REL: 08/29/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
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Ex parte George Willie Pollard
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: State of Alabama
v.
George Willie Pollard)
(Lee Circuit Court, CC-11-418;
Court of Criminal Appeals, CR-10-1560)
WISE, Justice.
The writ of certiorari is quashed.
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In quashing the writ of certiorari, this Court does not
wish to be understood as approving all the language, reasons,
or statements of law in the Court of Criminal Appeals'
opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155
(1973).
WRIT QUASHED.
Stuart, Bolin, Parker, Murdock, Main, and Bryan, JJ.,
concur.
Moore, C.J., and Shaw, J., dissent.
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SHAW, Justice (dissenting).
I dissent from quashing the writ of certiorari in this
case.
On January 12, 2011, law-enforcement officials received
an e-mailed "Meth Check Alert," apparently as part of the
National Precursor Law Enforcement Exchange Program,
indicating that George Willie Pollard had purchased
pseudoephedrine at a store in Opelika. The alert was relayed
to Detective Michael Rogers, a narcotics investigator with the
Opelika Police Department.
Rogers drove to a position near Interstate 85 to observe
vehicular traffic traveling north, apparently in an attempt to
observe Pollard's vehicle. Rogers was familiar with both
Pollard and Pollard's wife, Christy. He spotted a vehicle
driving past his location that was occupied by "two black
males and a redheaded female." Rogers knew that Christy had
red hair, so he decided to follow the vehicle to determine
whether Christy was the female in the vehicle and whether
Pollard was with her. When Rogers saw Pollard in the vehicle,
he performed a check of the vehicle's tag number and
determined that the vehicle was registered to Steve Madden,
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who allegedly had an outstanding warrant. According to
Rogers, he then conducted a traffic stop based on the
outstanding warrant for Madden coupled with the information he
had that Pollard had recently purchased pseudoephedrine.
After the vehicle was stopped, the driver, Madden, consented
to a search of the vehicle. During the course of the search,
Rogers discovered several items commonly used in the
manufacture of methamphetamine.
Pollard was ultimately indicted for first-degree unlawful
manufacture of a controlled substance. Ala. Code 1975, §
13A-12-218. He filed a pretrial motion to suppress the
evidence seized from the vehicle, arguing that the traffic
stop and the resulting search were illegal.
The issue discussed at the hearing on the motion to
suppress was whether the e-mailed "alert" received by law-
enforcement officials was sufficient cause to initiate a
traffic stop. It appears from the record that the issue was
extensively argued by both Pollard and the State. Ultimately,
the trial court granted the motion to suppress under the
rationale that the e-mail alert did not provide a sufficient
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basis for an investigatory stop of the vehicle. The State
appealed to the Court of Criminal Appeals.
On appeal, the State contended that the trial court erred
in overlooking Rogers's testimony that the driver of the
vehicle, Madden, had a warrant outstanding for his arrest.
The Court of Criminal Appeals agreed, holding that the
evidence of the arrest warrant for Madden established a
second, independent reason for conducting the investigatory
stop. State v. Pollard, [Ms. CR-10-1560, August 13, 2013] ___
So. 3d ___ (Ala. Crim. App. 2013).
On appeal to the Court of Criminal Appeals (and in his
certiorari petition to this Court), Pollard contended that the
State's argument that the outstanding arrest warrant for
Madden provided a basis for the investigatory stop was
improper because the State failed to raise this claim first in
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the trial court.1 In its opinion, the Court of Criminal
Appeals addressed this issue as follows:
"The Alabama Supreme Court has noted that
"'"[a]lthough on appeal from an
intermediate court the higher court may be
limited to the questions of law raised or
argued at the trial, it is not limited to
the arguments there presented." 5 C.J.S.
Appeal and Error § 978 (2007) (emphasis
added). In other words, "[n]ew arguments or
authorities may be presented on appeal,
although no new questions can be raised."
4 C.J.S. Appeal and Error § 297 (emphasis
added).'
"Ex parte Jenkins, 26 So. 3d 464, 473 n. 7 (Ala.
2009). Thus, under Jenkins, a party waives on appeal
questions of law not first raised in circuit court.
"As stated above, the only question of law
before the circuit court was whether the 'evidence
and statements are due to be suppressed in that
[the] search leading to the discovery of [the]
evidence and statements [was] conducted without a
search warrant.' (C. 24.) The State on appeal is
1
Both the State's failure to raise the issue of the
outstanding arrest warrant and the trial court's failure to
recognize it are understandable. On a motion to suppress, the
State responds to the specific arguments presented by the
movant. Here, Pollard raised a novel legal issue, the State
responded to that issue, and the trial court endeavored to
determine what the law would require with respect to what
appeared to be an issue of first impression. That an arrest
warrant for Madden existed was only briefly mentioned in
testimony, and both the parties and the trial court instead
focused their efforts on the unique legal issue concerning the
e-mail alert.
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merely asserting an argument--based on undisputed
evidence presented to the circuit court--as to why
the circuit court erred in ruling on the question of
law that Pollard raised in his motion to suppress."
Pollard, ___ So. 3d at ___ n.3.
I have serious concerns as to whether Ex parte Jenkins,
26 So. 3d 464 (Ala. 2009), relied on by the Court of Criminal
Appeals, was correctly decided. Assuming that it is easy to
distinguish between a legal "question" and a mere "argument"
as to that question, it seems that, if any "question" is
defined broadly enough, anything can be preserved for review
and considered on appeal. This drastically alters the
traditional duties of parties to preserve issues for appellate
review. Further, there should be consideration as to whether
the parties must take some initiative to ensure that the trial
court has the opportunity to make the correct decision.
Parties should be required to direct the trial court to the
correct "arguments" instead of allowing the focus to dwell on
immaterial issues or, intentionally or not, "sandbagging" the
trial court with inconsequential "arguments," while leaving
the appellate courts to address the true "questions" never
before brought to the attention of the lower court. In his
brief, Pollard asks this Court to "revisit" Jenkins and to
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clarify its holding. I would do so. I thus dissent from
quashing the writ.
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