State of Alabama v. Dandre Shamar Jemison

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REL: 12/17/2010 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, 2010-2011 CR-09-0399 S t a t e o f Alabama v. Dandre Shamar Appeal On KELLUM, The the from C h i l t o n C i r c u i t (CC-09-332) Application for Court Rehearing Judge. opinion released following opinion Dandre Shamar count Jemison of unlawful on J u l y 30, 2 0 1 0 , i s w i t h d r a w n a n d i s substituted therefor. Jemison was a r r e s t e d possession and charged w i t h one of a c o n t r o l l e d substance -- N- CR-09-0399 Benzylpiperazine 1975, and -- one a violation count of suspended, a v i o l a t i o n filed a motion to of § driving 13A-12-212, while his Ala. license o f § 3 2 - 6 - 1 9 , A l a . Code 1975. suppress the package of 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 State suppression Officer presented hearing. David Luther residence On Clackley King, the was Jr. reportedly he r e t u r n e d he by Jemison, saw drive the what situation the vehicle i f there 12, appeals the circuit involved area area in evidence 2008, patrolling Street away f r o m was the of drug at Clanton Second Clanton the Avenue to and the check on violations common 2 blocks the status when driven Clackley "just to see the driver t o make a t r a f f i c stop." street of a Officer Officer four and watch activity. residence. the Police f o r a s h o r t p e r i o d , and approximately were any "Ecstasy" is Benzylpiperazine. 1 State the Pursuant a v e h i c l e , l a t e r determined to being followed see illegal evidentiary hearing, following October C l a c k l e y d r o v e away f r o m t h e and the an pills 1 ruling. The Martin P., an was Jemison "Ecstasy" recovered Following Code name for N- CR-09-0399 (R. 7.) Officer Clackley of in-dash screen" license-plate in number, and about to i n i t i a t e of the turn; however, of revealed belonged parked in Clackley right the he a did front and police to the was street, uncle, Jemison's number fact the door away." (R. out of making a but i t was was vehicle Officer him; to testified that he Officer come a from [Jamison's] him made feet driveway because behind the later instead a p p r o x i m a t e l y 30 the right into Again, Officer Clackley allowed the "bumped" a stop, that was which process. into he forward and type approached vehicle the driving came t o knew Clackley residence in or turn or him 9.) Jemison got to some license-plate a traffic Jemison p u l l e d whoever trying in house. i f in house, or recorded pulled the Jemison's "see the the stopped his v e h i c l e vehicle to across initiate door of believed s t o p as abruptly driveway not car, a p p e a r e d t o p r e p a r e t o be house the turn wanted a player A c c o r d i n g to O f f i c e r C l a c k l e y , Jemison driveway DVD c a l l e d i n the a traffic s t r e e t and "a Jemison's to a p o l i c e d i s p a t c h e r . end observed and locate began a key. the car, looking approached the in After a 3 his few pocket front as i f moments, J e m i s o n door he of were looked CR-09-0399 back over h i s shoulder at O f f i c e r toward the rear of the house. Clackley Office and Clackley began w a l k i n g explained: " 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 house i t w a s , o r i f any 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 w i n d o w 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 you f o r a s e c o n d , ' t o c o n f i r m t h a t h e l i v e d t h e r e , make s u r e h e 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 h e wasn't f i x i n g t o break i n t o the house, which i s a possibility. A n d when I s a i d t h a t , he g o t real 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 go. ' 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 the back of the house." (R. with 11.) Officer him Clackley approximately four then p l a c e d him i n c u s t o d y . arrived on scene vehicle so that Jemison's traced and Jemison's five By t h i s Clackley Officer steps or after transported Officer flight. ran Jemison blocks and from caught the house, time, another o f f i c e r Jemison could Clackley back retrace explained to had Jemison's the that steps of he re- because " [ a ] t t h i s p o i n t , I wasn't e x a c t l y 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 was. 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 ten years. 