State v. PhillipsState v. Phillips
The Circuit Court of Lauderdale County granted appellee Gregory Allen Phillips‘s motion to suppress evidence. The state, appellant here, maintains that the circuit court erred to reversal in so doing.
The trial court‘s ruling on the motion to suppress will be upheld unless it is clearly erroneous or palpably wrong. United States v. Newbern, 731 F.2d 744 (11th Cir. 1984); Simmons v. State, 368 So.2d 315 (Ala.Cr.App. 1979). The suppression hearing developed the following:
On the evening of September 1, 1985, appellee Phillips and several other people gathered at Phillip Victory‘s residence, an old shack in the country which was known locally as the old Barkley place, for a few beers. Victory testified that he and his cousin got into a fist fight that night, but that this was the only disturbance.
Deputy Sheriff Mike Boggan of the Lauderdale County Sheriff‘s Department received a dispatch to go to the old Barkley
Appellee contended at the suppression hearing that the contraband was tainted by a prior illegal arrest and should be suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (963). The state contends on appeal, however, that: 1) There was no arrest prior to the discovery of the cocaine but merely an investigatory detention or stop of appellee, 2) Alternatively, that if there was an arrest prior to the discovery of the cocaine, it was a lawful arrest, and 3) If there was an illegal arrest, the evidence obtained was not tainted because it was not discovered as a result of a “search and seizure.”
The first question that must be addressed is: When was the appellee arrested? The point in time of an arrest is usually a question of fact. Waldrop v. State, 462 So.2d 1021 (Ala.Cr.App. 1984),; Foy v. State, 387 So.2d 321 (Ala.Cr.App. 1980). Generally, an arrest occurs when one‘s freedom of movement has been curtailed such that a reasonable, ordinary person in the defendant‘s or suspect‘s position would believe he is not free to leave. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959); United States v. Berry, 670 F.2d 583 (5th Cir. 1982). An arrest has been defined as:
“. . . the taking, seizing or detaining the person of another either by touching, or by any act which indicates an intention to take him into custody and subject the person arrested to the actual control and will of the person making the arrest, or any deprivation of the liberty of one person by another or any detention of him, for however short a time, without his consent, and against his will, whether it was by actual violence, threats or otherwise.” 6A C.J.S. Arrest § 2 (1975).
It is apparent that a reasonable person in appellee‘s shoes would believe that he was under arrest before the discovery of the cocaine. Officer Boggan stated twice in appellee‘s presence that he and the others were under arrest. Boggan told everyone that they could not leave and then called for backup to transport them all to jail. There could have been no doubt in appellee‘s mind at that time that he was not free to leave, particularly after several enforcement officers arrived and began handcuffing everyone and placing them
Having determined that appellee was arrested and having determined the point in time at which the arrest occurred, we find the next question to be whether the law enforcement officers had sufficient probable cause to validly arrest appellee without a warrant. Section
“An officer may arrest any person without a warrant, on any day and at any time, for:
“(1) Any public offense committed or a breach of the peace threatened in his presence;
“(2) When a felony has been committed, though not in his presence, by the person arrested;
“(3) When a felony has been committed and he has reasonable cause to believe that the person arrested committed it;
“(4) When he has reasonable cause to believe that the person arrested has committed a felony, although it may afterwards appear that a felony had not in fact been committed; or
“(5) On a charge made, upon reasonable cause, that the person arrested has committed a felony.”
Pursuant to this section, for an officer to arrest a person without a warrant for the commission of a misdemeanor, the violation of a city ordinance or a threatened breach of the peace, the infraction must have been committed in the presence of the officer. Jakes v. State, 398 So.2d 342 (Ala.Cr.App. 1981); Cassell v. State, 55 Ala. App. 502, 317 So.2d 348 (1975). The term “in his presence” has been construed to authorize an arrest where an officer was apprised or could infer through the operation of any of his senses that a misdemeanor was being committed or attempted. Jakes, supra.
Appellee and the others were arrested for public intoxication, a misdemeanor offense. The officers never stated whether appellee had been charged under state law or some provision of the Florence City Code. As neither the state nor appellee has cited the city code, we assume for purposes of this appeal that appellee was arrested pursuant to the state public intoxication statute, §
“(a) A person commits the crime of public intoxication if he appears in a public place under the influence of alcohol, narcotics or other drug to the degree that he endangers himself or another person or property, or by boisterous and offensive conduct annoys another person in his vicinity.
“(b) Public intoxication is a violation.”
Boggan testified that when he arrived at the old Barkley place he heard loud talking and cussing. Boggan further stated that he saw appellee drinking a beer but that he did not observe appellee endangering himself, or anyone else, or any property, or being boisterous or offensive in any way. No one testified as to appellee‘s appearance, demeanor, or state of intoxication. In fact, no one actually stated that appellee was drunk. Moreover, there is considerable doubt whether appellee could have been considered to be in a public place for purposes of this statute. Section
“A place to which the public or a substantial group of persons has access, and includes but is not limited to highways,
transportation facilities, schools, places of amusement, parks, playgrounds and hallways, lobbies and other portions of apartment houses not constituting rooms or apartments designed for actual residence; provided, that no private dwelling and no place engaged for a private gathering is included within the meaning of public place with respect to any person specifically invited therein.”
Nor did Boggan have any reason to believe that appellee possessed contraband or that any felony had been or was about to be committed. The evidence does not indicate that Phillips was violating §
Was the contraband discovered by the officers tainted by the illegal arrest so that it must be suppressed? The state contends that the contraband should not be suppressed because it was not obtained as a result of a search.
The contraband was discovered by officer Dodd as appellee pulled the contraband out of his own pocket and dropped it on the ground. In so doing, appellee was responding to Dodd‘s order to take his hand out of his pocket. Dodd did not tell appellee to empty his pockets.
The Constitution of the United States, as interpreted by the Supreme Court, compels a holding that evidence seized as a result of an unlawful arrest is inadmissible. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Lawrence v. Henderson, 478 F.2d 705 (5th Cir. 1973); Ingram v. State, 45 Ala. App. 108, 226 So.2d 169 (1969). A defendant‘s abandonment of evidence can remove the hint of an illegal stop or arrest, but such abandonment must be voluntary and not merely the product of police misconduct. United States v. Beck, 602 F.2d 726 (5th Cir. 1979).
There is no doubt that Phillips discarded the contraband as a result of the illegal arrest. After he was arrested and before he was to be taken into a patrol car and transported to jail, appellee attempted to get rid of the cocaine. Lawrence v. Henderson, cited above, had a similar fact situation. There the accused, while being transported in a police car to jail on charges of vagrancy, took narcotics out of his pants and placed them under a seat in the police car in which he was being transported. A police officer observed the defendant‘s actions and later searched the car and found the narcotics. The federal court of appeals ruled that since defendant‘s arrest, which was determined to be illegal, prompted him to conceal the narcotics, they could not be said to have been abandoned. See also, United States v. Beck, supra (defendant threw marijuana out a window onto ground after illegal stop — no abandonment); Swicegood v. State, 448 So.2d 433 (Ala.Cr.App. 1983) (defendant‘s discard of sack containing pills into garbage after illegal stop by police — not abandonment). The facts of these cases are indistinguishable from the facts of this case. The circuit court correctly held that evidence of the cocaine discovered by the officers must be suppressed as the fruit of an unlawful arrest. The order of the circuit court granting appellee‘s motion to suppress is affirmed.
AFFIRMED.
All the Judges conc