State of Alabama v. Dandre Shamar Jemison

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REL:07/30/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-09-0399 S t a t e o f Alabama v. Dandre Shamar Appeal KELLUM, Shamar J e m i s o n of unlawful Benzylpiperazine 1975, from C h i l t o n C i r c u i t (CC-09-332) Court Judge. Dandre count Jemison and one was a r r e s t e d possession of w i t h one of a c o n t r o l l e d substance -- a v i o l a t i o n count and charged o f § 13A-12-212, driving while Ala. h i s license -- NCode was CR-09-0399 suspended, a v i o l a t i o n filed a motion to o f § 3 2 - 6 - 1 9 , A l a . Code 1975. suppress the package of Jemison "Ecstasy" recovered b y p o l i c e d u r i n g w h a t J e m i s o n a l l e g e d was detention and search. circuit court granted Jemison's motion to suppress. to 15.7, A l a . R. Crim. Rule court's Luther away f r o m saw drive hearing. David reportedly he Clackley King the were dash any area and was 12, patrolling of Clanton for a short residence. four c h e c k on in observed Jemison's "Ecstasy" is Benzylpiperazine. the the the to the the Pursuant the circuit to State Second watch and be Avenue a driven make a "a DVD car, to 2 traffic player recorded common drove returned, by Jemison, Clackley followed "just see or what stop." some t y p e Jemison's street name and residence Clackley when he the Police s t a t u s o f t h e d r i v e r and to at Clanton Officer Officer blocks by 2008, period, determined violations Clackley screen" 1 appeals presented October area approximately s i t u a t i o n was Officer State i n v o l v e d i n drug a c t i v i t y . away f r o m t h e there On a vehicle, later vehicle evidentiary hearing, the f o l l o w i n g e v i d e n c e was suppression Martin P., an illegal ruling. The Officer Following an pills 1 the the see i f (R. 7.) of in- license for N- CR-09-0399 plate number, police and dispatcher. about to i n i t i a t e end of the turn; of revealed in Clackley the he a the did turn front police not the was door away." (R. out of the uncle, Clackley, Officer Clackley fact the that was allowed Officer him; to testified that he Officer come a from [Jamison's] him made feet driveway because behind later instead a p p r o x i m a t e l y 30 the vehicle Again, but the right was "bumped" a stop, was into i t a he making a which and to approached forward process. into in knew Clackley residence in or turn or him 9.) Jemison got toward street, driving the over pulled a traffic Jemison p u l l e d came t o back number vehicle the house. whoever to the stopped his v e h i c l e i f in trying in initiate vehicle house, the Jemison's "see the s t o p as across to door of to Officer abruptly driveway and believed wanted house to plate a p p e a r e d t o p r e p a r e t o be Jemison belonged parked license According s t r e e t and driveway the a traffic however, right called and began locate his a of the car, looking key. shoulder rear the in After at approached the a Officer house. his few as i f moments, J e m i s o n Clackley Office 3 pocket front and Clackley began door he of were looked walking explained: CR-09-0399 " A t t h i s t i m e , I d i d n ' t know i f i t was a c t u a l l y h i s h o u s e , whose h o u s e i t w a s , o r i f a n y c r i m i n a l a c t s h a d o c c u r r e d p r i o r t o me g e t t i n g t h e r e . " I r o l l e d my window down a n d I s a i d , 'Hey, man, do y o u l i v e h e r e ? Can I t a l k t o y o u f o r a s e c o n d , ' t o c o n f i r m t h a t he l i v e d t h e r e , make s u r e he w a s n ' t d r u n k o r w h a t e v e r t h e c a s e may b e , make s u r e he wasn't f i x i n g t o break i n t o t h e house, which i s a possibility. A n d when I s a i d t h a t , he g o t r e a l n e r v o u s a n d he p i c k e d up h i s p a c e . A s he was w a l k i n g he s a i d , 'Man, I g o t t o g o . ' I s a i d , 'I n e e d t o t a l k t o y o u f o r a s e c o n d a n d make s u r e y o u l i v e here.' He s a i d , 'Man, I g o t t o g o , ' a n d he took o f f r u n n i n g around t h e back o f t h e house." (R. with 11.) Officer Clackley him approximately four then placed him i n custody. arrived on s c e n e vehicle so t h a t Jemison's traced or five By t h i s and t r a n s p o r t e d Officer flight. Jemison's ran after Clackley Officer steps Jemison blocks and caught from t h e house, time, another o f f i c e r had Jemison could Clackley back t o Jemison's retrace the steps of explained that he r e - because: "At t h i s p o i n t , I wasn't exactly s u r e what [ J e m i s o n ' s ] r e a s o n f o r r u n n i n g w a s . I knew he r a n . I've been a p o l i c e o f f i c e r f o r t e n y e a r s . I know t h a t p e o p l e d o n ' t j u s t r u n t o be r u n n i n g . I wanted t o go b a c k , b a c k t r a c k w h e r e we h a d r a n . I started from where I caught h i m and check t h e a r e a t o s e e i f there [were] any e v i d e n c e [ J e m i s o n ] d i s p o s e d o f , whether i t be a gun, e v i d e n c e o f a b u r g l a r y , a robbery, drugs, whatever." 