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 w a n t e d 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 f r o m where I c a u g h t him and c h e c k t h e a r e a t o see i f 4 up CR-09-0399 there [was] any evidence [Jemison] disposed of, w h e t h e r i t be a gun, e v i d e n c e of a b u r g l a r y , a robbery, drugs, whatever." (R. 12.) W h i l e he was retracing their 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 Jemison's a l t h o u g h he of pills from the Ecstasy, was vehicle. see officer. Officer pills The the were Forensics in bag feet testified Clackley 20 that of p i l l s , the bag as he ran field-tested by the Jemison later and were ran determined Officer Clackley i n w h i c h he found to be proceeded approximately cash. the Clackley approximately route Sciences Jemison's v e h i c l e , During trial court direct examination questioned him Officer Clackley explained believed street the house along Officer small, different colored Jemison drop the recovered of the a c o n t r o l l e d substance. search $9,000 corner d i d not Department to the steps, that Jemison's constituted subsection vehicle or Furthermore, of about t h a t he flight disorderly blocking traffic in Officer why he arrested down the center public stated 5 of Jemison. he public specifically, "under pedestrian highway." he the a interrupting a Officer Clackley Clackley, a r r e s t e d Jemison because conduct, or a of wanted (R. to or 18.) determine CR-09-0399 "what, prior i f any, c r i m i n a l to running [Jemison] he from d i drun." not charge [Jemison] (R. 1 8 , 19.) idea could a n d "why with h i s i n v e s t i g a t o r y stop Jemison with disorderly e v e n i f he 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 h e i n i t i a l l y r a n why e x a c t l y R e a l l y 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 h e 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 to investigate vehicle parked car, Jemison t o commit" Jemison's i n the driveway Officer Clackley "had whether vehicle i n t o which bumping (R. contact committed, some o f f e n s e . cross-examination Jemison exactly When a s k e d b y t h e S t a t e i f C l a c k l e y s a i d , "Oh, y e s , d e f i n i t e l y . vehicle, had partaken i n [Officer Clackley]" would have c o n t i n u e d did activity was (R. 2 1 . ) he 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 h e 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 admitted of the parked v e h i c l e 6 that he d i d n o t r e f e r e n c e i n h i sincident report but CR-09-0399 explained that he damaged. In asking f o r c l a r i f i c a t i o n Clackley initiated defense d i d not do so because r e g a r d i n g why contact with Jemison, c o u n s e l had the f o l l o w i n g neither Officer c a r was 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? Up t o t h a t 7 point, you were just CR-09-0399 "[Officer him." (R. Clackley]: Yes, ma'am. I was observing 24-25.) On motion In 2009), December 16, to suppress State this v. Court 2009, the t r i a l court granted without explanation. Landrum, 18 So. 3d Jemison's This appeal 424 ensued. ( A l a . Crim. explained: " ' T h i s C o u r t r e v i e w s de n o v o 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 facts are not i n dispute. See S t a t e v . H i l l , 690 S o . 2 d 1 2 0 1 , 1 2 0 3 ( A l a . 1 9 9 6 ) ; S t a t e v . O t w e l l , 733 S o . 2 d 9 5 0 , 952 ( A l a . C r i m . A p p . 1 9 9 9 ) . ' S t a t e v. S k a g g s , 903 S o . 2 d 1 8 0 , 181 ( A l a . C r i m . A p p . 2 0 0 4 ) . I n S t a t e v . H i l l , 690 S o . 2 d 1 2 0 1 ( A l a . 1 9 9 6 ) , t h e t r i a l court granted a motion to suppress f o l l o w i n g a hearing at which i t heard only the testimony of one police officer. Regarding the applicable standard of review, 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 , a n d 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 n o v o , 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 trial court'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 . B r o w n , 380 S o . 2 d 7 9 2 , 794 ( A l a . 