author: LEIGH M. CLARK, Retired Circuit Judge. TYSON, Judge, DeCARLO, Judge,

text:
    Ricky Joe WHITENER v. STATE.
    8 Div. 348.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1980.
    Rehearing Denied Oct. 7, 1980.

      Steven E. Haddock, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction under Chapter 4, Title 28, Code of Alabama 1975. The offense is proscribed and the punishment prescribed by § 28-4-115:

“It shall be unlawful for any person, firm or corporation or association within this state to transport in quantities of five gallons or more any of the liquors or beverages, the sale, possession or transportation of which is prohibited by law in Alabama. Any person convicted of violating this section shall be guilty of a felony and, upon conviction, shall be imprisoned in the penitentiary of this state for a period of not less than one year, nor more than five years.”

Upon the return by the jury of the verdict of guilty, the court sentenced defendant to imprisonment for three years.

According to the undisputed evidence, an officer found thirty eases of beer in the trunk of an automobile driven by appellant just after the automobile had passed over the bridge over the Tennessee River, going south on Highway 31 in Decatur, Morgan County, Alabama, at approximately 1:15 P.M. May 12, 1979. Before such evidence was introduced, the court conducted a hearing out of the presence of the jury on a pretrial motion of defendant to suppress evidence as to what was found. The court’s denial of the motion, together with its overruling defendant’s objection to the evidence when presented, constitutes the major insistence of appellant for a reversal. Appellant argues there was a violation of defendant’s constitutional right to security against an unreasonable search and seizure.

There is a conflict in several particulars between the testimony of the officer who found the beer and the testimony of defendant and one riding with him in the automobile, which the trial court obviously resolved against defendant, which was well within the province of the court to do; and we treat the issue presented as if the version of the officer as to what occurred in connection with his discovery of the beer and his apprehension of defendant is correct.

No warrant for the search of the automobile of the defendant had been obtained. The officer, Sergeant James Steenson, of the Decatur Police Department, received a telephone call from a confidential informant about 9:00 P.M. on Friday, May 11, 1979. Sergeant Steenson testified:

“The substance of the information that evening was that he [defendant] would be coming through Decatur possibly two or three trips that [the following] morning hauling beer, and that he would be in a dark-colored Chevrolet, which would be a ’65 to ’67 model.
“Q. And do you have any information as to what route he would be taking?
“A. Yes. That he would be coming in there across the bridge.”

Officer Steenson further testified that on May 12 he watched for defendant and the automobile about 11:20 A.M., but that he did not maintain a constant watch by reason of other duties to perform, and that about 1:15 P.M. May 12 he saw the automobile driven by defendant with another person therein. The officer followed the automobile for a short distance, signalled it to stop, and thereafter the beer was found in the trunk.

Numerous cases are cited by both parties that pivot upon the question whether the warrantless search of an automobile is justified. We see no necessity for discussing all of them, however, by reason of concurrence of the parties in the view that, under the circumstances here presented, the search of the automobile and the seizure of the beer would have been unconstitutional, unless the officer had probable cause for believing that defendant was unlawfully transporting beer at the time or that defendant voluntarily gave his consent for the officer to make the search. Furthermore, the parties have lessened the need for extended discussion of cases involving the existence of probable cause vel non by recognizing that adequate guidance is found in Hatton v. State, Ala.Cr.App., 359 So.2d 822, writ quashed, Ala., 359 So.2d 832 (1977):

“The legality of the warrantless stop and search of the appellant’s automobile turns on whether the Sheriff and his deputies had probable cause to believe that it contained contraband. [Authorities cited]
“Probable cause may be based solely upon information obtained from a reliable informant — hearsay information. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). A tip may supply the basis for probable cause in and of itself where it discloses (1) some of the underlying circumstances which justify a conclusion that the informer is credible or his information is reliable, and (2) some of the underlying circumstances tending to demonstrate that, in the specific instance in question, he has drawn his conclusion of criminality in a reliable manner. Aguilar, supra. These two tests are of the dual ‘prongs’ of Aguilar the veracity prong and the basis of knowledge prong. They constitute the initial standard to be applied in assessing the probative value of an informant’s information. If the tip fails one of these prongs, the informant’s report may still constitute the sole basis for a finding of probable cause if the information provided is in such detail and minute particularity that a ‘magistrate, when confronted with such detail could reasonably infer that the informant had gained his information in a reliable way.’ This is the self-verifying tip. Spineili v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Less detailed information from a reliable source may also be used as grounds for a finding of probable cause where the key elements of the tip are verified or corroborated. Ex Parte State ex rel. Attorney General v. State, 286 Ala. 117, 237 So.2d 640 (1970); Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). Finally a tip that will not meet any of these statements may still be used in conjunction with a number of other factors of ‘further support’ to show probable cause.”

We examine the facts pertaining to the question of probable cause in the light of Hatton as quoted above and the principles stated therein. As to the stated prong (1) of Aguilar, we need only say that it is clear that the circumstances of the instant case justified a conclusion that the informer was credible with a good record of reliability for correctness, and there is no contention to the contrary. The specific issue between the parties is whether the requirements of prong (2) are met, and, if not, whether the “tip” causing the search is intrinsically verified or was extrinsically corroborated or supported, in the light of Spinelli, supra, and subsequent cases.

In Hatton, supra, it was held that there was probable cause that justified the war-rantless search of appellant’s automobile, but in so holding it was stated: “We recognize that the probable cause present in this case represents the bare minimum necessary for a valid search without a warrant.” 359 So.2d at 822. We compare the circumstances in the case under review with those stated in Hatton. We have herein stated all that the transcript shows that informer told Sgt. Steenson. Pertinent to the question of probable cause, there is also to be considered what the transcript shows as to the personal knowledge of Sgt. Steenson and what he had heard about the appellant, as to which there is no dispute. He stated that defendant had a reputation as “a transporter” and that his “reputation in general” was “not good.” Upon being questioned as to any other information received from the informer, he said the informer had not told him that he had been in the presence of defendant the night the information (the tip) was given him, that the informer did not tell him that the informer had seen defendant driving the particular automobile the night the information was given. Sgt. Steenson testified further as follows:

“Q. Did he tell you that he saw this particular automobile loaded with thirty cases of beer?
“A. That particular thirty cases of beer?
“Q. Any thirty cases of beer that night.
“A. No.
“Q. What was the basis for his knowledge except Ricky Whitener’s general reputation?
“A. The basis for his knowledge is that he is more or less in the know.
“Q. He is just in the know?
“A. Yes.
“Q. And was just in the know on this particular night?
“A. That particular night, yes.
“Q. At the time the call was placed to you at 9:00 the night of May 11, did you make any effort at the time to verify the information or corroborate the information that had been given to you by the informant?
“A. I didn’t verify it at the time because I didn’t know where to go to verify it at the time.
“Q. He did not tell you where the informant-the accused was at the time?
“A. No, he did not.
“Q. Did you hear any from your informant again after that night at 9:00 with regard to this particular instance?
“A. Before the arrest?
“Q. Yes, sir.
“A. No, I did not.”

In Hatton, supra, the informant had gone to the home of the County Sheriff, who knew both the informer and the appellant, and had stated to the Sheriff that appellant was purchasing pills at a particular drug store “on a lot of Friday afternoons,” that appellant “didn’t purchase drugs every Friday, but some Fridays,” that he purchased a large quantity on each occasion and “got them for truckers . . . and carried them back to his (service) station.” Upon being asked by the Sheriff to give him additional information concerning future drug activities, the informant contacted the Sheriff’s secretary on a Friday about 12:00 Noon and asked that she relay to the Sheriff what the informant and the Sheriff had talked about the night before “was going to take place at 4:00 (P.M.) and that he would be driving a Lincoln.” A “stake out” was arranged and about 6:00 P.M. appellant arrived in a Lincoln automobile, went into the drug store, returned from it with a white paper sack in his hand, got into the automobile and left. The automobile was soon stopped by the officers, who searched the automobile and found eight hundred capsules of phenter-mine.