4 up CR-09-0399 (R. 12.) While he retraced their steps, f o u n d a s m a l l p l a s t i c bag f i l l e d with pills of around from the Jemison's a l t h o u g h he of p i l l s were by determined Clackley the court found direct the Jemison's constituted subsection vehicle or Furthermore, "what, prior [Jemison] about t h a t he flight blocking traffic in a running from d i d run." (R. be that of p i l l s , to why he stated cash. Clackley, arrested the center of Jemison. he public specifically, "under pedestrian highway." he the a wanted [Jemison] [Officer Clackley]" 5 in Jemison's a r r e s t e d Jemison because public 19.) pills controlled search Officer bag Forensics a $9,000 the The of Ecstasy, of down activity 18, testified interrupting a Officer Clackley criminal feet Department conduct, or 20 Jemison ran. proceeded disorderly of i f any, to to bag approximately him Officer Clackley explained street route examination questioned that approximately Clackley the Officer During believed the were i n w h i c h he house Jemison drop the field-tested and substance. trial see Clackley small, different colored Officer recovered along later vehicle, the vehicle. d i d not was Sciences corner Officer had and When a s k e d b y (R. to 18.) determine partaken "why the or in exactly State i f CR-09-0399 he would have c o n t i n u e d did not charge with h i s i n v e s t i g a t o r y stop Jemison with disorderly Clackley s a i d , "Oh, y e s , d e f i n i t e l y . vehicle, could idea conduct, Officer C o u l d have been a s t o l e n have j u s t p e r f o r m e d a r o b b e r y . when he i n i t i a l l y e v e n i f he r a n why e x a c t l y Really I h a d no he was r u n n i n g . " 20.) O f f i c e r C l a c k l e y a d m i t t e d t h a t when he i n i t i a t e d with Jemison, committing, When he believed o r was a b o u t asked on t o commit" "had to investigate vehicle parked Jemison's i n the driveway Officer Clackley i n t o which was (R. 2 1 . ) whether vehicle contact committed, some o f f e n s e . cross-examination Jemison car, Jemison (R. he bumping stopped the other Jemison p u l l e d h i s explained: "The whole situation l e d me to believe that s o m e t h i n g was g o i n g on w i t h h i m , w h e t h e r he h a d b e e n drunk, stolen vehicle, just committed domestic violence. I r e a l l y h a d no c l u e a s t o w h a t was g o i n g on. The b u m p i n g i n t o t h e o t h e r v e h i c l e was a m a j o r indicator t o me s o m e t h i n g was g o i n g o n i n t h i s situation." (R. 22.) Officer Clackley the bumping o f t h e p a r k e d v e h i c l e explained that he damaged. In asking admitted d i d not do that reference i n h i s incident report, but so because for clarification 6 he d i d n o t neither regarding why c a r was Officer CR-09-0399 Clackley defense initiated contact with Jemison, c o u n s e l had the f o l l o w i n g Officer C l a c k l e y and exchange: "[Defense counsel]: So t e l l me now, b e c a u s e I'm c o n f u s e d , w h a t was t h e o r i g i n a l b a s i s u p o n w h i c h y o u h a d t o i n i t i a t e c o n t a c t w i t h my c l i e n t ? What was your r e a s o n i n g ? " "[Officer Clackley]: Like I said, i t wasn't a t r a f f i c stop. I s i m p l y asked him i f I c o u l d speak w i t h h i m . I n e v e r commanded h i m t o s t o p a n d t a l k t o me. When I a s k e d , 'Hey, man, c a n I t a l k t o y o u a m i n u t e , ' he f l e d . I n my e x p e r i e n c e , when p e o p l e r u n f r o m me u p o n a s i m p l e q u e s t i o n -¬ " [ D e f e n s e c o u n s e l ] : You n e v e r o r d e r e d h i m t o s t o p and t a l k t o y o u ? "[Officer Clackley]: O n c e when we g o t o n A v e n u e i s when I s t a r t e d g i v i n g commands. Taylor "[Defense counsel]: I'm t r y i n g t o u n d e r s t a n d t h e d i s o r d e r l y conduct. I f you had n o t i n s t r u c t e d him t h a t he h a d t o s t a y t h e r e a n d t a l k w i t h y o u a n d i f t h e r e was no c u s t o d i a l s i t u a t i o n , w h a t was t h e b a s i s upon your chase o f h i m a t t h i s p o i n t ? " [ O f f i c e r C l a c k l e y ] : I h a v e a s much a r i g h t t o r u n a s he d o e s . Once I o b s e r v e d h i m r u n n i n g i n t h e h i g h w a y , t h e n he was v i o l a t i n g t h e s e c t i o n t h a t I c h a r g e d h i m w i t h , w h i c h was d i s o r d e r l y c o n d u c t . Up t o t h a t p o i n t we w e r e b o t h j u s t g o i n g f o r a r u n . "[Defense counsel]: going f o r a run? "[Officer Clackley]: Up t o t h a t Y e s , ma'am. him." (R. point, 24-25.) 7 you were I was just observing CR-09-0399 On motion In December 16, to suppress State v. 2009), t h i s Court 2009, the trial court granted without explanation. Landrum, 18 So. 3d Jemison's This appeal 424 ensued. (Ala. Crim. App. explained: " ' T h i s C o u r t r e v i e w s de novo a c i r c u i t c o u r t ' s d e c i s i o n on a m o t i o n t o s u p p r e s s e v i d e n c e when t h e f a c t s are not i n d i s p u t e . See S t a t e v. H i l l , 690 So. 2d 1201, 1203 ( A l a . 1 9 9 6 ) ; S t a t e v. O t w e l l , 733 So. 2d 950, 952 ( A l a . C r i m . App. 1 9 9 9 ) . ' S t a t e v. S k a g g s , 903 So. 2d 180, 181 ( A l a . C r i m . App. 2 0 0 4 ) . In S t a t e v. H i l l , 690 So. 2d 1201 ( A l a . 1 9 9 6 ) , t h e t r i a l c o u r t granted a motion to suppress f o l l o w i n g a h e a r i n g at which i t heard o n l y the testimony of one police officer. Regarding the applicable s t a n d a r d of r e v i e w , the Alabama Supreme Court s t a t e d , i n p e r t i n e n t p a r t , as f o l l o w s : "'"Where t h e e v i d e n c e b e f o r e t h e trial c o u r t was u n d i s p u t e d t h e o r e t e n u s r u l e i s i n a p p l i c a b l e , and t h e Supreme C o u r t w i l l s i t i n j u d g m e n t on t h e e v i d e n c e de novo, i n d u l g i n g no p r e s u m p t i o n i n f a v o r o f t h e t r i a l c o u r t ' s a p p l i c a t i o n of the law t o those f a c t s . " S t i l e s v. Brown, 380 So. 2d 792, 794 ( A l a . 