Petition for Writ of Certiorari — Alabama v. McDaniel

89 - 1 7, Supreme Court, U.S,

5738 i} FILED

{ APR 9 B®

NO. |

JOSEPH F. SPANIOL, JR,

IN THE SUPREME COURT OF THE GLERK ool

UNITED STATES

OCTOBER TERM, 1989

STATE OF ALABAMA,

PETITIONER,

V.

WALTER RAYBON MCDANIEL,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT AND

COURT OF CRIMINAL APPEALS OF ALABAMA

AND APPENDIX

OF

DON SIEGELMAN

ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR PETITIONER

ADDRESS OF COUNSEL

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 242-7300

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7 _ 7 a le ia oe as

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QUESTIONS PRESENTED

1. Where an officer has probable cause

to believe that a party is committing a felony

in a vehicle and is armed and, on such basis

makes a lawful custodial arrest of such

person, is the officer authorized to search

such person and to seize any contraband

revealed by such search?

2. Should this Honorable Court

exercise its supervisory jurisdiction over

uy. §. Const ieucionsi claims to set aside the

obvious misapplications of the provisions of

the Federal Constitution in this case?

In the Circuit Court of Houston County,

Alabama, the Court of Criminal Appeals of

Alabama, and the Supreme Court of Alabama, the

parties were Walter Raybon McDaniel, who is

Respondent herein, as Defendant, Appellant and

Respondent, respectively, and the State of

Alabama, who is Petitioner herein, as

Plaintiff, Appellee, and Petitioner,

respectively.

II

PAGES

QUESTIONS PRESENTED.............2.6-. ante,I

THE PAMELEG cece cece wccreceveceses ante,II

TAB OF CABEG.. -ccccccccseccceees iii

TABLE OF CONSTITUTIONAL PROVISIONS iv

TABLE OF STATUTES... ..ccccccvcvves iv

OPINIONS AND ORDERS BELOW......... 1

JURISDICTION... ccc cccccccvccsvccece 3

CONSTITUTIONAL PROVISIONS INVOLVED 3

STATUTORY PROVISIONS INVOLVED..... 4

STATEMENT OF THE CASE............. 5

STATEMENT OF THE FACTS............ 9

SUMMARY OF THE ARGUMENT........... 13

ARGUMENT... ccc cccccccccccccccccvcecs 16

i REASON FOR GRANTING THE

WRIT: OBVIOUS CONFLICT

WITH THE OPINIONS OF THIS

HONORABLE COURT...........-.- 16

iI. REASONS WHY THIS HONORABLE

COURT SHOULD EXERCISE ITS

SUPERVISORY AUTHORITY....... 23

oo oh | C+ ae 28

METRES cece ved saseeveveveecneeees 29

A. OPINION AND ORDERS

OF THE COURT OF

CRIMINAL APPEALS OF

B. ORDER OF THE SUPREME

COURT OF ALABAMA......... 38

C. RELEVANT ALABAMA STATUTES 39

CERTIFICATE OF GERVICE...ccevesses G2

TABLE OF CASES

Aquilar v. Texas

378 U.S. 108, 12 L.Ed.2d

723. 84 S. Ct. 1509 (1964)..

Berkemer v. McCarty

468 U.S. 420, 82 L.Ed.2d

317, 104 S.Ct. 3138 (1984)...

Carrol] v. United States

267 U.S. 132, 69 L.Ed.24d

$43, 45 &.Ct. 260 (1925)...

Chambers v. Maroney

399 U.S. 42, 26 L.Ed.2d

419, 90 S.Ct. 1975 (1970)..

Gustafson v. Florida

414 U.S. 260, 38 L.Ed.2d

456, 94 S.Ct. 488 (1973)...

Illinois v. Gates

462 U.S. 213, 76 L.Ed.2d

$27, 103 &.Ct. 2317 (1963)..

Massachusetts v. Upton

466 U.S. 727, 80 L.Ed.2d

721, 104 S.Ct. 2855 (1984)..

McDaniels v. State

So.2d (Ala. Crim.

App, Sept. 29, 1989)........

inited Stal vy. Poolad!

703 F.2d 180 (5th Cir,

i) >} Peer errrrrrrerrrer rr rr se

PAGE(S)

18

14,22

17,20-21

17

14,22

18

18

di)

United States v. Johns

469 U.S. 478, 83 L.Ed.2d

890, 105 S.Ct. 881 (1985)...

United States v. Robinson

414 U.S. 218, 38 L.Ed.2d

427, 94 S.Ct. 467 (1973)....

United States v. Ross

456 U.S. 798, 72 L.Ed.2d

$72, 102 8.Ct. 2387 (1962)..