The total of the information received by the officer from the informer, the information the officer had otherwise obtained as to defendant’s reputation and as to his being a transporter, and the knowledge the officer acquired in observing the defendant driving his automobile and immediately thereafter was much less than the total of the information that had been received directly or indirectly from the informer by the arresting and searching officers in Hat-ton and the knowledge they acquired from their observance of the activity of defendant just before a search of his automobile and his arrest. In that case, the informer, according to what the officers had learned directly or indirectly from him, had stated that as a fact defendant “was purchasing pills,” that he “purchased a large quantity on each occasion,” that he got them for truckers and carried them back to his service station. The officers making the search actually saw the defendant go into the drug store on his scheduled day of the week and return therefrom with a white paper sack in which the controlled substances were found.

In the instant case, the informer’s statement contained no recital of any past or then existing criminal activity of the defendant. It was all in futuro, with no background of any past or existing fact to support the purported prophetic utterance. The informer’s information that defendant had bought controlled substances from the specific drug store on previous Fridays was to some extent, at least, corroborated by the observance by the officers of defendant’s entry into the drug store and returning therefrom with a paper sack in his hand to an automobile that answered the description contained in the information of the informer. Even if what the informer had told Sgt. Steenson had been a statement of a fact, as distinguished from a mere prediction, there was nothing that came to the attention of Sgt. Steenson that tended in the least to corroborate or verify any notion that Sgt. Steenson may have obtained from the informer that defendant was illegally transporting beer.

We have heretofore considered all that was told Sgt. Steenson by the informer. We now give special consideration to the testimony of Sgt. Steenson that the basis for the informer’s knowledge of what would take place at the bridge the next evening was that the informer was “more or less in the know,” that he was “just in the know” on “that particular night.”

“Q. When this informant called you on the night of May 11, did he tell you he had been in the presence of Ricky Whitener that night?
“A. No, he did not.
“Q. Did he tell you he had seen Ricky Whitener driving this particular automobile on that night?
“A. Not that night, no.
“Q. Did he tell you that he saw this particular automobile loaded with 30 cases of beer?
“A. That particular 30 cases of beer?
“Q. Any 30 cases of beer that night?
“A. No.
“Q. What was the basis for his knowledge except Ricky Whitener’s general reputation?
“A. The basis for his knowledge is that he is more or less in the know.
“Q. He is just in the know?
“A. Yes.
“Q. And was just in the know on this particular night?
“A. That particular night, yes.”

We accept the meaning of the expression “in the know” as found in the definition of the noun “know” in Webster’s New International Dictionary (3d ed.):

“The fact of knowing; knowledge; intelligence ;-chiefly in the colloquial phrase in the know, having special, somewhat exclusive, knowledge or information.”

Perhaps the particular characterization by Sgt. Steenson of the informer has some value on any question as to his credibility or reliability that is necessary to meet the first prong of the Aguilar test. It has little, if any, value as to the “basis of knowledge prong.” Perhaps it would, if it were related to any past or then existing fact, if it were shown to have been based upon what the informer had learned by one of his five senses. It was sheer prediction. If the informer had told Sgt. Steenson what the informer had seen or heard, Sgt. Steenson would have had the right to rely and act upon it. He had no right to rely solely upon what the informer or anyone else told him would occur the next day. That defendant appeared the next day at the place stated by the informer and in the kind of automobile described by the informer, is in no sense corroborative of the statement that he would be illegally transporting beer.

There may be an additional reason for questioning the legality of the search that is to be found in the fact that the crime charged is a crime only in limited areas of Alabama. Although Morgan County is a dry county, Madison County, adjoining it nearby on the northeast, is a wet county. If it is assumed that the informer had factual information to the effect that defendant was transporting any cases of beer in Madison County, this in and of itself would not have furnished sufficient basis for probable cause for believing that he would transport it into Morgan County.

There was testimony by Sgt. Steenson that in following the automobile he noticed it was “bouncing some .. . more than what an automobile should bounce ... a different type of bounce.” Appellee does not expressly contend, there was no testimony to indicate, and we do not believe, that this was a substantial factor in causing the automobile to stop and be searched.

Under all the circumstances, we must conclude that at the time the search was made, the officer did not have probable cause for believing that there were five gallons of beer or more in the trunk of the automobile.

Similar in many respects to the circumstances that led to the search of an automobile is Rickman v. State, Ala.Cr.App., 361 So.2d 22, rev’d, Ala., 361 So.2d 28. The difference between the Supreme Court and the Court of Criminal Appeals was as to the question of “exigent circumstances.” The Court of Criminal Appeals had held there was probable cause for believing that the automobile contained contraband but that “exigent circumstances did not exist so as to justify a failure to procure a search warrant.” The Supreme Court held that “exigent circumstances” did exist. The informer therein notified the authorities that defendant had told the informer that he would arrive at the informer’s home at a stated time “and that he would be bringing cocaine with him.” In marked contrast, there is nothing in the instant case to show or even indicate that defendant had told the informer that he would be transporting thirty cases (five gallons) of beer into a dry county.

Appellee urges that defendant consented to the search. It appears that the learned trial judge based his action, in overruling the motion to suppress, chiefly, if not entirely, on the conclusion that defendant did give his consent to the search. The parties made an issue not only of law, but also of fact, as to what transpired between Sgt. Steenson and defendant. Their testimony was in irreconcilable conflict. We have no reason to doubt the trial court’s correct acceptance of the testimony of Sgt. Steen-son. As previously indicated, our determination of the question whether defendant voluntarily consented to the search is based exclusively upon the testimony of Sgt. Steenson’s version of what occurred, which essentially is as follows:

“A. Before he got out of the car I advised him that I had information that he was transporting beer, and that I needed to look in the trunk of his automobile. I told him at that time that if he did not want to let me look, then I would go up the street and get a search warrant; that I intended to look in his vehicle.
“Q. What was his response to that?
“A. That’s when he got out of the car.
“Q. And then what next occurred when he got out?
“A. We walked back to the back of the car and he told me, he said, ‘Sgt. Steen-son, I don’t know what is in the trunk of that car.’
“Q. What next occurred?
“A. We had some more discussion, and I told him again that I needed to look in the trunk of his car, and that if he did not want me to, I would get a warrant. At that time he walked back up to the front of the car and he had a discussion with his friend. When the discussion with his friend was over, he pulled the keys out of the ignition, he came back and unlocked the trunk.
“A. He took the key out of the ignition, brought it back to the back of the vehicle, and at that time told me, he says, ‘There are 30 cases of beer in the trunk,’ and he opened the trunk.
“Q. Before you opened it he told you there were 30 cases of beer in the trunk?
“A. And then opened the trunk.
“Q. All right. I believe you testified that you told him you could look in it with his permission, or you could go get a warrant.
“A. Yes, I did.
“Q. Is that what you intended to do?
“A. I did.”

The parties are in agreement that the search of the trunk by Officer Steenson was constitutionally permissible if the defendant consented to the search. Lofton v. State, Ala.Cr.App., 371 So.2d 988, 991 (1979); Woods v. State, 57 Ala.App. 1, 325 So.2d 517; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603. There can hardly be any disagreement with the proposition that to constitute a valid consent it must be freely and voluntarily given, and that the burden of proof is upon the prosecution to prove the essential free and voluntary nature of the consent. Barclay v. State, Ala.Cr.App., 368 So.2d 579, writ denied, Ex parte Barclay, 368 So.2d 581 (1979).