1980) (citations omitted). The t r i a l j u d g e ' s r u l i n g i n t h i s c a s e was b a s e d upon h i s i n t e r p r e t a t i o n o f t h e t e r m " r e a s o n a b l e s u s p i c i o n " as a p p l i e d t o an undisputed set of facts; the proper i n t e r p r e t a t i o n i s a q u e s t i o n of law.' " S t a t e v. H i l l , 18 So. 3d suppression this Court at 426. 690 So. Because h e a r i n g i s not 2d a t 1203-04." the evidence in dispute, i s whether the c i r c u i t 8 the presented at only issue before court correctly applied the the CR-09-0399 l a w t o t h e f a c t s p r e s e n t e d a t t h e s u p p r e s s i o n h e a r i n g , a n d we afford no p r e s u m p t i o n Initially, explanation motion both the we i n favor note i n granting to suppress, the seizure of the c i r c u i t that the c i r c u i t Jemison's motion court's ruling. court to suppress. a n d a g a i n on a p p e a l , J e m i s o n of h i s person and t h e s e a r c h e s no Inh i s argued that b a g o f E c s t a s y a n d t h e money i n h i s v e h i c l e F o u r t h Amendment offered that yielded violated his rights I. The State granting Officer contends Jemison's Clackley Jemison. in this case points at freedoms law motion to circuit suppress brief, at 15.) court erred because, or i l l e g a l l y However, which directs the of Jemison that and a t 12, 3 2 . ) relate to the facts Court's individual intersect enforcement" brief, this seize[d]" Jemison with he attention constitutional the authority says unreasonable show in i t says, argues court properly suppressed the evidence and unconstitutional the i n no way " u n l a w f u l l y (State's that the c i r c u i t that seized to rights "five and granted to an "overall encounter." (Jemison's points listed by Jemison l e a d i n g up t o J e m i s o n ' s arrest by Officer The f i r s t four 9 CR-09-0399 Clackley point were and q u e s t i o n relates found In the l e g a l i t y to the search and t h e s e a r c h Terry v. Supreme C o u r t Ohio, of the s e i z u r e ; the of the yard of Jemison's 392 U.S. 1 i n which car after (1968 ) , the fifth drugs his arrest. the United States explained: "The scheme of the Fourth Amendment becomes meaningful o n l y when i t i s a s s u r e d t h a t a t some p o i n t the conduct of those charged w i t h e n f o r c i n g t h e l a w s c a n be s u b j e c t e d t o t h e m o r e detached, n e u t r a l s c r u t i n y o f a j u d g e who m u s t e v a l u a t e t h e reasonableness of a p a r t i c u l a r search or s e i z u r e i n light of the p a r t i c u l a r circumstances. And i n making t h a t assessment i t i s i m p e r a t i v e that the f a c t s be j u d g e d a g a i n s t an o b j e c t i v e s t a n d a r d : w o u l d t h e f a c t s a v a i l a b l e t o t h e o f f i c e r a t t h e moment o f the seizure or the search 'warrant a man of reasonable caution i n the b e l i e f ' that the a c t i o n t a k e n was a p p r o p r i a t e ? " 392 U.S. Green, a t 22 992 So. (emphasis 2d 82 added). ( A l a . Crim. Additionally, App. 2008 ), i n State this stated: "The U n i t e d S t a t e s S u p r e m e C o u r t i n U n i t e d S t a t e s v . S o k o l o w , 490 U.S. 1, 7, 109 S . C t . 1 5 8 1 , 104 L . E d . 2 d 1 (1989), s t a t e d : "'The Fourth Amendment requires "some minimal l e v e l of o b j e c t i v e j u s t i f i c a t i o n " f o r making the stop. INS v . D e l g a d o , 466 U.S. 210 , 217 (1 9 8 4 ) . That level of s u s p i c i o n i s c o n s i d e r a b l y l e s s than proof of w r o n g d o i n g by a p r e p o n d e r a n c e o f t h e evidence. We h a v e h e l d t h a t p r o b a b l e c a u s e means "a f a i r p r o b a b i l i t y t h a t contraband 10 v. Court CR-09-0399 o r e v i d e n c e o f a c r i m e w i l l be found," Illinois v. Gates, 462 U.S. 213, 238 ( 1 9 8 3 ) , and t h e l e v e l o f s u s p i c i o n r e q u i r e d for a Terry stop is obviously less d e m a n d i n g t h a n t h a t f o r p r o b a b l e c a u s e , see U n i t e d S t a t e s v . M o n t o y a de H e r n a n d e z , 4 7 3 U.S. 5 3 1 , 5 4 1 , 544 (1985).'" 992 So. 2d at 84. Throughout his brief, inconsistencies and support contention of his holes articulate a ultimately detaining he for conduct, c o n d u c t was a t 21.) the detention that extent "an objectively long as the authorized subjective intent Scarbrough, 621 not speculate but will focus So. as to only basis In h i s Jemison alleges afterthought." to pursuing arrest that in failed fourth point, eventual and thus the in of and which Jemison charge (Jemison's of brief, police u n c o n s t i t u t i o n a l , we officer and legally in doing i t 2d 1006, 1010 is the i s doing permitted, (Ala. 1993). the and note what is officer's Ex T h u s , we subjective reasonableness 11 only irrelevant." Officer Clackley's on testimony Clackley for alleged that Jemison contends that h i s stop were p r e t e x t u a l "[a]s Officer objective Jemison. disorderly To that Officer Clackley's disorderly highlights in Officer Clackley's reasonable, challenges Jemison parte will intentions of h i s a c t i o n s with CR-09-0399 respect the to the objective interaction Finally, observed