reasonableness of the search is measured objectively. If a reasonably prudent person would believe that his safety, or the safety of others, is e n d a n g e r e d , he may c o n d u c t a l i m i t e d s e a r c h o f o u t e r c l o t h i n g t o d i s c o v e r any weapons. I d . a t 2 7 , 88 S . C t . 1868.' " U n i t e d S t a t e s v . R a y m o n d , 152 F . 3 d 30 9, 312 (4th C i r . 1998). 'And i n d e t e r m i n i n g w h e t h e r t h e o f f i c e r a c t e d r e a s o n a b l y i n s u c h c i r c u m s t a n c e s , due weight must be given ... to the specific reasonable i n f e r e n c e w h i c h he is entitled t o draw f r o m the 8 in CR-08-1936 facts i n l i g h t of h i s experience.' T e r r y v. Ohio, 392 U.S. 1, 2 7 , 88 S . C t . 1 8 6 8 , 1 8 8 3 , 20 L . E d . 2 d 889 (1968)." 814 S o . 2 d a t 9 8 6 . This Court analogous" Terry'" 1990), Crim. U.S. to the brief than arrest. custody quoting violation, (1984). the driver, App. 1989), (1979). the occupants associated with v. State cert. without 541 i n turn Cains quoting Delaware Mimms, 434 106, Maryland v. Wilson, 814 S o . 2 d 988 9 terms, 440 U.S. 648, has p r o p e r l y s e i z e d may So. 2d the Fourth traffic Amendment v. Prouse, 814 violating 468 555 S o . 2 d 2 9 0 , 292 ( A l a . v. H a i l s , denied, App. v. McCarty, a vehicle for a officer U.S. felony S o . 2 d 5 8 3 , 585 ( A l a . has, i n Fourth v. S t a t e , a (Ala. Crim. Berkemer In stopping officer i s "'"more d e t e n t i o n a u t h o r i z e d by of the c a r , the o f f i c e r 2000)(recognizing (1997)), State, So l o n g a s t h e p o l i c e Pennsylvania passenger, v. quoting a police 653 car traditionally Pittman 1989), 4 2 0 , 439 Crim. investigative stop S i d e s v . S t a t e , 574 S o . 2 d 8 5 6 , 858 App. seized has r e c o g n i z e d t h a t a t r a f f i c order 111 98 0 the driver, (1977), or ( A l a . Crim. 519 U.S. (Ala. 2001), Amendment. a App. 408, 415 out of the See, S t a t e v. CR-08-1936 A b n e r , 889 So. 2 d 5 2 , 53-54 the applicability When traffic driver a o f Mimms a n d W i l s o n police violation, officer f o r weapons i f t h e o f f i c e r i s armed and dangerous. U.S. Supreme C o u r t properly the police out of the vehicle, Johnson, ( A l a . Crim. App. 2 0 0 4 ) ( r e c o g n i z i n g stops officer b u t may i n Alabama). a vehicle may n o t o n l y also for a order the p a t down t h e d r i v e r reasonably believes that the driver Mimms, 434 U.S. a t 1 1 2 . I n A r i z o n a v . , 129 S . C t . 781 ( 2 0 0 9 ) , t h e U n i t e d States explained: "[I]n a traffic-stop setting, the f i r s t Terry c o n d i t i o n -- a l a w f u l i n v e s t i g a t o r y s t o p -- i s m e t whenever i t i s lawful for police to detain an automobile and i t s occupants pending i n q u i r y i n t o a vehicular violation. The p o l i c e n e e d n o t h a v e , i n addition, cause t o b e l i e v e any occupant o f t h e vehicle i s involved i n criminal activity. To justify a patdown o f t h e d r i v e r or a passenger d u r i n g a t r a f f i c s t o p , however, j u s t as i n t h e case of a p e d e s t r i a n r e a s o n a b l y suspected o f c r i m i n a l activity, the police must harbor reasonable suspicion that the person subjected t o the f r i s k i s armed and d a n g e r o u s . " U.S. a t , 1 2 9 S . C t . a t 784 B.A.H. v . S t a t e , (Ala. Arizona Crim. (emphasis added). [Ms. C R - 0 7 - 2 2 3 6 , May 1, 2 0 0 9 ] App. v. Johnson 2009)(recognizing i n Alabama). 