There have been innumerable cases in which appellate courts have been called upon to decide whether a purported consent to search was freely and voluntarily given, so many that it is clearly advisable to limit consideration and reference to those in which, as here, the purported consent was obtained after the officer expressed to the accused some reference to an alternative of procuring a search warrant. There is such a multitude of such cases that it is hardly appropriate to discuss all of them.

There can be no variance from Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, 802-803 (1968) in which it is stated:

“The issue thus presented is whether a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances.
“When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.15 “When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion— albeit colorably lawful coercion. Where there is coercion there cannot be consent.”

We have not included in the quoted excerpt from Bumper v. North Carolina, footnote indicators except as to note 15, which we deem of such tremendous significance as to.the point now under consideration that we now quote it:

“15. During the course of the argument in this case we were advised that the searching officers did, in fact, have a warrant. But no warrant was ever returned, and there is no way of knowing the conditions under which it was issued, or determining whether it was based upon probable cause.”

We take it that Mr. Justice Stewart, speaking for the Court in Bumper, opined that a turning point on the validity of the search was not exclusively whether the representation that the officers had a warrant was correct, but also whether any warrant that had been obtained “was based upon probable cause.” It necessarily follows therefrom that when an officer procures the purported consent of an accused to search his person or effects solely by reason of a representation to him that he has a search warrant, consent is not voluntarily and freely given if the warrant is deficient in its not being based on probable cause. It follows also, we think, that when an officer obtains the consent of an accused to a search of his person or property solely by reason of his representation to him that he will obtain a search warrant, such consent is not voluntarily and freely given unless a warrant can be issued based upon probable cause. As we have already held, there was no probable cause for believing that defendant was unlawfully transporting beer at the time of the search.

Readily distinguishable are many cases in which a consent to search was voluntarily and freely given under circumstances where probable cause did not exist. It is often desirable by the consenter that the search be conducted. Particularly is this true when he knows or has good reason to believe that the search will not disclose anything to incriminate him or anyone else in whom he has an interest. No such situation existed here. According to the undisputed evidence, defendant knew he was driving an automobile in which more than five gallons of beer was being transported, that it was in the trunk of the automobile and would be found by Sgt. Steenson when defendant opened the trunk. The only-reason he opened the trunk was the officer’s statement that otherwise he “would” obtain a warrant. Based on all the information had at the time, he could not have obtained a valid search warrant. If he had obtained a search warrant under such circumstances and thereby searched the trunk of the automobile and found the beer, the search would have been violative of the Fourth Amendment to the Constitution of the United States in that it would not have been issued “upon probable cause.” For no less reason, the search was unconstitutional in the absence of a warrant.

We note that in the abundance of cases wrestling with the problem whether a consent to search that is obtained by a searching officer’s representation as to the alternative of obtaining a search warrant, it is indicated, and sometimes asserted, that there is a conflict among the authorities on the subject. Of course, there may be, but whatever difference there may have been in determining whether the purported consent was voluntarily and freely given, it does not necessarily denote a conflict of view as to the principle that we find implicit in Bumper, supra, that is, that where the purported consent to search is obtained by the searching officer’s unreliable assurance that a valid search warrant has been or can be obtained, the consent is not voluntarily and freely given.

In United States v. Culp, 472 F.2d 459 (8 Cir. 1973), the court upheld as voluntarily and freely given the consent to a search when one of the officers made a statement very similar to that made by Sgt. Steenson in the instant case. The officer stated that “We are in the process of getting one [a search warrant]; one of our men is getting one, and we’ll search it [the premises] whether you like it or not.” The court held that regardless of what had been told him by the officer as to a search warrant there was an “independent basis” for the consent, which was “to have the police and court go easy on his wife.” There was no “independent” basis for the purported consent in the case now before us. Of special interest in connection with the pending problem is the content of footnote 1 in United States v. Culp at 472 F.2d 461:

“Many cases imply that where law enforcement officers indicate only that they will attempt to obtain or are getting a warrant that such a statement cannot serve to vitiate an otherwise consensual search, [omitted are numerous citations].”

The court indicated that most of the cited cases supported the statement in the footnote but that some of the cited cases were to the contrary. We now consider separately the first three cases cited in said footnote in support of the principle stated therein: United States v. Savage, 459 F.2d 60, 61 (5 Cir. 1972); United States v. Curiale, 414 F.2d 744, 747 (2 Cir. 1969), cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 423; United States v. Boukater, 409 F.2d 537 (5 Cir. 1969). In United States v. Savage, the accused had asked the officer if he could get a search warrant, and the officer replied, “Yes, we probably can.” The court said, “The officer’s statement was in response to defendant’s inquiry, and it was not a misrepresentation of the facts.” That it was not a misrepresentation of the facts indicates at least that there was probable cause. In United States v. Curiale, the accused said, “If I don’t sign this [a written consent], you are going to get a search warrant.” The officer replied, “I don’t want you to sign on that basis. If you are going to sign it, do it voluntarily.” Curíale then signed the written consent. In United States v. Boukater, the officer’s statement was that “he would attempt to get a search warrant.”

To be consistent with Herriott v. State, Ala.Cr.App., 337 So.2d 165, cert. denied, Ala., 337 So.2d 171 (1976), we must hold that the consent of appellant herein was not voluntarily and freely given. In Herriott, it was held, as it has been determined in this case, that no probable cause existed. What the officer said to the accused in that case relative to the alternative of procuring a search warrant was substantially the same as what the officer told the appellant herein, except that in Herriott it was supplemented by what the magistrate had told the officer and was much more in detail. Some of it was as follows:

“A. Yes, I told him I already talked with a warrant magistrate and I could get a search warrant.
“Q. After you advised him of that, what took place?
“A. I read this form to him and I gave it to him to read himself, and he agreed to fill in the blanks and sign the form.
“A. I told him I had contacted the Warrant Magistrate and he told me I could get a search warrant.
“Q. Didn’t you tell him you would go get a search warrant and you were going to leave these two police officers there to stay until you got back?
“A. I told them I could go get a search warrant and they would stay outside until I got back.
“Q. But you told them, and I am not arguing with you, but you told him you could get the warrant, is that correct?
“A. Right.
“Q. You didn’t tell them that you believed one may be issued, did you?
“A. No, sir, not that I recall.
“Q. And you didn’t tell them that the decision rested with the Judge or Magistrate, did you?
“A. Not that I recall.
“Q. And you gave them two choices. (1) the search or (2) you would get the warrant, isn’t that correct?
“A. I guess that’s about the way it was.”

Placing the same emphasis upon the absence of probable cause as was placed upon its absence in Herriott, we reach the same conclusion reached therein, “that the State here failed to establish the necessary volun-tariness of the alleged consent.” 337 So.2d at 169.

When considering whether one’s consent to a search has been influenced by a statement that a search warrant has been or will be obtained, it must be subsumed that the reference is to a valid search warrant, one based upon probable cause. There would be no triumph of logic to hold that a consent is voluntary when procured by an incorrect statement that such a warrant can be obtained but that the consent is involuntary when procured by an incorrect statement that such a warrant has been obtained, which, according to quoted footnote 15 in Bumper v. North Carolina, supra, is the effect of what was held in that case.

The judgment of the trial court should be reversed and the cause remanded for the error indicated. As grounds of other assertions of error will not likely occur again, we forego consideration of them at this time.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

HARRIS, P. J., and BOOKOUT and BOWEN, JJ., concur.

TYSON, J., concurs specially.