between O f f i c e r at the heart F o u r t h Amendment Clackley's factors of Clackley and Jemison's infringement lies targeting, over pursuit, the course of Jemison. various claims t h e argument t h a t and eventual of Officer detention of J e m i s o n were n o t b a s e d upon s u f f i c i e n t r e a s o n a b l e s u s p i c i o n o r probable cause "curiosity objective and we proceed pertinent inquiry Clackley's unsupported brief, case could the reasonable a lawful at by 45.) n o t have suspicion or detention that o f t h e F o u r t h Amendment. the events continue that to culminated i n revert to the most a r e v i e w i n g c o u r t must a s k i n a n a l y z i n g t h e constitutionality that suspicions to conduct will Officer of this Clackley through we upon (Jemison's the requirements arrest, search of the facts necessary Jemison's available based range Officer cause comports w i t h As broad to Jemison, within probable were justifications." According created but of a police to the o f f i c e r seizure: a t t h e moment 'warrant a man of reasonable the action taken was the of the seizure caution appropriate?" 12 "[W]ould i n the facts or the belief' T e r r y , 392 U.S. a t CR-09-0399 22. we With turn this "man of reasonable to the events caution" the culminated standard i n Jemison's i n mind, arrest. A. Officer because reportedly of drug reasonable drive took the association suspected 870 initially he saw J e m i s o n activity that Clackley away f r o m place. of a interested a house This suspect activity suspicion became Court with a cause. at which has may known the association of a d e a l i n g was " l e g i t i m a t e l y i n c l u d e d cause"). Thus, by o b s e r v i n g or rise to give See, Ex p a r t e S o . 2 d 7 1 1 , 725 ( A l a . 2 0 0 3 ) ( o f f i c e r ' s b a c k g r o u n d concerning facility drug recognized facility i s a factor that or probable i n Jemison Kelly, knowledge with narcotics i n h i s calculus of probable J e m i s o n d r i v i n g away f r o m a h o u s e w h e r e d r u g a c t i v i t y was s u s p e c t e d , O f f i c e r C l a c k l e y d e c i d e d t o follow and o b s e r v e Jemison; that decision factor within was justified and reasonable. Jemison attacks aforementioned five Fourth Amendment State, 992 S o . 2 d 90 whatever this instances rights. of Here, (Ala. Crim. t i pthe p o l i c e received 13 his first infringement Jemison relies App. 2 0 0 8 ) , regarding of of h i s Jemison's on B . J . C . i n arguing the drug v. that activity CR-09-0399 a t t h e h o u s e O f f i c e r C l a c k l e y was of reliability the Fourth 12.) critical B.J.C., constitutionally U.S. solely of 266 u p o n an Williams, 325 529 upon at this a 74. tip when of U.S. Jemison, bearing of 407 Court held the 143 the kind nor this did alone; the 992 (Jemison's b r i e f , a to Terry Florida detention [Alabama 2d on t h i s c a s e . Accordingly, constitutional at Officer 64, was [Adams White, B.J.C. Officer v. 496 J.L., did Jemison Jemison's f i r s t by based "'indicia Clackley of J.L., quoting detain holding infringement v. was v. in So. the stop any ultimately thus, at t i p lacked and point, he on contemplated as "indicia infringe that initial (1 9 7 2 ) , ] B.J.C., At o f f i c e r to pursuant anonymous t i p and as the of Jemison." impermissible (1990)]'" U.S. detain this (2000 ), reliability U.S. allow Amendment r i g h t s In 529 to w a t c h i n g l a c k e d the not based has no allegation Clackley is meritless. B. Next, regarding he we Officer Jemison's d r i v i n g . followed Jemison consider Officer Jemison f o r approximately approached the end Clackley's of 14 the observations Clackley testified a quarter street, of a m i l e . Officer that As Clackley CR-09-0399 explained right that turn; i t appeared instead, a s i f J e m i s o n was g o i n g Jemison abruptly drove t o make forward into a a r e s i d e n t i a l driveway, bumping a parked v e h i c l e i n t h e p r o c e s s . Officer Clackley Clackley was erratic following or evasive when d e t e r m i n i n g See, Martin After believed him. Jemison This this point, determine Jemison Officer what "picked he "had t o go." he needed Jemison to there, ( A l a . C r i m . App. up 1988). approached the house, at O f f i c e r called to. of the house. out to Officer a n d he s a i d t h a t Jemison Clackley Jemison (R. 11.) said to he running." (R. 11.) "'nervous, evasive determining reasonable Officer Clackley him to "had This "make sure to go," Court has behavior i s suspicion.'" 15 a told and then repeatedly pertinent State to "got r e a l Jemison you At asked up h i s p a c e , " a n d t o l d O f f i c e r C l a c k l e y talk again suspicion. toward the rear was that over h i s shoulder Clackley Jemison i f he l i v e d nervous," has r e c o g n i z e d considered c a r , Jemison and began w a l k i n g Officer c a n be 529 S o . 2 d 1 0 3 2 the parked that has r e a s o n a b l e w h e t h e r an o f f i c e r k n o c k e d on t h e f r o n t d o o r , l o o k e d Clackley, Court knew d r i v i n g i s a factor that v. S t a t e , bumping that live that that here," "took off held that factor in v. McPherson, 892 CR-09-0399 So. 2d 448, Wardlow, Smith v. 454 528 U.S. v. S t a t e , State, State, 16 983 ( A l a . Crim. 119, So. So. 3d erratic driving, S.Ct. quoting I l l i n o i s 673 ( A l a .Crim. 121 ( A l a . Crim. ( A l a . Crim. App. (2000). App. App. nervousness, Officer See 2009); 2008); v. also W.D.H. a n d Camp v . 