
    Vernon J. HARDEN v. STATE.
    3 Div. 514.
    Court of Criminal Appeals of Alabama.
    Jan. 13, 1987.
    Rehearing Denied March 10, 1987.
    Certiorari Denied June 26, 1987 Alabama Supreme Court 86-831.
    Willis E. Isaac, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Fred F. Bell, Asst. Atty. Gen., for appellee.
   PATTERSON, Judge.

Appellant, Vernon J. Harden, appeals from a conviction of first degree robbery, in which he was sentenced to a term of twenty years in the penitentiary. A motion to suppress the State’s evidence, based on an illegal search and seizure, was denied and forms the basis of this appeal. Following the hearing conducted on the motion to suppress and the trial court’s denial thereof, the parties stipulated to the proposed testimony of the witnesses, without agreeing upon the truthfulness of such, and submitted the case to the trial court for decision on its merits. Appellant, through counsel, formally waived his right to a trial by jury and the right to cross-examine the State’s witnesses. In answer to the charge, counsel contended that the search was improper.

The stipulated facts were basically, as follows: On December 20, 1985, at approximately 9:00 a.m., the First Alabama Bank on Woodley Road in Montgomery was robbed of $3,907.58 by two armed, black males. Witnesses present at the scene identified appellant and a man named Bates as the perpetrators. Immediately after the robbery, appellant and Bates separated and appellant got into a vehicle belonging to a person named Scarbrough, who was not aware of the robbery. Scarbrough drove into a day care center parking area on Woodley Road near the bank, where one of the State’s witnesses observed money in the vehicle and outside next to the vehicle. This witness observed appellant pick up the money which was laying on the ground outside the vehicle. After Montgomery Police Officer D.J. Spear observed the Scarb-rough vehicle depart the day care center driveway, he stopped the vehicle and arrested appellant. Appellant was transported to the bank where various witnesses identified him as one of the two men who robbed the bank. Appellant was then taken to police headquarters, where he made an inculpatory statement in which he admitted committing the robbery. Based on these facts, the court found appellant guilty of first degree robbery.

At the hearing on appellant’s motion to suppress, Spear testified that he received a radio dispatch informing him of the robbery at the First Alabama Bank. The dispatch identified only one black male and described him to be approximately 5 feet, 6 inches tall, weighing 140 pounds, and wearing a “brown or fatigue jacket.” Spear immediately began a five block patrol of the area around the bank. Approximately one block south of the bank, on Woodley Road, Spear observed a blue Ford automobile “coming out of the area” from the driveway of a day care center. The Ford stopped and as Spear drove past it, he noted that two black males were in the vehicle. The Ford pulled in behind Spear’s patrol car, and Spear then pulled off the road, allowing the Ford to pass. The Ford slowed to a speed of approximately twenty miles per hour, and Spear radioed in the tag number of the vehicle and announced his intention to stop the vehicle. Spear turned the “lights on” and effectuated a stop of the Ford. Scarbrough, the driver, immediately exited the Ford and told Spear that the passenger “had a pile of money” in the front floorboard of the vehicle. Spear removed appellant from the vehicle, observed money with dye on it on the floorboard, and arrested appellant.

In the prosecution’s effort to establish the basis of the initial stop, the following occurred:

“Q. [Mr. Taliaferro, the prosecutor]: And for what purpose exactly did you pull them over?
“A. [Officer Spear]: Well, on a bank robbery anything that moves, whether it’s a white male or a black male, if it’s in the car we stop and always inquire.”

On cross-examination, Spear acknowledged that the description he received is general and could apply to a great many people; that he could not estimate the height and weight of persons in a vehicle; and that he did not have any information regarding the vehicle or the presence of a second suspect. When asked by defense counsel if he stopped the vehicle because the occupants were black, Spear responded, “Well, he’s the only one that was moving in that territory in or around the bank at that time.”

Appellant argues that Spear lacked probable cause to stop the vehicle and the war-rantless search was, therefore, violative of the Fourth and Fourteenth Amendments. The State argues that the initial stop of the vehicle constituted a proper Terry stop and, therefore, was not violative of appellant’s Fourth and Fourteenth Amendment protections against unreasonable search and seizure. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

The question we are called upon to resolve is whether the initial stop of the vehicle was proper under the authority of Terry. If the initial stop was proper under Terry, there is no question that subsequent circumstances sufficiently elevated the facts to establish probable cause to effectuate appellant’s arrest, and any “fruits” flowing from the stop were properly admitted. Pursuant to Terry, 392 U.S. at 22, 88 S.Ct. at 1880, “a police officer may in appropriate circumstances and in an appropriate manner approach a person for the purposes of investigating possibly criminal behavior even though there is no probable cause to arrest.” Section 15-5-30, Code of Alabama 1975, authorizes police authorities to “stop any person abroad in a public place who he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions.”