1 9 8 0 ) ( c i t a t i o n s o m i t t e d ) . T h e 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 question of law.' "State v. H i l l , 690 So. 2d a t 8 1203-04." App. CR-09-0399 18 So. 3d a t 426. suppression hearing this Court law i s whether the c i r c u i t no p r e s u m p t i o n Initially, explanation motion both we i n granting the seizure Amendment the only court that at the issue before c o r r e c t l y applied the of the c i r c u i t the c i r c u i t hearing, a n d we court's ruling. court offered Jemison's motion to suppress. and again on a p p e a l , of h i s person bag of E c s t a s y presented at the suppression i n favor note to suppress, Fourth the evidence i s not i n dispute, to the facts presented afford the Because Jemison and t h e s e a r c h e s no In h i s argued that that yielded a n d t h e money i n h i s v e h i c l e v i o l a t e d h i s rights I. The State granting Officer contends Jemison's (State's that the c i r c u i t this points law case at freedoms motion the to circuit suppress court because, C l a c k l e y i n no way " u n l a w f u l l y o r i l l e g a l l y Jemison. in that seize[d]" court properly suppressed the evidence seized which the of Jemison enforcement" this individual Court's he 9 attention to "five constitutional rights intersect with that However, says, argues directs a t 15.) i t in Jemison and brief, erred the authority says show an granted and to "overall CR-09-0399 unconstitutional and brief, a t 1 2 , 32.) relate to the facts Clackley point were The f i r s t found In l e a d i n g up t o J e m i s o n ' s a r r e s t b y Officer the l e g a l i t y to the search v. Ohio, Supreme C o u r t points (Jemison's Jemison and t h e s e a r c h Terry four encounter." by and q u e s t i o n relates unreasonable of the s e i z u r e ; the of the yard of Jemison's 392 U.S. 1 listed i n which car after (1968 ) , fifth the 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 point the conduct of those charged with 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 more d e t a c h e d , 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 seizure 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 action 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 minimal l e v e l Amendment requires "some of objective j u s t i f i c a t i o n " 10 v. Court CR-09-0399 for 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 of the 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 c o n t r a b a n d or evidence of a crime 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 i n c o n s i s t e n c i e s and support of his "holes" a reasonable, ultimately detaining challenges for c o n d u c t was a t 21.) the detention that objectively to Officer objective "an long as the authorized intent in basis In h i s Jemison Clackley for failed pursuing fourth point, eventual alleges afterthought." arrest that the in of and which Jemison charge (Jemison's and thus u n c o n s t i t u t i o n a l , we police officer and doing legally i t 11 is i s doing permitted, only the irrelevant." of brief, that Jemison contends that h i s stop were p r e t e x t u a l "[a]s subjective extent alleged that Officer Clackley's disorderly highlights in Jemison. d i s o r d e r l y conduct, To Jemison i n O f f i c e r Clackley's testimony contention articulate he brief, and note what is officer's Ex parte CR-09-0399 Scarbrough, not s p e c u l a t e as t o O f f i c e r but w i l l respect the 621 S o . 2 d 1 0 0 6 , 1010 ( A l a . 1993). Clackley's T h u s , we subjective will intentions f o c u s o n l y on t h e r e a s o n a b l e n e s s o f h i s a c t i o n s to the objective interaction Finally, between at observed Officer 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 t h e argument and with eventual claims that 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 cause comports w i t h As broad to Jemison, within probable we based range of Clackley necessary arrest, pertinent inquiry constitutionality through we will Officer suspicions of this Clackley's unsupported brief, case could the reasonable to conduct the requirements proceed upon (Jemison's the facts Officer Jemison's available were justifications." According created but 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 revert culminated i n 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 of a to the o f f i c e r police seizure: a t t h e moment 12 "[W]ould the of the seizure facts or the CR-09-0399 search 'warrant a man that the action taken 22. With we turn this "man of reasonable was appropriate?" of reasonable to the events caution that Terry, caution" culminated i n the belief' 392 U.S. standard at i n mind, i n Jemison's arrest. interested i n Jemison A. Officer because he reputation the saw initially Jemison of of drug reasonable a away This suspect activity suspicion became drive f o r drug a c t i v i t y . association suspected 870 