TABLE OF CONSTITUTIONAL

PROVISIONS

United States Constitution.........

Ameen TORE 6 6k 608-6 t aw eee

TABLE OF STATUTES

Code of Alabama, 1975

Title 13A, Sectior 13A-1-2..

Title 15, Section 15-10-3..

Title 20, Section 20-2-70.

United States Code

Title 29, Section 1257.....

PAGES

13,17

14,22

14,17,20

24,27

3-4,15,25-

28

3,4

20

21

NO.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1989

STATE OF ALABAMA,

PETITIONER,

V.

WALTER RAYBON MCDANIEL,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT AND

COURT OF CRIMINAL APPEALS OF ALABAMA

OPINIONS AND ORDERS BELOW

The opinion, issued by the Court

of Criminal Appeals of Alabama on

September 29, 1989, reversing Respondent

McDaniel’s conviction and remanding the

cause, because allegedly illegally seized

evidence was introduced in his trial, is

not yet reported, but will be reported as:

McDaniels v. State _ So.2d.___—s (Alla.

Crim. App, 1989)

A copy of the same is submitted as Appen-

dix "A" to this petition.

The order of the Supreme Court of

Alabama of January 26, 1990, denying,

without opinion, Your Petitioner State's

Petition for a writ of certiorari is not

yet reported but will be reported as a

part of the above report. A copy of said

order is submitted as Appendix "B" to

this Petition.

The Alabama Courts have declined

to issue a stay in this cause.

JURISDICTION

The order of the Supreme Court of

Alabama was issued on January 26, 1990,

and this petition is filed within ninety

(90) days of said date. This Honorable

Court's Jurisdiction is invoked under 28

9.6.¢. S$3257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Court of Criminal Appeals of

Alabama claimed that its decision was

mandated by the Fourth Amendment and

Section 1 of the Fourteenth Amendment to

the Constitution of the United States.

Your Petitioner is making a claim under

the same said provisions. Said

constitutional provisions read:

"AMENDMENT IV

"The right of the people to

be secure in their persons,

houses, papers, and effects,

against unreasonable searches

and seizures, shall not be

violated, and no warrants

shall issue, but upon probable

cause, supported by oath or

affirmation, and particularly

describing the place to be

searched, and the persons or

things to be seized.

"AMENDMENT XIV

"Section l.

"All persons born or

naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United States

and of the state wherein they |

reside. No state shall make

or enforce any law which shall

abridge the privileges or

immunities of citizens of the

United States; nor shall any )

state deprive any person of

life, liberty, or property,

without due process of law;

nor deny to any person within

its jurisdiction the equal

protection of the laws."

A V VOLV

No statutory provisions are at

issue in this proceeding. Respondent

McDaniel was convicted under Section.

20-2-70(a), Code of Alabama, 1975. A

copy of the same is eteiikces as Appendix

"Cc" to this petition.

STATEMENT OF THE CASE

The Respondent, Walter Raybon

McDaniel, was indicted for possession of

a controlled substance, (See Appendix

"€"), namely, the administratively

scheduled drug Diazepan, by the Grand

Jury of Houston County, Alabama, at its

February, 1987, Term. (R.pp.158-159) On

March 4, 1987, the Respondent was

arraigned on the indictment and pleaded

not guilty. (R.p.163)

On March 12, 1987, the Respondent

moved to suppress the evidence found and

seized as a result of an allegedly

illegal custodial arrest. The motion

read:

"Comes now, the Defendant in

the above styled cause, and moves

this Honorable Court to suppress

the evidence seized as a result of

an illegal arrest and search as

neither were based on probable

cause, warrant, or consent on the

date seized.” (R.p.164; emphasis

supplied)

(‘Sal

On March 21, 1988, the cause came on

for trial before Honorable Michael A. Crespi,

a Ginteta pabén, and a jury. The Respondent

was attended by his Attorney, Honorable John

T. Kirk, a highly respected criminal defense

specialist, and the State was represented by

its District Attorney, Honorable Douglas A.

Valeska. Before trial, the jury was excluded,

and the Court took up the Respondent's motion

to suppress and heard evidence thereon.