The Terry analysis requires that there be some reason for the officer to confront the citizen in the first place. White v. State, 49 Ala.App. 5, 267 So.2d 802 (1972), quoting People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971). Thus, it has been often stated:

“The question of cause necessary to justify an investigatory stop is a ‘reasonable’ or ‘founded’ suspicion that a person has committed or is about to commit a criminal act. ... The founded suspicion must arise from specific facts and not inchoate hunches, but the officer is entitled to draw inferences from those facts in light of his experience.”

United States v. Post, 607 F.2d 847, 850 (9th Cir.1979), and cases cited therein. See also 1 W. LaFave and J. Israel, Criminal Procedure § 3.8(d) (1984). In United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981), the Court further clarified the reasonable suspicion prong of the Terry analysis, stating:

“Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like ‘articulable reasons’ and ‘founded suspicion’ are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances— the whole picture — must be taken into account. Based on the whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.”

In the present case, we believe that there was sufficient evidence for the trial court to conclude that Spear had reasonable cause to approach and stop the Ford vehicle for the purpose of investigating possible criminal activity. Spear had been informed of a robbery and provided with the description of a single black male. From the facts and the type of crime committed, an experienced officer could have reasonably inferred that a vehicle may have been used in the commission of the crime and that another individual, possibly a getaway-car driver, may have been aiding the robber. Immediately after the robbery, Spear was patrolling a five block area, searching for suspects and unusual activity. He observed a vehicle departing the driveway of a day care center, near the bank, from which he had “never seen a car come out of” before. The vehicle was moving slowly, and the occupants were looking straight ahead and not conversing with each other. Additionally, the vehicle was “the only one that was moving in that territory in or around the bank at that time.” The time lapse from the crime to the sighting of the moving vehicle increased the probability, to an appreciable degree, that the automobile carried the suspect.

We, therefore, find that there was sufficient evidence to support the trial court’s determination that the facts known to Spear from the dispatch and his own observations, taken together with rational inferences from those facts and observations, would warrant a man of reasonable caution in believing the action he took in initially stopping the car in which appellant was riding was appropriate. The trial court properly overruled appellant’s motion to suppress.

Based on the foregoing, this cause is due to be and it is hereby, affirmed.

AFFIRMED.

BOWEN and TAYLOR, JJ., concur.

TYSON, J., recuses self pursuant to Canon 3, Ala. Canons of Judicial Ethics, December 15, 1975, being a shareholder in victim bank.

McMILLAN, J., dissents.

McMILLAN, Judge

(dissenting).

The majority opinion has ignored or erroneously applied the criteria for determining the validity of an investigatory stop. The record in the present case clearly indicates that the arresting officer failed to demonstrate the requisite “particularized suspicion” of the appellant prior to the investigative stop. It is clear that the Fourth Amendment applies to seizures of the person “including brief investigatory stops such as the stop of the vehicle here.” United States v. Cortez, 449 U.S. 411, at 417, 101 S.Ct. 690, at 694, 66 L.Ed.2d 621 (1981). See also Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Worthy v. State, 473 So.2d 634, 637 (Ala.Cr.App.1985); Vogel v. State, 426 So.2d 863 (Ala.Cr.App.1980), affirmed, 426 So.2d 882 (Ala.1982), cert. denied, 462 U.S. 1107, 103 S.Ct. 2456, 77 L.Ed.2d 1335 (1982); Johnson v. State, 406 So.2d 446 (Ala.Cr.App.1981).

“ 'To justify governmental intrusion upon the Fourth Amendment rights of a private citizen, specific and articulable facts must be present which, when taken together with rational inferences from those facts, would reasonably warrant such intrusion. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sterling v. State, 421 So.2d 1375 (Ala.Cr.App.1982). In situations such as the case at bar, we must ask "... [W]ould the facts available to the officer at the moment of the seizure ... ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” Terry v. Ohio, supra; Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).”’

White v. State, 479 So.2d 1368, 1375 (Ala.Cr.App.1985). (Emphasis added.) See also Sterling v. State, 421 So.2d 1375, 1379 (Ala.Cr.App.1982); Traylor v. State, 439 So.2d 178, 181 (Ala.Cr.App.1983). “Although Terry v. Ohio, supra, was factually concerned with the stops of pedestrians, the concept of the investigatory stop has been extended to stops of vehicles by subsequent decisions of the United States Supreme Court and the courts of this state.” Smith v. State, 472 So.2d 677, 682 (Ala.Cr.App.1984).

“The degree of reasonable suspicion necessary to make a stop was articulated in United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981): ‘[b]ased upon the whole picture the determining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Crawley v. State, 440 So.2d 1148, 1149-50 (Ala.Cr.App.1983) (emphasis added).