2007)(all t h e same p r o p o s i t i o n ) . actions, to 120 2004), 1141 2d to support continuing 124, 19 S o . 3d 912 Wardlow suspicious App. Because quoting Jemison's and e v a s i v e b e h a v i o r were a l l Clackley acted reasonably in investigate. C. According to O f f i c e r second time that he flight away from Officer States Supreme wherever not had t o go, Court after Jemison Clackley. observed indicative suggestive of such." allegation he c o n t e n d s after (Jemison's brief, that Royer, U.S. 4 60 528 U.S. that "[h]eadlong 491 19.) (1983), well Officer Jemison 16 headlong the United flight but i t i s In Jemison's within -¬ relies clearly third his rights Clackley's to j u s t i f y him a act of evasion: I t i s a t 124-25. he was told off in In Wardlow, of wrongdoing, answering at Jemison took i t o c c u r s -- i s t h e c o n s u m m a t e necessarily "leave" Clackley, upon to questions. Florida his "picking v. up h i s CR-09-0399 pace" while leaving because he was free (Jemison's b r i e f , a t 20.) As appears that exercising the in to argue i n t e r a c t i o n should no way would have However, the U n i t e d that by his i t s holding i t s very fact, i n no way i s not i t i s j u s t the a can right considered stop with his by to 'going opposite." about 528 was not on about at Jemison terminate Officer one's U.S. way. Jemison from O f f i c e r C l a c k l e y , consideration situation, a l l given recognized "[f]light, business'; in Contrary to 125. from O f f i c e r C l a c k l e y was from a c t i o n t h a t would have, t a k i n g into circumstances afoot. Officer involved with some sort Clackley was justified i n headlong go away the off and flight Officer Clackley activity away an took or Clackley. a k i n to Jemison's d e c l i n i n g to answer q u e s t i o n s his way." suspicious Royer i n that a s s e r t i o n , Jemison's d e c i s i o n to run flight on understand, his his criminal go Supreme C o u r t i n Wardlow consistent nature, be justified States was b e s t we "to attendant a reasonable Accordingly, to the suspicion that Jemison's Clackley suggested of criminal activity; in pursuing Jemison further. 17 that thus, to headlong he was Officer investigate CR-09-0399 Throughout h i s f i r s t violations, Jemison Clackley's purportedly reasonable basis within three repeatedly contends inconsistent f o r him Jemison's a l l e g a t i o n s of c o n s t i t u t i o n a l second to stop that testimony evidenced Jemison. allegation, Officer no Specifically, he c o n t e n d s that Officer C l a c k l e y ' s v a r i o u s j u s t i f i c a t i o n s f o r f o l l o w i n g and u l t i m a t e l y stopping Jemison initiate a Jemison's Officer away the with stop. first from three Jemison residence. a fleeing stopped any meaningful movement lack testified when of a reasonable basis to i n the s i t u a t i o n s described in no d e t e n t i o n that had taken he was a p p r o x i m a t e l y he b e g a n asking Jemison or detained, sense. Inyo, 30 feet at t h e moment O f f i c e r C l a c k l e y c a u g h t up and thus A Fourth intentionally U.S. 593, C l a c k l e y had had not s e i z e d , Amendment i s a governmental 489 place. questions Jemison and a r r e s t e d him, O f f i c e r through of a points, Up u n t i l "when t h e r e County However, Clackley not only evidenced seizure takes termination applied 597 Jemison i n of freedom of means." (1989). place Brower Thus, v. Officer C l a c k l e y d i d n o t s e i z e Jemison by f o l l o w i n g him i n h i s p o l i c e vehicle, see Brower ( t h e show o f p o l i c e a u t h o r i t y i n h e r e n t i n a p o l i c e chase does n o t , i n and o f i t s e l f 18 and w i t h o u t actually CR-09-0399 causing a traffic Amendment); by questions, officers stop, c o n s t i t u t e a s e i z u r e under the Fourth speaking see do Royer, not to 460 violate approaching asking by questions, willing by California seize is questions Jemison v. Hodari after a the suspect officer's i f he D., suspect once attempting 497 ("law merely or i n another public him to t o such the 499 U.S. 621 ( 1 9 9 1 ) ( a when t h e s u s p e c t o r d e r s and c o n t i n u e s some in a i s criminal q u e s t i o n s " ) ; or by fled and o r d e r i n g answer i f the person i n evidence he ask by willing to to enforcement Amendment on t h e s t r e e t o r by o f f e r i n g to at Fourth h i s v o l u n t a r y answers chase running putting to l i s t e n , prosecution giving him and U.S. the an i n d i v i d u a l place, him scene. police him to h a l t See officer does not r e f u s e s t o comply w i t h the fleeing). B e c a u s e up u n t i l t h e p o i n t of a c t u a l a r r e s t O f f i c e r C l a c k l e y had not s e i z e d Jemison under any s t a n d a r d Court, no Fourth events proceeding articulated Amendment by t h e U n i t e d violation the actual arrest. took States place three claims of Fourth infringement relief. entitles him t o D. 19 during Accordingly, r a i s e d w i t h i n Jemison's f i r s t Supreme no the claim Amendment CR-09-0399 Officer Clackley finally apprehended chase f o r a p p r o x i m a t e l y four Jemison a f t e r g i v i n g or f i v e blocks. Officer h a n d c u f f e d Jemison and p l a c e d him under conduct, the subsection specifically interrupting highway." his a pedestrian (R. 18.) arrest was "under or unconstitutional d i d not have probable cause to a r r e s t him. facie also case argues of d i s o r d e r l y Section crime annoyance risk he traffic." ... states, i n pertinent without a [o]bstructs part: on argues says, that Officer Jemison or contends d i s o r d e r l y conduct a t 21.) failed any that i f , "with or alarm, Additionally, warrant, states conduct inconvenience, thereof, public Moreover, to prove a prima conduct. 