DeCARLO, J., dissents.

TYSON, Judge,

concurring:

I concur in the foregoing opinion as prepared by Judge Clark for this court.

As noted in Herriott v. State, Ala.Cr.App., 337 So.2d 165, cert. denied, Ala., 337 So.2d 171 (1976) and Gass v. State, Ala.Cr.App., 372 So.2d 904 (1979), the alleged consent of the party under detention must be voluntary under all the attendant circumstances. I am of the opinion that the alleged consent in the instant case, as in Herriott and Gass, supra, was mere submission to lawful authority and was not therefore voluntary.

DeCARLO, Judge,

dissenting.

In Draper v. U. S, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, we learned that probable cause may be proved upon a showing that facts, given to the investigating officer through an informant’s tip, can be verified at the time the illicit scenario unfolds.

In my judgment, the facts in the present case show sufficient verification to support probable cause. Clenney v. State, 281 Ala. 9, 198 So.2d 293.

For this reason, I respectfully dissent.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex Parte State of Alabama. (Re: Ricky Joe WHITENER v. STATE of Alabama).
    80-34.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   BEATTY, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: TYSON, Judge.

text:
    John Willie MINNIFIELD v. STATE.
    2 Div. 280.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      William S. Poole, Jr., Demopolis, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

John Willie Minnifield was indicted for the second degree burglary of Spiller Associated Furniture Stores, Inc., contrary to § 13-2-41, Code of Alabama 1975. At trial Minnifield was found guilty as charged, and because of an extensive criminal record was sentenced to serve the maximum term of ten years in the state penitentiary.

Robert Meigs, a police officer with the Demopolis Police Department, was called as the State’s first witness and testified that he was a fingerprint technician with that department and had received training in fingerprint analysis from the F.B.I. He stated that, at 11:39 p. m. on September 8, 1979, he had received a radio call from the Demopolis chief of police requesting that he proceed to the Spiller Furniture Company because the lights were on inside the building. The officer stated that, upon arriving, he checked the front door and found it secure, but that, upon checking the rear door, he noted that it was “standing about six to eight inches open” (R. 47). He entered the building and found that several items, including some bank bags, a cash register drawer, a file and papers were lying on the floor of the office, and that the office safe was closed but not locked.

Officer Meigs further testified that he dusted for fingerprints and was able to lift two latent fingerprints, one from the cash register drawer, and the other from an empty fruit jar. He stated that numerous other prints were evident, but were too smudged to be readable. He stated that he left after Mrs. Avery, an employee at the store, arrived and determined that a bank bag containing cash and checks, and a quantity of change from the fruit jar were missing. Officer Meigs testified that he had occasion to see appellant later that night on a street where appellant’s automobile had been stopped by other police officers. He stated that appellant’s automobile was a white Plymouth, and that, upon his arrival, the engine was still running. He further stated that he drove the automobile to the Demopolis Police Station, and that it had a very noisy muffler. Officer Meigs testified further that he took appellant’s fingerprint impressions at the Demopolis police station, and later compared them to the impressions he had lifted at the Spiller Furniture Company. He stated that, based upon his training and experience, the fingerprints lifted at the store matched impressions from two of appellant’s fingers.

John R. Brock, a lieutenant with the De-mopolis Police Department, testified that he was on patrol around 11:30 p. m. on Saturday, September 8, 1979, when he saw an individual walking about a block from the Spiller Furniture Store, and about a block from the officer’s vehicle. The officer stated that the individual was moving away from him, and that he could not describe in detail anything about the person except that the person was dressed in dark clothing and carrying something. The witness testified that he drove around the block in order to intercept the individual, but was unable to locate the person he saw. It being late on Saturday evening, all downtown stores were closed. At that point, he heard radio calls concerning lights being on in Spiller Furniture Company, and the subsequent discovery of the open door. Lieutenant Brock stated that, after that, he and an Officer Hoven continued to look for the individual that Lieutenant Brock had seen, and that tracking dogs were brought in by the Sheriff’s Department. A short time later, the witness stated, Officer Hoven located a white Plymouth parked in an abandoned parking lot near the railroad depot, just a few blocks from Spiller Furniture Company. The automobile was “backed up into some bushes. I had to get there and go in some of the weeds to look at the tag number” (R. 65). After reporting the tag number over the radio, both Lieutenant Brock and Officer Hoven resumed patrol in their respective police cars.

Some time later, around 3:00 a. m. this same night, Lieutenant Brock testified, he was patrolling in his vehicle when he reached the intersection of the street on which the depot and parking lot were located and saw a white automobile moving up that street. The officer stated that he pulled into the parking lot of a convenience store to wait for the white car, and that the car subsequently passed his vantage point. Lieutenant Brock then followed the car and, after confirming by radio that the tag number matched that of the white Plymouth which had been parked near the depot, the officer pulled the car over. Lieutenant Brock testified that the occupant of the white car, identified by his driver’s license, was John Willie Minnifield, and that he was dressed in a light gray suit. The officer further stated that he could see dark blue work clothes in view on the back seat, and that he had remembered seeing a “gray suit” on the seat when the car had been parked at the abandoned parking lot.

The officer notified other officers by radio that he had the appellant stopped, and Chief Johnson and a Deputy Mason arrived shortly thereafter. Appellant, when questioned as to why he had left his car parked in the parking lot, responded that he had had car trouble and was now attempting to take the car to get it fixed. Lieutenant Brock further testified that Chief Johnson questioned appellant as to the contents of a bag on the back seat of the car, and that appellant then emptied the bag, which contained “toilet articles, shaving gear, and dirty clothes” (R. 69) into the street. Further, upon being asked permission to examine the car’s trunk, appellant removed the trunk key from his key ring and opened the trunk himself.

On cross-examination, Lieutenant Brock stated that he could not identify the individual he had seen about 11:30 p. m., and that no one officer had kept the white Plymouth under continuous surveillance from the time it had first been discovered until appellant was stopped driving it at 3:00 a. m.

Officer Marty Hoven of the Demopolis Police Department testified that he was involved in the investigation of the burglary at Spiller Furniture Company. He stated that he heard the initial radio calls concerning the break-in at the store, but was directed by Chief Johnson to assist Lieutenant Brock in locating the individual that Brock had seen earlier. The witness stated that, though he drove around in the general area, he was unable to find the person, but did locate a white Plymouth automobile parked off the street near the railroad depot. He stated that he checked the car out, finding its hood still warm and a light gray suit lying on the back seat. He further stated that he later saw appellant wearing this suit. After notifying the other officers by radio and noting the tag number of the vehicle, the officer resumed patrol in a five to seven block radius of the location of the car, but saw no one else. He later returned to a routine patrol, and testified that, at 3:09 a. m., he heard on the radio that Lieutenant Brock had stopped the white Plymouth. He testified that he proceeded to the scene and, upon arrival, noted that the car’s engine was still running and that its exhaust was very loud. He observed appellant was wearing the gray suit, and stated that appellant gave his trunk key to the chief, who, in turn, opened the trunk of the car. He also observed blue jean pants and a blue jean jacket on the back seat of the car, and witnessed the chief remove a green bank bag from underneath the front seat of the car.

On cross-examination, Officer Hoven stated that Lieutenant Brock had not been present when he first discovered the white Plymouth, and did not come by while he was at that location.

