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.