13A-11-7(a)(5) of d i s o r d e r l y he Specifically, the State in a or reasonable suspicion (Jemison's b r i e f , that of blocking Jemison testimony regarding "an a f t e r t h o u g h t . " for disorderly traffic because, the r e q u i s i t e that O f f i c e r Clackley's Jemison vehicle In h i s fourth point, Clackley was arrest Clackley § a person intent commits t h e to cause or r e c k l e s s l y vehicular creating or officer day and 20 at may any arrest time a pedestrian 1 5 - 1 0 - 3 ( a ) ( 1 ) , A l a . Code "An public a ... 1975, person [i]fa CR-09-0399 public offense threatened In has committed i n the presence Powell 1999), been aff'd, v. 796 State, So. 2d or a of a p o l i c e 7 96 434 So. 2d breach of the peace officer." 404 ( A l a . 2001), (Ala. Crim. this Court App. stated: "'The level of evidence needed for a f i n d i n g of p r o b a b l e cause i s low. "An o f f i c e r need not have enough e v i d e n c e or i n f o r m a t i o n to support a c o n v i c t i o n [in order to have probable cause for arrest].... '[O]nly the p r o b a b i l i t y , and not a prima facie showing, of criminal activity is the standard of probable cause.'" S t o n e v . S t a t e , 501 So. 2d 5 6 2 , 565 ( A l a . C r . A p p . 1 98 6 ) . " ' P r o b a b l e c a u s e e x i s t s where " t h e f a c t s and c i r c u m s t a n c e s w i t h i n [the a r r e s t i n g o f f i c e r s ' ] knowledge and of which they had reasonably t r u s t w o r t h y i n f o r m a t i o n [are] s u f f i c i e n t i n t h e m s e l v e s t o w a r r a n t a man o f r e a s o n a b l e c a u t i o n i n t h e b e l i e f t h a t " an o f f e n s e h a s been or i s b e i n g committed.'" Young v. S t a t e , 372 So. 2 d 4 0 9 , 410 ( A l a . C r . App. 1 9 7 9 ) ( q u o t i n g D r a p e r v . U n i t e d S t a t e s , 358 U.S. 3 0 7 , 3 1 3 , 7 9 S . C t . 3 2 9 , 3 3 3 , 3 L . E d . 2 d 327 ( 1 9 5 9 ) ) . ' " 796 So. 387-88 2d a t 424, Johnson, 682 Jemison ran So. 2d 385, ( A l a . 1996). According yards q u o t i n g S t a t e v. of to houses Taylor Avenue away. Officer Officer in that before Clackley, neighborhood finally Clackley being witnessed 21 and in the apprehended these through events the center six as of blocks he gave CR-09-0399 c h a s e and e v e n t u a l l y caught Jemison. sufficient to give O f f i c e r to a r r e s t Jemison. the State was not These o b s e r v a t i o n s Clackley s u f f i c i e n t probable Contrary t o J e m i s o n ' s a r g u m e n t on r e q u i r e d to present evidence the warrantless Clackley's On their a warrantless daily training catch those this is to may be catch the In these careful officers and See, Crim. 1998)("When r e v i e w i n g attaches to deference potential noncriminal to officers."). Williams the Courts criminals v. to required otherwise a the the behavior, to use and to So. officer 2d and investigation courts judgment 716 noncriminal police that further State, training lawful. are instances, reviewing defer render I n many c a s e s , i n c l u d i n g or a belief of 753, are the 756 called police (Ala. degree of s u s p i c i o n t h a t courts and should experience give of great police r e v i e w i n g i n t e r a c t i o n s between p o l i c e have repeatedly 22 to Officer i n v e s t i g a t e crimes a t t e n t i o n of officers. App. to innocent within that officer required. J e m i s o n was appeal, to Accordingly, of wrongdoing. seemingly activities spark police experiences suspected one, a r r e s t of basis, and arrest. cause sufficient s u s t a i n a c o n v i c t i o n f o r d i s o r d e r l y conduct i n order lawful were instructed that and such CR-09-0399 interactions analyzed asking as cannot be considering suspect, that vacuum, but must be In a t t h e same v a n t a g e point the witnessing believe a of the circumstances." man s t a n d i n g Clackley, would in the " t o t a l i t y i fa reasonable Officer viewed of Officer s e i z u r e o f Jemison were a p p r o p r i a t e , same behavior Clackley's pursuit a and we a n s w e r t h a t i n q u i r y i n the a f f i r m a t i v e . Officer Clackley never meaning of the Fourth custodial arrest. Jemison Amendment b e f o r e Furthermore, J e m i s o n was l a w f u l . J e m i s o n was n e v e r seized under he p l a c e d Jemison under t o an i l l e g a l arrest of we c o n c l u d e seizure course of h i s i n t e r a c t i o n with O f f i c e r Clackley. turn to the search plain Officer Clackley's B a s e d on t h e f o r e g o i n g , subjected the that uncovered the Ecstasy that during the T h u s , we now underlying this prosecution. II. The this State case. Ecstasy argues that Specifically, no illegal the State was n o t f o u n d p u r s u a n t recovered on t h e g r o u n d Furthermore, the State along search contends t o any s o r t the route contends, 23 even took that place in t h e bag o f of search b u t was of Jemison's flight. i f the recovery of the CR-09-0399 bag of Ecstasy search, had could the search a reasonable that the State expectation failed implies [and] the "exigent [to the warrant the result into Jemison requirement]" of Jemison's of Fourth the i n which secret places of contends o r an i n order to uncle's yard. Amendment, f o r that which a search i s hidden i m p l i e s f o r c e , a c t u a l or c o n s t r u c t i v e , or a forceable dispossession Williams quoting of property v. S t a t e , Vogel Here, of one by 3 So. 3d 2 8 5 , 289 v. S t a t e , 1980)(internal ( A l a . Crim. 426 S o . 