. Mrs. Olivia Avery, the bookkeeper for Spiller Furniture Company, testified that, on the night in question, she was awakened by a telephone call from the police concerning the break-in. She stated that, earlier that day, around 5:00 p. m., she and another employee, being the last to leave, had secured the doors, and that the back door was locked by placing a bar across it on the inside and locking it. The store’s receipts and miscellaneous change kept in a fruit jar were both locked in the office safe. She further testified that, upon her arrival, she saw that the bar across the back door had been unlocked and removed, and later determined that entry had been initially gained through a sky-light. She stated that approximately $3700.00 had been taken, and that a green bank bag was missing. The witness then identified a State’s exhibit as the missing bank bag, and stated that she had identified the bag the morning after the burglary at the Demopolis Police Station.

Johnny Johnson, the police chief of De-mopolis, testified that, on the night in question, around 11:30 p. m., he was driving past the Spiller Furniture Company when he noticed a light on inside the building. He radioed other officers on duty to determine if the light being on was unusual, and then dispatched another officer to investigate. About this time, Chief Johnson stated, Lieutenant Brock radioed concerning the individual he had seen, and the chief proceeded to help Lieutenant Brock locate that individual. Subsequently, as he was driving to the area, he received another radio report that a burglary had been discovered at Spiller Furniture Company, and he returned to that store to back up the officer. After arriving on the scene and determining that no one was inside the store, Chief Johnson radioed the remaining police cars to “seal off” the area and locate the individual that Lieutenant Brock had seen. The chief further stated that the Sheriff’s Department personnel assisted in the search, and that Officer Hoven then discovered the white Plymouth. Chief Johnson then stated that the tag number of the Plymouth was checked by computer, and that he proceeded to determine that entry into Spiller Furniture Company had been gained through a sky-light.

Later that same evening, Chief Johnson received a radio call that Lieutenant Brock had stopped the white Plymouth, and the chief proceeded to the scene. He stated that, upon arriving he saw appellant, dressed in a light gray suit, standing with Lieutenant Brock at the rear of the car, the engine of which was still running. The chief stated that appellant, in response to questioning, answered that he was having car trouble, and agreed to allow the chief to examine the trunk of the car, unlocking it himself. Chief Johnson further noted that he looked into the car and saw a letter opener on the front seat, and items of clothing on the back seat, and that he determined items contained in the trunk to be burglary tools. At this point, the chief stated, he reached under the front seat of appellant’s car and located a bank bag, which contained a large amount of cash and checks endorsed to Spiller Furniture Company, the total amount being determined to be $3,772.00.

On cross-examination Chief Johnson testified that he had not ordered anyone to establish a continuous surveillance of the parked white Plymouth because it would possibly frighten off the driver if he returned to the area.

The State rested, and appellant’s motion to exclude the State’s evidence was overruled.

Appellant then testified on his own behalf and stated that, on the day in question, he had been driving from Montgomery to Jackson, Mississippi, to retrieve a car that he had put in a repair shop there some weeks before. He stated that, while so traveling, his car began “skipping awful bad” so he stopped in the parking lot of a department store in Demopolis in order to call an acquaintance who lived in Demopo-lis. Being unable to reach his acquaintance by telephone, appellant stated, he enlisted the aid of a passerby who claimed to know his acquaintance. Appellant testified that he then followed this person on into town and near the depot his car broke down. At this point, appellant testified, he just parked the car off the street in an old graveled parking lot and left it. From there he and the other individual “went several places” and “got to drinking beer” (R. 106), and eventually went to Greensboro and Uniontown.

After this series of trips, appellant stated, he, his companion and a third person, a female picked up along the way, returned to appellant’s car, still parked where he had left it. He stated that his male companion did something to the engine, the car started though it continued to skip, and appellant proceeded to drive off toward Highway 80, where he hoped to find a mechanic. He further stated that he saw a police car drive by, and that it turned around and followed him for a short distance until he was pulled over. Appellant testified that the police officer asked to see his license, and stated that there had been a burglary and that his (appellant’s) car had been parked in the general vicinity. Appellant stated that he attempted to explain his story to the officer.

Appellant denied that he had burglarized Spiller Furniture Company or that he had had the bank bag in his possession when stopped. He further stated that he had served a thirteen year sentence, and eighteen months of a four year sentence for burglary and grand larceny in the state penitentiary, and had later served thirty-six months in a federal penitentiary on similar charges.

On cross-examination, appellant testified that he did not see where Chief Johnson had removed the bank bag from, and denied that any letter opener was found in the car. He also stated that he had been wearing the gray suit the entire time, that he had never been in Spiller Furniture Company, and had not touched the cash register, the safe, or any fruit jar there.

I

Appellant initially contends that the evidence of the bank bag, which was found underneath the front seat of appellant’s automobile, was the fruit of an unlawful search and seizure and should have been suppressed by the trial court pursuant to his written motion to suppress. Concededly, Lieutenant Brock’s initial stop of appellant and the subsequent search of his vehicle were conducted without a warrant, and thus must be analysed in light of the familiar principles enunciated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971):

“. .. [T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be a ‘showing by those who seek exemption * * * that the exigencies of the situation made that course imperative.’ ‘[T]he burden is on those seeking the exemption to show the need for it.’ ” (Footnotes omitted.)

We perceive the first major portion of appellant’s argument to be that Lieutenant Brock, under the circumstances known to him at the time, did not have probable cause to stop appellant in the first place, and thus any resulting search yielding incriminating evidence was the direct result of unlawful police activity. We have the benefit of the trial court’s written order denying the motion to suppress and quote from its excellent summary of the relevant facts:

“1. The Chief of Police of Demopolis, Alabama, noticed lights were turned on in a building in downtown Demopolis about 11:30 P.M. on a Saturday night. About one block away, Officer Brock saw a man walking near the railroad tracks carrying something. He attempted to locate the man after he circled the block but did not again see him.
“2. The police discovered that Spiller Furniture Company (the building where the lights were on), had been entered, the safe opened and the contents taken. Shortly after ascertaining that the store had been entered, the police discovered an automobile parked about a block and one-half away. The automobile was backed into some bushes near the railroad depot and was about 90 feet off of the street. The area was not where an automobile would normally be parked. The police were instructed to watch the auto and the tag number was checked with the State.
“3. Officer Brock observed the auto that had been backed into the bushes, traveling south on the same street near where it was parked. It was seen at 3:00 A.M. and about three blocks from where it had been parked. Downtown Demopolis is not a beehive of activity at 3:00 A.M. on a Sunday morning; in fact, very few autos can be seen.
“4. Officer Brock stopped the automobile driven by the Defendant and shortly thereafter, several officers questioned the Defendant at the place where he was stopped while his auto was still running. The Defendant informed the officers he was going to Mississippi and had car trouble. He voluntarily removed a trunk key from his key ring without turning off the ignition and gave it to the policemen and told them they could search his trunk. The officers discovered tools and equipment of a type used by burglars. The Defendant told the police he had a prior eriminial record and had served time in the penitentiary for burglary.
“5. At this time, Chief Johnson reached under the driver’s seat and found a bag of money that had been removed from the safe at Spider’s Furniture Company. On the seat of the car was a letter opener that had been taken from Attorney William Coplin’s office, which is located above and adjacent to Spiller Furniture Company. The Defendant was placed under arrest after the bag containing the money was found.”
(R. 16-17)

For the purposes of Fourth Amendment analysis, it is clear that Lieutenant Brock’s initial stop of appellant’s vehicle constituted a “seizure” within purview of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and cases cited therein. We do not find, however, that probable cause is always the standard to be applied in situations of this sort, as it is well recognized that in certain instances an investigatory stop may be made under circumstances that constitute less than probable cause within the commonly accepted meaning of that term. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the decision recognizing the efficacy of the “stop and frisk” procedure, the Supreme Court explained warrantless stops on less than probable cause:

“. . . [W]e deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat— which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved . . . must be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures ... In order to assess the reasonableness of [an officer’s] conduct as a general proposition, it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails . .. And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”
(Footnotes, citations omitted.)
See also, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

