The Law of Traffic Stops

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					                                  THE LAW of TRAFFIC STOPS
    The Stop, Detention, Investigation, and Arrest of a Motorist or Passenger by
         Alabama Law Enforcement Authority – State and Federal Cases

Prepared by:                                                    Cases current through November 1, 2009
Patrick Mahaney
Law Office of Patrick Mahaney
8244 Old Federal Road
Montgomery, Alabama 36117
(334) 277-3974

Editor’s Note: The starting point for any discussion of the applicable law for an Alabama law
enforcement officer to stop and detain and subsequently arrest an individual pursuant to a traffic
stop is the U.S. Supreme Court’s leading decision of Terry v. Ohio, 392 U.S. 1 (1968). Terry
established the rule that a police seizure need not amount to a full arrest in order to subject the
seizure to the Constitutional requirements of the Fourth Amendment, and that a seizure of
limited duration and limited scope may be reasonable under Fourth Amendment analysis in the
absence of traditional probable cause, provided there was ‘reasonable suspicion’ to believe the
person being stopped and detained had committed or was about to commit an illegal act.

A corresponding state statute on the same subject is found in the Code of Alabama, 1975, section
15-5-30, which authorizes an Alabama law enforcement officer to “stop any person abroad in a
public place who he reasonably suspects is committing, has committed or is about to commit a
his actions.”

Taken together, both the decisional law of the state and federal courts and the statutory law of the
state of Alabama authorize a law enforcement officer to stop, detain, question, and investigate
any person “reasonably suspected” of engaging in criminal activity, including traffic violations.

Was the traffic stop a seizure?

The starting point to determine the lawfulness of any police-citizen encounter in context of the
Fourth Amendment is the initial determination of whether the interaction between the police
officer and the citizen was voluntary, consensual and non-coercive and thus outside the scope of
the Fourth Amendment, or was police-citizen encounter a product of law enforcement authority
and show of force, thereby requiring law enforcement compliance with the Constitutional
standard of reasonableness.1

 See, in general, United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed 2d 497 (1980): “[a] person
has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances

See, also, United States v. Drayton, 536 U.S. 194, 201 (2002): A person being questioned by the police is not seized
“if a reasonable person would feel free to terminate the encounter.”

It has long been held that a police officer, like any citizen, can approach any person in a public
area and strike up a conversation, even a conversation concerning the person’s participation in or
knowledge of criminal activity, without requiring the slightest degree of suspicion on part of the
officer, provided the questioned person is free not to respond to the officer’s questioning and is
free to leave.2

However, when a law enforcement officer employs what is termed “show of force” or “show of
authority” consistent with his vested law enforcement powers, such use of authority to stop and
detain a citizen crosses the boundary of the voluntary and consensual encounter and moves into
the realm of the Fourth Amendment.3

The regulation of movement of vehicles on the highway by law enforcement is continually
scrutinized under Fourth Amendment standards. The police use of emergency lights, police siren,
or other indicia of authority to direct a motorist to pull over and come to a stop, which may
include simply pointing to a motorist and giving direction by hand signal for the motorist to stop,
reviewing courts have consistently held such police actions squarely falling within the concept of
“show of force.”

There are several overlapping sections of the Code of Alabama requiring a motorist to comply
with law enforcement authority directing the motorist to yield to law enforcement or to come to a
complete stop.4 Failure to comply subjects the motorist to the additional charge of “attempting to
elude.” The recently revised “attempting to elude” statute carries heavy penalties, including
possible imprisonment, a substantial fine, and the imposition of mandatory driver license
suspension if convicted.5

  See, e.g., Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991): “Our cases make it clear
The encounter will not trigger Fourth Amendment scrutiny unless it loses it consensual nature. …Since Terry, we
have held repeatedly that mere police questioning does not constitute a seizure.” 501 U.S. 434.
  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968): “Only when the officer, by means of physical
force or show of authority, has in some way restrained the liberty of a citizen may be conclude that a ‘seizure’ has
occurred.” See, e.g., Florida v. Royer, 460 U.S. 491, 103 S. Ct.1319, 75 L. Ed. 2d 229 (1983): Taking a person
stopped at an open airport concourse to a small police office located within the airport for further questioning
converted the initial consensual encounter into an unlawful detention.
 See, Code of Alabama, 1975, section 32-5A-4: “No person shall willfully fail or refuse to comply with any lawful
order or direction of any police officer or fireman invested by law with authority to direct, control, or regulate

See, also, section 32-5A-115 (a): “Upon the immediate approach of an authorized emergency vehicle equipped with
at least one lighted lamp and audible signal as is required by law, the driver of every other vehicle shall yield right of
way….and shall stop and remain in position until the authorized emergency vehicle has passed….”

In former section 32-5A-193 (a): “Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to
a stop,….when given a visual or audible signal to bring the vehicle to a stop shall be guilty of a misdemeanor. The
signal given by the police officer may be by hand, voice, emergency light or siren.” Section 32-5A-193 was repealed
and replaced by 32-5A-340 et seq. effective August 1, 2009.
  See, Code of Alabama, 1975, 32-5A-342 (c) [effective August 1, 2009]: A violation of the attempting to elude
statute shall be a Class A misdemeanor unless the flight caused an actual death or physical injury to a third party, in

Consistent with prior opinions of the Supreme Court, any show of force by a law enforcement
officer, to include the use of police equipment to indicate to a motorist to stop, even a law
enforcement officer’s hand gesture to a motorist to pull over, places the burden of Constitutional
reasonableness on the government. Such actions are customarily termed a “seizure” under the
Fourth Amendment.

The Supreme Court has frequently asserted that the “core,”6 “basic purpose,”7 and “central
concern”8 of the Fourth Amendment is the protection of liberty and privacy against arbitrary
government interference. The 11th U.S. Circuit Court of Appeals flatly stated: “The Fourth
Amendment protects individuals from unreasonable search and seizure.”9 Seizure of persons and
property conducted without judicial warrant are presumptively invalid, and the burden of proving
the lawfulness of the seizure shifts to the prosecution. It is, therefore, the duty of the prosecuting
authorities to establish to the trial court that the officer’s actions at the time the seizure was made
were in conformity with the Fourth Amendment.

The current leading case interpreting police traffic stops within the Constitutional framework is
Whren v. United States 10 where a unanimous court held that the temporary detention of a
motorist upon probable cause to believe that the motorist has violated the traffic law does not
violate the Fourth Amendment’s prohibition against unreasonable seizures, even if the officer
would not have stopped the motorist absent some additional objective.

Whren was a significant Fourth Amendment decision as it established a national standard for all
courts, state and federal, to use in resolving the then on-going judicial conflict concerning the
“objective test” standard based solely on the lawfulness of stop as compared to a more nuanced
determination of the officer’s “subjective intent.” Under the “subjective intent” test, the
reviewing court would analyze and determine whether a traffic stop, ostensibly based on
violation of the state’s traffic code, could be used to gain evidence of other crimes or to acquire
information from the driver unrelated to the traffic stop itself.11

Prior to the Whren decision, such police-citizen traffic stop encounters were commonly termed

which case the violation shall be a Class C felony. Upon conviction of attempt to elude … “the court shall order the
suspension of the driver’s license of the defendant for a period of not less than six months nor more than two years.”
If the court does not enter a license suspension order, the Department of Public Safety will automatically enter a six
month suspension order upon receipt of the notice of conviction.
    Camera v. Municipal Court, 387 U.S. 523, 528 (1967)
    Terry, supra.
    United States v. Purcell, 236 F. 3d 1274, 1277 (11 Cir. 2001)
     Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed 2d 89 (1996)
  For a full discussion of this issue, Annotation, Permissibility Under the Fourth Amendment of Detention of
Motorist by Police, Following Lawful Stop for Traffic Offense, To Investigate Matters Not Related to Offense, 118
A.L.R. Fed 567

“pre-textual traffic stops” and depending on the court conducting the review, may or may not,
have passed judicial scrutiny. Since Whren, all courts now utilize the fact-based inquiry of
whether or not an actual traffic violation occurred.12 If an actual, bona fide traffic violation
occurred, such violation would permit any duly sworn and appointed law enforcement officer to
exercise his or her authority and conduct a traffic stop. The officer’s subjective intent is thus
irrelevant under the Whren standard.

The key to the Whren holding is the acknowledgement and recognition by the Court that any
non-voluntary police-citizen encounter implicates the Fourth Amendment. The Court stated the
nexus of the issue in this manner:

           persons, houses, papers, and effects, against unreasonable seizures.” Temporary detention
           of individuals during the stop of an automobile detained by the police, even if only for a
           brief period and for a limited purpose, constitutes a “seizure” of “persons” within the
           meaning of this provision. [Citations omitted].

           “unreasonable” under the circumstances. As a general matter, the decision to stop an
           violation has occurred.” (emphasis added) Whren, 116 S. Ct. at 1772.

Under Whren and all subsequent judicial analysis of police traffic stops, the key question is
whether the officer possessed probable cause of a violation of the law at the time the use of force
or show of authority was exercised. In other words, had an actual, or reasonably suspected,
violation of the law occurred in the officer’s presence to authorize the police to lawfully exercise
a show of force and to seize the individual?

Whren an extension of the Terry doctrine:

Shortly after Terry was decided, traffic stops were included under the Terry standard for analysis
in both the state and federal courts.13 A traffic stop by use of police authority fell within the
scope of Terry’s parameters. As example, in Berkemer v. McCarty,14 the Supreme Court held the
roadside questioning of a motorist detained pursuant to a routine traffic stop did not amount to a
custodial interrogation and stated “the usual traffic stop is more analogous to a so-called ‘Terry
stop’ than a formal arrest.”15
  The central holding in Whren concerning the “objective basis” test has been reinforced with subsequent decisions
of Arkansas v. Sullivan, 532 U.S. 769, 770 (2001) and City of Indianapolis v. Edmond, 531 U.S. 32, 45 (2000).
  The Supreme Court held that “stopping an automobile and detaining its occupants constitute[s] a ‘seizure’ within
the meaning of [the Fourth and Fourteenth ] Amendments, even though the purpose of the stop is limited and the
resulting detention is quite brief.” Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979).
     Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)
  For an extended discussion of the application of Terry to traffic stops, see, Prof. Wayne R. LaFave, The “Routine
Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth Amendment, 102 Michigan L. Rev.

The core concept to any Terry based police-citizen encounter is that of objective reasonableness.
More specifically, when dealing with automobiles on the highways, the analysis must be based
on whether “the police have probable cause to believe that a traffic violation has occurred.”16
Without the key factor of “probable cause” that a traffic violation has occurred, police action to
stop a vehicle is an invalid exercise of police authority and clearly falls into the area of an
unlawful detention.

Law enforcement officer’s mistaken opinion of law does not authorize a traffic stop:

In the leading case of United States v. Chanthasouxat, 342 F. 3d 1271 (11th Cir. 2003), the
United States Court of Appeals for the Eleventh Circuit held, in a case of first impression for this
circuit, that a police officer’s mistaken impression of the law cannot justify a lawful stop and
subsequent search.

 In Chanthasouxat, two Laotian males were riding in a van traveling through Birmingham on I-
20, with Chanthasouxat driving. A Birmingham police officer assigned full-time to the
department’s drug interdiction unit stopped the van for not having an inside mounted rear view
mirror. In fact, the van had an outside mounted mirror, but not an interior mirror. The officer
testified that he believed the inside mounted mirror was required under the Birmingham
Municipal Code. A subsequent consent search of the vehicle recovered 15 kilograms of cocaine.

At the suppression hearing, the police officer admitted that he did not know of any specific
section of either the Birmingham Municipal Code or the Code of Alabama that required a mirror
be placed on the interior of a vehicle, but only that a rearview mirror is located so as to give
adequate view to the rear.

The Eleventh Circuit held: “A traffic stop based on an officer’s incorrect but reasonable
assessment of facts does not violate the Fourth Amendment. [Citing Saucier v. Katz, 533 U.S.
194 (2001)] ,… but an officer’s mistaken belief of law will not support a lawful traffic stop.” In
Chanthasouxat, the 11th Circuit joined two other federal circuits in holding that an officer’s
mistake of law cannot provide reasonable suspicion or probable cause to justify a traffic stop.

This “mistake of law”- “mistake of fact” distinction is important. Under Alabama law, law
enforcement officers are presumed to know the law they are enforcing.17 Reviewing courts will
nearly always give great deference to a law enforcement officer’s mistaken belief of fact, but no
such deference is afforded the officer’s mistaken belief of law.18 Where the seizure is

1843 (2004) .
     Whren, supra.
  See, Norris v. City of Montgomery, 821 So. 2d 149 (Ala. 2001) and Sadie v. State, 488 So. 2d 1368, 1379 (Ala.
Cr. App. 1986).
  See, as example, United States v. McDonald, 453 F. 3d 958 (7 Cir. 2006): The reviewing court held invalid under
Fourth Amendment grounds where the officer’s stated reason for the traffic stop could not cite any specific
violation of the state’s traffic code.

accomplished under the officer’s incorrect or deficient knowledge of law, no lawful authority
exits to support the seizure.