The evidence showed without conflict

that Houston County Deputy Sheriff Joe Watson

stopped the Respondent's truck after receiving

two telephone calls from a confidential

informer, who had been giving him accurate

information on numerous occasions over some

seven years and another call from a good

citizen, who on a previous occasion had given

him accurate information. Both persons |

independently gave Deputy Watson detailed

information on the Respondent, his truck, his

CEE LS

companions, where the truck would be, that the

Respondent had pounds of marijuana in his

possession and was armed. After verifying

much of the information he had received by

personal observation, Deputy Watson stopped

the Respondent's truck, took the Respondent

into custody+ and searched him. The search

revealed a bottle of pills. (R.pp.3-52) On

hearing the evidence and the argument of

counsel, Judge Crespi overruled the motion to

suppress. (R.p.52)

The Respondent was ultimately convicted

in a bench trial. (R.pp.58-147) On April 15,

1988, the Respondent was sentenced to thirty

years imprisonment and a fine of $50,000.00,

because of his two prior felony convictions

relating to controlled substances.

(R.pp.151-154)

1. There was never any claim or suggestion

that the Deputy intended to make or made an

investigatory stop.

Appeal to the Court of Criminal Appeals

of Alabama followed.

On September 29, 1989, the Court of

Criminal Appeals of Alabama reversed the

estes conviction, because, although the

officers had probable cause to search the

Respondent's truck, the search went beyond

that authorized in an investigative stop and

there were allegedly no exigent circumstances

excusing the obtaining of a warrant.

(Appendix "A") The court concluded:

‘

-As a result of the unlawful

seizure, evidence of the’ pills was

received into evidence in

violation of the United -States

Constitution. We have ‘no choice,

therefore, but to revese and

remand this case for further

proceedings not inconsistent with

this opinion...." (See Appendix

"A", page 37; emphasis supplied.)

On October 13, 1989, the State applied

for rehearing and asked the Court of Appeals

to find additional facts. However, on

November 17, 1989, the same was overruled

without further comment.

The State petitioned the Supreme Court

of Alabama for a writ of Certiorari to seview

the Court of Appeals' decision and opinion,

pointing out that the same were in patent

conflict with the Fourth Amendment as

interpreted by this Honorable Court, as well

as its own prior decisions and opinions

relative tc custodial arrest, searches

incident thereto and the authority of this

Honorable Court. However, on January 26,

1990,the Alabama Supreme Court declined to

review the Court of Appeals' opinion without

—

comment. (Appendix "B")

STATEMENT OF THE FACTS

The following facts were proven without

conflict at the suppression hearing.

On December 13, 1986, Deputy Joe Watson

of the Houston County Sheriff's Office

received a telephone call from a confidential

informer who had been providing accurate

information to Watson for some seven (7)

years. (R.pp.8-9, 17-22, and 40-41) This

informer's information had led to numerous

arrests and several convictions. (R.pp.

17-21) The information was to the effect that

the Respondent was coming to a certain used

car lot in Dothan, Houston County, Alabama.

(R.pp. 29-30) A description of the Respondent

and his truck was given. (R.pp. 24-25) The

informer told Deputy Hudson that the

Respondent was in possession of "pounds of

marijuana" (R.pp. 14 and 27), and that the

Respondent was armed. (R.pp.14) The

confidential informer stated that he had seen

the marijuana on the Respondent's truck.

(Rip. 27)

A short time later, Mrs. Charmane

Graves also called Deputy Watson. Deputy

Watson had also had previous experience with

Mrs. Graves. She had reported a burglary and

provided information which led to the arrest

10

ee

ee

and conviction of the perpetrator. (R.pp.

46-48) Mrs. Graves independently corroborated

the confidential informer's information, and

added that the Respondent would be accompanied

by his nephew and her daughter. She also

provided the truck's tag number. (R.pp. 15,

22-23, 27, 30, and 37-39)

Within a half hour of his or her first

call, the confidential informer cailed back to

reconfirm the earlier information and add

thereto. (R.p. 14-15, 23-25, and 39-40)

Deputy Watson and Officer Ladon Joiner

located the Respondent at the place predicted

by the informer and Mrs. Graves. Everything

was as they had predicted, except that Mrs.

Graves' daughter had been dropped off. The

officers could not see the bed of the truck.

(R.p.12) Officer Joiner stopped the

Respondent's truck, and Deputy Watson told the

Respondent that he was suspected of possession

of marijuana and asked the Respondent to get

1)

out of the vehicle. In patting down the

Respondent, Deputy Watson felt and heard what

he took to be a bottle of marijuana seeds in

one of the Respondent's pockets. However,

they turned out to be a bottle of pills. The

Respondent was handcuffed, Mirandized, and put

in a police vehicle. (R.pp.9-13, 25-27,

33-36, and 41-43)

The time between the confidential

informer's first call and the arrest was less

than one hour. (R.pp.27-28)

We will not burden the Court with a

detailed recitation of the evidence at trial,

but two matters were proven at trial, which

throw some light on the search and seizure

issue:

First, Mrs. Graves' daughter, Lori Ann

Lang, testified for the Defense, (R.pp.

