Hopper v. City of Prattville2/4/2000
ed that when he initially stopped Hopper, Hopper smelled of alcohol and marijuana and his speech was slurred. Hopper subsequently failed (or refused to perform) three field- sobriety tests administered by Corp. Fells. Under these circumstances, Corp. Fells had probable cause to arrest Hopper for driving under the influence of alcohol and/or a controlled substance. See Rule 4.1(a)(1)(ii) and (iii), Ala.R.Crim.P. ("A law enforcement officer may arrest a person without a warrant if ... ny offense has been committed in the law enforcement officer's presence or view, or ... he arrest is otherwise authorized by statute, such as Ala.Code 1975, §§ 32-5-171, 32-5A-191, 15-10-3."). Moreover, the odor of marijuana emanating from Hopper, coupled with Hopper's apparent physical impairment, provided probable cause to arrest Hopper for possession of a controlled substance. See State v. Mathews, 597 So. 2d 235, 237-38 (Ala.Cr.App. 1992); and State v. Betterton, 527 So. 2d 743, 746 (Ala.Cr.App. 1986), aff'd, 527 So. 2d 747 (Ala. 1988).
Instead of immediately arresting Hopper, Corp. Fells searched Hopper and found the marijuana pipe in his pants pocket. At that point, Corp. Fells formally arrested Hopper. Although the search of Hopper preceded his formal arrest, it is well settled that "` search conducted immediately prior to an arrest may be justified as incident to arrest if the police had probable cause to arrest the suspect before conducting the search.'" State v. Mitchell, 722 So. 2d 814, 821 (Ala.Cr.App. 1998), quoting Price v. State, 725 So. 2d 1003, 1040 (Ala.Cr.App. 1997), aff'd, 725 So. 2d 1063 (Ala. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 1809, 143 L.Ed.2d 1012 (1999). In Seay v. State, 651 So. 2d 81 (Ala.Cr.App. 1994), we stated:
"`A search conducted prior to the formal act of arresting is unreasonable only where "a lawful arrest could not have been made prior to the search." LaFave, Search and Seizure, § 5.4(a) (2d ed. 1987).
"`"....
"`"`... If the prosecution shows probable cause to arrest prior to a search of a man's person, it has met its total burden. There is no case in which a defendant may validly say, "Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards."'
"`"....
"`"... he Supreme Court correctly concluded in Rawlings v. Kentucky, [448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980),] that `where the formal arrest quickly followed on the heels of the challenged search of petitioner's person, we do not believe it particularly important that the search preceded the arrest rather than vice versa,' so long as the fruits of the search were `not necessary to support probable cause to arrest.'"
"`LaFave, Search and Seizure, § 5.4(a)(2d ed. 1987).'
"Green v. State, 571 So. 2d 356, 359-60 (Ala.Cr.App. 1990)(quoting, in part, Peters v. New York, 392 U.S. 40, 41, 88 S.Ct. 1889, 1912, 20 L.Ed.2d 917 (1968)). (Emphasis in original.) Also quoted in Callahan v. State, 644 So. 2d 1329, 1332 (Ala.Cr.App. 1994)."
651 So. 2d at 83.
Because probable cause was sufficiently established prior to the search, and thus the marijuana pipe found in Hopper's pants pocket was "not necessary to support probable cause to arrest," the search was valid as incident to a lawful arrest. In addition, contrary to Hopper's contention, because Hopper's arrest was lawful, the search of the his car was also lawful. "`After arresting the driver of an automobile, an officer "may, as a contemporaneous incident of that arrest, search the passenger compartment" of that car.'" Jones v. State, 631
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