King v. State , 2008 Ala. Crim. App. LEXIS 66 ( 2008 )

WELCH, Judge,

dissenting.

I agree with that portion of the majority’s opinion holding that the initial stop of King’s vehicle was valid pursuant to a properly executed search warrant. However, as discussed below, I do not believe that Deputy Terry Wood had consent to open the film canister he removed from King’s pocket during a patdown search. Therefore, I believe that King’s motion to suppress was due to be granted, and I respectfully dissent.

The majority holds that it was reasonable for the arresting officer, Deputy Wood, to believe that the scope of King’s consent to retrieve the film canister from King’s pocket included opening the canister. However, I do not believe that the record supports this view. Deputy Wood testified as follows regarding his obtaining consent to search King’s person.

“Q. [The prosecutor:] Okay. What did you ask Mr. King?

“A. [Deputy Wood:] I advised Mr. King our reasons for being there. I advised him of the search warrant. I asked him if he would to step out of the vehicle.

“Q. Did he do so?

“A. Yes, he did.

“Q. Okay. What did you do at that point?

“A. I asked Mr. King did he have anything on him that I needed to know about as far as weapons or anything. I advised him that I was going to pat him down for weapons.”

(R. 21.)(Emphasis added.)

Here, Deputy Wood told King that the search of King’s person was for weapons. “ ‘[T]he scope of a search is generally defined by its expressed object.’ ” Tillman v. State, 647 So.2d 7, 11 (Ala.Crim.App.1994) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)); United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir.2004) (“Generally, the expressed object of the search defines the scope of that search.”). I do not believe that it was objectively reasonable for Deputy Wood to conclude that he had consent to open the film canister after having informed King that he was searching for a weapon. Only by engagement of “ ‘fanciful speculation’ ” could a film canister be considered a dangerous weapon or to be concealing a dangerous weapon. 4 Wayne R. LaFave, Search and Seizure § 9.6(d), p. 671 (4th ed.2004). For supporting cases see 4 La-Fave, Search and Seizure § 9.6(d), p. 771 n. 258. In such speculation I decline to engage. See, e.g., Cannon v. State, 985 So.2d 968, 971 (Ala.Crim.App.2007) (contents of film canister removed from suspect’s pocket suppressed where “nothing in the record show[ed] that the nature of the contraband found in the canister was immediately apparent when [the officer] pulled it from Cannon’s pocket”). Moreover, I do not believe that the alleged “passive acquiescence” referred to by the majority has application in this case. Unlike cases cited by the majority involving searches for contraband, a Terry patdown is a limited search, conducted solely to protect the safety of law enforcement. Its scope should never exceed what is necessary to protect the safety of officers. Thus, I do not agree that King consented to Deputy Wood’s opening of the canister.

Absent consent, a container taken during a Terry patdown should not be opened “unless it might contain a weapon, a judgment which the officer should be expected to make on the basis of its size, weight and feel.” 4 W. LaFave, Search and Seizure § 9.6(d), pp. 669-71 (quoting Model Code of Pre-Arraignment Procedure § 110.2(4) (1975)).

Based on the above, I respectfully dissent.