96-119), inter alia (1) that she had been with

the Respondent prior to the stop, just as Mrs.

Graves had told Deputy Watson, but she had

been dropped off, and (2) that the Respondent

had been in possession of a quantity of

marijuana, as both informers told Watson, but

- it was abandoned before the stop.

Second, the Respondent's nephew, Frank

Campbell, also testified for the Defense

(R.pp. 119-133), that there was a firearm in

the vehicle, just as the confidential informer

had said, and that he, Campbell was trying to

load it at the time of the stop.

SUMMARY OF THE ARGUMENT

I. Every action by Deputy Watson in

this case was justified by two independent

factors. Contrary to the holding of the Court

of Criminal’ Appeals (Appendix "A", page 36),

the shortness of time and the involvement of a

vehicle separately excused the lack of a

warrant. E.g. United States v. Johns, 469

U.S. 478, 483f£, 83 L.Ed.2d 890, 896 ff, 105

S.Ct. 881 (1985). The only issue raised by

the outstanding counsel who represented the

13

Respondent at trial and on appeal was the

alleged lack of probable cause, but Deputy

Watson had obvious probable cause from two

independent sources, and the state courts

actually found that Watson had probable

cause. The search of the Respondent's person,

which was condemned by the Alabama Appellate

Courts, was justified because: (1) The

Respondent was found in a vehicle and the

probable cause related a commodity and a

weapon which could be concealed on the

person. United States v. Ross, 456 U.S. 798,

801 and 866 ff, 72 L.Ed.2d 572, 578 and 589ff,

102 S.Ct. 2157 (1982). And, (2) on the basis

of probable cause, Watson lawfully placed the

Respondent under custodial arrest (Berkemer v.

McCarty, 468 U.S. 420, 437 ff, 82 L.Ed.2d 317,

333 ff, 104 S.Ct. 3138 [1984]), and a lawful

custodial arrest authorizes a search of the

arrestee's person. United States v. Robinson,

414 U.S. 218, 224 ff, 38 L.Ed.2d 427, 434 ff,

94 S.Ct. 467 (1973); Gustofson v. Florida, 414

ld

U.S. 260, 265 ff, 38 L.Ed.2d 456, 461 ff, 94

S.Ct. 488 (1973).

II. This Honorable Court should

-exercise its supervisory authority in this

case because: (A) The great principals

established by this Court governing arrests

and searches ought not be disregarded by State

Courts. (B) Unless this Court's

authoritative interpretations of the

Constitution are uniformly followed by State

Courts, the Constitution will receive freakish

application. (C) If the opinion of the

Alabama Court of Appeals in this case stands,

it will discourage citizens like Mrs. Graves

from reporting crime. And, (D) if evidence

found in patently legal searches is suppressed

under the Fourth Amendment Exclusionary Rule,

the Rule will be stripped of the deterrent

effect, which is the only purpose of the Rule:

ARGUMENT

I.

REASON FOR GRANTING THE

WRIT: OBVIOUS CONFLICT

WITH THE OPINIONS OF THIS

HONORABLE COURT.

We must first apologize to this

Honorable Court for burdening the Court with a

Simple case involving an obvious point.

However, for reasons we set out below, we

believe that as officers of this Court we are

obliged to call this case to the Court's

attention. Specifically, we believe that this

is a case which cries out for the exercise of

this Honorable Court's supervisory authority.

An analysis of his case reveals what

could be called a case of “mixed doubles",

since every action taken by the officers was

authorized by two independent factors. There

were two exigent circumstances dispensing with

a warrant, two sources of information, each

independently providing probable cause, and

two independent justifications for the search

of the Respondent's person, which produced the

16

evidence and which the Alabama Appellate

Courts found to have been in violation of the

Fourth Amendment. Thus, what this case

presents is a very obvious departure from this

Court's teachings.

The Court of Criminal Appeals of

Alabama found that, "...[{t]here were no

exigent circumstances excusing the obtaining

of a warrant...." (Appendix "A", page 36)

Under the teachings of this Honorable

Court, the warrant requirement was excused by

reason of two exigent circumstances: (1) The

shortness of time, less than one hour from the

first contact of the informer, and (2)

indepene- ently, by the fact that a vehicle

was involved. United States v. Johns, 469

U.S. 478, 483 ff, 83 L.Ed.2d 890, 896 ff, 105

S.Ct. 881 (1985); United States v. Ross, 456

U.S. 798, 72 L.Ed.2d 572, 483 ff, 102 S.Ct.

