No briefs for respondent. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS, 396 So.2d 125. FAULKNER, Justice.
The burden is on the State to show that a warrantless search falls within one of the exceptions. Murray v. State, 396 So.2d 125 (Ala.Cr.App. 1980), cert. denied, 396 So.2d 132 (Ala. 1981). The State did not meet this burden as to any of the exceptions offered to this court.
The Alabama courts have frequently reviewed a consent-search situation by determining whether the accused had acted voluntarily and whether his Fourth Amendment rights had actually been waived. See, e.g., Lott v. State, 456 So.2d 857, 859 (Ala.Cr.App.), cert. denied, 456 So.2d 857 (Ala. 1984) (wherein the court, in quoting C. Gamble, McElroy's Alabama Evidence § 334.01(3)(b) (3d ed. 1977), stated that "a consent to an illegal search is a waiver of the constitutional protection from unreasonable searches and seizures"); Hall v. State, 399 So.2d 348, 353 (Ala.Cr.App. 1981) (wherein the court noted that "[c]lear and convincing evidence of waiver is required, and the burden of proving waiver is on the State as the party claiming it"); Murray v. State, 396 So.2d 125, 129 (Ala.Cr.App. 1980), cert. denied, 396 So.2d 132 (Ala. 1981); Minnifield v. State, 390 So.2d 1146, 1152 (Ala.Cr.App.), cert. denied, 390 So.2d 1154 (Ala. 1980); Reid v. State, 388 So.2d 202, 206-07 (Ala.Cr.App. 1979), rev'd on other grounds, 388 So.2d 208 (Ala. 1980) (wherein the court noted, in discussing a consent search, that every presumption will be indulged against the accused's waiver of his constitutional right against unreasonable searches and seizures and that the prosecution "must prove that consent to search was evidenced by a statement or some overt act sufficient to indicate an intent to waive the constitutional right"). Waiver is "an intentional relinquishment or abandonment of a known right or privilege," Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
" 'When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntary given.' Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); Schneckloth v. Bustamonte, 412 U.S. 218, [222,] 93 S.Ct. 2041, [2045,] 36 L.Ed.2d 854 (1973)." Murray v. State, 396 So.2d 125, 129 (Ala.Cr.App. 1980), cert. denied, 396 So.2d 132 (Ala. 1981). In order to establish the voluntariness of a consent, the prosecutor must prove two distinct elements: (1) that the consent "was evidenced by a statement or some overt act sufficient to indicate an intent to waive the constitutional right," and (2) that "there was no duress or coercion, express or implied."
By the only other issue in the case, the question is raised as to "Whether the trial court erred in failing to suppress evidence that was obtained in a warrantless search." In support of this issue, counsel for appellant cites the case of Murray v. State, 396 So.2d 125 (Ala.Cr.App. 1980), cert. denied, 396 So.2d 132 (Ala. 1981), which, in our opinion, does not support appellant's contention as to the issue under consideration. We are of the opinion that a recital of the material facts in this case is sufficient to lead to the conclusion that this issue should be determined adversely to appellant.
This is not a matter that can be presumed, but the State has the burden of proving that the consent or waiver was given voluntarily without inducement or coercion and with knowledge of the right to refuse the request to search.'" Murray v. State, 396 So.2d 125, 129 (Ala.Cr.App. 1980), cert. denied 396 So.2d 132 (Ala. 1981). The mere fact that in this case, both the defendant and the plant manager merely "submitted to authority" does not mean that a free and voluntary consent to the search was given. Herriott v. State, 337 So.2d 165, 169 (Ala.Cr.App.), cert. denied, 337 So.2d 171 (Ala. 1976).
The burden is on the State to make such a showing that the warrantless search meets an exception. Murray v. State, 396 So.2d 125 (Ala.Crim.App. 1981). The only issue that merits consideration is whether the law enforcement officers had probable cause in conjunction with exigent circumstances to justify a warrantless search of appellant's person, automobile, and containers found in the automobile.
Furthermore, while reputation of an accused, standing alone, is an insufficient basis for a finding of probable cause, it may be considered with other facts and circumstances in determining probable cause. Murray v. State, 396 So.2d 125 (Ala.Cr.App. 1980), cert. denied, 396 So.2d 132 (Ala. 1981). So may an officer's suspicion be considered as a factor in determining whether probable cause existed.
When it seeks to introduce evidence seized without a warrant, the State must show that the seizure falls within at least one of these exceptions. Murray v. State, 396 So.2d 125 (Ala.Cr.App.), cert. denied, 396 So.2d 132 (Ala. 1980). The State argues that this case falls within the plain view and the probable cause/exigent circumstances exceptions to the warrant requirement.
The burden is on the State to show that a warrantless search falls within one of the exceptions. Murray v. State, 396 So.2d 125 (Ala.Cr.App.), cert. denied, 396 So.2d 132 (Ala. 1980). The plain view exception permits a warrantless seizure of evidence if the seizing officer 1) has prior justification for the intrusion, 2) comes upon the evidence inadvertently, and 3) immediately recognizes the objects discovered as evidence of wrongdoing.