Clackley from a with Court has r e c o g n i z e d with a facility i s a factor that or probable house cause. may the association of a rise 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 with that known give a or to Kelly, knowledge narcotics 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 i n h i s calculus of probable cause"). d r i v i n g away Thus, observing Jemison from a house 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 watch Jemison; that decision was justified and reasonable. Jemison attacks aforementioned Fourth five Amendment this factor instances rights. of Here, 13 within his first infringement Jemison relies of of h i s Jemison's on B . J . C . v. CR-09-0399 State, 992 whatever So. 2d 90 t i p the (Ala. Crim. police received 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 critical to In B.J.C., constitutionally 529 U.S. 266 U.S. 325 529 U.S. detain upon this a 74. tip the 143 (1990)]'" at when of U.S. Jemison, bearing of 407 as kind nor did alone; the 992 on (Jemison's b r i e f , at a to Terry detention So. 2d on t h i s c a s e . Accordingly, constitutional infringement at Officer 64, of [Adams White, quoting B.J.C. Officer v. 496 J.L., did Jemison Jemison's f i r s t by based "'indicia Clackley detain holding v. J.L., was in [Alabama was v. any and the stop Florida t i p lacked ultimately thus, drug a c t i v i t y contemplated as point, he that infringe that initial (1 9 7 2 ) , ] this the o f f i c e r to pursuant the B.J.C., At the held anonymous t i p and reliability Williams, Court i n arguing watching l a c k e d the " i n d i c i a of Jemison." impermissible (2000 ), s o l e l y u p o n an of this 2008), regarding allow t h e F o u r t h Amendment r i g h t s 12.) App. not based has no allegation Clackley is meritless. B. Next, regarding we consider Officer Jemison's d r i v i n g . Clackley's Officer 14 observations Clackley testified that CR-09-0399 he followed Jemison approached explained right Jemison f o r approximately a quarter that turn; t h e end of t h e s t r e e t , i t appeared instead, of a mile. Officer Clackley a s i f J e m i s o n was g o i n g Jemison abruptly drove As 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 w h e t h e r an o f f i c e r the parked this point, determine Jemison Officer what i f he l i v e d nervous," "picked he "had t o go." he needed Jemison running." to there, suspicion. (Ala. Crim. App. 1988). approached the house, at O f f i c e r called doing. of the house. out to Officer a n d he s a i d t h a t Jemison Clackley Jemison said 11.) to he Officer Clackley him to "had This "make to go," Court has 15 sure and told then repeatedly 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 (R. that has r e a s o n a b l e toward the rear was (R. 11.) again has r e c o g n i z e d over h i s shoulder Clackley Jemison Officer considered c a r , Jemison and began w a l k i n g that c a n be 529 S o . 2 d 1 0 3 2 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 CR-09-0399 "'nervous, evasive determining reasonable So. 454 2d 448, Wardlow, 528 Smith v. State, State, U.S. 16 983 So. So. to erratic driving, continuing 3d a 3d 120 912 2004), S.Ct. (Ala. Crim. (Ala. Crim. actions, 673 App. and Officer in McPherson, 892 (2000). App. App. See 2009); 2008); and Because v. also W.D.H. Camp 2007)(all same p r o p o s i t i o n ) . nervousness, factor quoting I l l i n o i s (Ala. Crim. 121 the pertinent S t a t e v. 1141 support to App. 124, So. 2d Wardlow suspicious 119, 19 is suspicion.'" (Ala. Crim. State, v. behavior v. quoting Jemison's 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 Clackley, Court i t o c c u r s -- necessarily of such." allegation he after contends Jemison Clackley. observed took In that Jemison told off in Wardlow, "[h]eadlong him a headlong the United flight -¬ i s t h e consummate a c t of e v a s i o n : I t i s indicative suggestive "leave" t o go, after 528 wrongdoing, but a t 124-25. U.S. that answering of In Jemison's he was Officer 16 well within i t is clearly third his rights Clackley's to questions. CR-09-0399 (Jemison's brief, Royer, U.S. pace" his 4 60 while 19.) 