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BUSH v. STATE12/1/1995
ntical issues arose in the second trial of this case and were addressed at length in Bush II, 523 So.2d at 543-57. In holding that the confessions were properly admitted in the second trial, we determined in Bush II that the appellant's arrest was proper; that he failed to assert his right to remain silent, but instead waived it; and that his confessions were knowingly and voluntarily made with proper Miranda warnings. We reaffirm and adopt our holding in Bush II in reviewing the trial court's ruling in this third trial because, in this third trial, the parties presented no new evidence or arguments, but stipulated that the transcript of the evidence presented at the suppression hearing in the second trial would be made a part of the record and would constitute the facts upon which the trial court would rule on the appellant's motion to suppress. No reason has been shown why we should now change our decision. See also our treatment of the admissibility of the confessions in our introductory rendition of the facts, supra.
The appellant contends for the first time that he was subjected to an illegal seizure or stop when on the evening before his arrest, he was approached and questioned by Lieutenant Ward and another officer on the street near his home. He argues that, as a result of this 10-minute encounter, the police obtained information from him about his prior criminal record, where he lived, and other facts that played a part in their decision to arrest him at his home the following night, an arrest which, he says, led to inculpatory custodial statements by him.
This issue was not raised in the trial court and, hence, we must review it under the plain error rule.
Lieutenant Ward testified as follows concerning the encounter:
"Q. [MR. BELSER, prosecutor]: Now, when was your first contact with William Bush?
"A. I believe it was on 8-27-81.
". . . .
"Q. The 27th?
"A. Yes, sir. It could have been the 26th. I would have to refer back to my notes.
"Q. Tell the jury what the circumstances were around your first contact with him.
"A. Well, the first contact, myself and Sgt. Billingsly . . . were riding on the Western Boulevard around Mobile Highway. We had had information which we were unable to support the information,
that the subject who was involved in the crime lived in one of the houses in Smiley Court. So we had ridden through Smiley Court a couple of times just hoping we might see something that would make us think we needed to talk to this person or that person, or maybe spot one of the vehicles that we were looking for in the case. On this particular night we observed William Bush and a child on a motorcycle coming out of Smiley Court, one of the first few houses as you go into Smiley Court. His general build and so forth matched the general description. We were going to stop him and just talk to him. We stopped him. He got off the motorcycle. We asked him for his name, just personal type information. We had no reason to really talk to him about the case at that time because we had no information that he was involved.
"Q. Did you talk to him about the case?
"A. No, sir. We just strictly got his name and his address and if he had ever been in jail before, ever been arrested. I think we ran him to see if he had any outstanding warrants on him. And it lasted about ten minutes."
From the time these crimes were committed, the police began a search of the city for someone who matched Holmes's description of the perpetrator and for the automobile described by Holmes. According to Ward, the procedure followed in the city-wide searc
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