A: Reasonable suspicion to stop; in general

Hiibel v. Sixth Judicial Dist. Court of Nevada, 542 U.S. 177, 124 S. Ct. 2451, 159 L.Ed 2d 292
(2004) [Arrest for refusal to provide information to the law enforcement officer.]
“Although it is well established that an officer may ask a suspect to identify himself during a
Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for
refusal to answer, [citation omitted].” 124 S. Ct. at 2458. The Court held that Terry principles
permit a State to require a suspect to disclose his name in the course of a Terry stop, but an
officer may not arrest a suspect for failure to identify himself if the request for identification is
not reasonably related to the circumstances justifying the stop. 19

Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996)
“Temporary detention of individuals during the stop of an automobile by the police, even if only
for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the
meaning of the provision. An automobile stop is thus subject to the constitutional imperative that
it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop an
has occurred.” 517 U.S. at 809-810.

U.S. v. Uriostegui, 420 F. Supp. 2d 1260 (M.D. Ala. 2006)
Reasonable suspicion of a traffic violation justified the traffic stop, regardless of any ulterior
motive of the officer. [Whren analysis applied to the suppression motion; finding in favor of the

B. Traffic stops based on anonymous tips and anonymous informants – in general

Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L Ed 2d 301 (1990) -- [vehicle stop-drug
possession- anonymous informant]20
  In regards to providing a false name or address to law enforcement officer “in the course of the officer’s official
duties with intent to mislead the officer,” see Code of Alabama, 1975, section 13A-9-18.1, which provides criminal
penalties for giving a false name or address to the officer. Alabama’s most comparable statute to the Nevada statute
examined in the Hiible case is found at Code of Alabama, 1975, section 15-5-30, which authorizes a law
enforcement officer to “demand of him his name, address, and an explanation of his actions.”
  Procedural history: The Alabama Court of Criminal Appeals reversed the trial court’s admission of the drug
evidence, holding that the anonymous tip, as corroborated by two Montgomery police detectives, did not provide
sufficient indicia of reliability to make an investigatory stop. The Alabama Supreme Court denied the state’s petition
for writ of certiorari, but a scholarly and persuasive dissenting opinion was filed by Justice Maddox, with a second
justice in dissent. See, 550 So. 2d 1074, aff’d 550 So. 2d 1081 (1989).The Alabama Attorney General’s Office
applied for writ of certiorari to the U.S. Supreme Court. The Court granted certiorari to answer a question of first
impression under Fourth Amendment law as to whether an anonymous tip, with the essential facts corroborated by
police investigation, could provide a sufficient indicia of reliability to conduct a Terry stop.

The Supreme Court had previously held in Illinois v. Gates, 462 U.S. 213 (1983) that an anonymous letter to the
police, once the allegations were verified, could provide the basis for a lawful search warrant under the “totality of
the circumstances” test. Alabama v. White tested whether an anonymous tip could provide the requisite reliability for

An anonymous telephone tip called into the Montgomery Police Department’s secret witness
line, stating that a named and described individual, Vanessa White, would, at a particular time,
depart an apartment complex and drive a particular and specifically described vehicle from the
apartment to a named motel, all of which were particularly identified, and would be in
possession of cocaine, taken together and once every fact was verified by the investigating police
officers, provided sufficient reasonable suspicion under the standard established in Terry v.

The Court noted it was a “close case” but under the totality of circumstances, the information
was sufficient when considered together with the police officers’ corroboration of the details of
the tip and with the inference of reliability that arose from the informer’s ability to predict the
person’s future behavior.

Florida v. J.L., 529 U.S. 266, 146 L Ed 2d 254, 120 S. Ct. 1375 (2000): An anonymous tip that
a person is carrying a gun, without any further information provided, is insufficient under the
Fourth Amendment to justify a police officer’s stop and frisk of the subject.

B.J.C. v. State, 992 So. 2d 90 (Ala. Cr. App. 2008): An anonymous caller reported to the Tarrant
police department that “a black male wearing a sleeveless Chicago Bulls basketball jersey, khaki
pants, and a black hat [and] carrying a firearm … in the 1400 block of Sloan Avenue.” A Tarrant
police officer was dispatched, and upon encountering a person matching the caller’s description,
got out of his police vehicle, drew his weapon, and ordered the person to halt. A small handgun
was recovered from B.J.C.’s back pocket and a second handgun was in his front waistband.

Held: Citing the factually similar case of Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146
L.Ed. 2d 254 (2000), the Court of Criminal Appeals reversed the trial court’s denial of the
suppression motion and found that the police officer was not justified in the stop and frisk of
B.J.C. and remanded the case for further proceedings. [In Florida v. J.L., the Supreme Court held
that an anonymous tip that a person is carrying a gun is not, without more, sufficient to justify a
police officer’s stop and frisk of that person.]

W.D.H. v. State, 16 So. 3d 121 (Ala. Cr. App. 2008): Where a police detective testified that the
Montgomery Police narcotics unit had been receiving complaints of a person shooting and
selling drugs at a certain block of a housing project, and upon arrival in the area, the detective
stated that he did not know specifically what kind of criminal activity may have been taking
place, but that “something wasn’t right.” The detective approached W.D.H. and ordered the
subject to submit to a frisk, resulting in the subsequent recovery of a small bag of marijuana in
W.D.H.’s pocket.

The appellate Court found the detective’s stop and frisk was without basis under the Terry v.
Ohio standard: “We find that Det. Hamil had no specific, articuable reason for stopping W.D.H.

a Terry “stop and frisk.” The question before the Supreme Court was not the validity of the search- the defendant
Vanessa White had consented to the search of her purse- but rather, the lawfulness of the initial stop under Terry
principles. Incidentally, the amount of drugs in question was 1/8 gram of cocaine.

to conduct a pat-down search pursuant to Terry.” The later discovery of the marijuana must be
suppressed as the product of an illegal search.

[Editor’s Note: Judge Welch, writing the Court’s opinion in this case, provided an excellent
summary the law of ‘stop and frisk’ under federal and Alabama law, as well lawfulness of
searches conducted incident to a ‘stop and frisk.’ Practitioners are encouraged to read the full
opinion of this case.]

C. Vehicle stop- suspected DUI- anonymous informant; the ‘anonymous tip- drunk
driving’ exception to Terry:

Cottrell v. State, 971 So. 2d 735 (Ala. Cr. App.): In a case of first impression for an Alabama
appellate court, the Court of Criminal Appeals held: “We …hold that an anonymous tip
concerning a potential drunk driver may be sufficiently reliable to justify a Terry stop without
independent corroboration by the police.”

In Cottrell, a Tuscaloosa police officer was on patrol when flagged down by an unknown driver
who reported that a specifically described automobile was “swerving all over the road.” The
unknown complainant stated he observed the three occupants drinking beer. As the complainant
was giving this information, the police officer observed the described vehicle on the roadway,
then proceeded forward and initiated a traffic stop. As a result of the traffic stop, a firearm with
an altered or removed serial number was recovered. Cottrell was convicted of a state firearms
violation under Code of Alabama, section 13A-11-64.

Upholding Cottrell’s conviction, the Court of Criminal Appeals contrasted Florida v. J.L, 529
U.S. 266 (2000) to the facts in this case. Although both cases involved the possession of an
illegal firearm, Cottrell’s facts resulting in the seizure of the weapon were significantly different.
In Florida v. J.L, the Supreme Court addressed whether an anonymous telephone tip that an
individual was in a certain location and was carrying a gun was sufficient to stop the individual
and conduct a search. The Supreme Court held it did not; the anonymous informant’s tip lacked
even the minimal level of indicia of reliability present in Alabama v. White, 496 U.S. 325, 329.

The Court of Criminal Appeals in Cottrell found these facts distinguishable:

    •   The informant did not make an anonymous telephone call to the police, but instead
        flagged down the officer

    •   The informant’s identity was readily apparent and the license plate number of the vehicle
        he was operating was observable and could be reported

    •   The informant could be held accountable for any misinformation provided to the officer

In Cottrell, the informant was not totally anonymous as in Florida v. J.L. By engaging in a face-
to-face encounter with the police, the reliability of the information was increased.

Second, the information concerned a potential crime in progress that exposed the public to great
risk. If the driver were intoxicated, then other motorists and pedestrians were threatened. “It is
well documented that drunk drivers pose a real and serious risk to themselves and the public. In
the interest of public safety, an officer should be able to stop a driver and determine whether he
or she is, indeed, driving while intoxicated.”

Declining to impose a per se rule concerning the validity of anonymous tips concerning potential
impaired drivers, the Court adopted the flexible rule expressed in United States v. Wheat, 278 F.
3d 722 (8th Cir. 2001): the quantity and quality of the information furnished by the informant; the
length of time between the informant’s tip and the police contact with the potential drunk driver;
and the informant’s basis of knowledge.

In this particular case, the citizen informant described the make and model of the suspect vehicle;
pointed out the vehicle to the police officer; described the erratic driving behavior; and described
the occupants of the vehicle. The police officer made immediate visual identification of the
suspect vehicle at the same time the description was provided. Based on these facts, the
anonymous tip was sufficiently reliable to warrant an investigatory stop, and the gun seized as a
result of the stop was correctly received into evidence.

Editor’s Note: On October 20, 2009, the U.S. Supreme Court denied certiorari in the case of
Virginia v. Harris, 276 Va. 698, 668 S.E. 2d 141 (2008), with C.J. Roberts joined by J. Scalia
issuing a written dissent to the denial of certiorari. In a 4-3 decision in the Virginia case, that
state’s Supreme Court overturned Harris’ DUI conviction and held that an anonymous tip of
drunk driving, without independent verification by the police of any violation of the traffic code,
did not support a valid traffic stop and subsequent seizure.

C.J. Roberts stated: “I am not sure that the Fourth Amendment requires such independent
corroboration before the police can act, at least in the special context of anonymous tips
reporting drink driving.” Roberts noted: “This Court has in fact recognized that the dangers
posed by drunk drivers are unique, frequently upholding anti-drunk driving policies that might be
constitutionally problematic in other, less exigent circumstances.”

Roberts further noted that a majority of state jurisdictions, when confronted with the ‘anonymous
tip-drunk driving’ question, have created a special exception to the general rule expressed in
Terry, while a minority of jurisdictions have taken the same position as the Virginia Supreme
Court requiring police officers to first confirm the anonymous tip of drunk driving by personally
witnessing a traffic violation take place before stopping the vehicle. Roberts urged the Court to
consider accepting a case for review to establish a national standard for the ‘anonymous tip-
drunk driving’ situation.

D. Vehicle stop- suspected criminal activity – anonymous informant

Ex parte Aaron, 913 So. 2d 1110 (Ala. 2005): [vehicle stop-anonymous tip]
An anonymous tip, without any intervening police investigation and no record the police did
anything to corroborate the information received from a telephone tip held not to establish
reasonable suspicion to support stop of a vehicle in which defendant was a passenger.

Ex parte Shaver, 894 So. 2d 781 (Ala. 2004): [vehicle stop – anonymous tip]
Shaver and his wife stopped at the Wal-Mart store in Russellville, Alabama and purchased
multiple packages of over-the-counter cold mediation containing pseudoephedrine. [This type
medication is a precursor to making methamphetamine.] Wal-Mart employees became
suspicious of the purchase. One employee followed Shaver into the parking lot where the
employee obtained the license plate number and a description of the vehicle. The Russellville
police department was contacted by the Wal-Mart store and placed a look-out on the vehicle.
Shaver’s vehicle was stopped a short while later. The cold medication was located in plain view
in the vehicle. Shaver was detained and read Miranda warnings.

After the warnings were given, Shaver admitted the purchase was intended for
methamphetamine production. A written statement wherein Shaver admitted the purchase was to
facilitate meth production was also obtained. Shaver was convicted of unlawful manufacture of a
controlled substance, reserving his right to appeal. The Court of Criminal Appeals upheld
Shaver’s conviction on a 3-2 decision. The Supreme Court granted certiorari.

Held: Reversed and remanded. The only basis the police department had for stopping and
detaining Shaver’s vehicle was a telephone call from an unknown individual purportedly calling
from the Wal-Mart where the medication was sold. The record does not supply any information
to support the conclusion the caller was reliable. The deputy who assisted in the stop testified
that no specific information was conveyed in the telephone call. In addition, there was no
testimony offered concerning Wal-Mart’s policy to notify the police if the purchase of precursor
medications was made under unusual or suspicious circumstances. Moreover, Shaver’s vehicle
was stopped without any intervening police investigation. There is nothing in the record to
indicate the police did anything to corroborate the information provided prior to the stop. The
Supreme Court held: “In absence of the constitutionally required reasonable suspicion to support
the initial stop, none of the evidence gained as a result of the stop or the ensuing detention is
properly admissible.”

State v. Strickland, 934 So. 2d 1084 (Ala. Cr. App. 2005): [telephone tip – identity confirmed]
Reversing a motion to suppress and distinguishing Ex parte Shaver, the Court of Criminal
Appeals held in Strickland where an individual went into the same “Dollar Store” in Tuscaloosa
three times in one day to purchase large quantities of Sudafed cold medication, and on the
second purchase, Strickland told the store clerk that he intended to manufacture
methamphetamine and offered the store clerk money to allow him to purchase all the Sudafed
medication in the store but was refused; and on the third entry to the store, he was reported to the
store manager, who in turn, called the police and gave a detailed report of the individual and
vehicle and the circumstances leading to the call. Upon receiving the call to the police station,
and prior to the stop of Strickland, a police officer went to the Dollar Store and verified the
information before a “BOLO” was issued to the police units in the area.

Held: The information concerning Strickland was not an “anonymous” report, but identified the
name and position of the caller, the reason for the call, and the request for a police investigation,
all of which was preliminarily checked by a police officer before the stop was made. The police
acted properly in the subsequent stop and seizure of Strickland’s automobile.