The concept of the investigative stop has been adopted by statute in Alabama, § 15-5-30, et seq., Code of Alabama 1975, and though Terry was factually concerned with stops of suspicious characters on sidewalks, it is clear from the subsequent decisions of both the United States Supreme Court and the appellate courts of this State that the Terry principle is equally applicable to the stop of a vehicle. See Delaware v. Prouse, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973); Berryhill v. State, Ala.Civ.App., 372 So.2d 355 (1979); Goodman v. State, Ala.Cr.App., 356 So.2d 691, cert. denied, Ala., 356 So.2d 698 (1978); Herrin v. State, Ala.Cr.App., 349 So.2d 103, cert. denied, Ala., 349 So.2d 110 (1977). Recognizing that “effective crime prevention and detection” are important governmental interests, Terry v. Ohio, supra, we are persuaded that the action of Lieutenant Brock in stopping appellant’s vehicle to question him as to his activities and whereabouts that night was a legitimate and minimally intrusive procedure under the circumstances. From the trial court’s findings, set forth above, we hold that there were “specific and articulable facts” from which the officer could have formed a reasonable suspicion that appellant had been involved in the burglary earlier that evening, and indeed “it would have been poor police work ... to have failed to investigate this behavior further.” Terry v. Ohio, supra. The initial stop of appellant was constitutionally permissible. Cases cited.

Appellant further argues, however, that, despite the stop, the subsequent search which led to the discovery of the bank bag was still unconstitutional as not under any recognized exception to the warrant requirement. Demopolis Police Chief Johnson testified that, when he arrived on the scene, appellant was standing outside his vehicle, and the vehicle’s engine was still running. Chief Johnson stated that he asked appellant if he could look in the vehicle’s trunk, and that appellant agreed and “took the trunk key off of the key ring and he opened the trunk himself” (R. 95). Inside the trunk were items that the chief recognized from his experience to be “burglary tools.” At that point, the chief reached under the front seat, found the bank bag, and placed appellant under arrest.

Appellant did not at trial, and does not now, argue that he did not consent voluntarily to the chief’s request to look in the trunk. Of course, a voluntary consent to search may act as a waiver of Fourth Amendment rights, thus rendering the use of a warrant unnecessary. Weatherford v. State, Ala.Cr.App., 369 So.2d 863, cert. denied, Ala., 369 So.2d 873, cert. denied, 444 U.S. 867, 100 S.Ct. 141, 62 L.Ed.2d 91 (1979); Hardy v. State, 53 Ala.App. 75, 297 So.2d 399 (1974). Without belaboring a point not raised below, we hold that the oral response of appellant, coupled with his affirmative act in opening the trunk, acted as a freely and voluntarily given consent. Similar cases factually include Dorsey v. State, Ala.Cr.App., 376 So.2d 816 (1979); Kirkland v. State ex rel. Baxley, Ala.Civ.App., 340 So.2d 1121 (1976); cert. denied, Ala., 340 So.2d 1127 (1977); Woods v. State, 57 Ala.App. 1, 325 So.2d 517 (1975), cert. denied, 295 Ala. 430, 325 So.2d 519 (1976); and Osner v. State, 54 Ala.App. 520, 310 So.2d 241 (1974), cert. denied, 293 Ala. 769, 310 So.2d 247 (1975).

It is, of course, well settled that a warrantless search may be conducted of an automobile where probable cause and exigent circumstances co-exist. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973); Preyer v. State, Ala.Cr.App., 369 So.2d 901 (1979); Hancock v. State, Ala.Cr.App., 368 So.2d 581, cert. denied, Ala., 368 So.2d 587 (1979). We find that when the circumstances known to the officers at the time of appellant’s initial stop are further combined with the burglar tools in his vehicle’s trunk, the fact that he admitted previous convictions for larceny and burglary, and the fact that dark clothing was seen in plain view on the back seat of the vehicle (the individual seen earlier had been wearing dark clothing), ample probable cause existed at that time for a further search of appellant’s vehicle for weapons and contraband. Further, the inherent mobility of the automobile, the fact that appellant had now been alerted, and the time of the occurrence (3:00 a. m.) all combine to present exigent circumstances which would justify an immediate warrant-less search. Cases cited. There was no error in overruling appellant’s motion to suppress, and the bank bag was properly received into evidence.

II

During the prosecutor’s direct examination of Chief Johnson, the following occurred:

“Q. Describe the articles laying on the front seat.
“A. There was a letter opener laying there that I observed laying on the front seat.
“MR. POOLE: I object, Your Honor. That question is prejudicial and has nothing to do with this case.
“THE COURT: Well, overrule that objection.”
(R. 94)

Appellant argues that the testimony regarding the letter opener was prejudicial in that it is, according to appellant’s brief, “the subject of another charge of burglary against the defendant, John Willie Minni-field.” Despite the fact that there was no other testimony of any other burglary, nor any testimony that the letter opener was in fact stolen, we find that appellant’s objection was not propounded until after the question had been asked and answered, Barnett v. State, 52 Ala.App. 260, 291 So.2d 353 (1974), and no motion to exclude was made and overruled. This occurred despite the fact that Lieutenant Brock was asked the same question without objection (R. 68), and we note that later appellant was questioned as to the letter opener without objection. The trial court did not commit error in overruling the objection. Hicks v. State, Ala.Cr.App., 372 So.2d 61 (1979); White v. State, Ala.Cr.App., 347 So.2d 566 (1977); Retowsky v. State, Ala.Cr.App., 333 So.2d 193 (1976).

Ill

Appellant finally argues that the trial court erred in a portion of its oral charge to the jury. During the course of that charge the following occurred:

“THE COURT: * * * I’m embarrassed to tell you at this time that we have not been able to located [sic] State’s Exhibit 5. It was here; we are going to continue to look for it and give it back to you if we find it. Someone said it may have fallen through on the floor under here and we’ve made a diligent search for fifteen or twenty minutes and we can’t find it. We don’t have that piece of evidence to give you at this time but you should consider that evidence the same as you would any other evidence. If you want to disregard it since you don’t have it, you may do so, that’s State’s Exhibit 5 that we can’t find; if you want to consider it, what was said orally, spoken here in Court, you may do so. Approach the bench.
“(Attorneys approached the bench)
“(The following objection was made outside the presence of the jury but before they retired.
“MR. POOLE: I object to the portion of the instruction concerning the lost item of evidence.
“(Jury retires)
“(Jury returns)
“THE COURT: Ladies and gentlemen we’ve located State’s Exhibit 5. It had fallen through all the way down to the floor and we took the witness chair up and we found State’s Exhibit 5 so I’ll give it back to you and please disregard my instruction about us not being able to find it.”
(R. 120-121)

The “lost” exhibit was a card displaying a fingerprint lifted at Spiller Furniture Company and identified as that of appellant’s. We do not see that any error was committed by the trial court in explaining that one of the exhibits was not included with the others when given to the jury initially. The trial court’s comments in this regard certainly were not unfavorable in giving any undue weight to the probative value of this particular piece of evidence. Thus, any conceivable error would have accrued to the benefit of appellant by allowing the jury to disregard a piece of evidence which was particularly incriminating to appellant.

We have carefully examined this record, and find same to be free from error. The judgment is therefore

AFFIRMED.