491 to Jemison justify because, he says, the suspicious by in Wardlow in he interaction that "[f]light, his "to his go on we can exercising in no States his way be a stop would have j u s t i f i e d i t s very v. up best should i t s holding by free As that Florida "picking was 20.) argue upon his However, the U n i t e d recognized that to at o r i n no way Officer Clackley. Royer brief, appears terminate considered relies to (Jemison's understand, Jemison (1983), leaving way." right at Court consistent was Supreme with nature, not 'going about one's b u s i n e s s ' ; in fact, U.S. to h i s a s s e r t i o n , Jemison's d e c i s i o n run a t 125. Contrary f r o m O f f i c e r C l a c k l e y was to answer q u e s t i o n s in headlong flight would taking have, attendant to reasonable Accordingly, Clackley and go on i t i s j u s t the is not to Jemison's a b o u t h i s way. into consideration situation, suspicion that Jemison's that he an a l l the given Officer criminal activity headlong was 17 528 to declining Jemison took away f r o m O f f i c e r C l a c k l e y , the suggested akin opposite." action off that circumstances Clackley a was afoot. flight away from Officer involved with some sort of CR-09-0399 criminal activity; thus, pursuing Jemison investigate to Throughout h i s first violations, Jemison Clackley's purportedly reasonable basis within for Jemison's stopping Jemison initiate a Jemison's Officer away the with from Up stopped or any meaningful movement County of Clackley Inyo, d i d not no when he he that ultimately had basis to in taken approximately asking Jemison place. 30 feet questions 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 arrested and thus A Fourth him, had not 593, s e i z e J e m i s o n by 18 seized, termination intentionally applied U.S. Officer Clackley Amendment s e i z u r e i s a governmental 489 Officer described situations was no Specifically, reasonable detention began until a Officer evidenced contends of the that sense. through in testified detained, "when t h e r e Jemison. lack points, a f l e e i n g J e m i s o n and not only three residence. that testimony a l l e g a t i o n , he However, Jemison contends stop a in 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 to evidenced Clackley justified further. inconsistent him was 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 stop. first three Clackley repeatedly second Clackley's various Officer 597 means." (1989). f o l l o w i n g him of Jemison takes at up had in place freedom of Brower v. Thus, in his Officer police CR-09-0399 vehicle, see Brower a police chase does n o t , i n and o f i t s e l f causing a traffic Amendment); officers speaking see do Royer, not to 460 violate approaching an i n d i v i d u a l place, asking by questions, willing by giving California seize putting and w i t h o u t to the a the suspect suspect at actually Fourth i f he is questions once attempting 497 ("law merely or i n another public to some i f the person i n evidence in a t o such fled and o r d e r i n g i s criminal q u e s t i o n s " ) ; or by the 499 U.S. 621 ( 1 9 9 1 ) ( a o r d e r s and c o n t i n u e s answer him he when t h e s u s p e c t ask by willing to to enforcement Amendment on t h e s t r e e t Jemison D., and U.S. or by o f f e r i n g v. Hodari after officer's him h i s v o l u n t a r y answers chase running him to listen, prosecution authority inherent i n stop, c o n s t i t u t e a s e i z u r e under the Fourth by questions, ( t h e show o f p o l i c e 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 the U n i t e d violation the actual arrest. 19 took States place Supreme during Accordingly, no the claim CR-09-0399 r a i s e d w i t h i n Jemison's f i r s t three infringement relief. entitles him t o claims o f F o u r t h Amendment D. Officer Clackley finally apprehended Jemison a f t e r g i v i n g chase f o r a p p r o x i m a t e l y four or f i v e b l o c k s . Officer h a n d c u f f e d Jemison and p l a c e d him under a r r e s t conduct, the subsection specifically interrupting highway." his a pedestrian (R. 18.) arrest was "under or unconstitutional d i d n o t have probable cause to a r r e s t him. that O f f i c e r Clackley's Jemison facie also case Section argues commits intent to cause p u b l i c vehicular the creating or crime failed A l a . Code of pedestrian says, public that Officer suspicion Jemison or contends d i s o r d e r l y conduct a t 21.) Moreover, to prove risk 1975, disorderly inconvenience, a a or a prima conduct. 13A-11-7(a)(5), person recklessly the State of d i s o r d e r l y he Specifically, (Jemison's b r i e f , that in reasonable testimony regarding "an a f t e r t h o u g h t . " of blocking Jemison argues because, the r e q u i s i t e for disorderly traffic In h i s fourth point, Clackley was vehicle Clackley thereof, traffic." 