E. Vehicle stop – suspected criminal activity -- known source or informant

State v. Green, 992 So. 2d 82 (Ala. Cr. App. 2008): Green was stopped by a Montgomery police
officer approximately six minutes after an armed robbery took place at a laundromat, where three
or four black males had entered the location, held guns on several females at the laundromat and
had demanded money. [The published opinion stated the several females “spoke little English.”]
A be-on-the-lookout (BOLO) was broadcast to on-duty police units stating, initially, there were
two suspects, then the broadcast was re-issued stating there were three or four black males in a
gray or dark gray vehicle possibly headed south from the laundromat.

Green was stopped about two to three miles northeast of the robbery location operating a gray
vehicle. There were three other black males in the vehicle besides Green. Upon the initiation of
the traffic stop, the investigating officer saw Green and one passenger place something between
the seats. Green was taken out of the vehicle and a search discovered 68 grams of marijuana
packed for sale. Then Green and the three others were taken back to the robbery location, where
the female victims stated none of the men were participants in the robbery. Green was
subsequently charged with possession of marijuana in the first degree, and a suppression motion

The Court of Criminal Appeals cited the factors in State v. Wise, 603 So. 2d 61, 63 (Fla. Dist. Ct.
App. 1992) in determining the lawfulness of a traffic stop in context of conducting an
investigation: “In reaching a well-founded suspicion to stop a vehicle pursuant to a BOLO, a
police officer should consider several factors, including: 1) the length of time since the offense,
2) the distance from the offense, 3) the route of the flight, 4) the specificity of the description of
the vehicle and its occupants, and 5) the source of the BOLO information.”

The Court found the robbery took place minutes before the traffic stop; that the distance from the
robbery location and the traffic stop was between two to three miles; that the police dispatch
identified a gray or dark gray vehicle with two to four black males in the vehicle and that Green
was operating a gray colored vehicle with three other black males in the vehicle. The Court
stated, “[w]e hold that the facts were minimally sufficient, based on the totality-of-the-
circumstances, to establish a reasonable suspicion for Officer Ferguson to stop Green’s vehicle to
investigate possible criminal activity.”

[Editor’s Note: Judge Welch wrote an incisive and strongly-worded dissent:
       “My de novo review of the evidence presented in the briefs the parties submitted to the
       trial court shows that law enforcement officials had a vague description of the suspects’
       car and its occupants, they had information indicating that the suspects left the scene of
       the robbery “possibly” headed south, and that Green was stopped more than a mile
       northeast of the scene of the robbery, and that only six minutes had elapsed between the
       first dispatch and the time the police officer first saw Green leaving at the gas station.
       Such evidence makes is unlikely that Green and his passengers would have been involved
       in the robbery. Police certainly do not have license to stop and search every gray or dark
       gray car, regardless of make or model, within a circumference radiating more than a mile
       from the scene of the robbery, in which two to four black men were riding.” 992 So. 2d at

Ex parte Carpenter, 592 So.2d 627 (Ala. 1991)—[vehicle stop-drugs]
The informant’s reliability created a reasonable suspicion to warrant stopping the defendant’s car
based on the known informant’s tip. After the weapon was found, the officer had probable cause
to search vehicle.

Once a police officer with reasonable suspicion has stopped a suspect in an automobile, the
officer has the authority to ask the suspect to get out of the automobile. The need to protect
police and others justifies protective searches when police have a reasonable belief that the
suspect poses a danger. Roadside encounters between police and suspects are hazardous and

F. Vehicle stop – police initiated contact

Ex parte Betterton, 527 So.2d 747 (Ala. 1988)
A police officer’s approach and questioning of persons seated within a parked car does not
constitute a seizure and requires neither reasonable suspicion nor probable cause, and the officer
may request but not order occupant to open door or roll down window. Without at least
reasonable suspicion of criminal activity, officer may not order suspect out of car.

State v. Bodereck, 549 So. 2d 542 (Ala. Cr. App. 1989)
The Court held that police did not have reasonable suspicion to investigate a legally parked car in
an area known for drug activity.

Ex parte Yeung, 489 So.2d 1106 (Ala. 1986)
While mere suspicion, without more, is not sufficient justification for stopping a vehicle, if the
officer can point to independent facts which lead to his “articulable and reasonable” suspicion
that the vehicle is unregistered or that its occupants have violated some law, then stopping the
vehicle would be justified under the Fourth Amendment.

Williams v. State, 716 So. 2d 753 (Ala. Cr. App. 1998): Defendant’s walking in high crime area,
seeing a marked police unit, attempted to change course, held sufficient to allow police stop to
ask name and identification. Upon learning defendant’s name, the officers discovered three
active capias warrants.

Held: Police officers had a reasonable suspicion to justify the stop which led to a lawful seizure
of individual, which in turn led to search of defendant’s clothing where drugs were found.

S.W. v. State, 703 So. 2d 427 (Ala. Cr. App. 1997)
The fact that the defendant and his passengers were the only vehicle or persons in the immediate
area, after police officer received a report of “prowler call” where a report of a vehicle was
broken into, and upon stopping the vehicle, the officer noticed an unmounted radar detector,
screwdrivers, and other items consistent with auto burglary, the Court held the officer’s stop was
reasonable under the facts and circumstances.

The Court contrasted the S.W. case with Duckworth v. State, 612 So. 2d 1284 (Ala. Cr. App.
1992). In Duckworth, the Court held it was unreasonable for an officer to stop a car in a high

crime area late at night simply because the vehicle “looked out of place.” Duckworth is
distinguishable because in this case the officer had been dispatched to a reported crime that had
just occurred and there were no other persons, on foot or in a vehicle, in the vicinity when the
officer arrived.

Richardson v. City of Trussville, 492 So.2d 625 (Ala.Cr.App. 1985)
Observance of the defendant’s car in a dentist’s office parking lot at an early hour of the morning
and the fact that officers had been called to burglaries at dentist’s office several times in recent
months justified warrantless investigatory stop.

G. Vehicle Stop-suspected criminal activity- “high crime” activity area

Editor’s Note: Since the Terry decision was released in 1968, with the judicially imposed
requirement of “reasonable suspicion” becoming the Constitutional standard, there has
developed a sub-species of Terry stops known as “high crime area” stops. The following cases
from the Alabama appellate courts discuss the concept of “high-crime area” in relation to the
authority of law enforcement to conduct a lawful investigatory stop:

Gaskins v. State, 565 So. 2d 675 (Ala. Cr. App. 1990): “While the fact that someone was in a
high crime neighborhood is not by itself enough to raise a “reasonable suspicion,” an area’s
disposition toward criminal activity is an articulable fact to be considered.” [Citing as authority
Brown v. Texas, 443 U.S. 47 (1979) at 52: “The fact appellant was in a neighborhood frequented
by drug users standing alone, is not a basis for concluding the appellant himself was engaged in
criminal conduct.”]

In Gaskins, the facts only indicated an unknown person was seen standing near the driver’s side
door of a vehicle and as the officer approached the location, the person who was standing near
the vehicle walked away, and the operator of the vehicle, Gaskins, drove off. These facts,
standing alone, despite the locale being termed a “high-crime area” did not establish the requisite
degree of reasonable suspicion to conduct a lawful stop of the vehicle. There was no indication
any exchange took place between the two persons; the defendant drove off at normal speed; no
evidence was offered that the defendant sped off or made an attempt to elude; there was no prior
report of criminal activity; and the other person did not make an attempt to flee the scene; taken
together despite the officer’s statement that the immediate area was “notorious for drug activity”
was insufficient to establish any reasonable suspicion.

New v. State, 674 So. 2d 1377 (Ala. Cr. App. 1995): The state’s case consisted of testimony
from the arresting officer where: 1) three white youths were out at 3:30 a.m. in a predominately
black neighborhood; 2) the vehicle operated by the three white youths was moving 15 to 20
miles per hour in a 25 mph speed limit area; 3) the vehicle was being driven with no apparent
destination; 4) the area was a location in which automobile burglaries had recently occurred; and
5) one of the passengers looked back at the police officer a few times.

Held: None of these facts, collectively or independently, provided the police officer with
sufficient reasonable suspicion that he was involved in criminal activity. Citing Duckworth v.
State, 612 So. 2d 1284 (Ala. Cr. App. 1992) and Harris v. State, 568 So. 2d 421 (Ala. Cr. App

1990), operating a vehicle at or below the posted speed limit in the early morning hours in an
area of recent thefts and burglaries did not constitute sufficient reason to conduct an
investigatory stop. The Court held in New: “A group of teenagers driving late at night during the
summer in a high crime area while obeying the traffic laws does not give rise to reasonable
suspicion that they are engaged in criminal activity.”

Kelley v. State, 870 So. 2d 711 (Ala. 2003): Distinguishing Ex parte Tucker, 667 So. 2d 1339
(Ala. 1995), the Alabama Supreme Court held in Kelly that the reports of recent, widespread, and
on-going criminal activity at a particular establishment, coupled with the arresting officer’s
detailed observations of a quick and “furtive” exchange of money with the defendant
immediately slipping a container into her jacket pocket, as well as the officer’s specialized
knowledge and training in narcotics investigations, were sufficient to establish reasonable
suspicion of a drug transaction, therefore authorizing the officer to stop and search the defendant.
The Court held in Tucker, “The fact that persons have gathered in a high crime area cannot alone
establish probable cause justifying a warrantless search and seizure of containers in their
possession.” The Kelley case was objectively different: the arresting officer had personally
observed the drug courier furtively handle a small container and slide it into the hand of the
defendant, who in turn, secreted the container in her jacket.

The Court in the Kelley decision cited Sibron v. New York, 392 U.S. 40 (1968): “Deliberatively
furtive actions and flight at the approach of strangers or law enforcement officers are strong
make an arrest.” Sibron, 392 U.S. at 66-67.

Abner v. State, 741 So. 2d 440 (Ala. Cr. App. 1998): Where the defendant was approached by a
police officer and the officer later testified that he observed clear plastic bag sticking partly out
of defendant’s right front pants pocket, and the sole reason for the subsequent search of the
defendant was the officer’s observing the plastic bag on the person of the defendant, the Court
held the police did not have probable cause to arrest him or to search him, and therefore, the
subsequent seizure of controlled substances was illegal and must be suppressed. Analyzing the
facts in this case in light of the prior case of Ex parte Tucker, the Court held where there was no
evidence of any prior illegal activity in the area; there was no evidence of any attempt to flee the
police upon the officer’s approach; and the defendant made no attempt to secrete the plastic bag;
taken together made the police officer’s intrusion into defendant’s pocket illegal and the
subsequent seizure the product of an illegal search.

H. Traffic stop for DUI on private property

Hinson v. State, ___ So. 2d __, 2008 WL 4369256 (Ala. Cr. App. Sept. 26, 2008). [Editor’s
Note: This case was affirmed by unpublished memorandum, with Judge Welch and McMillan
concurring and Judges Baschab and Shaw concurring in result; Judge Wise dissented.]

Hinson was arrested for DUI by a Houston County deputy sheriff after the deputy saw Hinson
back his vehicle down the driveway, and upon seeing the Sheriff’s patrol car in the immediate
vicinity of his driveway, Hinson then changed direction, and went back up the driveway of his

residence. At no time did Hinson enter a public highway or roadway. The deputy continued on
patrol and as the deputy went past Hinson’s residence a second time, the deputy noted that
Hinson’s vehicle was now operated by a woman and Hinson was seated in the passenger side.

Hinson was ordered out of the vehicle and directed to perform a series of field sobriety tests and
subsequently arrested for DUI. The woman driving the vehicle was not asked to perform any
field sobriety tests and was not charged with any offense.

The question before the Court was whether Hinson’s operation of the vehicle in his own
driveway was sufficient to constitute the offense of DUI. Judge Wise noted the fact that most
traffic offenses are limited to the “highways” of this state under the terms of Code of Alabama,
1975, section 32-5A-2. However, included in that section is the following:

       “(2) The provisions of … Sections 32-5A-190 through 32-5A-195 shall apply upon
       highways and elsewhere throughout the state.”

Judge Wise wrote: “I believe that the facts of this case are closer to those in Lunceford v. City of
Northport, 555 So. 2d 246 (Ala.Crim. App. 1988) than those in Adams v. State.”

[Editor’s Note: In Lunceford, the defendant was located in actual physical control of a vehicle
in a shopping center. The Court found that while the DUI statute applied to arrests made on
private property locations, such as a parking lot, the state’s Implied Consent Statute did not,
because the terms of the Implied Consent Statute are limited to the “public highways of this
state.” See, Code of Alabama, 1975, section 32-5-192 (a).]

Judge Wise noted that no previous Alabama case had ever held that a person could be convicted
of DUI while operating a vehicle on their own private property, and opined that such government
action could raise “significant Fourth Amendment concerns.”

I. Reasonable suspicion to stop; specific criminal offense or traffic violation

No tag displayed and no operable tag light: U.S. v. Hernandez-Arellano, 2006 WL 2864406
(M.D. Ala. Oct. 5, 2006)
Stop of defendant’s vehicle by an Alabama state trooper for violation of no valid tag displayed
on the vehicle and not having an operable tag light was a lawful stop under the Fourth
Amendment, despite the fact the stop was made at the request of a DEA agent investigating the
transportation of marijuana by the defendant and suspected marijuana was concealed in the

No headlights on vehicle at night: Strickland v. City of Dothan, 399 F. Supp. 2d 1275 (M.D.
Ala. 2005)
Motorist’s operation of a vehicle without headlights at night provided probable cause to stop

Improper lane usage: Galindo v. State, 949 So. 2d 951 (Ala. Cr. App. 2005) By unpublished
memorandum, a 3-2 majority of the Court of Criminal Appeals held that a single crossing of the

“fog line” on an interstate highway constitutes improper lane usage justifying a traffic stop.