All the Judges concur.


text:
    Ex Parte John Willie MINNIFIELD. (Re: John Willie Minnifield v. State of Alabama).
    80-126.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   BEATTY, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and MADDOX, JONES and SHORES, JJ., concur.


author: DeCARLO, Judge.

text:
    John G. LAING v. STATE.
    3 Div. 143.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      Ira DeMent and John T. Kirk of Kirk, Hutchinson & Carroll, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and M. Clayton Humphries, Jr., Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

John G. Laing was indicted and later convicted by a jury for unlawfully selling 3, 4 methylene dioxyamphetamine (MDA), in violation of the Alabama Controlled Substances Act, Alabama Code, § 20-2-70 (1975). His punishment was fixed at two years in the Montgomery County Jail.

Retained counsel represented the appellant at trial and now represents him on this appeal.

The appellant was a former undercover officer with the vice and narcotics division of the Montgomery Police Department. At the time of his arrest, he was employed in that capacity.

Steve Brantley, a member of the Montgomery Police Department serving with the internal affairs unit, testified that, on January 12, 1979, he received a telephone call from Katherine Ortega, an informant. After that conversation which concerned the appellant, Brantley contacted Cpl. Tom Parnell. The next night they installed an electronic monitor on Ortega’s telephone. That same night a conversation between Ortega and the appellant was recorded. The following night they recorded a second conversation between Ortega and the appellant. In that conversation, the appellant wanted Ortega to set up a meeting with a prospective drug purchaser.

Later that same evening, Brantley and Parnell returned to the Ortega apartment with Officer Faulkner. On that occasion, Brantley had a marked one hundred dollar bill, which was police money provided by Officer Parnell. Brantley made a xerox copy of the bill, then gave it to Ortega. Also, he installed a body mike transmitter in her purse. According to Brantley, Ortega left the apartment and walked toward the Mobile Highway. Subsequently, he heard two voices, one of which he identified as the appellant’s and the other as that of Ortega. Brantley stated that he heard the appellant ask Ortega if she had found a buyer and she answered, “Yes.” After fifteen minutes she returned to the apartment with two packages. The next day they were taken to the State toxicologist’s office.

Montgomery Police Officer Margaret Faulkner testified that, on January 14, 1979, she conducted a “strip search” on Ortega. At that time, Ortega had removed all her clothes and Officer Faulkner determined that she had nothing hidden on her body. Faulkner testified that she saw Ortega leave the apartment and was there when she returned and went to the bedroom. Faulkner stated that when she returned she had a brown envelope containing a plastic bag with something wrapped in aluminum foil.

Allen Raymond Adair of the Department of Forensic Sciences stated that he had examined the contents of the bag turned over to him by Brantley. Adair identified the white powder as 3, 4 methylene diox-yamphetamine, also known as MDA.

Lt. J. D. Foster, who participated in the investigation involving the appellant, stated that, on January 14, 1979, Maj. C. D. Sher-lin announced that an investigation concerning the appellant was under way. The investigation involved the sale of evidence which had been taken from police headquarters. Foster explained that a quantity of “MDA” had been seized pursuant to a search warrant executed in another case and that the appellant had participated in the search.

Foster, Capt. Arnette and Maj. Sherlin went to the apartment of Miss Paula Shaver in Montgomery, Alabama, where they found the appellant. Upon entering the apartment, Lt. Foster told the appellant that they were there for the purpose of conducting an investigation. At that time, Foster advised the appellant of his constitutional rights. At the request of the officers, the appellant handed his billfold to Foster. He removed a one hundred dollar bill bearing the same serial number as that on a “photostatic copy” of a one hundred dollar bill held by Capt. Arnette.

During further questioning, Foster stated that he did not authorize the appellant to remove the “MDA” from police headquarters, nor did he authorize him to sell it.

During cross-examination, Foster admitted that he was familiar with a verbal order that no investigative personnel were to use Ms. Ortega as an informant or have any contact with her. According to the order, any information which Ortega might have was to be given to Maj. Sherlin. Foster ‘added that the order had been issued in early November, 1978.

When the appellant was taken to the police station he was asked if he knew “what could happen to police officers that went to the penitentiary.”

Katherine Ortega, also known as “Ti” Ortega, met the appellant on January 14, 1979 at a Seven-Eleven store near her apartment. She testified that the appellant gave her a “baggie” which contained a white substance identified by him as “MDA.” In return, she gave him a one hundred dollar bill.

During cross-examination, testimony elicited from Ortega showed that she had been involved in drugs and had been arrested, but never prosecuted. She had operated a massage parlor where prostitution was practiced.

During further cross-examination, Ortega acknowledged that she first contacted the internal affairs division of the Montgomery Police Department on January 12, 1979. In the conversation with the appellant, which was not recorded, the appellant told her that “he was going to have an opportunity to get some stuff.” Ortega explained that she and the appellant were friends and that, prior to the conversation in January, the appellant had mentioned drugs, but she had not taken him seriously.

Ortega testified that in the conversations she had with the appellant from January 12 to January 14, 1979, she told him that she had the buyer for the drugs.

She further testified that, when she arrived at the “pack a sack” store, the appellant walked out and got into her car. She acknowledged that, at that time, she gave Laing the one hundred dollar bill.

Montgomery Police Officer Thomas Parnell of internal affairs testified that he and Brantley received a telephone call on Friday, January 12, 1979 from Ortega. According to Parnell, on the morning of the 13th the appellant called Ortega and offered to sell her “some" drugs. Parnell recalled that on the evening of January 13, 1979, the conversation between the appellant and Ortega was recorded. Parnell testified that he observed the appellant drive up in a black police car and go inside the Seven-Eleven store on the Mobile Highway. He subsequently saw Ortega arrive and the two get into the car together and drive onto the Mobile Highway. Parnell recalled that Ortega had a transmitting device concealed in her purse. He heard the conversation between Laing and Ortega, but could not understand what they were saying.

Parnell testified that, at the time he took the statement from the appellant, there was no ’ one else present except Sgt. Foster. Parnell stated that no one threatened, abused, coerced or induced the appellant to make the statement.

During cross-examination, Parnell stated that he did not advise the appellant of his constitutional rights; however, Parnell knew that the appellant had previously been advised of his rights.

At the end of Parnell’s testimony, the State rested its case and the appellant, at that time, moved to exclude the State’s evidence. The motion was denied, and the appellant called approximately eight witnesses who testified that the appellant’s general reputation was good, that he was truthful and that he was a very good police officer.

Charles Armstrong and Joseph Dorrill, former police officers with the Montgomery Police Department, testified that Ortega’s general reputation for truth and, veracity was bad and that the appellant had a good general reputation and a good reputation for truth and veracity.

The appellant testified that Ortega had called him on January 8,1979, and told him, “If I could get my hands on some dilaudid, I could probably sell it.” According to Laing, there were subsequent conversations on January 10,1979, and January 13,1979. On January 14, 1979, he had another telephone conversation with her. The appellant testified, “She had a buyer for the speed and she asked me if I could meet her at the Seven-Eleven store on the Mobile Highway around ten-thirty.”

Laing went to the store and met Ortega, who handed him a one hundred dollar bill. He, in return, handed her a small packet of white powder and an aluminum packet which contained a non-controlled substance. The appellant recalled that, about 2:30 A.M., Foster, Sherlin and Arnette came to the apartment. Foster read the appellant his constitutional rights. He was then asked to hand over his wallet, from which the one hundred dollar bill Ortega had given him was removed. Laing recalled that he was taken to police headquarters and, while in Chief Burke’s office, was told by Burke, “John I want you to cooperate with us. You know what happens to police officers when they go to the penitentiary.” Laing responded, “Yes, sir, I know what happens to police officers when they go to the penitentiary, especially vice officers.”

The appellant explained that his purpose in dealing with Ortega was “to set her up as an informer.” He admitted violating the order not to deal with Ortega, but insisted that he was attempting to place her “into position where I could have something to hold over her in case she ever wanted to turn on me, which I knew she had done in the past.”