2157 (1982); Chambers v. Maroney, 399 U.S. 42,

26 L.Ed.2d 419, 90 S.Ct. 1975 (1970); Carroll

v. United States, 267 U.S. 132, 69 L.Ed. 543,

45 S.Ct. 280 (1925).

17

The only issue argued by the Respondent

in his state court appeal was a claim that

there was vist sufficient probable cause to

authorize 2 custodial arrest. But, the Deputy

had information from two independent sources.

First, a confidential proven informer of many

years standing provided detailed information,

including the fact that he, the informer, had

actually seen the marijuana on the

Respondent's truck. This information would

have provided probable cause even under the

strict standard of Aquilar v. Texas (378 U.S.

108, 12 L.Ed.2d 723, 84 S.Ct. 1509 [1964]).7

This probable cause was strengthened when the

Respondent appeared at the place and in the

manner predicted by the informer. See

Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d

527, 103 S.Ct. 2317 (1983). Second, Mrs.

2. See Illinois v. Gates, 462 U.S. 213, 238,

76 L.Ed.2d 527, 548, 103 S.Ct. 2317 (1983) and

Massachusetts v. Upton, 466 U.S. 727, 732, 80

L.Ed.2d 721, 726, 104 S.Ct. 2855 (1984).

18

Graves, a good citizen, independently gave

Deputy Watson detailed information on the

Respondent, his truck, itinerary, companions

and the contraband. Officers have never been

required to have prior experience of

reliability with regard to citizen witnesses,

(E.g. United States v. Fooladi, 703 F.2d 180,

182-183 [5th Cir, 1983]), but Mrs. Graves had

established a good "track record" for

reliability, and her information was

coorborated by the officers' observations just

before the stop. The Court of Criminal

Appeals found that there was probable cause

"to search the truck". This was, of course,

true, but the fact is that there was probable

cause to believe that the Respondent was

committing a felony and was armed, and this

authorized not only a search of the vehicle,

but also the search of the Respondent and his

custodial arrest.

The search of the Respondent's person

was authorized by two independent factors:

19

First, since the probable cause related a

firearm and a contraband commodity, the

niiauilinik a pockets were obviously containers

in which a gun and/or a portion of the

contraband could be concealed. United States

v. Ross, 456 U.S. 798, 866 ff, 72 L.Ed.2d 572,

689 ff, 102 S.Ct. 2157 (1982). Indeed, in

Ross (456 U.S. 798, 801, 72 L.Ed.2d 572, 578)

the propriety of the search of Ross at the

time of the stop was taken for granted. The

second factor independently authorizing the

search of the Respondent's person was the

custodial arrest of the Respondent. The fact

that Deputy Watson had probable cause to

believe that the Respondent was committing a

felony”, authorized a custodial arrest.

3- §13A-1-2. DEFINITIONS.

"Unless different meanings are

expressly specified in subsequent

provisions of this title, the following

terms have the following meanings:

"(4) FELONY, An offense for which a

sentence to a term of imprisonment in

excess of one year is authorized by

this title...." (Code of Alabama, 1975)

ou

OO

Carrol] v. United States, 267 U.S. 132, 156,

69 L.Ed. 543, 553, 45 S.Ct. 280 (1925)%;

Section 15-10-3(a)(4), Code of Alabama,

1975>. Deputy Watson stopped the

Respondent, told him that he was suspected of

possession of marijuana, asked the Respondent

to get out of his truck, searched him,

Mirandized him and handcuffed him. Obviously,

4. "...The usual rule is a police officer

may arrest without warrant one believed

by the officer, upon reasonable cause,

to have been guilty of a felony, and

that he may only arrest without a

warrant one guilty of a misdemeantor if

committed in his presence...." (267

ems aoe, 220, 69 L.EG. 543, 553)

5. "§15-10-3. ARREST WITHOUT WARRANT -

WHEN AND FOR WHAT ALLOWED; WRITTEN

REPORT OF FAMILY VIOLENCE REGARDLESS OF

ARREST.

"(a) An officer may arrest any person

without a warrant, on any day and at any time

for:

"(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...." (Code of

Alabama, 1975)

neither the Respondent nor any reasonable

person would have had any expectation that he

would be released shortly at the scene.

Nothing in Deputy Watson's actions suggested

to the Respondent any probability of being

released, except on bond after being booked

into the county jail. This was, therefore, a

custodial arrest. See Justice Marshall's very

clear analysis of the difference between

custodial and non-custodial arrest in Berkemer

v. McCarty, (468 U.S. 420, 437 ff, 82 L.Ed.2d

317, 333 ff, 104 S.Ct. 3138 [1984]). Since it

was authorized by probable cause, this was a

lawful custodial arrest. It is hornbook law

that a lawful custodial arrest authorizes a

full search of the arrestee's person for

weapons and evidence. United States v.