In Galindo, a deputy sheriff stopped Galindo after observing Galindo’s operation for a period of
time on the interstate highway, and then, after following the vehicle, noted a single cross-over of
the solid white painted fog line. Judge Shaw’s dissent noted, “The record indicates that Sgt.
Hammonds [the deputy] initiated his stop based solely on Galindo’s single 6 to 12 inch deviation
from the lane onto the shoulder of the highway.” (emphasis in original opinion).

Judge Shaw noted that the Code section in question does not require absolute compliance, but
rather states: “(1) A vehicle shall be driven as nearly as practicable entirely within a single lane
can be made with safety.” (emphasis in Court’s opinion). “The express language of this statute
constitutes recognition by the Legislature that it is not practicable, perhaps not even possible, for
a motorist to maintain a single lane at all times and under all circumstances and that the crucial
legislative concern is safety rather than precision driving…. The statute specifically provides that
even when a brief deviation from a lane occurs, no traffic violation results unless the driver fails
to ascertain that his or her movements could be made with safety.” 949 So. 2d at 954.

Judge Shaw determined that the majority of state and federal courts deciding the issue of whether
or not a single deviation from travel exclusively in the lane, and crossing the median center line
or fog line on the right, constituted improper lane usage, have held that a driver’s crossing over
the fog line one time for a moment does not, standing alone, justify a traffic stop. However, a
minority of courts have reached a different conclusion. Judge Shaw urged the Court to adopt the
majority view that in the absence of erratic driving by the motorist, a minor and momentary
“drifting” of the vehicle from the lane of travel across the painted fog line does not justify an
intrusive stop by an officer.

Speeding and running a stop sign: Gilbert v. State, 686 So.2d 266 (Ala.Civ.App. 1996), cert
denied (without approval), Ex parte Gilbert, 686 So.2d 267 (Ala. 1996): Traffic violations of
speeding and running stop sign justified Terry stop of vehicle.

Erratic vehicle operation: Gwarjanski v. State, 700 So. 2d 357 (Ala. Cr. App. 1996)
State trooper had reasonable suspicion for a traffic stop where the officer observed the
defendant’s vehicle tailgating, swerving within its lane, changing lanes improperly, and crossing
the center line, and braking abruptly.

Crossing the center line: Gradford v. City of Huntsville, 557 So. 2d 1330 (Ala. Cr. App. 1989)
Sufficient reason for lawful traffic stop existed where officer observed vehicle cross center line
into wrong side of the road three or four times.

Failure to stop for blue lights and attempting to elude: Sawyer v. City of Marion, 666 So. 2d
113 (Ala.Cr.App. 1995) –
There was no stop or seizure when officer, while following motorist with his blue lights flashing,
saw motorist commit traffic violations he was charged with. The officer testified that he
recognized the driver as someone whose driving privileges he knew had been suspended. The
police officer turned on the blue lights on his patrol car, turned around in the intersection, and

headed south to stop the driver. The officer pursued the driver for several blocks with his blue
lights flashing. He finally turned on his siren, and the driver stopped. The officer ticketed the
driver for attempting to elude a police officer, failure to stop at a stop sign, and reckless driving.

The court held that there was no “stop” or “seizure” when Carter, the officer, followed the
appellant with his blue lights flashing, and observed Sawyer commit the traffic violations he was
charged. A police officer may arrest any person without a warrant for any public offense
committed in his presence. §15-10-3, Code of Alabama 1975.

Sawyer also contended that he could not have known whether to stop because Carter turned on
his blue lights but not his siren. However, police are not required to turn on a siren in order to
stop a motorist. Section 32-5A-193, Code of Alabama 1975, provides that a police officer need
only give “a visual or audible signal to bring the vehicle to a stop.” “The signal given by the
police officer may be by hand, voice, emergency light or siren.” § 32-5A-193, Code of Alabama
1975. [Editor’s Note: 32-5A-193 was repealed and replaced by section 32-5A-300 effective
August 1, 2009.]

Information provided by another officer: Martinez v. State, 624 So.2d 711 (Ala.Cr.App. 1993)
Trooper had probable cause to stop driver based on information that he received from another
trooper that driver had been speeding.

Witness report: Leverette v. State, 594 So.2d 731 (Ala.Cr.App. 1992)
Officer made lawful stop of the defendant’s car based on witness’s report that car was being
driven erratically. The fact that officer did not personally observe defendant acting or driving in
an erratic or otherwise intoxicated manner did not render stop illegal.

Erratic operation: Jones v. State, 579 So.2d 66 (Ala.Cr.App. 1991)
Officer had reasonable suspicion to stop defendant where the officer heard the “squealing of tires
and racing of an engine,” heard a vehicle approaching, and a “few minutes” later observed the
defendant’s truck. In addition, the officer observed the truck for about ¼ mile before it was
stopped and determined that it was traveling at an unsafe rate of speed, although the officer could
not determine how fast the truck was traveling.

Radio report: Bryant v. City of Gadsden, 574 So.2d 919 (Ala.Cr.App. 1990)
Officer had reasonable suspicion to stop defendant’s vehicle: officer had observed car hit a curb
and almost hit a stop sign after he had received radio dispatch that another officer had motorist
had been seen drinking a beer in his car and driving erratically. Officer making the stop could
properly rely on and consider the information contained in the radio message in making the
decision to stop the motorist.

Collective knowledge: Ex parte Boyd, 542 So.2d 1276 (Ala. 1989) Held: Where a group of
officers is conducting an operation and there is at least minimal communication among them, the
collective knowledge of the officers may be considered in determining probable cause.

High speed operation: Cone v. City of Midfield, 561 So.2d 1126 (Ala.Cr.App. 1990)
The arresting officer had reasonable suspicion to stop the defendant’s vehicle after he observed

the truck being driven at 60 m.p.h. in a 20 m.p.h. speed zone and where he observed the truck
swerving over the center line.

Parked vehicle: Martin v. State, 529 So.2d 1032 (Ala.Cr.App. 1988)
Trooper had reasonable suspicion justifying investigation of vehicle where the vehicle was
parked on shoulder of highway during rush hour, driver’s door partially opened and obstructing
traffic, and driver and passenger were asleep.

Violation of traffic light: Baker v. City of Huntsville, 516 So.2d 927 (Ala.Cr.App. 1987)
Reasonable suspicion for vehicle stop existed where officer observed vehicle run red light.

Avoid stopping at a roadblock: Smith v. State, 515 So.2d 149 (Ala.Cr.App. 1987)
Trooper had reasonable suspicion for investigatory stop where he observed defendant’s vehicle
coming around curve in sight of roadblock and turn rapidly into driveway making trooper
suspicious that the defendant was attempting to avoid the roadblock.

Avoid stopping at a roadblock: State v. White, __ So. 3d __, 2009 WL 2415202 (Ala. Cr. App.
Aug. 7, 2009): Defendant’s conduct in approaching a driver license checkpoint, turning around,
and then heading in the opposite direction, provided the officer with reasonable suspicion
justifying an investigatory stop.

Parked on roadway: Scurlock v. State, 487 So. 2d 286 (Ala.Cr.App. 1986)
Officer who observed automobile parked on the side of the road with emergency lights flashing
at 2:45 a.m. and who observed defendant sitting behind the steering wheel drinking something
from a bottle had reasonable suspicion warranting investigatory stop.

Parked on roadway: Spann v. State, 440 So.2d 1224 (Ala.Cr.App. 1983)
Where officer observed car parked on shoulder of highway seven miles from town at nighttime,
with the engine not running but the headlights on, and the defendant seated behind the steering
wheel with his head down as if asleep, officer was justified in requesting defendant to step from
car and produce identification. When defendant did so and appeared unsteady on his feet and his
speech was slurred, officer properly arrested the defendant for DUI.

Information provided by another officer: Parker v. State, 397 So.2d 199 (Ala.Cr.App. 1981)
Officer had probable cause to stop the defendant’s car where another officer radioed him to stop
the car.

Information provided by another officer: Gaddy v. State, 698 So. 2d 1100 (Ala. Cr. App. 1995)
Knowledge of one officer is imputed to another officer in the situation of a radio call directing
the second officer to stop a vehicle.

But see, Jordan v. State, 549 So.2d 161 (Ala.Cr.App. 1989) [drugs- custodial arrest rather than
Terry stop]
Where the police, acting upon a anonymous telephone tip, used three patrol cars to stop the
motorist, approached his car with weapons drawn, ordered the motorist and passenger out of car
and frisked them, the court found a full custodial arrest rather than a mere investigatory stop.

J. Reckless Driving: Validity of reckless driving arrests under Alabama’s traffic code:

The state’s reckless driving statute, Code of Alabama, 1975, Section 32-5A-190(a), states:
       “Any person who drives any vehicle carelessly and heedlessly in willful or
       likely to endanger any person or property, shall be guilty of reckless driving.”

The term “reckless driving” under the Alabama Code is not precisely defined. The term “reckless
driving” or “recklessness” is often in the eye of the beholder and is highly dependent upon the
facts, circumstances and events. No one case of “reckless driving” is precisely like the next case.
Basically, the Alabama reckless driving statute is a two pronged approach to criminalize any
highly dangerous, or “reckless,” operation of a motor vehicle:

   1) Part one of the statute deals with the “willful and wanton disregard for the rights and
      safety” of other persons or property. This presumably includes, among other actions, a
      conscious disregard of the safety of other persons and grossly erratic vehicle operation,
      but not necessarily high speed operation or even a series of traffic violations indicating
      heedless operation, but operating a vehicle while demonstrating a complete and total
      disregard for the safety or property of others by operating in a reckless manner. In other
      words, “reckless driving” is the gross deviation from ordinary prudence required of
      operating a vehicle and creates a substantial risk of injury; it is a callous disregard for the
      danger created by the driver’s conduct.

   2) Part two of the statute is better understood and more inclusive of the term “reckless”
      operation. Part two uses the terms “without due caution …and at a speed or in a manner
      so as to endanger or be likely to endanger…” Part two of the statute requires both a lack
      of caution on part of a driver (but not the intentional disregard of the rights of others),
      plus either speed or the manner of operation.

If the prosecution proceeds under the state’s reckless driving statute, there are the elements of
mental status (conscious disregard/without due caution) plus the vehicle operation itself. While it
is commonly, but mistakenly, believed that high speed operation alone constitutes “reckless
driving,” the editor has found no case in Alabama law that has held speeding, in and of itself, to
constitute the violation of “reckless driving.”

A number of Alabama cases have previously construed “reckless driving” under the Code of
Alabama. These fact situations include: intentionally ramming another vehicle during a high
speed chase; the combined operation of driving on the wrong side of the road, swerving, and
failing to stop at a stop sign; passing in a dangerous manner while operating a vehicle under the
influence; failure to stop at a stop sign and weaving within a lane; and driving erratically while

In the case of Bradford v. State, 448 So.2d 574 (Ala. Crim. App. 2006), the Court of Criminal
Appeals upheld a conviction of reckless driving, but remanded the case to the trial court for re-
sentencing, where the defendant was involved in a high speed chase and rammed a vehicle

which, in turn, rammed a police car. In the case of Casey v. State, 740 So.2d 1136 (Ala. Crim.
App. 1998), the Court of Criminal Appeals upheld a conviction of reckless driving where the
defendant drove on the wrong side of the road, swerved several times, and ran a stop sign.
In the case of Krumm v. City of Robertsdale, 648 So.2d 651 (Ala. Crim. App. 1994), the Court
of Criminal Appeals upheld a conviction of reckless driving and a conviction of driving under
the influence where the defendant passed another vehicle in an area on highway where double-
yellow lines separated the northbound and southbound lanes of traffic.
Other cases from the Court of Criminal Appeals hold similarly: In the case of Hargrove v. City
of Rainbow City, 619 So.2d 944 (Ala. Crim. App. 1993), the Court of Criminal Appeals found
that the trial court had enough evidence to convict the defendant of reckless driving where the
officer observed the defendant fail to stop at stop sign, weave within in his traffic lane, and make
a right turn without stopping at a red light. In the case of Sanders v. City of Birmingham, 542
So.2d 325 (Ala. Crim. App. 1988), the Court of Criminal Appeals upheld a reckless driving
conviction where the defendant drove his vehicle “erratically” while speeding and weaving in
and out of traffic. Taken as a whole, the cited cases indicate that substantially dangerous and
highly irresponsible driving conduct is necessary to sustain a conviction of reckless driving.
By contrast, the recent case of Zann v. State, ___ So.2d ___, 2009 WL 487689, (Ala. Crim. App.
2009), the Court of Criminal Appeals reversed and rendered a conviction of reckless driving and
held that the defendant was not reckless driving when he allowed the tires on his passenger side
to cross over the shoulder for a period of one second while the defendant was driving five or six
miles per hour over the speed limit. Judge Welch, writing for a unanimous court, held Zann’s
operation of his vehicle did not rise to the level of reckless driving as the defendant’s conduct
was not a “willful or wanton disregard for the rights or safety of others.” Id.
K. Detaining the motorist; length and scope of detention

State v. Hale, 990 So. 2d 450 (Ala. Cr. App. 2008): In a continuing series of recent appellate
cases regarding the lawful detention of a motorist and the length of time permitted to detain a
motorist, the prior case of Peters v. State, 859 So. 2d 451 (Ala. Cr. App. 2003) has all but faded
as authority. In State v. Hale, an Alabama state trooper stopped Hale for following too closely
and subsequently issued a warning citation. While in the process of issuing the warning citation,
the first trooper called a second trooper to the scene for “back-up.” The first trooper returned to
Hale’s vehicle, offered the warning citation to Hale and returned Hale’s driver license.