The appellant testified that, after his conversation with Chief Burke, he gave his statement to Parnell and admitted that, “About ninety-eight percent of it was true.” When asked why he had not informed Chief Swindall or Chief Burke about the conversations with Ortega, the appellant replied, “I hadn’t accomplished what my goal was. I didn’t tell anybody what I was up to.”

Laing admitted that he had removed the drugs from the evidence room and that he knew such action was impermissible. Also, he admitted that on January 12, 1979, he had called Ortega. He said, “The purpose for not advising my superiors was the fact that I was going to try to set her up and get information from her and establish some kind of rapport with her so that I could go to my superiors and explain to them what I had done.”

Laing admitted, “I was read my constitutional rights at the time they picked me up, but I was not asked to sign a rights form until the following day I believe it was.”

I

The first issue raised by the appellant was whether the court erred in admitting into evidence a statement made by the appellant at police headquarters on the night of his arrest. He argues that the statement was induced by a threat made by Deputy Chief Burke. According to Foster, Burke had asked the appellant “if he knew what could happen to police officers that went to the penitentiary.” The appellant’s version is similar. During the trial, the appellant explained he understood the statement to mean that, “A vice cop in the penitentiary is going to live about three hours.”

We note from the transcript that, at the time Laing made his statement, the only police officers present were Parnell and Foster. Burke was not present at that time.

The test of voluntariness of a confession has been outlined in Guenther v. State, 282 Ala. 620, 213 So.2d 679. The court stated:

“The true test of voluntariness of extrajudicial confessions is whether, under all the surrounding circumstances they have been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor; and if so, whether true or false, such confessions must be excluded from the consideration of the jury as having been procured by undue influence.”

From Webster’s Third New International Dictionary (1976), we find that a threat is an “expression of an intention to inflict loss or harm on another by illegal means and especially by means involving coercion or duress of the person threatened.” In our view, Burke’s statement could have done nothing more than to impress upon Laing the seriousness of his situation.

Nowhere in the record does it appear that the appellant was told he would be spared a penitentiary sentence if he cooperated, or would suffer any harm if he did not. Burke’s statement in no way was coercive, nor was it suggestive of any consequences which might follow if the appellant did not cooperate. The appellant’s state of anxiety did not stem from fear of what might happen to him if he made or did not make the statement. His anxiety resulted from the fact that he had been caught. The testimony of Parnell, who was present when the appellant made his statement, makes it clear that he was not threatened or intimidated. The appellant stated unequivocally that he understood his constitutional rights, and in fact, said, during the trial, that he could recite them. Therefore, after examining the totality of the circumstances, it is our judgment that the statement given by Laing was voluntary and not coerced by any threat.

II

The appellant complains that the trial court denied him his right to cross-examine the witnesses against him.

Appellant relies on Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195. In Buckelew, Judge Cates reiterated the words of § 12-21-137, Code of Alabama 1975, which reads as follows:'

“The right of cross-examination, thorough and sifting, belongs to every party as to the witnesses called against him.”

In Powell v. Powell, 285 Ala. 230, 231 So.2d 103, which construes T. 7, § 443, Code of Alabama 1940, Recompiled 1958, now § 12-21-137, Code of Alabama 1975, the Alabama Supreme Court wrote:

“This section must be reasonably construed. It does not deprive the trial judge of discretion reasonably exercised to limit the range of cross-examination in respect to collateral and irrelevant matter. The undue and unnecessary consumption of time in the trial of causes, and the avoidance of multiplied collateral and irrelevant issues is committed in the first instance to the wise discretion of the trial judge.”

In Cox v. State, 162 Ala. 66, 50 So. 398, the Supreme Court stated:

“The latitude and extent of such cross-examination, however, is a matter that must, of necessity, rest largely, if not exclusively, within the sound discretion of the trial court, and, so long as that discretion is not abused, the action of the trial court will not be revised on appeal.”

Additionally, in Atwell v. State, Ala.Cr.App., 354 So.2d 30, this court stated:

“The control of cross examination is within the discretion of the trial judge only after a party has had an opportunity substantially to exercise his right of cross examination. Dixon v. United States, 333 F.2d 348 (5th Cir. 1964). However, the trial court has the discretion to reasonably limit the range of cross examination in respect to matters which are repetitious or argumentative. A trial is not meant to be an eternal phenomenon. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195 (1972). Trial judges have unlimited discretion to cut off questions on cross examination which are repetitious, concern wholly collateral matters, are irrelevant, or are harassing, annoying, or humiliating. Ball v. State, Ala.Cr.App., 337 So.2d 31, cert. quashed, 337 So.2d 39 (1976).
“The right to a thorough and sifting cross examination does not entitle a party to repeat questions that have already been definitely and fully answered. Proctor v. State, Ala.Cr.App., 331 So.2d 828 (1976).”

See also Gamble, McElroy’s Alabama Evidence, § 438.01 (1977).

The transcript of evidence revealed that appellant placed before the jury a substantial amount of information concerning the police’s relationship with an informant. Also, there was a considerable amount of testimony labeling Ortega’s general reputation for truth and veracity as bad, and labeling her as a drug user and a prostitute. The appellant was able to show that his intention m dealing with Ortega was “to hold something over her head” so that he could use her as an informant. We do not believe, under the circumstances, that the trial court infringed upon the appellant’s right to a “thorough and sifting” cross-examination.

Ill

The appellant asserts that the trial court committed reversible error in allowing the prosecution to elicit testimony of other criminal activity. Counsel for appellant argues that the trial court permitted the State to pursue the matter of a loan which the appellant had made to Ortega, for the purpose of showing that Ortega intended to operate a house of prostitution.

We note from the record that the appellant did not object to this testimony on the specific ground that the evidence tended to show his guilt of other offenses. This contention was made for the first time on appeal.

The transcript of evidence shows that the appellant testified that he had made the loan to Ortega to “set her up, and gain her confidence.” Also, the record shows the following:

“Q. And isn’t it true that you knew that she was going to use that money to rent an apartment to set up a house of prostitution?
“MR. DeMENT: Objection.
“THE COURT: Overruled.
“A. I knew she was going to use the money to rent an apartment.
“Q. Isn’t it true you knew that she was going to set up a house of prostitution?
“A. She had mentioned that to me, but I had no facts to back it up.”

Prior criminal activity may be shown where it relates to motive and intent to commit the crime presently charged to the accused. Lucy v. State, Ala.Cr.App., 340 So.2d 840. We find that the evidence, which tended to show prior criminal activity involving the appellant and Ortega, was admissible to show the appellant’s motive and intent in the present case.

The appellant testified that he had loaned the money to Ortega “to set her up” even though he was aware of the departmental order to have no contact with her. It is obvious that the appellant’s motive and intent in making the personal loan to Ortega was to keep secret his violation of the departmental order. Under these circumstances, we believe that the making of the loan bears directly on the appellant’s intent to commit the present offense. Therefore, we find no error in receiving the testimony into evidence.

IV

The evidence presented by the State was sufficient to raise a question of fact for the jury, and such evidence, if believed, was sufficient to sustain the conviction; therefore, the trial court did not err in overruling the motion to exclude and the motion for a new trial.

We have carefully examined the record and find no error prejudicial to appellant. Therefore, the judgment of conviction by the Montgomery Circuit Court is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: MADDOX, Justice.

text:
    Ex Parte John G. LAING. (Re: John G. Laing v. State of Alabama).
    80-107.
    Supreme Court of Alabama.
    Dec. 19, 1980.
   MADDOX, Justice.

WRIT DENIED-NO OPINION.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.