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Terry patdown - stop and frisk - Tuohy
776 So.2d 902
EX PARTE TUOHY
Ex parte Joseph Edward TUOHY. (Re Joseph Edward Tuohy v.
State).
1982094.
Supreme Court of Alabama.
June 30, 2000.
Petition for Writ of Certiorari to the
Court of Criminal Appeals (Baldwin Circuit Court, CC-98-93;
Robert E. Wilters, Judge; Court of Criminal Appeals,
CR-98-0592).
William L. Pfeifer, Jr., Foley, for petitioner.
Bill Pryor, atty. gen., and Sandra J. Stewart, asst. atty.
gen., for respondent.
Prior report: Ala.Cr.App., 776 So.2d
896.
PER CURIAM.
The writ of certiorari is quashed as
having been improvidently granted.
In quashing the writ, this Court does not
wish to be understood as approving all the language, reasons,
or statements of law in the Court of Criminal Appeals' opinion.
Horsley v. Horsley,291 Ala. 782, 280 So.2d 155 (1973).
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, and BROWN, JJ.,
concur.
HOUSTON, JOHNSTONE, and ENGLAND, JJ., dissent.
ENGLAND, Justice (dissenting).
I respectfully dissent. The Court is
quashing Tuohy's writ as having been improvidently granted,
with a notation that it does not necessarily approve "all the
language, reasons, or statements of law in the Court of
Criminal Appeals' opinion." See Tuohy v. State,776 So.2d 896
(Ala.Crim.App.1999). The Court of Criminal Appeals stated in
its opinion that it was not holding that "an individual may be
detained and searched merely because he refuses to identify
himself or to produce identification" and was not holding that
"an officer may immediately search an individual for
identification and seize anything resembling an identification
card." 776 So.2d at 900. However, its opinion, under the facts
of this case, does allow, in Terry patdown situations, the
detention of a person who refuses to identify himself or
refuses to produce identification, does allow the search of
such a person for identification, and does allow the seizure
from that person of anything that resembles an identification
card. In allowing that, the opinion is inconsistent with Fourth
Amendment guarantees. Thus, the judgment of the Court of
Criminal Appeals should be reversed.
Early on the morning of November 5, 1997,
Officer Pat Bertagnolli, Jr., of the Daphne Police Department,
received a call requesting him to assist in responding to a
burglary that had been reported in Spanish Fort.(fn1) When
Officer Bertagnolli arrived on the scene, two sheriff's
deputies were already there. He obtained a description of two
suspects and decided to ride around and look for them. On a
dirt road, about 400 yards from the residence where the
burglary had been reported, Officer Bertagnolli saw a pickup
truck with two male occupants. Officer Bertagnolli testified
that he asked the men to exit the vehicle with their hands up
and explained that he was approaching them because of a report
of a burglary. He testified that Joseph Edward Tuohy, one of
the men in the pickup truck, told him his name was Timothy
Beaudreaux and that he had no identification. While Officer
Bertagnolli was conducting a patdown, he felt in Tuohy's
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front right pocket what he thought might be an item of
identification; he took the item. It was a credit card. The
officer recognized the name on the card as that of one of the
persons whose home had been burglarized on the morning of
November 4, 1997, and the person who had telephoned the
Emergency 911 number on morning of November 5, 1997, to report
the burglary. He testified that he told the two men that they
were not under arrest and then handcuffed them, because he was
the only officer there, and placed them in the back of his
patrol car. He turned the two men and the credit card over to
Detective David Edgar of the Spanish Fort Police
Department.
Detective Edgar took Tuohy to the Spanish
Fort police station. He testified that although he did not
actually tell Tuohy he was under arrest, Tuohy was handcuffed
and could not leave. Tuohy signed a Miranda(fn2) waiver and
also signed a statement that read:
"I was driving my car (a 1975 Plymouth Valiant). No one was
with me. I decided to stop at a dirt road and snort my cocaine.
I bought the cocaine in Mobile and brought it to Spanish
Fort.
"I got out of the car to urinate and found a bunch of credit
cards on the ground. I picked them up and left[,] going to
Mobile. I kept a few of them but some of them I threw away. I
went to Springdale and Bel-Air Malls and used the cards, I had
my younger brother with me. I was wearing a Dallas Star's
Hockey Jersey. Later I went to Gayfers. I knew security was
looking for me so I kind of hid from them. "My friend and I
came back this morning looking for more credit cards. We parked
on the same dirt road, then the police came and took us to the
police department."
Detective Edgar testified that he obtained a search warrant to
search Tuohy's home, based on the fact that Tuohy had the
stolen credit card in his possession, the fact that he had lied
about his home address, and the fact that several items taken
during the burglary were missing.(fn3) Tuohy was convicted of
the crime of receiving stolen property in the first degree and
the crime of illegal possession of a credit card. He was
sentenced to two concurrent 10-year sentences. Tuohy appealed,
arguing that the trial court had erred in denying his motion to
suppress evidence regarding the stolen credit card discovered
during a patdown search because, he contended, the patdown
exceeded the scope permitted by Terry v. Ohio,392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court of Criminal
Appeals held that the officer who conducted the search "had
reasonable suspicion to believe that Tuohy had been involved in
criminal activity," 776 So.2d at 899, and that "the officer's
seizure of the credit card for purposes of identification was
within the scope of the investigative detention." 776 So.2d at
899.
