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Hopper v. City of Prattville2/4/2000
efused to take the test again. Corp. Fells also stated that he attempted to give a horizontal-gaze-nystagmus test, but that Hopper refused to follow his instructions for taking the test.
After Hopper failed, or refused to complete, the field-sobriety tests, Corp. Fells searched Hopper's person. During this search, Corp. Fells found a small pipe in Hopper's pants pocket containing what he believed to be marijuana residue. Hopper was arrested for driving while under the influence of a controlled substance and for possession of drug paraphernalia. Corp. Fells also gave Hopper written citations for driving on the wrong side of the road and for improper lane usage.
After Hopper was placed under arrest, Sgt. Ricks called for a tow truck to take Hopper's vehicle to an impoundment lot. According to Sgt. Ricks, before the tow truck arrived, he searched the Bonneville "to make sure there were no valuables or weapons in the car before the wrecker service towed it away." (R. 113.) Under the front passenger-side seat of the car, Sgt. Ricks discovered a bag of what was later determined to be marijuana. Hopper was subsequently charged with possession of marijuana in the second degree.
Following a bench trial in the district court, Hopper was convicted of driving while under the influence, driving on the wrong side of the road, improper lane usage, possession of marijuana in the second degree, and possession of drug paraphernalia. He appealed for a trial de novo in the circuit court, where a jury found him guilty on all counts.
I.
Hopper contends that the trial court erred in denying his motion to suppress the pipe found in his pants pocket and the bag of marijuana found under the front passenger-side seat of his automobile because, he says, both were the products of an illegal search and seizure. (Issues IV and V in Hopper's brief to this court.)
In support of his contention that the discovery of the marijuana pipe in his pants pocket was the product of an unlawful search, Hopper directs our attention to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Hopper maintains that, under Terry, Corp. Fells was not warranted in conducting a "protective patdown" of Hopper's person because, Hopper says, there was no evidence that Corp. Fells felt threatened by Hopper or felt that his safety or the safety of others was in danger. In addition, Hopper maintains that even if a protective patdown was justified, Corp. Fells exceeded the lawful scope of Terry by reaching into his pants pocket and retrieving the marijuana pipe.
Although the argument Hopper makes on appeal is that the search of his person was unlawful under Terry, we find it unnecessary to reach the Terry issues raised by Hopper because we conclude that the search of Hopper's person was proper as a search incident to a lawful arrest.
"This Court has long held that warrantless searches are per se unreasonable, unless they fall within one of the recognized exceptions to the warrant requirement. Chevere v. State, 607 So. 2d 361, 368 (Ala.Cr.App. 1992). These exceptions are: (1) plain view; (2) consent; (3) incident to a lawful arrest; (4) hot pursuit or emergency; (5) probable cause coupled with exigent circumstances; (6) stop and frisk situations; and (7) inventory searches. Ex parte Hilley, 484 So. 2d 485, 488 (Ala. 1985). (Emphasis added [in Bivens].) Pursuant to a lawful arrest, a search of the person can be conducted for the purpose of obtaining weapons, evidence, or contraband. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)."
Bivins v. State, 710 So. 2d 521, 524 (Ala.Cr.App. 1997).
Corp. Fells testifi
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