As soon as the driver license was handed back, the trooper asked if Hale had any guns or drugs
in the vehicle and if he [Hale] would consent to search. Hale replied that the officer could search
the vehicle, but did not see any need to do so. Obtaining this ambiguous reply, the trooper
summoned a drug dog to conduct a ‘walk-around’ of Hale’s vehicle. The dog subsequently
alerted to Hale’s vehicle and cocaine powder was recovered from the vehicle.

In granting the defendant’s motion to suppress, the trial court relied on Peters v. State which
        “ ‘Once the traffic offender signs the U.T.T.C. [in this case, a warning citation], the
        arresting officer is to “forthwith release him from custody.” section 32-1-4(a)[,Ala. Code
        1975]. The officer may further detain the driver only if he has probable cause to arrest the

       driver for some other-non-traffic offense, see Hawkins v. State, 585 So.2d 154 (Ala.
       1991), or has a reasonable suspicion of the driver’s involvement in some other criminal
       activity justifying further detention for investigatory purposes under Terry v. Ohio [392
       U.S. 1, 88 S.Ct. 1868, 20 L. Ed 2d 889 (1968) ], see United States v. Tapia, 912 F. 2d
       1367 (11th Cir. 1990).” Peters, 859 So. 2d at 452-454.

However, in the Hale case, the Court of Criminal Appeals found the fact to be more similar to
the case of Tillman v. State, 647 So. 2d 7 (Ala. Cr. App. 1994), where in Tillman, the officer
had lawfully stopped Tillman’s van for an expired tag violation and prepared a traffic ticket for
Tillman to sign. Tillman signed the citation, and the officer handed her a copy of the citation and
her driver license. Only after returning the documents did the officer then ask if she had any
drugs or weapons in the vehicle and when she said no, the officer asked if he could search the
vehicle. Tillman consented to the search. The Court previously stated in Tillman: “A mere
request on the part of a law enforcement officer to search a vehicle after pulling the vehicle over
for a legitimate purpose does not amount to a detention of the person of whom the request is
made, assuming the officer has disposed of the legitimate purpose for which the vehicle was

The Court found Hale’s facts to closely resemble the fact situation in Tillman in that the first
trooper had issued a warning citation and returned his driver license, then requested his consent
to search. The Court found that Hale had been released from custody at the time the documents
were returned and any submission by Hale to the trooper’s request to search was consensual.

Smith v. State, 606 So. 2d 174 (Ala. Cr. App. 1992)
Once a traffic violation is observed, police may stop the vehicle and order the driver to remain in
the vehicle or require the driver to exit the vehicle, even though the officer may lack a
particularized reason for believing the driver possesses a weapon, citing New York v. Class, 475
U.S. 106 (1986).

State v. McPherson, 892 So. 2d 448 (Ala. Cr. App. 2004) -- [Vehicle stop; length of detention]
A state trooper made a traffic stop of McPherson who, according to the trooper, demonstrated a
high degree of nervous behavior during the initial encounter. The trooper detained the motorist
for approximately twenty-eight minutes until a canine unit arrived and established probable
cause to believe drugs were located in the vehicle. [Editor’s Note: the traffic stop was
videotaped by the trooper, thus permitting the exact time of each event.]

The initial stop took place at 10:03 a.m., and the trooper and the motorist engaged in
conversation, whereupon the trooper took note of the motorist’s apparent nervousness. The
trooper called a second trooper in the area who was a certified canine handler. The second officer
and canine arrived at 10:22 a.m., some 19 minutes later, and shortly thereafter, gave a positive
response to McPherson’s vehicle. Drugs were found in the vehicle after the trooper conducted a

The trial court granted McPherson’s motion to suppress. On appeal by the state, the Court of
Criminal Appeals, in a 3-2 decision, found a motorist may be lawfully detained for a brief

period. In this case, the motorist had not signed the ticket prior to the first trooper calling the
second trooper to the location. The second trooper conducted the walk-around of the motorist’s
vehicle in 19 minutes from the time of the initial stop, and while the trooper was waiting for the
NCIC report to come back on a weapon that McPherson was carrying. “Based on our review of
the testimony and the videotape, we conclude that Peoples [the trooper] did not detain the
appellee for an unreasonable amount of time during the traffic stop.”

Judge Cobb dissenting: “The question is whether Officer Peoples had an objective basis at the
time of the stop or developed one during the stop to believe McPherson was in possession of
drugs … [I]t is well established that a defendant’s nervousness or agitation alone is not a
reasonable suspicion of criminal activity to justify continued detention after a traffic stop.”
Judge Cobb went on to write that the facts in this case are so similar to the facts in State v.
Washington (below) that the Court should either follow Washington as precedent for affirming
the trial court’s order to suppress the evidence or overrule Washington. 892 So.2d at 456.

State v. Washington, 623 So. 2d 392 (Ala. Cr. App. 1993):
The trial court, in granting the defendant’s suppression motion, found the facts that Washington
had a temporary driver’s license issued by Louisiana, that the license plate on the car was
temporary, that the car was rented to a third party and the rental agreement did not list
Washington as a driver, and the state trooper conducting the stop found Washington to be highly
nervous during the traffic stop; all of which did not, either individually or collectively, create
reasonable suspicion to detain Washington for a period of some one hour and twenty minutes
until drugs were found secreted in the vehicle after a dog team arrived and alerted to the driver’s

While an officer may require a motorist to sit in a patrol car while the officer completes a ticket
for a traffic offense, once the traffic offender signs the UTTC, the arresting officer must
forthwith release him from custody. See, § 32-1-4(a). The officer may further detain the driver
only if he has probable cause to arrest the driver for some other non-traffic offense, or has a
reasonable suspicion of the driver’s involvement in some other criminal activity justifying
further detention for investigatory purposes under Terry v. Ohio. A reasonable suspicion exists
only if the officer has specific, particularized, and articulable reasons indicating that the person
stopped may be involved in criminal activity.

A state trooper stopped Peters for following too closely behind another vehicle. The trooper
testified at the subsequent suppression hearing that Peters seemed agitated at being stopped and
remained in an agitated state after being told he was only receiving a warning citation. The
trooper stated that Peters tried to avoid conversation or eye contact with the officer. When asked
if there was anything “illegal” about the pick-up truck he was operating, the trooper stated that
Peters looked at the ground and dropped his chin to his chest, which the trooper believed to be
signs of deception. Peters was asked for consent to search, which he refused. Peters was then
detained until a drug detector dog could arrive on the scene in a few minutes. The first dog team
arrived shortly thereafter and immediately “hit” on the rear of the pick-up truck. A second dog
team arrived on the scene and also alerted to the rear of the truck. The trooper then had the
camper shell opened and found two duffle bags, both containing compressed marijuana inside

the duffle bag. Peters was then arrested for trafficking in marijuana.

Peters argued the search and evidence should have been suppressed because the trooper did not
have a reasonable suspicion to hold Peters for the canine unit to search21 the truck.
In a 3-2 decision, the Court held once the traffic offender signs the UTTC, the arresting officer is
to forthwith release him from custody. (Citing 32-1-4 (a)). The officer may further detain the
driver only if he has probable cause to arrest the driver for some other nontraffic offense (Citing
Hawkins v. State, 585 So. 2d 154 (Ala. 1991)), or has a reasonable suspicion of the driver’s
involvement in some other criminal activity justifying further detention for investigatory
purposes under Terry v. Ohio.

Smith v. State, 953 So. 2d 445 (Ala. Cr. App. 2006): quoting Peters v. State, supra, for authority,
“Once the traffic offender signs the UTTC, the arresting officer is to “forthwith release him from
custody.”… The officer may further detain the driver only if he has probable cause to arrest the
driver for some other non-traffic offense, see Hawkins v. State, 585 So. 2d 154 (Ala. 1991), or
has a reasonable suspicion of the driver’s involvement in some other criminal activity justifying
further detention for investigatory purposes under Terry v. Ohio,…”

The Court held that a police officer’s prolonged detention of motorist after driver signed the
UTTC for a tag light violation was an involuntary detention, and the additional period of
detention required to summon a drug dog violated the standard expressed in Code of Alabama,
section 32-1-4.

Where Smith was stopped solely for an equipment violation and the officer acknowledged that
he had no belief that Smith was involved in any criminal activity, a second officer arriving on the
scene and offering the opinion that Smith may have, at some previous time, been involved in
drugs did not supply “a particularized and objective basis” for Smith’s continued detention.
Defendant’s refusal to consent to search could not have supplied reasonable suspicion. State v.
Washington, 623 So. 2d 392. The subsequent detention and seizure of controlled substances was
held invalid and conviction reversed.

Federal Cases – drug and currency seizures- lawfulness of the traffic stop, detention of the
motorist, and scope of the search:

Editor’s Note: For the past fifteen to twenty years, officers of the Department of Public Safety,
as well as other jurisdictions within Alabama, have operated interstate interdiction patrols
specifically trained and intended to detect and intercept drug and currency trafficking. Subjects
arrested by state and local law enforcement authorities are frequently processed through the
federal district court under the U.S. Justice Department’s ‘Adoptive Seizure’ program, which
allows the U.S. Attorneys in each federal district to federally “adopt” a state or local seizure.
This activity, in turn, has created a substantial body of recently decided federal cases from the
  The word “search” was used in the Court’s majority opinion. However, in view of U.S. v. Place, 462 U.S. 696,
103 S. Ct. 2637, 77 L.Ed. 2d 110 (1983) and later dog-sniff cases, the great majority of federal and state courts have
held that a dog sniff used to establish probable cause to search does not constitute a search itself under the Fourth
Amendment. See, especially, Illinois v. Caballes, 543 U.S. 405, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005): a dog
sniff of the exterior of a lawfully stopped vehicle during a traffic stop does not constitute a search under the Fourth

U.S. District Courts in Alabama, as well as the Eleventh Circuit Court of Appeals, concerning
traffic stops made by Alabama law enforcement officers.

U.S. v. Five Hundred Eleven Thousand Seven Hundred Eighty Dollars ($511,780) in U.S.
Currency, 847 F.Supp. 908 (M.D.Ala. 1994)

There are generally three types of police-citizen encounters--
1) Consensual encounters involving no coercion or detention, which requires no degree of
suspicion by the police;

2) Brief or temporary detention, known as an investigative stop, which requires the police to
have a “reasonable suspicion” that the person has committed or is about to commit a crime; and

3) Full-scale detention or arrest which requires the police to have “probable cause” to believe the
person has committed a crime.

In this case, the two subjects stopped by state troopers were not in any type of custody. The
officer was holding the subject’s driver license as part of a roadside inquiry, based on the facts
that the vehicle, a rental truck, had a broken air-conditioner and the day was unusually hot, but
the driver and passenger had refused to trade it for another rental truck with a working air-
conditioner22; the fact that the driver and passenger stated they were driving from central Florida
to Houston, Texas, but were driving back-roads in a circuitous fashion in apparent attempt to
avoid the interstate which was the direct route; the fact the trooper who first clocked the vehicle
on radar in excess of the speed limit stated the rental truck merely slowed down and would not
come to a stop for an extended period; all indicators of the possibility the driver and passenger
might be engaged in criminal activity.

The officer did not seize driver during traffic stop by taking driver’s license, but had sufficient
reason, based on a totality of the circumstances, to investigate the driver and passenger. The
resulting consensual search, where $511,780 in cash was recovered, was upheld as valid.

United States v. Bivins, 2007 WL 1673926 (M.D. Ala, June 11, 2007)
Where the driver, Bivins, gave an inconsistent and implausible explanation of the purpose for the
trip, gave false information about his past criminal record, and the trooper noted discrepancies in
the rental agreement, the trooper conducting the traffic stop had sufficient reasonable and
articulable suspicion to continue the questioning, contrasting the facts in U.S. v. Perkins, cited
below, with the facts present in this traffic stop. The trooper received valid consent to search
from Bivins, and the cocaine recovered from the vehicle was properly admissible into evidence.
United States v. Gonzalez, 275 Fed. Appx. 930, 2008 WL 1923073 (11 Cir. 2008) [Defendant

   Defendants were first reported to the police when the two individuals, driving from central Florida to Texas, had
stopped at the authorized rental truck location in Dothan, Alabama and complained the truck’s air-conditioning was
not working. When offered a different truck by the manager, who noticed the limited amount of cargo in the truck
storage area and offered to help off-load the furniture, but was refused the offer, and the fact the truck was nowhere
near I-10, the most direct route from Florida to Texas, the manager’s suspicions were aroused. The manager
telephoned the local police who, in turn, contacted the state trooper office that the vehicle was headed northbound
from Houston County into Dale County. The trooper making the stop clocked the vehicle on radar at 65 mph in a 55
mph zone, and then realized the vehicle was the subject of the look-out.

was charged with concealing and transporting $132,615 in currency from the United States to
Mexico, with intent to evade currency reporting requirements in violation of 31 U.S.C. 5332.]

Gonzalez challenged the traffic stop and seizure, claiming the traffic stop was improperly
extended beyond the duration necessary to effectuate the stop and the officer’s request to search
the vehicle was unsupported by probable cause.

