Alvin Lamar Worthy, alias v. State of Alabama

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REL: 04/29/2011 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l 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 , A l a b a m a 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, 2010-2011 CR-10-0044 Alvin Lamar Worthy v. S t a t e o f Alabama Appeal JOINER, from Montgomery C i r c u i t (CC-10-861) Court Judge. Alvin marijuana Lamar i nviolation was s e n t e n c e d a $25,000 Worthy pleaded guilty to trafficking o f § 1 3 A - 1 2 - 2 3 1 , A l a . Code 1975. i n He t o 15 y e a r s ' i m p r i s o n m e n t and was o r d e r e d t o p a y fine, a $2,000 drug-demand-reduction assessment, a CR-10-0044 $100 forensic-trust assessment, c o m p e n s a t i o n a s s e s s m e n t , and right to appeal suppress the arrest. This At discovery appeal stretch that of observed a traveling the the vehicle the police trained in criminal patrol of out of incident. approached of that his the motion resulted to in his J.J. Allen and Montgomery P o l i c e a 2010, in 85 with Corporal 6, Montgomery "tag they applied B o t h A l l e n and department's activity victims Worthy r e s e r v e d denial marijuana the February highway. traffic car without on crime ensued. Interstate on in roadside the median Worthy the were for" was passenger license license team observing pulled the driver side and when plate of the of drove vehicle the the a rental and part were indicators Allen a they Smitherman were interviews. and Department patrolling County highway-safety i n t e r d i c t i o n and o b t a i n e d Worthy's d r i v e r ' s the court's of Jacob Smitherman testified Allen trial $50 court costs. Worthy's s u p p r e s s i o n h e a r i n g , Officer of the a of his over vehicle. vehicle and agreement for vehicle. A c c o r d i n g to A l l e n , the p a s s e n g e r 1 The record does not 1 i d e n t i f y the 2 i n the vehicle passenger. appeared CR-10-0044 nervous stated and that passenger trip would he was later but that Georgia. that asked After Worthy asked Worthy i f he had he h a d p r e v i o u s l y history on inspected that Enterprise of been the Worthy s t a t e d arrested that drug the his hands Augusta, and check. Smitherman Worthy on w e a p o n s responded charges. car and ran Worthy had previously charges. While vehicle-rental vehicle was that Smitherman Smitherman, from vehicle, arrests. was three i n the p a t r o l a criminalbeen i n the patrol agreement, which days past due to c a r , Smitherman q u e s t i o n e d W o r t h y on t h e i d e n t i t y o f t h e p a s s e n g e r tell The Rent-a-Car. While A l l e n to Georgia. traveling his rental his patrol and Worthy c a r w h i l e he r a n a w a r r a n t found weapons Allen revealed that talked. to step out of h i s v e h i c l e any p r i o r returned to check arrested car, of the p a t r o l out he Atlanta, had been Worthy stepped from as he h a d b e e n a s l e e p f o r m o s t o f t h e and Worthy i n front Allen at A l l e n traveling wait that look stated he Allen not vehicle. t h e p a s s e n g e r was h i s c o u s i n b u t was the passenger's Worthy's to in his rental hands h i s face as shook, last and Smitherman 3 he name. unable According to repeatedly q u e s t i o n e d him touched on his CR-10-0044 prior criminal After history Smitherman e x p l a i n e d the purpose of the highway-safety team t o asked him a the 2 check, and completed passenger. criminal-history Worthy Allen and t h e i d e n t i t y o f h i s series of questions On c r o s s - e x a m i n a t i o n , O f f i c e r following: 2 regarding S m i t h e r m a n was asked "Q. [DEFENSE COUNSEL:] O u t o f t h a t v i d e o we j u s t w a t c h e d , y o u have r e v i e w e d i t , what would you s a y was n e r v o u s i n h i s b e h a v i o r ? "A. [ O F F I C E R SMITHERMAN:] T o u c h i n g h i s f a c e . kept going back touching h i s face. "Q. J u s t t o u c h i n g He h i s face? "A. A n d h i s h a n d s w e r e s h a k i n g "Q. T h i s was F e b r u a r y , "A. Sir? "Q. a little bit. right? February? "A. Y e s , s i r . "Q. Y o u w o n ' t d i s p u t e i t was cold? "A. N o , s i r . "Q. Y o u h a d y o u r j a c k e t on? "A. Y e s , s i r . "Q. Y o u s h a k e m a y b e a l i t t l e "A. Y o u c a n , y e s , s i r . " (R. 78-9.) 