2 d 8 6 3 , 872 citations the actions exploratory acts.'" App. 2008), ( A l a . Crim. Williams. taken by O f f i c e r The b a g o f E c s t a s y flight route close leaves adjacent App. omitted). C l a c k l e y do n o t w i t h i n t h e p a r a m e t e r s o f a " s e a r c h " as d e s c r i b e d by t h i s in a Jemison circumstances search context probing t o be of p r i v a c y . t o show a warrantless "'In construed i n no way i n v o l v e d an a r e a applicable exception conduct be to the corner to the driveway. was found along of t h e house I n no way f i t Court Jemison's on a p i l e could of Officer C l a c k l e y ' s a c t i o n s be d e s c r i b e d a s " p r o b i n g " o r " e x p l o r a t o r y . " Accordingly, Fourth no Amendment search took falling place. 24 within the meaning of the CR-09-0399 Moreover, recovery of assuming, t h e bag of arguendo, Ecstasy that did constitute Jemison lacks standing to challenge yard. In Jones 2006), this Court v. State, 94 6 Officer So. the search 2d Clackley's a of h i s uncle's 903(Ala. Crim. explained: "'An appellant wishing to establish standing to challenge the i n t r o d u c t i o n of e v i d e n c e o b t a i n e d as a r e s u l t o f an a l l e g e d violation of the Fourth Amendment must demonstrate that he has a legitimate expectation of privacy in the area searched. C o c h r a n v . S t a t e , 500 S o . 2 d 1161 (Ala.Cr.App. 1 9 8 4 ) , r e v ' d i n p a r t on o t h e r g r o u n d s , 500 S o . 2 d 1 1 7 9 ( A l a . 1 9 8 5 ) , on r e m a n d , 500 S o . 2 d 1 1 8 8 (Ala.Cr.App. 1 9 8 6 ) , a f f ' d , 500 S o . 2 d 1064 ( A l a . 1 9 8 6 ) , cert. denied, 481 U.S. 1 0 3 3 , 107 S . C t . 1 9 6 5 , 95 L . E d . 2 d 537 ( 1 9 8 7 ) . . . . "A p e r s o n who i s a g g r i e v e d b y a n i l l e g a l s e a r c h a n d seizure only through the i n t r o d u c t i o n of damaging evidence secured by a search of a t h i r d person's premises or p r o p e r t y has not had a n y o f h i s F o u r t h Amendment rights infringed." Rakas v. I l l i n o i s , 43 9 U.S. 1 2 8 , 1 3 4 , 99 S . C t . 4 2 1 , 4 2 5 , 58 L . E d . 2 d 387 (1978). "For a search to v i o l a t e the rights of a specific defendant, that defendant must have a legitimate expectation of privacy i n the place s e a r c h e d , a n d t h e b u r d e n i s s q u a r e l y on t h e defendant asserting the violation to establish that such an expectation existed." K a e r c h e r v . S t a t e , 554 S o . 2 d 1 1 4 3 , 1148 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 554 So. 2 d 1152 ( A l a . 1 9 8 9 ) . ' 25 search, App. CR-09-0399 " H a r r i s v. S t a t e , A p p . 19 9 1 ) . 946 So. of 2d a t 919-20 any evidence 594 So. (emphasis indicating 2d 725, 727 added). that The Jemison otherwise. standing to challenge Finally, suppressed Accordingly, the search Jemison argues a Jemison the trial recovered i s devoid legitimate Jemison o f f e r s did of h i s uncle's that t h e bag of E c s t a s y record had e x p e c t a t i o n of p r i v a c y i n h i s uncle's yard. argument ( A l a . Crim. not no have yard. court properly f r o m t h e s c e n e on t h e ground t h a t O f f i c e r C l a c k l e y d i d not see Jemison throw t h e bag on the ground during the abandon extent during the suppression anything that as the t r i a l hearing he possession that such a suppressing A party Officer that fleeing before through 15.6(a), A l a . R. he admitted see Jemison the scene. To the t h e bag of E c s t a s y discarded improper see them, on Jemison we justification hold for evidence. hearing challenge obtained d i d not from suppressed c o n s i d e r a t i o n i s an this he Clackley C l a c k l e y d i d not a c t u a l l y of the drugs suppression may was court the ground t h a t O f f i c e r in chase. an the serves admission illegal Crim. a s a means t h r o u g h P. of seizure ("A 26 evidence or search. defendant which a purportedly See aggrieved Rule by an CR-09-0399 allegedly unlawful suppress case in t h e one evidence violation at where move the court so o b t a i n e d . " ) . the defendant Amendment, t h e i n q u i r y i f the the motion suppressed; the evidence begins and search i s due and/or t o be seizure granted was and t h e h o w e v e r , i f t h e s e a r c h a n d / o r s e i z u r e was survives Fourth Amendment denied, scrutiny. Any question regarding the weight or v e r a c i t y of the evidence be decided scope So. by t h e j u r y , as t h i s of the suppression 2d 6 4 1 , 645 suppression statement, By (Ala. hearing inquiry hearing. Crim. App. falls Cf. Bryant 1982) i s to determine outside must of the v. S t a t e , ("The 428 purpose of a the voluntariness of a not i t s content."). analogy, this 1 3 . 