Held: The trooper’s stop of the vehicle, after observing the tractor-trailer cross the fog line three
times, was objectively lawful. During the initial questioning of the driver, the trooper noticed
evasiveness when Gonzalez was asked specifically if he was transporting any large sums of
money. Gonzalez consented to a search of the trailer unit, but not the tractor. A narcotics detector
dog was summoned to the scene, and upon arrival, the canine immediately alerted to the door of
the tractor and the upper bunk within the tractor where a cardboard box containing bundles of
currency was located. The entire traffic stop, including the search, required approximately
twenty minutes. The 11th Circuit held the fact that only eight to ten minutes had elapsed between
the initial stop and the request for consent was not unreasonable, nor was the fact the driver was
placed in the patrol unit’s “cage” while the canine was in use.

[In the Gonzalez case at the district court, the magistrate judge cited U.S. v. Purcell, 236 F. 3d
1274 (11 Cir. 2001) and U.S. v. Hardy, 855 F. 2d 753 (11 Cir. 1988) as controlling authority.
The district court held the detention period was not unreasonable. The trooper’s actions in having
the defendant sit in the back seat of the patrol car while the search was conducted did not
constitute an arrest, citing Los Angeles County, CA v. Rettle, 550 U.S. 609, 127 S. Ct. 1989
(2007). “Once the canine alerted to Gonzalez’ tractor, the alert supplied not only reasonable
suspicion, but probable cause to search the property on which the dog alerted.” Therefore, the
search of the tractor and the seizure of the money did not violate the Fourth Amendment. United
States v. Gonzalez, 2007 WL 1673926 (M.D. Ala. June 11, 2007)]

United States v. Perkins, 348 F. 3d 965 (11 Cir. 2003) [Unlawful period of detention]
Upholding a motion to suppress issued by the federal district court of the Middle District of
Alabama, based on a traffic stop made by an Alabama state trooper, the Court found that while
the duration of the traffic stop was not itself violative of the Fourth Amendment, but the
continued detention of the motorist was a violation once the warning citation process was
completed. The driver’s nervousness and the differing, but not inconsistent statements between
the driver and passenger, and the fact the driver had an out-of-state license but claimed to live in
Alabama did not provide the requisite reasonable suspicion to justify the continuation of the stop
after the warning ticket was given.

“A traffic stop may be prolonged where an officer is able to articulate a reasonable suspicion of
other illegal activity beyond the traffic offense.” [Citing United States v. Purcell, 236 F. 3d 1274
(11 Cir. 2001)]. “In this Circuit we have required more than the innocuous characteristics of
nervousness, a habit of repeating questions, and an out-of-state license for giving rise to
reasonable suspicion.”

[But see also United States v. Hardy, 855 F. 2d 753 (11 Cir. 1988): holding that an investigative
stop of 50 minutes duration is not unreasonable when the officer developed facts and

circumstances supporting the continued detention. (The Hardy case originated from Northern
District of Georgia.)]

U.S. v. Hernandez, 418 F. 3d 1206 (11 Cir. 2005): An Alabama state trooper stopped a vehicle
for speeding, held the defendant for 17 minutes while the trooper prepared the citation and
conducted routine investigation of the driver’s status, then received a consent to search form
signed by the defendant; 10 minutes later a drug dog arrived on the scene and alerted to the
interior of the vehicle where cocaine was found in a hidden compartment.

The 11th Circuit in reversing the trial court found no Fourth Amendment violation in regards to
the initial stop, the temporary detention, or the subsequent search. The Court noted that the
officer developed reasonable suspicion from the first minute of the stop, including nonstop travel
at night in inclement weather; food containers on a long trip which indicated an unwillingness to
leave the vehicle unattended; a small amount of luggage for a purported week-long stay;
implausible excuse for speeding; inconsistent statements; a general nervousness; and lack of
knowledge about the destination. Taken together, these factors would justify detention of the
motorist under the Fourth Amendment to allow law enforcement authority sufficient time to
summon a narcotics detection dog.

United States v. Steed, et al, 548 F. 3d 961 (11 Cir. 2008): Following denial of motion to
suppress, defendant Osgood was convicted in the United States District Court for the Northern
District of Alabama of possession with intent to distribute 100 kilograms or more of marijuana.
The defendant appealed claiming, among other issues, the law enforcement officer’s search of
the tractor-trailer violated the Supreme Court’s decision in New York v. Burger, 482 U.S. 691
(1987) dealing with warrantless administrative searches.

In this case, a law enforcement officer working for the Interstate Criminal Enforcement Unit of
the Hoover, Alabama police department was monitoring traffic from the median of I-20. The
officer stated the tractor-trailer was following too closely. At that point, and without turning on
emergency lights, the officer entered the I-20 traffic lane and pulled up alongside the truck, at
which point the truck attempted to move into the officer’s lane of travel. The officer then
activated his emergency lights and pulled the truck over.

The officer informed Osgood, the driver, that he would be performing a ‘Level II’ inspection of
the truck, requiring the officer to review the truck’s paperwork and equipment. The officer
conducted this inspection pursuant to Alabama statute 32-9A-3 which states in part:

       “Any records required to be maintained by operators of commercial motor vehicles
       pursuant to state or federal laws or regulations shall be open to inspection during normal
       business hours of a carrier by members designated by the director.”

During the inspection of the motor vehicle, the officer noted several discrepancies, omissions,
and irregularities contained with the driver’s required log book and paperwork. At some point, a
canine officer was called to the scene and a ‘walk-around’ was done, whereupon the canine
alerted to the interior of the vehicle. A subsequent search revealed 1,600 pounds of marijuana.

The 11th Circuit reviewed the District Court’s denial of motion to suppress with respect to the
claim the officer’s stop and subsequent inspection were both invalid. First, the Court found the
traffic stop was reasonable under two different state traffic statutes: following too closely and
improper lane change. Second, the Court found the officer’s detention of the tractor-trailer was
reasonable and not in violation of the Burger ruling.

In Burger, the Supreme Court laid out a three-part test for determining whether a warrantless
administrative inspection in highly regulated industries comports with the Fourth Amendment:

     1) There must be a substantial government interest that informs the regulatory scheme
         pursuant to the inspection;
     2) The warrantless inspections must be necessary to further the regulatory scheme;
     3) The inspection’s program, in terms of certainty and regularity, must provide a
         constitutionally adequate substitute for a warrant. (Burger at 482 U.S. 702-703)

The 11th Circuit noted that every other federal circuit court that has reviewed commercial
trucking has found the trucking industry to be a pervasively regulated industry within the
meaning of Burger. Second, the state statue was specifically designed to allow state law
enforcement officers to enforce the Federal Motor Carrier Safety Regulations23, and allows
designated officials to enforce both state and federal Codes and regulations. The statute in
question is specifically limited to “commercial motor vehicle” industry and permits inspections
“during normal business hours.” The fact that the inspection was not limited to a specific place
does not invalidate the officer’s authority, in view of the fact the trucking industry is by necessity
highly mobile. Thus, the officer’s reliance on the state statute for authority was reasonable under
Illinois v. Krull, 480 U.S. 340 (1987) which upheld the lawfulness of an inspection where the
inspecting officer reasonably relied on the validity of the existing statute. Conviction affirmed.

United States v. Ramirez, 476 F. 3d 1231 (11 Cir. 2007): Once the officer issued the formal
traffic citation and returned defendant’s license and registration to him, the Terry traffic stop
turned into a consensual encounter, and therefore defendant was not detained for Fourth
Amendment purposes at the time when the officer asked follow-up questions and the defendant
offered to allow his car to be searched.

The Ramirez court cited the previous case of United States v. Pruitt, 174 F. 3d 1220 (11 Cir.
1999) for authority that a police officer may lawfully lengthen the detention of a motorist for
further questioning beyond that related to the initial stop under two circumstances: 1) if the

  The editor, while employed with the Department of Public Safety, was the author of this statute, titled the ‘Motor
Carrier Safety Act of 1998’ now codified at Title 32, chapter 9A. Section 32-9A-2(a) specifically states: “No law
enforcement officer may make an arrest or issue a citation under this chapter unless he or she has satisfactorily
completed, as part of his or her training, the basic course of instruction developed by the Commercial Vehicle Safety
Alliance.” Additionally, annual re-certification is required.

The Court’s opinion in U.S. v. Steed is silent as to whether the arresting officer was properly credentialed and
authorized to conduct CVSA inspections; the issue may not have been raised at the trial court level.

officer has an objectively reasonable and articulable suspicion that illegal activity has occurred
or is occurring; 2) if the initial detention has become a consensual encounter. Pruitt, 174 F. 3d at
1220. For purposes of the second situation, a consensual encounter does not implicate the Fourth

In Ramirez, Alabama state trooper Corporal Martin stopped Ramirez for a minor traffic
violation. Upon initial question concerning the ownership of the vehicle and the purpose of his
trip from Brownsville, Texas to south Florida, and after receiving vague and contradictory
answers, Martin issued a warning citation to Ramirez, returned all documents belonging to
Ramirez, and stated “the traffic stop was over.” Martin then asked Ramirez if he was carrying
anything illegal in the vehicle. Ramirez responded that Martin could search the car if he wanted.
Martin then obtained a written consent to search and upon roadside investigation of Rameriz’s
vehicle, uncovered seven kilograms of cocaine hidden inside the dashboard of the vehicle.

Rameriz’s motion to suppress was denied. The Court found that a reasonable person in the
defendant’s circumstances would have felt free to terminate the encounter and to decline the
officer’s request for further information.

United States v. Viezca, 555 F. Supp. 1254 (M.D. Ala. 2008): State trooper’s traffic stop of truck
and trailer was not prolonged within the context of Terry when the trooper lawfully stopped the
vehicle for speeding and the driver could not produce any registration for the truck, but instead
gave the trooper a title in another person’s name; the driver could not produce proof of insurance
for the vehicle; the driver stated that she was going to North Carolina to purchase cars at an
auction, but could not give the name of the city where the auction was located; and referred other
questions to her passenger. The passenger stated they were going to South Carolina. When the
trooper asked the driver if she had any previous arrests, she stated ‘no,’ but then admitted to prior
arrests for smuggling persons across the border.

A close inspection of the trailer axles by the trooper noted fresh tool marks on the bolts. The
trooper then struck the axle with his flashlight, and instead of hearing a hollow ‘echo’ sound,
heard a ‘thud’ which indicated that the axle was packed with material. A subsequent inspection
of the axle uncovered 16 packages of cocaine, approximately eight kilos in weight.

Defendant’s motion to suppress was properly denied in light of the reason for the initial stop was
speeding in excess of the posted speed limit was a lawful basis for the traffic stop. The trooper’s
reasonable questions concerning ownership and insurance requirements were answered with
conflicting stories by the driver and passenger. The conflict in stated destination, purpose for the
trip, and other basic facts all gave the trooper additional reasons to hold the vehicle and
occupants for further investigation. The Court noted, “an officer has ‘the duty to investigate
suspicious circumstances that then [come] to his attention.’” Citing United States v. Harris, 928
F.2d 1113 (11 Cir. 1991).

See also, the following additional cases from the 11th Circuit:

   •   United States v. Simms, 385 F. 3d 1347 (11 Cir. 2004): When making a determination of
       reasonable suspicion for prolonging a traffic stop, the court must look at the totality of

   •   United States v. Purcell, 236 F. 3d 1274 (11 Cir. 2001): A traffic stop of 14 minutes not
       unreasonable on its face.

   •   United States v. Simmons, 172 F. 3d 775 (11 Cir. 1999): A law enforcement officer is
       entitled to check both the car and driver, including running a computer check for
       outstanding warrants.

   •   United States v. Codd, 956 F. 2d 1109 (11 Cir. 1992): A two and half hour investigative
       detention is too long for a Terry stop.

   •   United States v. Pruitt, 174 F. 3d 1215 (11 Cir. 1999): Holding the fact the driver was
       Hispanic and the he held an out-of-state driver license was not enough to detain him
       beyond the issuance of a traffic ticket.

   •   United States v. Holloman, 113 F. 3d 192 (11 Cir. 1997): A fourth amendment violation
       may occur when a motorist stopped for a license check is detained beyond the completion
       of the license check to wait for the arrival of a drug-detection dog.

Civil liability and qualified immunity: A recent case from U.S. District Court, Middle District
of Alabama, granted qualified immunity and summary judgment to state trooper in a 42 U.S.C.
1983 action. The state trooper held plaintiff/motorist for approximately 45 minutes from start of
traffic stop until release, when motorist denied any prior drug activity but was determined to
have a previous drug conviction on his N.C.I.C. record. The motorist was stopped in an area
known for drug trafficking, failed to provide truthful answers about his driver license, and gave
other indicators of evasiveness, and the trooper then called for a drug dog to conduct a walk-
around of the vehicle operated by the motorist. Such actions by the trooper were lawful and
permissible under Fourth Amendment analysis. Morris v. Dean, 2006 US District Lexis 54417
(M.D. Ala., July 31, 2006), affm’d 223 Fed. Appx. 937 (11 Cir. 2007)

See also, the following annotations:

A.L.R. Fed. 567 (1994)

In regard to the use of drug detector dogs, see generally, Annotation, Use of Trained Dog to
A.L.R. Fed. 399 (1998)

State Court cases – detention of the motorist and duration of the traffic stop:

Owen v. State, 726 So. 2d 745 (Ala. Cr. App. 1998) – [Detention of motorist until canine unit
A state trooper stopped Owen for operating a vehicle with one headlight at night. The trooper
testified to the following: that Owen immediately got out of his vehicle and made an attempt to
enter the trooper’s patrol car, the trooper stopped Owen prior to doing so; Owen appeared
nervous to the point of shaking; when the trooper tried to look inside Owen’s vehicle, Owen
would repeatedly try to get between the trooper and the vehicle; that when asked about any
previous arrests, Owen denied ever being arrested, but the state trooper radio operator called
back that Owens had a NCIC/ACJIC number, indicating a prior arrest; and that Owen would not
answer questions about the vehicle’s ownership. The trooper became suspicious of Owens and
asked for a back-up and narcotic detector dog to arrive on the scene. The trooper detained
Owned for about 10 minutes until the narcotic dog arrived and shortly thereafter, the dog alerted
to the driver’s compartment, indicating concealed drugs. Both marijuana and cocaine were
located inside the vehicle.

