Ingram: Companion site for Criminal Evidence, 11th Edition


Case Studies

Chapter 16: Evidence: Unconstitutionally Obtained

Overview — Based on: Tolbert v. State, 2011 Ala. Crim. App. LEXIS 98 (2011).

Richard Tolbert pleaded guilty to the unlawful possession of a controlled substance, namely dihydrocodeinone (brand name Lortab), in violation of § 13A-12-212, Ala. Code 1975. Tolbert was sentenced to 15 years’ imprisonment pursuant to the Alabama Habitual Felony Offender Act. Two police officers, in unmarked cars and plain-clothed, observed a man, later determined to be Tolbert, sitting in a black Cadillac. Random individuals repeatedly visited the Cadillac and offered something to the people in the Cadillac while individuals within the vehicle returned some object to the individuals who had approached the vehicle. To a trained officer’s eye, this conduct appeared to offer evidence that drugs were being sold from the particular motor vehicle by the individuals who were sitting within it. One of the police officers, Harris, testified that he witnessed numerous vehicles pull beside the passenger side of the Cadillac and stated that he observed hand-to-hand transactions between those vehicles and the front passenger window of the Cadillac. According to Officer Harris, someone from the other vehicles “would hand an unknown amount of cash, and somebody out of the front passenger position in the Cadillac would hand an unknown object back.” The area was known to be a high-crime area where drugs were often bought and sold. Officer Harris stated that based on his narcotics training and field experience, he suspected illegal drug deals were being conducted from the Cadillac, giving him what he thought was probable cause to arrest those involved. Other officers observed the identical conduct from different vantage points.

The vehicle left the area but, pursuant to a radio call by the undercover officers, it was stopped by a uniformed officer in a marked car. One of these officers ordered Tolbert from the vehicle and conducted a “patdown” wherein he discovered plastic bags in Tolbert’s pants pocket. The officer placed his hands inside Tolbert’s clothing and removed the plastic bags. Upon the officer’s observation of the plastic bags, he believed that drugs were contained within them. Prior to the pat-down, the officer had probable cause to arrest Tolbert but had not communicated this fact to Tolbert.

The prosecution initially argued that the controlled substances were discovered during a valid stop and frisk where the object may be seized if its illegal quality is immediately known to the officer by the sense of touch. The officer who initially patted down Tolbert did not believe that what he felt was a weapon. The appellate court ruled that a stop-and-frisk theory did not permit the seizure of the recreational pharmaceuticals but was willing to consider other legal theories.

Questions

  1. From the facts referenced above and from what the police officers collectively knew about the men in the Cadillac, did they have probable cause to arrest Tolbert and the others?

    Correct Answer

    Yes. Based on prior experience, the police officers collectively knew that the behavior of the men sitting inside the Cadillac was consistent with drug dealing and drug activity. This conduct was sufficient to give the police probable cause to stop the car, to arrest the occupants, and to search them as incident to the lawful arrests. See Chapter 16, Section16.3.

  2. If the arrest of Tolbert had been illegal and not supported by the evidence, would the controlled substances have been admissible in court against Tolbert?

    Correct Answer

    No. In order to correctly conduct a search incident to an arrest that will produce admissible evidence, the arrest itself must be based on probable cause and, therefore, must be a lawful arrest. Without the lawful arrest the search incident to the arrest will be deemed illegal and the evidence suppressed.

  3. Under the facts of this problem, did the searches of Tolbert and the others conform to the concept of a search incident to an arrest?

    Correct Answer

    Yes. A warrantless search preceding arrest is reasonable under the Fourth Amendment, so long as probable cause to arrest existed before the search and if the arrest and search are substantially contemporaneous with each other, even if the arrest came immediately after the search. See Chapter 16, Section 16.3 (A).

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