“ ‘In order to be valid, an investigatory stopping or detention must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. The detention and investigation may not be based on a peace officer’s unsupported intuition, subjective feelings or suspicions, mere hunch, or good faith, but it must be based on the objective perception of events, without particularization as to a specific crime. There must be a rational suspicion on the part of the officer that some activity out of the ordinary is taking or has taken place, some indication to connect the person under suspicion with suck activity, and some suggestion that the activity is related to a crime.’ 6A C.J.S. Arrests Section 40.”

Spradley v. State, 414 So.2d 170, 173 (Ala.Cr.App.1982). See also Smith v. State, supra.

“The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes of patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions — inferences and deductions that might well elude an untrained person.
“The second element contained in the idea that an assessment of the whole picture must yeild a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Chief Justice Warren, speaking for the court in Terry v. Ohio, [392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], said that ‘[t]his demand for specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment juris prudence.Id., at 21, n. 18 [88 S.Ct. at 1880, n. 18]. ... See also Brown v. Texas [443 U.S. 47 (1979)] at 51 [99 S.Ct. 2637, 2640, 61 L.Ed.2d 357]; Delaware v. Prouse, [440 U.S. 648 (1979)], at 661-663 [99 S.Ct. 1391, 1400-1401, 59 L.Ed.2d 660]; United States v. Brignoni-Ponce, [422 U.S. 873 (1975)] at 884 [95 S.Ct. 2574, 2581, 45 L.Ed.2d 607].”

United States v. Cortez, supra, 449 U.S. at 418, 101 S.Ct. at 695 (some emphasis in Cortez; additional emphasis added.) See also United States v. Aldridge, 719 F.2d 368 (11th Cir.1983).

The record indicates that D.J. Spear, an officer with the Montgomery Police Department, testified that he received a call regarding the robbery at the First Alabama Bank on Woodley Road, which informed him that the suspect was a black male, about five feet, six inches to five feet eight inches tall, weighing 140 pounds, and that he was wearing a brown jacket or a fatigue jacket. He further testified that thereafter he observed a blue Ford with two black males inside, pulling out of a day care center parking lot on Woodley Road. He testified that the driver of the vehicle exited the van and stated that a man, later determined to be the appellant, was in his car and had a “pile of money laying in” his floorboard. At trial, the arresting officer stated: “Well, they gave a description [sic] one black male, okay? And if any black male moves in the territory after a bank robbery I’m going to stop him” The officer further acknowledged that when he stopped the blue Ford he had no knowledge that a car was involved in the crime, nor was he aware that two persons had been involved in the robbery. He further testified that when he first observed the car, it was pulling out of the driveway of a day care center parking lot and that there was nothing unusual about the appellant’s or the driver’s appearance or behavior. Moreover, he testified that he would have stopped anyone in the general area in which the offense had taken place “that moved ... even if he [did not] fit the description.”

The record in this case does not support the requisite premise that the arresting officer had a particularized suspicion that the individual being stopped was engaged in the criminal activity. The counsel for the State, as well as the counsel for the appellant, agreed that the testimony of the arresting officer raises questions regarding safeguards of the appellant’s Fourth Amendment rights. The appellee apparently acknowledges a concern for the Fourth Amendment protections regarding the investigatory stop in the present case by stating in his brief:

“[A]ppellee admits that the arresting officer’s statement, ‘that if any black male moves in the territory after a bank robbery, I am going to stop him’ is indeed offensive, and probably indicates the propensity by this officer to disregard the fourth amendment prohibition against unreasonable searches and seizures. ...”

The record reveals that the arresting officer’s sole basis for the stop was the radio dispatch, which provided the officer with only the description of a lone black man. Additionally, the record indicates that the description therein of the perpetrator was not, used to apprehend the appellant. See United States v. McLeroy, 584 F.2d 746 (5th Cir.1978) (wherein none of the appellant’s actions observed by the police, nor the informant’s tip, were sufficient to create a reasonable suspicion of criminality). Cf. McClendon v. State, 341 So.2d 174, 177 (Ala.Cr.App.1976) (“[a] report received over police radio, that persons fitting a certain description were travelling in a certain described automobile are wanted in connection with a felony, is sufficient probable cause to stop such vehicle and make an investigation. Crane v. State, 55 Ala.App. 619, 318 So.2d 315 (1975). Also see Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).") White v. State, 479 So.2d 1368, 1375 (Ala.Cr.App.1985) (“A police officer may stop a vehicle based on information received from a dispatch. He is justified in making the stop if, after receiving the description of the vehicle, he observes the vehicle in the general vicinity of the offense soon after the offense has been committed”) (emphasis added).

The law enforcement officer’s dedication, courage, and committment to duty are to be commended. However, the criteria previously enunciated for determining the validity of an investigatory stop, the absence of a particularized suspicion as to the appellant, and the Fourth Amendment protection as interpreted by the United States Supreme Court compel a difficult result. The appellant’s motion to suppress should have been granted by the trial court. Thus, I respectfully dissent from the majority opinion.  