Upholding the detention and arrest of Owen, the Court contrasted the Owen case with the prior
decision in State v. Washington, supra. In Owen, “Trooper Ferrell was able to cite “specific,
particularized, and articulable” grounds, other than nervousness, for reasonably suspecting the
appellant was engaged in criminal activity.” 726 So. 2d at 747. The court went on to list the
indices of furtive and suspicious behavior. “All of these factors were relevant to the question
whether the appellant was hiding something illegal in his car…”

Dalton v. State, 575 So.2d 603 (Ala. 1990) -- [drugs]
The defendants were detained at the Huntsville Airport because they fit a “drug courier profile.”
They were detained for approximately 40 minutes to an hour until a narcotics-detecting dog
arrived. The officers’ conduct did not exceed the permissible limits of a Terry-type detention
because the police had such short notice of the defendants’ arrival and did not have an
opportunity to have the dog immediately available.

Sides v. State, 574 So.2d 856 (Ala.Cr.App.), affirmed, 574 So.2d 859 (Ala. 1990)
The defendant’s “traffic arrest” for speeding and the trooper’s limited detention of the defendant
while the trooper attempted to confirm or dispel his suspicion that the defendant was under the
influence was permissible. The trooper did not allow the defendant to sign the speeding ticket
while the trooper investigated his suspicion that the defendant was intoxicated; therefore the
detention was not illegal.

Smith v. State, 606 So.2d 174 (Ala.Cr.App. 1992)
Once a routine traffic stop has been made based on probable cause to believe a traffic offense has
been committed, the officer may either keep the driver of vehicle in the car, or require the driver
to exit vehicle, even though the officer may lack a particularized reason for believing that driver
possesses weapon.

Hawkins v. State, 585 So.2d 152 (Ala.Cr.App. 1990), reversed, 585 So. 2d 154 (Ala. 1991)
Hawkins was stopped for a traffic violation. He was then given a citation for driving without a
license and he gave the officer writing the citation a false name. Hawkins was then given a
second citation for driving without a license. He signed both citations in lieu of going to jail on

the traffic charges. Hawkins was then arrested for giving false information to a police officer in
violation of § 29-18, Montgomery City Code, a separate non-traffic related misdemeanor. During
a custodial search at the jail, the police found cocaine in Hawkins’s possession. The warrantless
arrest was proper under § 15-10-3 and was not a violation of § 32-1-4.

The Court held that a person may not be placed under custodial arrest for driving without a
license. The Supreme Court found that Hawkins was arrested for giving false information and
not for a traffic offense.

Pittman v. State, 541 So.2d 583 (Ala.Cr.App. 1989)
An officer who is justified in stopping a driver for a traffic violation may detain the driver until
he completes the UTTC and is justified in using the reasonable force necessary to keep the driver
detained until the UTTC is completed. A driver who attempts to exit the patrol car before the
officer has completed the UTTC may be charged with resisting arrest.

McDaniel v. State, 526 So.2d 642 (Ala.Cr.App. 1988)
Custodial arrest was illegal where motorist was arrested only for speeding and not for driving
under the influence.

Hays v. City of Jacksonville, 518 So.2d 892 (Ala.Cr.App. 1987)
A custodial arrest is not authorized for a misdemeanor traffic offense (with some exceptions
found in § 32-1-4). Improper lane usage will not justify a custodial arrest where the defendant is
willing to sign the UTTC.

In this regard, see also:

     •   Sheffield v. State, 522 So.2d 4 (Ala.Cr.App. 1987) (speeding).
     •   McDaniel v. State, 526 So.2d 642 (Ala.Cr.App. 1988) (speeding).
     •   McCall v. State, 534 So.2d 668 (Ala.Cr.App. 1988) (speeding).
     •   Morton v. State, 452 So.2d 1361 (Ala.Cr.App. 1984) (speeding, driving while license

Fact that the deputy sheriff had not completed minimum training requirements did not render
unlawful his arrest of defendant for DUI.

Brown v. State, 821 So. 2d 219 (Ala. Cr. App. 2000): Fact that the law enforcement officer who
made the traffic stop did not later issue a citation to the driver did not render the stop unlawful.
Provided there was lawful basis for the stop, the officer’s decision not to subsequently issue a
traffic citation does not render the initial stop invalid.

I. Detention of passengers; control over passengers; authority to search vehicle

  Morton was partly overruled in regards to police seizure and impoundment of vehicle by the later decision in
Cannon v. State, 601 So. 2d 1112 (Ala. Cr. App. 1992). Police impoundment of vehicle is gauged under the
reasonableness standard and the inherent police authority of the “community caretaking function.”

A police officer may, without probable cause to stop or detain the passengers, but merely to
ensure the officer’s own safety, order passengers in a lawfully stopped car to exit the vehicle
pending completion of the stop.

The Maryland v. Wilson decision extends the bright-line rule of Pennsylvania v. Mimms, 434
U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (permitting officers to routinely order lawfully
stopped motorists to exit their vehicles) to passengers.

Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) When a police
officer makes a traffic stop, a passenger in the vehicle as well as the driver of the car is seized
within the meaning of the Fourth Amendment. A person seized by police action is entitled to
challenge the seizure, even if not the operator of the vehicle. In Maryland v. Wilson, supra, the
Court held that during a lawful traffic stop, the police may order a passenger out of the car, as a
precautionary measure. By the same measure, a passenger is seized by police authority and has
standing to challenge the lawfulness of the vehicle stop. Where, as in this case, the automobile
was stopped without reason to believe it was being operated unlawfully, the subsequent seizure
of the passenger was unlawful.

Arizona v. Johnson, __ U.S. __, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009): In Terry v. Ohio, 392
U. S. 1, the Supreme Court held that a “stop and frisk” may be conducted without violating the
Fourth Amendment’s ban on unreasonable searches and seizures if two conditions are met: first,
the investigatory stop (temporary detention) must be lawful, a requirement met when a police
officer reasonably suspects that the person detained is committing or has committed a crime;
second, to proceed from a stop to a frisk (“pat-down” for weapons), the officer must reasonably

From the Court’s syllabus, the following abbreviated summary of the Court’s holding in Arizona
v. Johnson is provided:

“Terry established that in an investigatory stop based on reasonably grounded suspicion of


minimal,” id., at 415. Pp. 5–7.”

Arizona v. Gant, __U.S__, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009): In New York v. Belton,
453 U.S. 454 (1981), the Court upheld a police search of the passenger compartment of a vehicle
and any containers therein as contemporaneous incident to the occupant’s lawful arrest. In
Arizona v. Gant, the Court overturned the long-standing police practice of “search incident
arrest” when the arrested subject is taken from an automobile, generally as a consequence of an
arrest for a traffic offense. The Gantt ruling significantly restricts Belton, the “search incident to
arrest” doctrine, and rejected a broad reading of New York v. Belton.

Gant was arrested by Tucson, Arizona police for driving with a suspended license. Gant was
searched Gantt’s vehicle and found cocaine in Gant’s car during the “search incident to arrest.”
Gant filed a motion to suppress in the state court which was granted, and the state appealed.

The U.S. Supreme Court held that a search of the passenger compartment of a vehicle following
an arrest is permitted: “only if [1] the arrestee is within reaching distance of the passenger
warrant requirement applies.”

The holding of Chimel v. California, 395 U. S. 752 (1969), the so-called “wingspan test,”
ability to lunge to an area and destroy evidence or reach a weapon. However, once a suspect is
handcuffed and moved away from the vehicle, the suspect’s ability to reach for evidence or
obtain a weapon from within the vehicle is eliminated, or at least significantly reduced.

Gantt is an extension of the Court’s ruling in Thornton v. United States, 541 U. S. 615 (2004). In
that case, the Court recognized that a search of a vehicle incident to the arrest of a recent
arrest might be found in the vehicle.” The Gant decision leaves the Thornton holding intact.

However, because Gant and the other two suspects were in custody, handcuffed, and secured in
separate police cars, the Court refused to apply the Chimel lunge or “wingspan” justification to
the case. And, because Gant was arrested for a driver license violation, the Thornton evidentiary
search holding did not apply. The Court held was not reasonable to believe that the vehicle held
evidence of Gant’s suspended driver license status, thus any further search of Gantt’s vehicle
was unnecessary and invalid under the Fourth Amendment.

State v. Abner, 889 So. 2d 52 (Ala. Cr. App. 2004)
During a traffic stop, the deputy sheriff making the stop asked the driver to produce his driver
license. The driver was unable to do so because his license had been revoked. The deputy
testified he planned to allow the passenger, Abner, to drive the car, and he asked Abner for
identification. Following the deputy’s request, Abner demonstrated signs of nervousness. The
deputy asked Abner to step out of the vehicle. When Abner did so, the deputy observed rolling
papers in plain view, a white rock-like substance, and a small plastic bag sticking out from the
side of the passenger seat. Further investigation showed the contents of the plastic bag were a
green, leafy substance similar in appearance to marijuana. The deputy believed the white
material was cocaine and the green leafy material was marijuana. Upon questioning, Abner
admitted the drugs belonged to him. Abner was arrested at the scene.

A motion to suppress was filed by the defendant and granted by the trial court. On appeal by the
state, the Court of Criminal Appeals found that under the doctrine of Pennsylvania v. Mimms,
434 U.S. 106 (1977), a police officer may, as a matter of course, order the driver to exit a
lawfully stopped automobile. This doctrine was extended to passengers in the case of Maryland
v. Wilson, 519 U.S. 408 (1997). The Court of Criminal Appeals recognized this rule in the case
of State v. Hails, 814 So. 2d 980 (Ala. Cr. App. 2000).

In this case, the vehicle was lawfully stopped for a mechanical violation. The officer asked for
the driver’s license, and the driver was unable to produce a license. The deputy asked for the
passenger to produce a license. The passenger, Abner, demonstrated nervousness when dealing
with the officer; whereupon the officer directed Abner to step out of the vehicle in effort to better
deal with the situation. Once Abner got out of the vehicle, the deputy saw contraband in plain
view in and around the location where Abner was sitting. Seeing what is in plain view does not
constitute a search. Johnson v. State, 784 So. 2d 373 (Ala. Cr. App. 2000) and Pearson v. State,
542 So. 2d 955 (Ala. Cr. App. 1989). Therefore, the seizure was valid under the plain-view


A. Constitutional Issues

Upholding the constitutionality of the use of DUI roadblocks, the Supreme Court held that the
Fourth Amendment does not forbid the initial stop and brief detention, without individualized
suspicion, of all motorists passing through a highway checkpoint established to detect and deter
drunk driving and conducted in conformity with guidelines on operation, site selection, and

Ex parte Jackson, 886 So. 2d 155 (Ala. 2004) -- [Adopting the Cains standard to determine the
Constitutionality of police roadblocks]

A Mobile County jury convicted Jackson of first-degree unlawful possession of marijuana,
following Jackson’s arrest at a roadblock operated by the Mobile County Sheriff’s Department.
Prior to 2001, the Mobile Housing Authority entered into a contract with the Mobile County
Sheriff’s Department authorizing the Sheriff’s Department to conduct policing operations in the
housing project, using vehicle patrols, foot patrols, community policing, and safety checkpoints
to establish a “police presence.”

On the evening of May 10, 2001, the Sheriff’s Department established a “safety checkpoint” at
the intersection leading into the housing community. A senior supervisor from the Sheriff’s
Department had approved the operation beforehand. The checkpoint officers checked for driver
licenses, automobile insurance documentation, and safety devices, such as seat-belts and child
restraint seats. A total of seven marked police units operated the checkpoint and every vehicle
that came through the intersection was stopped. Guidelines established by the Sheriff’s
Department concerning the operation of a checkpoint were followed and the officers conducting
the checkpoint were supervised by an on-scene superior officer.

An officer stopped Jackson’s vehicle at the roadblock and discovered marijuana and two rolls of
cash on Jackson. A larger quantity of marijuana was located in the vehicle following Jackson’s
detention. At trial, Jackson filed a motion to suppress alleging the marijuana found on his person
and leading to the subsequent discovery of the larger amount of marijuana was the result of an
unreasonable seizure that violated the Fourth Amendment. Jackson contended his arrest was
based on the same type activity condemned in Hagood v. Town of Town Creek, 628 So. 2d 1057
(Ala. Cr. App. 1993).

