After he was charged “with first-degree unlawful manufacture
of a controlled substance” in violation of Alabama Code § 13A–12–218, George
Willie Polland moved to suppress “evidence seized as a result of a traffic
stop.” State v. Pollard, --- So.3d ----, 2012 WL 6554249 (Alabama Court of Criminal Appeals 2012). Pollard argued that “contraband” discovered during the
stop and an ensuing search because the search was conducted “`without a warrant.’”
State v. Pollard, supra.
The judge who had the case held a hearing on the motion, and
the evidence presented at the hearing established that on January 12, 2011, at
approximately 3:18 p.m.,
Corporal Brantley Cargill received a
`Meth Check Alert’ indicating Pollard had purchased pseudoephedrine at a
Wal–Mart discount store in Opelika. Cargill . . . would receive these alerts `when
someone would purchase pseudoephedrine [he] had on a watch list[;] it would
alert [him] via e-mail someone that had purchased and where they purchased and
how many grams they purchased.’. . .
[A]n individual is placed on the watch
list if Cargill knows the individual uses methamphetamine or purchases `excessive
amounts of pseudoephedrine.’ . . . Cargill . . . entered Pollard into the watch
list because of prior involvement with him in September 2010; Pollard `had
previously been arrested for the precursor, and he is a known meth user and
possibly a meth cook.’ . . .
Cargill contacted Detective Michael
Rogers, a narcotics investigator with the Opelika Police Department, and told
Rogers he received an e-mail alert indicating Pollard had purchased
pseudoephedrine at a Wal–Mart discount store in Opelika. After
Rogers received the information from [He] positioned his vehicle `on the edge
of the roadway facing northbound at exit 64 . . . to observe any vehicles
traveling north. And [his] main purpose . . . was to observe the vehicle
[Pollard] was occup[ying].’
State v. Pollard,
supra.
While Rogers was waiting, a “black vehicle” passed him,
which was occupied by
`two black males and a redheaded
female.’ Rogers was familiar with Pollard and [his] wife, Christy.[He] knew
Christy had red hair so he decided to follow the vehicle to determine whether
[she] was the `redheaded female’ in the vehicle and . . . whether Pollard was
also in [it].
When Rogers pulled up next to the
vehicle he saw Pollard in the front passenger seat. [He] `fell back in behind’
the vehicle, ran [its] license tag number, and determined it was registered to
Steve Madden.
Rogers `was informed that [Madden] had an outstanding warrant’
for theft of property. After [he] learned Madden had an outstanding warrant,
Rogers . . . initiated a traffic stop. . . . based on the warrant for Madden
coupled with the information . . . that Pollard had recently purchased
pseudoephedrine. . . .
Rogers [asked] . . . Madden
. . . to step out of the vehicle. . . . [and] consent to search [it]. Madden
gave Rogers consent to search the vehicle, and, during the search, Rogers
discovered `a gallon can of Coleman camp fuel,’ `a box of Aleve–D cold pills,’
and two bottles of `one hundred percent household drain cleaner’ on the rear
floorboard -- items commonly used in the manufacture of methamphetamine.
State v. Pollard,
supra.
While Pollard’s motion to suppress was based on the absence
of a warrant, the trial judge “framed the issue” as “`whether or not this
e-mail is enough to base a stop on’”. State
v. Pollard, supra. After he heard the evidence presented at the hearing,
the judge said “`I have never had a situation where I have known of a stop
based on a computer software generated e-mail.’” State
v. Pollard, supra. “After
analogizing the e-mail alert to an anonymous tip,” he “ordered the parties to
research the issue and return the following morning.” State v. Pollard, supra.
When the attorneys met with the judge the next morning, none
had found any cases that dealt with this issue. State v. Pollard, supra. The judge then issued an order that
provided, in part, as follows:
`It appears this matter is a matter of first impression for this Court since it involves an electronic e-mail; however, it is the Court's opinion that the caselaw involving anonymous tips would be applicable to this fact situation.
Furthermore, the Court took this matter under advisement and asked the parties
to research whether or not they could find a case involving a stop based on an
electronic e-mail. When the hearing was recommenced on June 21, 2011, the
attorneys informed the Court that they could not find any case directly on
point.’
`Therefore,
based on the authority as set forth in [Ex parte Aaron, 913 So.2d
1110 (Supreme Court of Alabama 2005),] the court is of the opinion that
[Pollard's] motion to suppress is due to be granted.’
State v. Pollard,
supra.
The prosecution appealed, claiming the judge erred when he
“`held that . . . the computer generated e-mail alert was analogous to an
anonymous tip.’” State v. Pollard, supra. The Court of Appeals began its analysis of
the issue by noting that
‘“[u]nder Terry v. Ohio, 392 U.S. 1 (1968), law enforcement officers may conduct investigatory stops of persons
or vehicles if they have a `reasonable suspicion that criminal activity has
occurred, is occurring, or is about to occur.’ . . . ‘Reasonable suspicion is a
less demanding standard than probable cause,’ Alabama v. White, 496 U.S. 325 (1990), requiring only that the detaining officers ‘have a
particularized and objective basis for suspecting the person detained of
criminal activity’. Webb v. State, 500 So.2d 1280 (Alabama Court
of Criminal Appeals 1986). . . .’”