20 states conduct annoyance he ... i f , that a "with or alarm, or [o]bstructs Additionally, § CR-09-0399 1 5 - 1 0 - 3 ( a ) ( 1 ) , A l a . Code 1975, officer may a t any time breach of arrest ... the a person in pertinent part: without a warrant, [ i ] fa p u b l i c peace states, o f f e n s e has threatened i n the on any day been committed presence of a "An and or a police officer." In 1999), Powell aff'd, v. 796 State, So. 2d 796 434 So. 2d 404 ( A l a . 2001), (Ala. Crim. this Court App. stated: "'The level of evidence needed for a finding 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 327 796 So. 387-88 2d (1959)).'" a t 424, q u o t i n g S t a t e v. ( A l a . 1996). 21 Johnson, 682 So. 2d 385, CR-09-0399 According yards of to Officer Clackley, houses in that neighborhood Taylor Avenue before blocks away. Officer Clackley to the sufficient order Officer On their to give State the Clackley's daily including this one, spark investigation courts the 756 are is called (Ala. Crim. officers may of five as probable argument present of wrongdoing. that t o be officer In these c a r e f u l and See, Williams 1998)("When 22 lawful. required In v. to use and to many or cases, otherwise attention of a belief that a instances, defer police further reviewing to the judgment State, 716 So. reviewing in Accordingly, innocent the on evidence J e m i s o n was are he observations i n v e s t i g a t e crimes catch required. App. to seemingly within police officers. events lawful. a r r e s t of police suspected activities and or sufficient to arrest experiences officer center four Jemison's required warrantless noncriminal to the 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 basis, those not warrantless and apprehend Contrary was sustain training Officer Clackley Jemison. to a apprehended These render to through the these arrest appeal, being in witnessed sufficient cause finally and ran e v e n t u a l l y caught Jemison. gave c h a s e and were Jemison the 2d degree of 753, of CR-09-0399 suspicion that attaches give great deference to the t r a i n i n g officers."). potential asking as Courts reviewing criminals interactions analyzed have cannot be considering Officer would viewed in witnessing believe that courts and e x p e r i e n c e repeatedly man s t a n d i n g Clackley, behavior, should of p o l i c e i n t e r a c t i o n s between p o l i c e and the " t o t a l i t y i f a reasonable suspect, to noncriminal a vacuum, that but such must be of the circumstances." In a t t h e same v a n t a g e point the of Officer s e i z u r e o f J e m i s o n were a p p r o p r i a t e , instructed 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 meaning of the Fourth custodial arrest. seized 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 never he p l a c e d t o an i l l e g a l II. 23 Jemison under seizure that uncovered the Ecstasy prosecution. plain arrest of we c o n c l u d e 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 the Officer Clackley's B a s e d on t h e f o r e g o i n g , subjected under that during the T h u s , we now underlying this CR-09-0399 The this State case. Ecstasy not found of search, had a that the State Ecstasy reasonable the State implies [and] contends t o any s o r t along be even construed failed b u t was flight. be the "exigent probing into i n which Jemison Fourth i n order to uncle's yard. Amendment, f o r that an a which search is hidden implies force, 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 v. S t a t e , Vogel 1980)(internal Here, property of one by 3 So. 3d 2 8 5 , 289 v. S t a t e , (Ala. Crim. 426 S o . 2 d 8 6 3 , 872 citations the actions exploratory acts.'" App. 2008), (Ala. Crim. Williams. The bag App. omitted). taken by Officer C l a c k l e y do not f i 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 or requirement]" secret places of circumstances of the result contends of Jemison's context of the Jemison search the in the bag of i f the recovery to [to the warrant that place of search of p r i v a c y . t o show took of Jemison's the route expectation a warrantless "'In the State search i n no way i n v o l v e d a n a r e a applicable exception conduct illegal contends, could the search no pursuant on t h e g r o u n d Furthermore, bag that Specifically, was recovered argues of Ecstasy 24 was found along Court Jemison's CR-09-0399 flight route close leaves adjacent to the corner of t h e house to the driveway. I n no way 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 as " p r o b i n g " o r " e x p l o r a t o r y . " Accordingly, Fourth search Amendment Moreover, Officer took f o r the recovery a search, Crim. within the meaning of the place. of h i s uncle's 903(Ala. falling assuming, Clackley's constitute search no Jemison yard. App. 2 0 0 6 ) , of sake the of bag lacks standing In Jones this Court argument, of Ecstasy did to challenge the v. S t a t e , 946 S o . 