4 when y o u a r e c o l d ? the the CR-10-0044 trafficking when he of i l l e g a l asked contraband. Worthy i f v e h i c l e , Worthy b r i e f l y stating had no, which answered was the other Smitherman then rental a K-9 vehicle. unit search was of five pounds The the search the basis o r no from the put marijuana to manner to the before he him. to search to consent scene the i n which asked Worthy f o r p e r m i s s i o n called in a short breath and to a performed After the dog t r u n k , the trunk was searched of marijuana was trial reasonable alerted his search, 3 a free-air at the driver's and approximately discovered. on appeal i s the i n the d i s c o v e r y of the as court's ultimate legal to whether a given s u s p i c i o n of probable State 2000) 3 questions any took A f t e r Worthy f a i l e d resulting suppress appeal." was that legality evidence of forming of h i s c o n v i c t i o n . "The App. different s o l e i s s u e Worthy r a i s e s the to there p a u s e d and of the v e h i c l e . side Smitherman t e s t i f i e d v. Smith, ( c i t i n g Ornelas 785 So. c o n c l u s i o n on set of facts 11 69, 117 9 v . U n i t e d S t a t e s , 517 motion constitutes cause i s reviewed 2d a de novo (Ala. Crim. 690, 699 A c c o r d i n g t o O f f i c e r S m i t h e r m a n , Worthy never gave a a n s w e r , b u t he d i d n o t c o n s e n t t o a s e a r c h . yes 5 U.S. on CR-10-0044 (1996)). "'Where the undisputed the [appellate court] will novo, indulging application ore evidence no 2d 1201, 1203 So. 2d 792, 794 officers should be s i t in law is the to those on facts.'" novo. was and the evidence trial S t a t e v. Because only Hill, de court's 690 Brown, v. Hill, 380 the arresting s u p p r e s s i o n h e a r i n g , and thus undisputed, the d e c i s i o n de the (quoting S t i l e s at Worthy's court inapplicable, judgment (Ala. 1980)). reviewed trial i n f a v o r of the ( A l a . 1996) testified e v i d e n c e was rule presumption of the So. tenus before of the t r i a l the court supra. "'Whether there i s probable cause to merit a w a r r a n t l e s s s e a r c h a n d s e i z u r e i s t o be determined by t h e t o t a l i t y o f t h e c i r c u m s t a n c e s . I l l i n o i s v. G a t e s , 462 U.S. 2 1 3 , 103 S. C t . 2 3 1 7 , 76 L. E d . 2 d 527 (1983). " P r o b a b l e cause e x i s t s where a l l the facts and circumstances within the officer's knowledge are s u f f i c i e n t to warrant a person of r e a s o n a b l e c a u t i o n t o c o n c l u d e t h a t an o f f e n s e h a s been or i s b e i n g c o m m i t t e d and t h a t c o n t r a b a n d w o u l d be f o u n d i n t h e p l a c e t o be s e a r c h e d . " S h e r i d a n v. S t a t e , 591 So. 2d 12 9, 130 ( A l a . C r i m . A p p . 1991).'" Woods v . State, "Sufficient 695 So. probability, 2d (Ala. Crim. App. 640 (Ala. Crim. not c e r t a i n t y u n d e r t h e F o u r t h Amendment." 216 636, Allen v. ... , i s t h e State, 689 App. touchstone So. 1995). "'"This court has warrantless searches 6 long are held per 1996). that se 2d 212, CR-10-0044 unreasonable, unless they f a l l w i t h i n one of the r e c o g n i z e d e x c e p t i o n s to the warrant requirement. See, e.g., C h e v e r e v. S t a t e , 607 So. 2 d 3 6 1 , 368 ( A l a . C r . App. 1992). T h e s e e x c e p t i o n s a r e : (1) p l a i n v i e w ; (2) c o n s e n t ; (3) i n c i d e n t t o a l a w f u l a r r e s t ; (4) h o t p u r s u i t o r e m e r g e n c y ; (5) p r o b a b l e cause c o u p l e d w i t h e x i g e n t c i r c u m s t a n c e s ; (6) s t o p a n d frisk s i t u a t i o n s ; and (7) inventory searches. Ex p a r t e H i l l e y , 484 So. 2d 485, 488 ( A l a . 