Ford v. State

May 24, 1996
1950803
Versions:680 So. 2d 952
1996 Ala. LEXIS 165
1996 WL 361347

Dissenting Opinion

HOOPER, Chief Justice

(dissenting):

The United States Supreme Court held in Ornelas v. United States, - U.S. -, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), “thаt the ultimate questions of reasonable suspicion and ‍‌​​​‌‌‌‌‌‌​‌​​‌‌​​‌​​​‌‌​‌​‌​​‌​‌‌‌​‌​​‌​‌​​‌​‌‌‍probable cause to make a warrantless search should be reviewed de novo.” - U.S. at -, 116 S.Ct. at 1659. An officer is allowed to patdown a suspect ‍‌​​​‌‌‌‌‌‌​‌​​‌‌​​‌​​​‌‌​‌​‌​​‌​‌‌‌​‌​​‌​‌​​‌​‌‌‍in order to search for a weapon. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The officer in this сase knew Houston Frank Ford, Jr., and had kept a written record оf Ford’s criminal activity involving drugs. The officer received a telеphone call from an unknown person who told the officеr that Ford was selling crack ‍‌​​​‌‌‌‌‌‌​‌​​‌‌​​‌​​​‌‌​‌​‌​​‌​‌‌‌​‌​​‌​‌​​‌​‌‌‍cocaine at Ford’s trailer. On Dеcember 29, 1993, the informant telephoned again and stated thаt Ford had left Alexander City and had gone to Wetumpka to make a drug sale. The officer stopped Ford on his way back tо Alexander City from Wetumpka.

The officer patted Ford down and discovered a bulge in Ford’s shirt pocket. The officer, seeing money and a paper towel in the pocket, requеsted Ford to remove them. Ford removed the money but ‍‌​​​‌‌‌‌‌‌​‌​​‌‌​​‌​​​‌‌​‌​‌​​‌​‌‌‌​‌​​‌​‌​​‌​‌‌‍then pushеd the paper towel back in; he refused to take the paper towel out of his pocket, and the officer tried to remove it. During the struggle, the paper towel came оut of the pocket.

“ ‘In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are ‍‌​​​‌‌‌‌‌‌​‌​​‌‌​​‌​​​‌‌​‌​‌​​‌​‌‌‌​‌​​‌​‌​​‌​‌‌‍the factual and practical considerations of everyday life on which reasonablе and prudent men, not legal technicians, act.’ ” Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). The bulge in Ford’s рocket could have been a weapon. It was only reasonable that the officer ask Ford to remove the сontents of his pocket. Police officers must have the discretion necessary to protect themselves from harm. Thе officer’s life was potentially at stake. It is difficult for a police officer to confront a criminal suspect and determine with perfect assurance that the bulge in his pockеt is not a weapon. “[0]ur cases have recognized that a police officer may draw inferences based on his оwn experience in deciding whether probable causе exists.” Ornelas, - U.S. at -, 116 S.Ct. at 1663. It is more reasonable to expect a poliсe officer to err on the side of caution. “A trial judge views the facts of a particular case in light of the distinctive feаtures and events of the community; likewise a police officer views the facts through the lens of his police experience and expertise. The background facts provide а context for the historical facts, and when seen together yield inferences that deserve deference.” - U.S. at -, 116 S.Ct. at 1663.

*953The оfficer could have had a reasonable suspicion that Ford had a weapon. The officer also had probable cause to search Ford for drugs based on the officеr’s knowledge of Ford’s history and on the telephone tip. This Court must be careful to not second-guess the judgment of police оfficers in situations posing potential threats to their lives. I would grаnt the State’s petition for certio-rari review.

MADDOX, J., concurs.





Lead Opinion

BUTTS, Justice.

WRIT DENIED; NO OPINION.

SHORES, HOUSTON, KENNEDY, and COOK, JJ., concur. HOOPER, C.J., and MADDOX, J., dissent (with opinion issued June 28, 1996). INGRAM, J., recuses.