2 d 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 a s 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 ( A l a . C r . A p p . 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 o f 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 25 that CR-09-0399 defendant must have a legitimate expectation of privacy in 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 So. 2d 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 (Ala. 1989).' " H a r r i s v. S t a t e , App. 19 9 1 ) . 946 So. of 2d any at 919-20 evidence expectation argument standing 594 So. indicating 725, 727 (Ala. added). (emphasis 2d The record that Jemison of p r i v a c y i n h i s u n c l e ' s otherwise. to Finally, the Jemison suppressed the bag search argues of E c s t a s y of that the during abandon extent the in ground the during suppression anything that the recovered the ground that possession of as trial hearing he was court Officer the see fleeing drugs before 26 he have court properly s c e n e on the Jemison throw the bag Clackley did from C l a c k l e y d i d not not no yard. from the he suppressed devoid legitimate did trial Officer that is Jemison o f f e r s his uncle's the chase. a Jemison ground t h a t O f f i c e r C l a c k l e y d i d not on yard. Accordingly, challenge had Crim. not the the bag see scene. of actually discarded admitted Jemison To the Ecstasy see on Jemison t h e m , we hold CR-09-0399 that such a c o n s i d e r a t i o n i s an suppressing this may hearing challenge obtained through 15.6(a), A l a . R. allegedly case in illegal Crim. P. search t h e one evidence violation a s a means t h r o u g h at of seizure ("A evidence or defendant hand, anything where which See aggrieved move an the court to the defendant seizure: unconstitutional, evidence and the motion suppressed; constitutionally the evidence i f the search i s due and/or t o be begins seizure granted 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 p e r m i s s i b l e , the motion survives Fourth i s due t o be Amendment denied, scrutiny. be this scope So. the jury, of the suppression 2d 6 4 1 , 645 was and t h e or v e r a c i t y of the evidence by and of the question regarding the weight decided to was o b t a i n e d o f t h e F o u r t h Amendment, t h e i n q u i r y and/or In a moves ends w i t h t h e q u e s t i o n s r e g a r d i n g t h e c o n s t i t u t i o n a l i t y search Rule by so o b t a i n e d . " ) . 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 a purportedly search. o r s e i z u r e may f o r use as e v i d e n c e like suppress serves the admission an unlawful suppress justification for evidence. A suppression party improper as hearing. (Ala. Crim. App. 27 inquiry falls Cf. Bryant 1982) ("The Any must outside the v. S t a t e , purpose 428 of a CR-09-0399 suppression hearing statement, By not is analogy, dismiss an determination v. W o r l e y , this venire, may the So. 3d of the Thus, dismissal of a on the of the an the allows only f o r the to illegal a State's b a s e d upon the case." 2009] State So. Rule 3d , the of the of an individual indictment, or offense." Foster, 935 So. only allows on pretrial evidence, 2d 1216 28 limited Crim. the P. pretrial ground, but not of determination Rule (Ala. the 15.6(a) likewise of evidence obtained pursuant seizure, trial for the Worley, R u l e 1 3 . 5 ( c ) ( 1 ) , A l a . R. suppression or pretrial an 13.5(c)(1) search court's qualifications citing upon court State's Under t o c h a r g e an indictment based Rule "a t r i a l authorize that 13.5(c)(1), S t a t e v. Rule of suppression legal indictment sufficiency an of o n l y "based upon o b j e c t i o n s t o dismissed 2 0 0 5 ) , and of voluntariness recognized legal insufficiency whereas dismissal based 2009). , quoting C r i m . App. has does not sufficiency App. be the at the CR-0 6 - 1 8 7 9 , N o v e m b e r 1 3 , lack grand j u r o r , failure C r i m . P. of the Crim. indictment Court indictment [Ms. (Ala. determine i t s content."). 