1 985); Chevere, s u p r a , 607 S o . 2 d a t 3 6 8 . " ' " S t a t e v . M i t c h e l l , 722 1998), q u o t i n g R o k i t s k i ( A l a . C r . App. 1997)." State v. Another Otwell, 733 So. 2d S o . 2 d 814 ( A l a . Cr. App. v . S t a t e , 715 So. 2 d 859 950, 952 (Ala. Crim. App. r e c o g n i z e d e x c e p t i o n to the warrant requirement " a u t o m o b i l e e x c e p t i o n , " which a l l o w s law enforcement an a u t o m o b i l e b a s e d 948 So. 2d 583 on p r o b a b l e c a u s e (Ala. Crim. App. alone. 1999). i s the to search H a r r i s v. State, 2006). " ' U n d e r 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), law enforcement officers may conduct investigatory stops of persons or v e h i c l e s i f they have a " r e a s o n a b l e 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 o c c u r r e d , i s o c c u r r i n g , o r i s about to occur. See g e n e r a l l y C a f f i e v . S t a t e , 516 So. 2d 822, 825-26 (Ala. Crim. App. 1986), [ a f f i r m e d ] , 516 So. 2 d 831 ( A l a . 1 9 8 7 ) . " Lamar v. S t a t e , 578 So. 2d 1 3 8 2 , 1385 (Ala. Crim. App.), cert. denied, 596 So. 2d 659 (Ala. 1991). "Reasonable s u s p i c i o n i s a l e s s demanding s t a n d a r d than probable cause," A l a b a m a v . W h i t e , 496 U.S. 3 2 5 , 3 3 0 , 110 S. C t . 2 4 1 2 , 2 4 1 6 , 110 L. E d . 2 d 301 (1990), r e q u i r i n g o n l y t h a t the d e t a i n i n g o f f i c e r s "have a particularized and objective basis for 7 CR-10-0044 suspecting the person detained of criminal activity," Webb v . S t a t e , 500 S o . 2 d 1 2 8 0 , 1 2 8 1 (Ala. Crim. App.), c e r t . d e n i e d , 500 S o . 2 d 1 2 8 2 (Ala.1986).'" State v. Davis, In notes 7 S o . 3 d 4 6 8 , 470 ( A l a . C r i m . the present that none searching of these h i s c a r , we circumstances exists." case, when "although factors must the appellant alone look would at correctly have justified the t o t a l i t y determining whether Owen v . S t a t e , App. 2008). reasonable of the suspicion 7 2 6 S o . 2 d 7 4 5 , 747 ( A l a . C r i m . A p p . 1998). This with court additional nervousness to has p r e v i o u s l y and stated objectively i n thepresence Peters that the person v. S t a t e , However, suspicious i s engaged reasonable Washington, 859 S o . 2 d 4 5 1 , 454 ( A l a . C r i m . 'pertinent Crim. 623 S o . 2 d 392 factor.'" (Ala. Crim. Camp v . S t a t e , App. 2007). 8 failure suspicion to i n criminal to constitute reasonable suspicion, coupled factors, and/or " [ w ] h i l e we h a v e h e l d t h a t n e r v o u s n e s s be s u f f i c i e n t (Ala. "unless of a police o f f i c e r make e y e c o n t a c t do n o t e s t a b l i s h believe that activity." App. 2003). a l o n e may n o t see S t a t e v. App. 1993), i ti s a 983 S o . 2 d 1 1 4 1 , 1 1 4 6 CR-10-0044 " T h i s C o u r t has repeatedly held that '"nervous, evasive behavior is a pertinent factor in determining reasonable suspicion."' State v. McPherson, 8 92 So. 2 d 4 4 8 , 454 (Ala. Crim. App. 2 0 0 4 ) , q u o t i n g I l l i n o i s v . W a r d l o w , 528 U.S. 119, 124,(2000). See a l s o S m i t h v . S t a t e , 19 S o . 3 d 912 (Ala. C r i m . A p p . 2 0 0 9 ) ; W.D.H. v . S t a t e , 16 S o . 3 d 121 ( A l a . C r i m . A p p . 2 0 0 8 ) ; a n d Camp v . S t a t e , 983 S o . 2 d 1141 ( A l a . C r i m . App. 2007) ( a l l quoting Wardlow t o s u p p o r t the State ___ , v. Jemison, [Ms. ( A l a . C r i m . App. The and same CR-09-0339, passenger is Nonetheless, this by itself suspicion evasiveness conflicting nervous regarding marijuana reasonable suspicion In Peters, and not further behavior combined identity of the arrest, d r i v i n g was So. So. to 3d his this 2d a t 456. and the t h r e e days with Court stated gave overdue that different the to d i s c l o s e h i s the rental car combine to c r e a t e the mere travel to a activity. fact that a destinations detain. Peters, accounts