10 the See also So. 3d applicability of CR-08-1936 In the instant case, the officers observed Taylor's v e h i c l e p a r k i n f r o n t o f a h o u s e known f o r d r u g a c t i v i t y high-crime area r e t u r n to the witnessed his witnessed someone a p p r o a c h car at approximately Taylor headlights traffic and stop, commit a t r a f f i c on and Taylor initiated person. Officer identify himself, Butterbrodt and t h a t he that consciously t h e two other officers evidence of i n danger. So. 2d 896, 899-900 So. 2d 902 (Ala. 2000). that and proof write of driving stop. verify the During that t h a t he Taylor to could to hide his not conduct identity that and might put State, 776 1999), w r i t quashed, 776 g e n e r a l l y Tuohy v. Officer Page testified cannot produce a d r i v e r ' s or proof given information to on information 11 the h i s b e l i e f as a p o l i c e o f f i c e r criminal activity information without his trying See then f o r m o f i d e n t i f i c a t i o n on Furthermore, the officers and not identification, down t h e cannot traffic ( A l a . C r i m . App. attempt to v e r i f y officer by house did i n s i t u a t i o n s where a m o t o r i s t license, will a The deemed i t n e c e s s a r y b e c a u s e i t was possibly offense testified a patdown search was a.m. told Officer Butterbrodt have h i s d r i v e r ' s l i c e n s e o r any Taylor 5:00 the in a of him insurance, by the suspect h i s computer. given to him he If by an the CR-08-1936 suspect, place Officer the suspect moment, we they Page t e s t i f i e d (R. Given in protective know who don't have." they totality B u t t e r b r o d t was justified The witnessed and walk up to a h i s car high-crime Officer the get area Taylor house of Officer a search i n Taylor's high-crime for pocket. area and d r i v e n by Taylor i t s drug activity. This that criminal f a c t o r s may activity give rise i s afoot. to See ( w i t n e s s i n g the a p p e l l a n t r e p e a t e d l y a nearby house created sufficient pursuant s a y t h e y h a v e no that, at night i n a suspicion Terry). based on felt his experience, that 12 Taylor be trying a s i f he n e e d e d t o was not could for Furthermore, i d e n t i f i c a t i o n may t o make s u r e he inference late reasonable to l i k e w e a p o n s , s o he down T a y l o r i n o r d e r Butterbrodt's warrants car being for Butterbrodt testified hide something the of found in the known approach investigation s u s p e c t s who what k i n d at to circumstances, the crack pipe 3 d a t 428 and policy "because, i n c o n d u c t i n g a patdown out suspicion L a n d r u m , 18 S o . further and p r e v i o u s l y h e l d that these reasonable exit are of observed someone C o u r t has a seizing officers custody police 29.) the weapons and t h a t i t was armed. be to pat Officer armed was CR-08-1936 reasonable, specific entitled and this reasonable Court must inference which t o draw from t h e f a c t s S t a t e v. H a i l s , give due weight [a p o l i c e to "'the officer] i n l i g h t of h i s experience.'" 814 S o . 2 d a t 9 8 6 , q u o t i n g Terry, 3 9 2 U.S. a t 27. Accordingly, the c i r c u i t court abused i t s d i s c r e t i o n it found the that suspicion Taylor's to motion Based order and pat down to this lacked Taylor, and sufficient i t erred when reasonable in granting suppress. on t h e f o r e g o i n g , suppressing remand police i s we reverse the c i r c u i t court's t h e evidence s e i z e d from t h e patdown case f o r proceedings consistent with search this opinion. R E V E R S E D AND Wise, REMANDED. P . J . , a n d W e l c h , Windom, a n d M a i n , 13 J J . , concur.

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