Alacrap Udate

Yesterday, I slammed the Alabama Court of Criminal Appeals, calling them an assembly line of affirmances.

Today, on the other hand, I highlight two recently released good decisions.

First, in Preachers v. State, 2006 WL 2788977, they reversed a capital murder conviction because the state struck jurors on the basis of race.

Most errors and misbehaviors are subject to harmless error review, but not this. Striking even one juror on the basis of race means the defendant gets a new trial. That is what happened here.

The state offered as a reason for striking a black man that he had once been arrested. That’s legitimate, it may mean the person is hostile towards authorities, or sympathetic towards defendants.

It may be legitimate, but it was not the real reason for the strike. A white man served on the jury even though he admitted in a questionnaire that he had previously been arrested. Same problem, different race, different results. Hence, race was the reason for the strike.

Further strengthening the argument is the fact that the state never asked the black juror any further questions, or investigated it at all. If they were really concerned about his record, they would have looked into it.

The second case – be still my heart! – suppressed the evidence resulting from an unlawful search. Here are the facts from Smith v. State, 2006 WL 27788986:

At Smith’s suppression hearing, Officer Adam Robinson of the Houston County Sheriff’s Department, Narcotics Division, and a former patrol officer, testified that on July 31, 2003, while on routine patrol, he initiated a traffic stop on Smith’s vehicle on Third Avenue for “no tag light.” He contacted dispatch and determined that Smith had no outstanding warrants and also asked the trooper post to determine the Code section for the offense of “no tag light.”

He testified that he did not suspect that the appellant was involved in any other criminal activity. Officer Robinson learned from another officer that Smith had been previously associated with drugs. He testified that Smith was thereafter asked to consent to a search of his vehicle and that he refused consent.

Subsequently, a canine unit was called and the vehicle was searched. After the drug-sniffing dog “indicated” on the vehicle, the officers recovered the marijuana seeds. He testified that once the seeds were found, Smith indicated that he had more narcotics at his residence. At that time, a verbal search warrant was issued for Smith’s residence. The warrant was executed and marijuana was found. Smith was charged with possession of marijuana in the first degree.

Upon cross-examination by defense counsel, the following occurred:
“Q. Are you familiar with the Section 32-1-4 dealing with misdemeanor arrests where it requires that once you issue a traffic citation, you are to immediately release him?
“A [Officer Robinson]. No, sir.
“Q. Are you familiar with that one?
“A. No, sir.
“Q. Let me show you this one. (Witness reviewing document.) Have you ever heard of that section?
“A. No, sir.
“MS. BATES: Could I see that, Tommy?
“MR. SCARBROUGH: Yes, ma‘am.
“Q. So you gave him the ticket and you held him beyond the time that it took for you to issue the ticket, didn’t you?
“A. No, sir. I gave him the ticket. Then we conducted our investigation, and he was arrested from the residence.
“Q. You gave him the ticket. And then you conducted the investigation?
“A. That’s correct. A search warrant was conducted at that time.
“Q. After the ticket?
“A. After the ticket.
“Q. Are you sure about that?
“A. Yes, sir.
“Q. Absolutely?
“A. Oh. Yeah.”

Thereafter, on re-cross-examination, the following transpired:

“Q. But you got that information [that he had narcotics at his residence] after you held him beyond giving him the ticket, didn’t you?
“A [Officer Robinson]. Sir?
“Q. You got that information after you issued the ticket, didn’t you?
“A. I don’t know if I issued him the ticket, then received the information; or received the information, then gave him the ticket.”

There is no constitutional barrier to arresting someone for a traffic violation. Under Alabama law, however, once a person signs a traffic ticket, the cop has to let them go unless the cop has a reasonable suspicion of some other criminal activity.

That was the issue in this case. The cop detained the guy after he signed the ticket. The only possible cause for suspicion was 1) that another officer said this guy was involved with drugs, and 2) he refused to consent to a search. The court rejected the former as too broad and vague to support detention and the second as always illegitimate to support a search.

So everything that occurred after the guy signed the ticket was unlawful. That means the evidence will be suppressed and the case dismissed.

Of note, Judge McMillan wrote the second opinion while Judge Baschab wrote the first opinion and dissented from the second. In the dissent, she argued that it was unclear when the officer asked him about the drugs at his residence. If it was before issuing the ticket, the search would be lawful, as his affirmative answer provided reasonable suspicion. She would have remanded for a determination of when he asked the question.

The majority rejected this as a waste of time. The officer said emphatically on cross that he did not investigate until after issuing the ticket. He waffled on re-cross, but that does not undermine the earlier statements.

I agree with the majority. Call me cynical, but I say the reason the Officer waffled is because he realized that he said the wrong thing earlier. Hence, he needed to change his story.

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2 Comments on “Alacrap Udate”

  1. demopolite Says:

    Must be trying to pander to the commie-hippie-liberal vote…. 🙂

    It gives me hope for the American experiment that even the Alabama Court of Criminal Affirmance has to recognize basic civil rights every now and then.

  2. Mark Says:

    Yeah, it does my heart good when a court actually follows the law, even when it requires releasing a guy that had some weed at home.


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