Tuohy also argued to this Court that the
trial court should have suppressed the evidence regarding the
credit card, on the basis that Officer BertagnolliÆs search
exceeded the scope permitted by Terry,392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). "Warrantless searches are per se
unreasonable, unless they fall within a recognized exception."
Ex parte Tucker,667 So.2d 1339, 1343 (Ala.1995). The recognized
exceptions include (1) searches made pursuant to the plain-view
doctrine, (2) consensual searches, (3) searches made incident
to lawful arrests,(fn4) (4) searches made
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in emergency situations or "hot pursuit," (5) searches made
based upon probable cause coupled with exigent circumstances,
and (6) searches made in stop-and-frisk situations. It is clear
that the only exception that might apply in this case is the
stop-and-frisk exception. Based on the facts of this case, I
conclude that Officer Bertagnolli had reasonable suspicion to
stop and frisk Tuohy. However, based on my review of the
record, I conclude that the search exceeded the bounds
permitted by Terry for a stop and frisk.
Pursuant to Terry v. Ohio, a police
officer is allowed, "for the protection of himself and others
in the area[,] to conduct a carefully limited search of the
outer clothing of [the] persons [he is dealing with] in an
attempt to discover weapons which might be used to assault
him." Terry, 392 U.S. at 30, 88 S.Ct. 1868. Police officers may
seize nonthreatening contraband detected during a Terry patdown
search for weapons, provided the officers' search is within the
bounds marked by Terry. Minnesota v. Dickerson,508 U.S. 366,
378, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (holding that
search of a defendant who was arrested and charged with
possession of a controlled substance exceeded the Terry bounds
when the officer determined that a lump in the defendant's
jacket pocket was crack cocaine only after "squeezing, sliding
and otherwise manipulating the contents of the defendant's
pocket"). The Supreme Court has held:
"If a police officer lawfully pats down a suspect's outer
clothing and feels an object whose contour or mass makes its
identity immediately apparent, there has been no invasion of
the suspect's privacy beyond that already authorized by the
officer's search for weapons; if the object is contraband, its
warrantless seizure would be justified by the same practical
considerations that inhere in the plain-view context."
Id. at 375-76, 113 S.Ct. 2130. However, the Court noted that
"[r]egardless of whether the officer detects the contraband by
sight or by touch, however, the Fourth Amendment's requirement
that the officer have probable cause to believe that the item
is contraband before seizing it ensures against excessively
speculative seizures." Id. at 376, 113 S.Ct. 2130. Thus, Terry
authorizes a patdown for weapons; and Dickerson, supra, at
375-76, 113 S.Ct. 2130, authorizes the officer, as an incident
of his Terry patdown of a suspect's outer clothing, to seize
"an object whose contour or mass makes its identity [as
contraband] immediately apparent."
The search in this case is problematic,
because, in order to justify it, we would have to create a new
exception to the Fourth Amendment's warrant requirement-an
exception the United States Supreme Court has not recognized.
Consequently, the evidence regarding the credit card should
have been suppressed. This search exceeded the bounds marked by
Terry because Officer Bertagnolli testified that he thought the
object was an identification card, not a weapon that could be
used against him or contraband which he could immediately
identify. Thus, he did not have the authority to seize the
credit card from Tuohy's pocket and the trial court should have
granted Tuohy's motion to suppress the evidence regarding the
credit card. Therefore, we should reverse the Court of Criminal
Appeals' judgment affirming Tuohy's conviction.
Detective Edgar testified that he obtained
a warrant to search Tuohy's residence
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based on the fact that Tuohy had had the stolen credit card in
his possession, the fact that Tuohy had lied about his home
address, and the fact that several items taken during the
burglary were still missing. The items confiscated pursuant to
the warrant were the fruit of an unlawful search. Had the
officer not unlawfully seized the stolen credit card, Edgar
would have had no probable cause to obtain a search warrant to
search Tuohy's home. "If [a] protective search goes beyond what
is necessary to determine if the suspect is armed, it is no
longer valid under Terry and its fruits will be suppressed."
Minnesota v. Dickerson, 508 U.S. at 373, 113 S.Ct. 2130,
quoting Sibron v. New York,392 U.S. 40, 65-66, 88 S.Ct. 1889,
20 L.Ed.2d 917 (1968). Thus, I would hold that the trial court
erred in failing to suppress evidence regarding the stolen
credit card, as well as the evidence subsequently obtained
pursuant to the search warrant, which was granted based on the
officer's unlawful search and seizure of the credit card.
HOUSTON and JOHNSTONE, JJ., concur.
_____________________
Footnotes:
1. At that time, the Spanish Fort Police
Department did not have 24-hour coverage. The Spanish Fort
officer had to be called from home to the scene of a crime.
2. Miranda v. Arizona,384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966).
3. On the morning that Tuohy was arrested,
the officers conducted another search around the residence that
had been burglarized the day before and in a wooded area north
of the residence found some of the items the victims had
reported missing.
AL
So.2d
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