5 ( c ) ( 1 ) , A l a . R. C r i m . to to obtained c o n s t i t u t i o n a l l y p e r m i s s i b l e , t h e m o t i o n i s d u e t o be and In a moves was to regarding the c o n s t i t u t i o n a l i t y of the seizure: unconstitutional, evidence anything hand, of the Fourth and/or may on t h e g r o u n d t h a t t h e e v i d e n c e ends w i t h t h e q u e s t i o n s search or seizure f o r u s e as e v i d e n c e like suppress search dismiss determination an Court that Rule P. d o e s n o t a u t h o r i z e " a t r i a l court indictment has based of the s u f f i c i e n c y 27 on recognized the court's of the State's pretrial case." State CR-09-0399 v. W o r l e y , [Ms. (Ala. Crim. indictment venire, may the So. 3d of be the the at dismissed of indictment 2 0 0 5 ) , and of dismissal sufficiency of allows only f o r the to illegal suppression extent the Ecstasy on existence suppression the motion the the or State's indictment, or So. that nexus linking Worley, 2d 1216 the P. pretrial ground, but not of the of evidence o b t a i n e d pursuant the but court's the does not authorize determination of the Accordingly, to the evidence of failed to State Jemison i n e r r o r because i t f e l l 28 (Ala. Crim. determination Rule the likewise suppressed suppress. for limited evidence. ground to individual 15.6(a) trial the was on seizure, court a an 935 evidence, trial of of offense." allows pretrial suppression search of of the Foster, only State's b a s e d upon the sufficiency the 13.5(c)(1) a , an c i t i n g R u l e 1 3 . 5 ( c ) ( 1 ) , A l a . R. upon 3d 13.5(c)(1), t o c h a r g e an indictment based Rule qualifications S t a t e v. Rule an So. "based upon o b j e c t i o n s to only legal 2009] Under legal insufficiency whereas dismissal an 2009). , quoting C r i m . App. Thus, App. lack grand j u r o r , failure CR-0 6 - 1 8 7 9 , N o v e m b e r 1 3 , to the outside the bag of prove drugs, the that the bounds of CR-09-0399 Finally, suppress of he custody i s s u e was only of the to No is in the evidence Jemison's State in original failed this Alabama other based does A r i z o n a v. the t r i a l the to a Department of the of were evidence t h a t he this over be the for Accordingly, the suppression made. of can the Sciences was indicating failure claim turned Forensic the United States U.S. Supreme State's , 129 S.Ct. Court's 1710 chain-of- decision in (2009), justify c o u r t ' s grant of Jemison's motion to suppress, search of Jemison's v e h i c l e o c c u r r e d s i x moths b e f o r e the April so in reliance "automobile exception" on to Alabama c o u r t s have not retroactively to a search Jemison's e s t a b l i s h e d precedent; the general warrant 2008 Gant. vehicle, namely, the requirement. d e c i d e d whether Gant a p p l i e s occurring before 29 given i n October 2009 d e c i s i o n i n Thus, at the time O f f i c e r C l a c k l e y s e a r c h e d Although chain Apparently, chain-of-custody inquiries upon the Gant, roughly did the to evidence. Nor he motion to prove case. C l a c k l e y ' s statement devoid warranted custody that relating the testing. record that not c o n t e s t e d at the s u p p r e s s i o n h e a r i n g because in Officer drugs -- note claimed testimony found that we that decision was CR-09-0399 issued, the United Circuit -- that the c i r c u i t exception occurred when Court of Appeals f o r the Eleventh -- h a s concluded and i t has applied a encompassing Alabama Gant does n o t a p p l y good-faith that State retroactively, to searches incident to a lawful law-enforcement officials were g o o d - f a i t h r e l i a n c e on w e l l e s t a b l i s h e d p r e c e d e n t . States v. Davis, Based on the likewise to Here, Officer (Ala. 466-67 (Ala. State exception 948 So. 2d sufficient of a v e h i c l e . Crim. accord App. evidence Jemison's to the United in Davis, we retroactively establishing v e h i c l e pursuant that to the warrant requirement. Under exception requires only probable exigent 583, circumstances. 594-595 cause alone State Black, 987 v. State v. 30 Harris 200 6 ) . authorizes So. 1180 v . D y s o n , 527 U.S. 4 65, 32 Clackley 2d the 1177, Cowling, Officer See App. ( A l a . Crim. probable 2009). See (11th C i r . 2010). rationale C r i m . A p p . 200 6 ) ( c i t i n g M a r y l a n d (1999)); acting in vehicle. presented and n o t a d d i t i o n a l Moreover, search of Jemison's law, the automobile State, 1263-67 Circuit's C l a c k l e y searched Alabama v. 1259, t o h o l d t h a t Gant does n o t a p p l y the automobile cause, F.3d Eleventh elect the search 598 arrest So. 3d 717, testified 721 that CR-09-0399 before he searched the discovered retracing Jemison's containing bag Jemison's flight sufficient probable Clackley's warrantless vehicle, the route. he had Ecstasy Given the cause existed to search of Jemison's already pills while circumstances, justify Officer vehicle. As p r e v i o u s l y d i s c u s s e d , O f f i c e r C l a c k l e y d i d n o t s u b j e c t J e m i s o n t o an u n l a w f u l the Ecstasy pills implicating any Accordingly, the motion the circuit to was court not Fourth trial to suppress. trial seizure. Likewise, recovered Amendment court Based erred the bag c o n t a i n i n g during right search of Jemison. i n granting Jemison's on t h e f o r e g o i n g , i s reversed a and t h i s case t h e judgment o f remanded court to s e t aside i t s order g r a n t i n g Jemison's suppress and to restore Jemison's case to f o r the motion i t s active docket. R E V E R S E D AND REMANDED. W i s e , P . J . , a n d W e l c h a n d Windom, J J . , c o n c u r . concurs i n the r e s u l t . 31 Main, J . ,

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