Robinson, 414 U.S. 218, 224 ff, 38 L.Ed.2d

427, 434 ff, 94 S.Ct. 467 (1973); Gustafson v.

Florida, 414 U.S. 260, 38 L.Ed.2d 456, 94

S.Ct. 488 (1973). Thus, Deputy Watson's

No

db

search of the Respondent and seizure of the

contraband were lawful.

ad.

REASONS WHY THIS HONORABLE

COURT SHOULD EXERCISE ITS

SUPERVISION AUTHORITY.

It is obvious that Deputy Watson acted

properly and that the Alabama Appellate Courts

erred to reversal in holding otherwise, but

should this Honorable Court act in this case?

We respectfully submit that the Court should

for four reasons:

Fist, as 1S apparent from our analysis

above, this Honorable Court has spent

considerable effort over many decades to

establish the clear principles controlling the

arrest-search situation, which protect the

citizen from unreasonable police intrusion,

while guaranteeing that the police have

sufficient authority to protect the citizen

from general lawlessness and themselves from

violent attack. These principles were

followed in letter and in spirit by Deputy

Watson in this case and grossly misapplied by

the Court of Criminal Appeals of Alabama, as

shown on the face of the Courts of Appeals'

opinion. Obviously, if this Court's efforts

are not to be wasted, the lower courts must

follow the principles established at so much

cost to this Honorable Court. And, such

courts must be made aware that the

constitutional principles established by this

Court are not mere suggestions.

Second, if the Constitution is to

accomplish the great tasks set for it by "We

the People", in the preamble, it must be

uniformly applicable in all cases throughout

the nation. This Honorable Court is charged

with providing uniformly applicable

interpretations of the provisions of the

Constitution. If lower courts disregard this

Honorable Court's interpretations, then the

Constitution will receive only freakish

application.

In this case a good citizen, doing her

Civic duty, reported the Respondent, and thus

exposed herself. We do not represent to this

court that the Respondent has threatened Mrs,

Graves, nonetheless, his return to her

community will certainly not be a comfort to

Mrs. Graves or encourage her or others to

provide information to the police. And, how

do we explain to Mrs. Graves and her fellow

citizens why the Respondent's conviction was

set aside? It certainly would not be truthful

to say that the fault lies with Mrs. Graves or

Deputy Watson.

On finding what it held to be a

violation of the Fourth Amendment, the Court

of Criminal Appeals ordered the evidence

suppressed, under the Fourth Amendment

Exclusionary Rule. The Exclusionary Rule has

been developed by this Honorable Court as a

means of protecting Fourth Amendment rights.

The Rule is based on the, no doubt correct,

Ls)

in

assumption that granting largesse to guilty

persons whose rights are violated will deter

such violations of the rights of innocent

people. However, for any penalty to deter

violation of a rule. those subject to the rule

must believe that they are in control of the

intliction of the penalty, i.e, that if they

violate the rule they will certainly suffer

the penalty and if they obey the rule they

will surely avoid the penalty. If those

subject to a rule ever come to believe that

the penalty may be inflicted or withheld

unpredictably no matter how careful they are

about obeying the rule or flagrant they are in

violating it, deterrence will fail. Indeed, a

freakishly administered penalty may even

encourage violations of the rule.

It must be acknowledged that there are

close cases, where there is legitimate

controversy over whether or not there was a

violation. However, the instant case is not

by any standard a close case. We began our

argument with a detailed analysis of the

simple facts of this case and how the well-

established principles of law apply to them.

The only argument the outstanding Attorneys

who represented the Respondent at trial and on

appeal could advance for their client was a

claim that Deputy Watson did not have probable

cause, but even Court of Criminal Appeals

found that there was probable cause. The

decision and opinion of the State courts in

this case sends an unmistakable message to

Alabama law enforcement officers: No matter

how careful you are about obeying the

Constitution and no matter how many

independent justifications for your action you

establish, we may suppress the evidence anyway.

This Honorable Court should grant the

writ and determine if this is a proper

application of the Fourth Amendment

Exclusionary Rule.

CONCLUSION

In conclusion your Petitioner, the

State of Alabama, respectfully submits that in

this case the Court of Criminal Appeals and

Supreme Court of Alabama, decided simple

questions under the Fourth Amendment in a

manner which is in patent and flagrant

conflict with the teachings of this Honorable

Court.

Therefore, Your Petitioner prays that

this Honorable Court will issue the writ of

certiorari and will review the matters

complained of and reverse the decisions and

opinion of the said Appellate Courts of»

Alabama.