The Alabama Supreme Court noted the United States Supreme Court has established objective
criteria in determining whether a roadblock-type stop is constitutional. In Brown v. Texas, 443
U.S. 47 (1979), the court fashioned a three-prong balancing test to determine of the seizure is
considered reasonable: “Consideration of the constitutionality of such seizure involves a
weighing of [1] the gravity of the public concerns served by the seizure, [2] the degree to which
the seizure advances the public interest, and [3] the severity of the interference with individual
In Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990), the U.S. Supreme Court
extended the application of these three conditions to determine the lawfulness of a “sobriety
checkpoint.” In roadblock-type cases reaching the Supreme Court where a published opinion was

issued, the Supreme Court has explicitly upheld roadblock-type stops in four situations:

   1) stops gathering information of a recent crime when the questioning did not seek self-
      incriminating information, Illinois v. Lidster, 540 U.S. 419 (2004)

   2) stops to check an operator’s driver license, Texas v. Brown, 460 U.S. 730 (1983)

   3) stops to check a driver’s sobriety, Sitz, supra

   4) stops to check the presence of illegal aliens, Martinez-Fuerte, 428 U.S. 543 (1976)

The U.S. Supreme Court has expressly disapproved the use of “drag-net” type roadblocks where
the police, without individualized suspicion, stopped vehicles for the primary purpose of
discovering and interdicting illegal narcotics. See, City of Indianapolis v. Edmond, 531 U.S. 32

In the Jackson opinion, the Alabama Supreme Court quoting with approval, examined the
extensive opinion written by Judge Bowen in Cains v. State, 555 So. 2d 290 (Ala. Cr. App.
1989), and found the standards expressed in Cains to be the correct statement of law. The Court
found that roadblocks, conducted under supervised conditions and using established standards of
enforcement, met the Constitutional test required in weighing the balancing of the interests in the
public’s safety and the individual’s reasonable expectation of privacy.

In the Jackson case, the Court found the following facts: that a plan was established pursuant to
the Sheriff’s Department supervisory command; that the officers checked driver licenses and
automobile insurance documents; that every vehicle was stopped and checked and the officers
had no discretion in deciding whom to stop; that the stop took less than one minute per vehicle,
unless the driver lacked proper license or registration; and that an on-scene supervisor was
present to oversee the operation. All of these steps undertaken by the Sheriff’s Department
placed the roadblock in context to the approved Cains type roadblock, rather than the
disapproved Hagood “drag-net” situation.

See also the following annotations:

   •   Annotation, Validity of Routine Roadblocks by State or Local Police for Purpose of
       Discovery of Driver’s License, Registration, and Safety Violations, 116 A.L.R. 5th 479
   •   Annotation, Validity of Police Roadblocks or Checkpoints for Purpose of Discovery of
       Alcoholic Intoxication—post-Sitz Cases, 74 A.L.R. 5th 319 (1999)

B. Alabama Cases- roadblock seizures

Kirby v. State, 874 So. 2d 581 (Ala. Cr. App. 2003)
Affirming conviction for DUI, Court of Criminal Appeals held the defendant failed to establish

that the roadblock where he was apprehended did not comply with the Department of Public
Safety regulation that required a trooper supervisor to approve the time and location of
checkpoint prior to checkpoint being implemented, where the trooper who conducted the
checkpoint testified that before the checkpoint was implemented, another trooper called him on
the radio and informed him the on-duty supervisor had approved the checkpoint. The trooper
also testified that officers from another state agency were present at the scene and cooperated in
the checkpoint.

[Editor’s Note: The Department of Public Safety regulation referred to the Kirby opinion was
written and instituted by the Department immediately after the Cains decision was released in
1989 in order to ensure DPS troopers and supervisors complied with the criteria expressed in
Cains. Current policy of the Department of Public Safety requires a supervisor to pre-approve
every DPS roadblock subject to established written standards, and to submit a form (HP form 8-
A) after every completed roadblock.]

Stone v. State, 705 So. 2d 1316 (Ala. Cr. App. 1996)
Where a state trooper roadblock on July 4th weekend was established in accordance with the
written policy of the Department of Public Safety and followed the standards of objective
reasonableness set forth in Cains v. State, supra, and complied with standards set in Michigan
Dep’t of State Police v. Sitz, 496 U.S. 444, and all vehicles were stopped and checked in the
same manner, the seizure of the defendant for DUI was lawful.

Hagood v. Town of Town Creek, 628 So.2d 1057 (Ala.Cr.App. 1993) -- [Improperly Conducted
While license checks, sobriety checkpoints, and roadblocks are not on their face unconstitutional,
a Fourth Amendment seizure occurs when the vehicle is stopped in connection with such an
operation. A roadblock is a warrantless seizure and is presumed invalid. Therefore, the
prosecution has the burden of proving its overall reasonableness and validity.

Here, a warrantless roadblock, set up in front of an apartment building, ostensibly to check
drivers’ licenses, violated the motorist’s Fourth Amendment rights. The officer testified that the
roadblock was actually for the impermissible general police purpose for cutting down on
drinking and disturbance occurring in building. There was no restriction on the officers’
discretion in establishing the roadblock, and appropriate safety measures were not taken. A
warrantless roadblock designed to promote general law enforcement purposes (the prevention of
trouble, fighting, public drunkenness, and disorderly conduct at an apartment complex) is
improper in that the purpose or the governmental interest to be served by the roadblock must be
one that can reasonably be advanced by the roadblock.

The Court refused to declare all roadblocks unconstitutional under Art. I, § 5 of the Alabama

Other factors considered in the Hagood decision that the Court found improper and beyond the
standards of a constitutionally approved roadblock were: 1) the primary purpose of the roadblock
was ‘general law enforcement’ as compared to traffic enforcement; 2) there were no written
guidelines on conducting the roadblock and the officers had complete discretion on stopping

vehicles; and 3) there were too few safety measures employed at the scene.

Cains v. State, 555 So.2d 290 (Ala.Cr.App. 1990) – [Validity of roadblocks under Alabama law]

“If the primary stop at the roadblock had been constitutionally infirm, then any additional
detention would, of course, have been invalid. See, State v. Calhoun, 502 So.2d 808 (Ala.1986).
Having determined that the roadblock at issue here was reasonable under the balancing tests set
out by the Supreme Court in Martinez-Fuerte, Delaware v. Prouse, and Texas v. Brown, we hold
that Trooper McGlothlin had reasonable suspicion, based on his initial observation of the
defendant, to divert the defendant from the line of traffic for further inquiry as to his sobriety.
Then, upon the defendant’s failure to pass the field sobriety test, the officer had probable cause
to arrest him for DUI and transport him to police headquarters for a blood alcohol test.

“It is undisputed that ‘stopping an automobile and detaining its occupants constitute a ‘seizure’
within the meaning of [the Fourth Amendment],’ Delaware v. Prouse, 440 U.S. 648, 653, 99
S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). ‘Checkpoint stops are “seizures,”’ United States v.
Amendment requires that such seizures be reasonable. Delaware v. Prouse; Martinez-Fuerte;
Terry v. Ohio.” *** In “Delaware v. Prouse, the Court ...concluded with the following
observation, which has been the basis for roadblock stops ever since: ‘This holding does not
of all oncoming traffic at roadblock-type stops is one possible alternative.’ Id. at 663, 99 S.Ct. at
1401. Four years later, the Court specifically approved drivers’ license checkpoints in Texas v.
Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). *** When read together,
Brignoni-Ponce, Martinez-Fuerte, Prouse, and Texas v. Brown stand for the proposition that
random stops or spot checks are unreasonable in the absence of individualized suspicion of
wrongdoing; on the other hand, stops at fixed checkpoints or roadblocks are reasonable if they
are carried out pursuant to a neutral and objective plan, are supported by a strong public interest,
and are only minimally intrusive to the individual motorist.

Many jurisdictions have adopted the thirteen-factor analysis set out in State v. Deskins, 673 P.2d
at 1185: ‘Numerous conditions and factors must be considered in determining whether a DUI
considered are: (1) The degree of discretion, if any, left to the officer in the field; (2) the
location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards
set by superior officers; (5) advance notice to the public at large; (6) advance warning to the
individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or
anxiety generated by the mode of operation; (9) average length of time each motorist is detained;
(10) physical factors surrounding the location, type and method of operation; (11) the availability
of less intrusive methods for combating the problem; (12) the degree of effectiveness of the
procedure; and (13) any other relevant circumstances which might bear upon the test.’
In our judgment, roadblocks operated pursuant to an objective and neutral plan of briefly halting
all oncoming traffic are only minimally intrusive to the individual motorist and are thus
constitutionally reasonable seizures. The primary reason that the random stops in Brignoni-
Ponce and Prouse were condemned, while the checkpoint operations in Martinez-Fuerte and

Texas v. Brown were approved, had little to do with the relatively minor mechanical operation of
either kind of seizure. The approved stops were upheld because they were conducted pursuant to
an ‘objective standard,’ Delaware v. Prouse, 440 U.S. at 661, 99 S.Ct. at 1400, and because they
‘both appear[ed] to and actually involve[d] less discretionary enforcement activity,’ Martinez-
Fuerte, 428 U.S. at 559, 96 S.Ct. at 3083. The condemned stops were invalidated because they
involved the ‘standardless and unconstrained discretion’ of officers in the field, Delaware v.
Prouse, 440 U.S. at 661, 99 S.Ct. at 1400. It is true in this case that the site, time, and duration of
the roadblock were chosen by ‘officers in the field.’ [W]e do not believe that the field officers’
decision to establish this roadblock makes it unconstitutional.

Brunson v. State, 580 So.2d 62 (Ala. Cr. App. 1991) [Brunson’s conviction was reversed and
remanded for new trial based on the trial court improperly admitted, over the defendant’s
objection, the introduction of the horizontal gaze nystagmus test without adequate foundation, as
required in Malone v. City of Silverhill, 575 So. 2d 101 (Ala. Cr. App. 1989), reversed, Ex parte
Malone, 575 So. 106 (Ala 1990); the Court of Criminal Appeals addressed Brunson’s second
issue which challenged the use of police roadblocks]:

The appellant argues that the stop and arrest at the roadblock violated his rights under the
Alabama Constitution of 1901, Art. I, § 5. This court held in Cains v. State, 555 So.2d 290 (Ala.
Cr.App.1989), that ... “roadblocks operated pursuant to an objective and neutral plan of briefly
halting all oncoming traffic are only minimally intrusive to the individual motorist and are thus
constitutionally reasonable seizures.” Cains, at 296. Here the evidence established such an
“objective and neutral plan.” The roadblock was not violative of the Alabama Constitution.”

Ynosencio v. State, 629 So. 2d 795 (Ala. Cr. App. 1993): Restating and applying the Cains
standards in the establishment and operation of a police roadblock, the Court of Criminal
Appeals upheld Ynosencio’s conviction for trafficking in cannabis where, after defendant’s
vehicle was initially stopped as part of a roadblock to check operator’s license and registration,
and then directed to a “secondary search area” after a narcotics detection dog alerted to a tool
box located on Ynoscenio’s tractor-trailer, the subsequent search resulted in a large amount of
marijuana uncovered in a tool box on the truck bed, the Court found neither the initial stopping
of vehicles at the roadblock, nor the use of narcotics detection dogs as part of the overall
enforcement plan, was violative of the Fourth Amendment.

McInnish v. State, 584 So.2d 935 (Ala.Cr.App. 1991)
The appellant argued that the DUI roadblock involved in this case constituted an unconstitutional
search and seizure. The appellant filed a pretrial motion to dismiss. Two grounds of that motion
were that there was no probable cause for his arrest and that the arrest was in violation of the
Fourth Amendment to the Constitution of the United States. The record contains no ruling on
that motion.

At the close of the State’s case-in-chief, defense counsel’s motion for a judgment of acquittal
included the following: “I renew the motion to suppress on the grounds the roadblock at the time
was unconstitutional and violated the fourth amendment rights against unreasonable search and
seizure.” Under the facts of this case, we do not consider this issue to have been sufficiently

preserved for consideration on appeal. There was no pretrial motion to suppress. There was no
request for a ruling on the pretrial motion to dismiss. At trial, the arresting officer testified,
without objection, to the fact that the appellant was stopped at a “license check.” In both the
motion to suppress (made in conjunction with the motion for judgment of acquittal) and the
renewed motion to suppress, the appellant failed to state any reasons to support his allegation
that the license check or roadblock was unconstitutional. Although defense counsel did indicate
that he was going to furnish the trial court with “a citation of each and every case regarding the
standard of roadblocks,” the record contains no further mention of this matter.

License checks, sobriety checkpoints, and roadblocks are not intrinsically unconstitutional,
(1990), although the manner in which they are conducted may be unconstitutional, Cains v.
State, 555 So.2d 290 (Ala.Cr.App.1989). Here, the issue of the constitutionality of the stop of the
appellant is not preserved for appellate review because the appellant never told the trial court
why or how the roadblock was unconstitutional. “[T]he trial court is not required to cast about
for tenable grounds of objection.” Watkins v. State, 219 Ala. 254, 255, 122 So. 610, 611 (1929).

A state trooper had reasonable suspicion for investigatory stop where he observed the
defendant’s vehicle coming around a curve in sight of the roadblock and turn rapidly into
driveway, making the trooper suspicious that the defendant was attempting to avoid the
roadblock for driver’s license check.

State v. White, __ So. 3d __, 2009 WL 2415202 (Ala. Cr. App. Aug. 7, 2009): Defendant’s
conduct in approaching a driver license checkpoint, turning around, and then heading in the
opposite direction, provided the officer with reasonable suspicion justifying an investigatory

But see, Ex parte Odom, 788 So. 2d 884 (Ala. 2000): In a dissenting opinion to denial of
certiorari, three justices of the Supreme Court would grant certiorari to examine the trial record
and determine if there was any basis, other than defendant’s otherwise legal U-turn when
approaching a state trooper roadblock, to create sufficient reasonable suspicion to justify the stop
the vehicle.


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