of the source of a 9 the regarding of c r i m i n a l reasonable suspicion Differing that a Worthy's passenger, failure fact of concealment h i s passenger establish Worthy's create detention. s t o r i e s by W o r t h y and h i s p a s s e n g e r W o r t h y was 859 2010] insufficient justifying s t a r t i n g p o i n t of t h e i r t r i p , does 17, 2010). reasonable driver Dec. n e r v o u s n e s s A l l e n and S m i t h e r m a n d e t e c t e d f r o m W o r t h y his prior proposition)." trip CR-10-0044 and a driver's name, inability however, are to identify pertinent h i s passenger's factors last contributing to reasonable suspicion of involvement i n c r i m i n a l a c t i v i t y . United States A v. Hardy, defendant's sufficiently 953 So. defendant's record, prior arrest (11th C i r . record alone " p a r t i c u l a r i z e d and o b j e c t i v e " b a s i s criminal activity State, 855 F . 2 d 7 5 3 , 758 and t o d e t a i n 2d false 445, 449 ( A l a . Crim. i s a concerning relevant factor App. See 1988). not a to suspect a defendant f u r t h e r . statements however, i s a Smith v. 200 6 ) . his prior A arrest f o r forming the reasonable suspicion necessary to detain. Owen, 726 S o . 2 d a t 747 falsely (noting that the defendant he h a d n e v e r b e e n a r r e s t e d " "were relevant hiding a basis illegal extreme to reasonably his arrested only prior arrest this, of whether stated and other suspect gave that along [the detaining the appellant that factors, the appellant i n h i s c a r and viewed nervousness in criminal activity."). been and t h a t to the question something appellant's "initially was was the officer] engaged W o r t h y s t a t e d t h a t he h a d p r e v i o u s l y on w e a p o n s charges related to marijuana 10 and f a i l e d possession. to disclose CR-10-0044 Finally, Worthy's Delinquency in rental returning a car was rental three car, days overdue. p a r t i c u l a r l y when combined w i t h i n c o n s i s t e n t t r a v e l d e s c r i p t i o n s , c o n t r i b u t e s a reasonable See United Fla. States 2005), (not suspicion aff'd selected (nervousness, regarding v. of S a n c h e z , 408 (No. for 06-12244, publication inconsistent source concealment of the F. of S u p p . 2d Nov. in 14, the and 1255, activity. 1259 (11th 2007) (S.D. Cir.) Federal Reporter) d r i v e r and s t a t e m e n t s by trip, criminal to passenger one-day expired rental agreement r a i s e d r e a s o n a b l e s u s p i c i o n j u s t i f y i n g i n v e s t i g a t i v e stop); (10th United Cir.) Reporter) States (not vehicle, driver and as reasonable 588 (6th of discrepancy the 2008) overdue r e n t a l car reasonable in (No. totality United (listing as p a r t of 07-8021, publication stated the States overdue relationship between and inconsistent circumstances v. suspicion). 11 2008) four-day on in 8, Federal Branch, nervousness of the Feb. the based nervousness, suspicion); Cir. for conviction passenger, part Huynh, selected (affirming rental plans v. totality and travel justifying 537 F.3d several of f a c t o r s 582, weeks creating CR-10-0044 Based on Allen and that Worthy the cause of to engaged unit. The App. provides 2006) motion The to trial reasonable criminal by drug the the by of 968 to search court d i d not discovery guilty plea 2d a trained probable i n the his So. were performed created resulting basis and c o u l d be dog Corporal suspicion activity a search Montgomery, cause a until ("[A]n a l e r t probable the v. circumstances, formed in alert forming State Accordingly, the Worthy's v e h i c l e , marijuana conviction. Crim. was search of Smitherman i n d e t a i n i n g him K-9 the totality Officer justified by the 543, 551 (Ala. drug-sniffing without a and dog warrant."). e r r i n denying Worthy's suppress. judgment of the trial court i s affirmed. AFFIRMED Welch, P.J., and Windom, K e l l u m , 12 and Burke, JJ., concur.

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