Respectfully submitted,

DON SIEGELMAN

ATTORNEY GENERAL

BY:

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR THE Petitioner

APPENDIX

APPENDIX A

THE STATE OF ALABAMA - - - JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1988-89

4 Div. 143

Walter Raybon McDaniel

v.

State

Appeal from Houston Circuit Court

TAYLOR, PRESIDING JUDGE

The appellant, Walter Raybon McDaniel,

was convicted of possession of drugs, a

violation of §20-2-70, Code of Alabama 1975.

He was sentenced to 30 years' imprisonment and

was ordered to pay a $50,000 fine.

The state's evidence tended to show

that on December 13, 1989, Deputy Watson

received information from two informants, one

of whom was a confidential informant, that the

appellant had several pounds of marijuana in

30

his truck. The confidential informant told

Watson that he had seen the marijuana in the

appellant's truck. He also told Watson that

the appellant would have a weapon in his

possession. Another informant, Mrs. Graves,

contacted Watson and verified the information

provided by the confidential informant. She

also said that her daughter and nephew would

be with the appellant. Approximately 45

minutes after Watson's call from the

confidential informant, two officers stopped

the appellant without a warrant. As they

approached the truck, they saw a rifle through

the back window of the truck. They patted him

down and searched the truck. No marijuana was

discovered in the truck. However, during the

search of the appellant's person, Diazepam

pills were found in a brown glass bottle in

the appellant's pocket. Diazepam, a common

tranquilizer, is a controlled substance. Mrs.

Graves' daughter stated that the pills

belonged to her. On appeal, appellant

challenges the legality of the search.

I.

Initially appellant contends that the

officer conducted an illegal search and, thus,

that evidence of the pills discovered pursuant

to that search was the fruit of an unlawful

search and seizure and was due to be

suppressed.

According to well established legal

principles, searches conducted with no warrant

are per se “unreasonable,” unless they fall

under one of the exceptions to the warrant

requirement. See Brannan v. State, [Ms. l

Div. 509, February 24, 1989]

So.2d

(Ala. Cr. App. 1989).

The exceptions are:

"(1) in plain view; (2) with

consent voluntarily, intelligently

and knowingly given; (3) as

incident to lawful arrest; (4) in

‘hot pursuit' or emergency

Situation; (5) where exigent

circumstances exist coincidentally

with probable cause; and (6) in

‘stop and frisk' situations."

Smith v. State, 472 So.2d 677, 682 (Ala. Cr.

App. 1984).

As Judge McMillan stated in Kinard v.

State, 495 So.2d 705 (Ala. Cr. App. 1986):

"Probable cause exists when the

reasonably reliable information

known to the officers is

sufficient to cause the officers

to entertain a strong suspicion

that the object of the search is

in the particular place to be

searched."

495 So.2d at 709.

Probable cause based on information

from an informant should meet the test of

reliability. See Waters v. State, 360 So.2d

347 (Ala. Cr. App.), writ denied, 360 So.2d

358 (Ala. 1978). Two relevant considerations

in the determination of the reliability of an

informant are basis of knowledge and

credibility of the informant. See Stanfield

v. State, 529 So.2d 1053 (Ala. Cr. App.

1988). In the instant case, Deputy Watson

testified that the confidential informant had

proven reliable over the past 7 years. He

named several cases which the informant had

"made" for him. The informant had also stated

that he had observed the marijuana

personally. The state proved this informant's

reliability.

As mentioned above, in addition to that

informant's information, a Mrs. Graves had

also called the police. Deputy Watson stated

that he was familiar with Mrs. Graves because

she had reported a burglary several months

earlier, which led to the arrest of an

individual. “The veracity of the ‘citizen

informant' is easily established for ‘the

police should be permitted to assume that they

are dealing with a credible person in the

absence of special circumstances suggesting

that such might not be the case.'" Crawley v.

State, 440 So.2d 1148, 1149 (Ala. Cr. App.

1983).

34

We conclude that there was sufficient

probable cause in this case to search the

truck. |

With regard to the body search of the

appellant, we note that Deputy Watson testified

that he had had information from the

confidential informant that the appellant

would have a weapon in his possession.

"Terry [v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]

authorized a limited protection -

search for concealed weapons (.a

frisk) '[{w]Jhen an officer is

justified in believing that the

individual whose suspicious

behavior he is investigating at

close range is armed and presently

dangerous to the officer or to

others.' 392 U.S. at 24. ‘So

long as the officer is entitled to

make a forcible stop, and has

reason to believe that the suspect

is armed and dangerous, he may

conduct a weapons search limited

in scope to this protective

purpose.’ Adams [v. Williams, 407

U.8. 143, 92 B.Ge- 29ene Be

L.Ed.2d 612 (1972) ... at 146.