State v. Pollard,
supra.
The court then found that the trial judge erred in relying “solely
on the Alabama Supreme Court's decision” in Ex parte Aaron, supra because “Aaron is
distinguishable from this case.” State v. Pollard, supra. It noted that the following occurred in the Aaron case:
`Aaron was one of two passengers in an
automobile being driven by [Brian] Shaver. An anonymous tip, purporting to be
from an employee of a Wal–Mart discount department store where Aaron, Shaver,
and Joyce Lawler Shaver, Shaver's wife, had purchased several packages of
over-the-counter cold medication containing pseudoephedrine, led to a warrantless
stop of Shaver's vehicle. . . . After the vehicle was stopped, a deputy saw the
packages of the cold medication in ‘plain view’ in the vehicle. Subsequently,
Aaron, Shaver, and Joyce Shaver were arrested.’
State v. Pollard,
supra (quoting Ex parte Aaron, supra).
The Court of Appeals noted that in ruling on the
permissibility of the stop in a related case, the Alabama Supreme Court found
that
Shaver's vehicle was stopped as the
result of the telephone call to the police from the Wal–Mart [discount
department] store without any intervening police investigation; there is no
indication in the record that the police did anything to corroborate the
information given in the telephone call from Wal–Mart before stopping Shaver's
vehicle.
Ex parte Shaver,
894 So.2d 781 (Alabama Supreme Court 2004).
In the Shaver
case, the Alabama Supreme Court then held that the
scant evidence provided by [the deputy
sheriff] concerning the nature of the Wal–Mart telephone call provides
insufficient indicia of reliability to establish the requisite `reasonable
suspicion; required under Terry v. Ohio, supra for an investigative stop.
As explained, no evidence
was presented to indicate that any police work preceding the stop in any way
corroborated the telephone tip so as to cumulatively provide `reasonable
suspicion’. . . . In the absence of the constitutionally required reasonable
suspicion to support the initial stop, none of the evidence gained as a result
of that stop or the ensuing detention is properly admissible. Accordingly, the
trial court erred when it denied Shaver's motion to suppress the evidence. . .
.
Ex parte Shaver,
supra.
In the Aaron case,
the Alabama Supreme Court based its holding on the facts and on its application
of the law to those facts in Ex parte
Shaver:
By virtue of the fact Aaron was a
passenger in Shaver's vehicle, the same evidence that failed to provide
sufficient indicia of reliability required to establish reasonable suspicion
for an investigatory stop in Ex parte Shaver also provides
insufficient indicia of reliability required to establish reasonable suspicion
with respect to Aaron.
Accordingly, Aaron's motions to suppress . . . the pills
containing pseudoephedrine and the subsequent statement she made to police . .
. should have been granted.
Ex parte Aaron, supra.
The Court of Appeals then addressed the issue involved in
Pollard’s appeal, noting that in the Aaron
case, the “sole basis” for the stop was an anonymous tip, while here the
e-mail Cargill received informing him Pollard
had purchased pseudoephedrine from a Wal–Mart discount store, which he . . . relayed
to Rogers, was not the sole basis for conducting the stop of the vehicle in
which Pollard was riding. . .
. .
When Rogers pulled up next to the vehicle he believed to be occupied by
Pollard, he saw Pollard in the front passenger seat. Rogers then `fell back in
behind’ the vehicle, ran the vehicle's license tag number, and determined that
it was registered to `Steve Madden.’ Rogers `was informed that [Madden] had an
outstanding warrant’ for theft of property.
After Rogers learned Madden had an
outstanding warrant, [he] activated his emergency equipment and initiated a
traffic stop. . . . based on the outstanding warrant for Madden and on the
information he had that Pollard had purchased pseudoephedrine. Thus, the
State's evidence . . . established a second, independent reason for conducting
the investigatory stop on the vehicle in which Pollard was riding.
State v. Pollard,
supra.
The Court of Appeals then held that the trial judge’s order
granting the motion to suppress would be reversed, because although Pollard
argued,
in his brief on appeal, that `the
record is completely devoid of any evidence that Rogers knew that Madden was
driving the vehicle’ . . . , Rogers testified that he received information that
the registered owner of the vehicle, Madden, had an outstanding warrant for
theft of property.
Thus, Rogers had sufficient justification to conduct a stop
on the vehicle to determine whether Madden was, in fact, in the vehicle. See Alabama
Code § 15–10–3(a) (when a law-enforcement officer `has actual knowledge that a
warrant for [a] person's arrest for the commission of a felony or misdemeanor
has been issued’ he may `arrest [that] person without a warrant, on any day and
at any time’).
State v. Pollard,
supra. The reversal of the motion to
suppress, of course, means the case will move forward.
And what about the status of the computer-generated email as
an anonymous tip . . . the central issue in the appeal? In a footnote, the Court of Appeals explained
that
[w]e need not decide whether the circuit
court correctly held that the e-mail at issue here is analogous to an anonymous
tip. Even if that analogy is correct, Aaron is distinguishable from
the facts of this case.
State v. Pollard,
supra.
So . . . the issue survives, to be resolved, one hopes, by
another court in the near future.
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