Section 15-5-31, Code of Alabama

1975, authorizes a search for

weapons if the officer ‘reasonably

suspects that he is in danger of

life or limb' when he has properly

stopped a person for questioning."

es)

‘Pal

Crawley, 440 So.2d at 1150.

In this case, the officer “patted down"

the appellant because he had a reasonable

suspicion that the appellant was armed, based

upon the informant's statement. See, Terry v.

Qhio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968). However, as stated above, this

type of search must be very limited in scope.

It is abundantly clear in this case that this

was not a Terry stop and patdown. In this

case, the police officer testified that he had

searched the appellant for marijuana. Deputy

Watson further testified that he knew when he

touched the pill bottle that it was not a

weapon. Deputy Watson was not justified,

under Terry, in performing such an intrusive

search. The officer's concern was to discover

marijuana. Seizure of the pill bottle was not

lawful. There was no warrant. There were no

exigent circumstances excusing obtaining a

warrant. The officer did not seize the bottle

36

in an attempt to protect himself. As a result

of the unlawful seizure, evidence of the pills

was received into evidence in violation of the

United States Constitution. We have no

choice, therefore, but to reverse and remand

this case for further proceedings not

inconsistent with this opinion.

REVERSED AND REMANDED.

ALL THE JUDGES CONCUR.

<a

APPENDIX B

ORDER OF THE SUPREME COURT OF ALABAMA

THE STATE OF ALABAMA - - - JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

January 26, 1990

89-305

Ex parte State of Alabama

PETITION FOR WRIT OF CERTIORARI TO THE COURT

OF CRIMINAL APPEALS

(Re: Walter Raybon McDaniel v. State)

(CCA 4/143 Houston CC 87-106)

CERTIFICATE OF JUDGMENT

Writ Denied

The above cause having been duly

submitted, IT IS CONSIDERED AND ORDERED that

the petition for writ of certiorari is denied.

SHORES, J. _Hornsby, Cj., Jones,

Houston and Kennedy, JJ., concur

38

APPENDIX C

RELEVENT ALABAMA STATUTES

Code of Alabama, 1975

Title 20

§ 20-2-70. PROHIBITED ACTS A.

(a) Except as authorized by this

Chapter, any person who possesses, sells,

furnishes, gives away, obtains or attempts to

obtain by fraud, deceit, misrepresentation or

subterfuge or by the forgery or alteration of

a prescription or written order or by the

concealment of a material fact or by use of

false name or giving a false address

controlled substances enumerated in schedules

I, II, III, IV and V is guilty of a felony

and, upon conviction, for the first offense

may be imprisoned for not less than two nor

more than 15 years and, in addition, may be

fined not more than $25,000.00; provided, that

any person who possesses any marihuana for his

personal use only is guilty of a misdemeanor

and upon conviction for the offense, shall be

39

imprisoned in the county jail for not more

than one eyar, and in addition, shall be fined

not more than $1,000.00; provided further,

that the penalties for the etbuewndid oftunese

relating to possession of marihuana shall be

the same as specified in the first sentence of

this subsection.

§20-2-76. PENALTIES FOR SECOND OR

SUBSEQUENT OFFENSES; WHEN OFFENSE

DEEMED SECOND OR SUBSEQUENT

OFFENSE.

(a) Any person convicted of a second or

subsequent offense under this chapter may be

imrpisoned for a term up to twice the term

otherwise authorized, fined an amount up to

twice that otherwise authorized or both.

(b) For purposes of this section, an

offense is considered a second or subsequent

offense, if, prior to his conviction of the

offense, the offender has at any time been

convicted under this chapter or under any

40

Statute of the United States or of any state

relating to narcotic drugs, marihuana,

depressant, stimulant or hallucinogenic

drugs. (Acts 1971, No. 1407, p. 2378, § 407.)

4)

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III,

Assistant Attorney General of Alabama, a

member of the Bar of the Supreme Court of

the United States and one of the Attorneys

for the State of Alabama, Petitioner,

hereby certify that on this day of

March, 1989, I did serve the requisite

number of copies of the forgoing on the

Attorney* and former Attorney** for Walter

Raybon McDaniel, Respondent, by mailing the

same to said Attorneys, first class postage

prepaid and addressed as follows:

Hon. Jeffery C. Duffey*

Attorney at Law

600 McDonough Street

Montgomery, AL 36104

Hon. John T. Kirk**

Attorney at Law

Post Office Box 1412

Montgomery, AL 36100

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

OF ALABAMA

ADDRESS OF COUNSEL:

Office of the Attorney General

Alabama State House

11 North Union Street

Montgomery, Alabama 36130

(205) 242-7300

1912P