1 3 . 5 ( c ) ( 1 ) , A l a . R. to to but does not authorize court's determination of the CR-09-0399 sufficiency extent of the Ecstasy the court the ground that nexus linking on of a s u p p r e s s i o n was motion to of he i s s u e was only we of note the to evidence Alabama other is custody State the bag of to prove the the drugs, that o u t s i d e the bounds original motion f a i l e d to prove in this devoid based to a case. the of Department inquiries of upon the of were evidence t h a t he Forensic this the be the Sciences for Accordingly, made. of can turned over the suppression was indicating failure claim to chain Apparently, chain-of-custody the State's chain-of- evidence. Jemison a l s o claims t h a t the seized to the of failed Jemison's C l a c k l e y ' s statement No warranted State Jemison in t h a t the the testing. record that relating in Officer drugs the evidence to not c o n t e s t e d at the suppression h e a r i n g because testimony found the i n e r r o r because i t f e l l claimed custody suppressed Accordingly, suppress. Finally, suppress evidence. trial existence the State's from Officer violation his vehicle Clackley's of was search Arizona v. suppression justified of his Gant, 29 on of the the v e h i c l e was U.S. , evidence ground conducted 129 S.Ct. that in 1710 CR-09-0399 (2009). illegal Specifically, u n d e r G a n t on necessary Officer search of on which not have that the own search was s e a r c h was (1) t h a t t h e Clackley's could Jemison's contends the grounds Officer Clackley offense The for Jemison not safety; reasonably and (2) believed that c a r would have u n c o v e r e d e v i d e n c e the arrest was made -- that disorderly of the conduct. S t a t e contends t h a t Gant s h o u l d not r e t r o a c t i v e l y a p p l y Jemison's Court to case. This a has not Gant t o cases pending yet addressed on direct appeal. the U n i t e d States Court United States discussed before the v. whether of Appeals Davis, Gant c o u r t on 598 the applicability In the wake o f F.3d 1259 (11th to Cir. a case "Although the Supreme C o u r t ' s retroactivity doctrine has a complicated history, see United S t a t e s v . J o h n s o n , 457 U.S. 5 3 7 , 5 4 2 - 4 8 , 102 S.Ct. 2 5 7 9 , 73 L . E d . 2 d 202 ( 1 9 8 2 ) , i t i s now s e t t l e d t h a t 'a d e c i s i o n o f [ t h e S u p r e m e ] C o u r t c o n s t r u i n g t h e F o u r t h Amendment i s t o be a p p l i e d r e t r o a c t i v e l y t o a l l c o n v i c t i o n s t h a t were not yet f i n a l a t the time t h e d e c i s i o n was rendered,' i d . a t 562, 102 S.Ct. 2 5 7 9 , ' w i t h no e x c e p t i o n f o r c a s e s i n w h i c h t h e new r u l e c o n s t i t u t e s a " c l e a r break" w i t h the past,' G r i f f i t h v . K e n t u c k y , 479 U.S. 3 1 4 , 3 2 8 , 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). Accord Glazner v. G l a z n e r , 347 F . 3 d 1 2 1 2 , 1217 (11th Cir.2003) ('[F]or newly announced rules governing criminal 2 in 2010), appeal: 30 Gant, f o r the Eleventh C i r c u i t applied retroactively direct of then CR-09-0399 prosecutions, t h e Supreme Court has c o m p l e t e l y r e j e c t e d b o t h pure p r o s p e c t i v i t y , which o c c u r s where a c o u r t g i v e s a n e w l y a n n o u n c e d r u l e no r e t r o a c t i v e effect, and m o d i f i e d p r o s p e c t i v i t y , which occurs where a court applies a newly announced rule r e t r o a c t i v e l y on a c a s e b y c a s e b a s i s . ' ) . Because D a v i s ' s c a s e was p e n d i n g o n d i r e c t a p p e a l w h e n G a n t was d e c i d e d , t h e r u l e a n n o u n c e d i n t h a t decision applies t o h i s case. " ' F i n a l ' i n t h i s c o n t e x t r e f e r s t o any 'case i n which a judgment o f c o n v i c t i o n has been rendered, the a v a i l a b i l i t y o f appeal exhausted, and t h e time for a p e t i t i o n f o r c e r t i o r a r i elapsed or a p e t i t i o n f o r c e r t i o r a r i f i n a l l y d e n i e d . ' G r i f f i t h , 4 7 9 U.S. a t 3 2 1 n . 6, 107 S . C t . 7 0 8 . " 2 598 F.3d a t 1263. Here, Jemison p r e s e n t s h i s c l a i m on direct a p p e a l f r o m h i s c o n v i c t i o n , a n d , t h e r e f o r e , h i s c o n v i c t i o n was not y e t " f i n a l . " Jemison's case. suppression remedy Thus, t h e r u l e under However, of evidence Gant, we before seized must announced i n Gant a p p l i e s t o from the vehicle determine Clackley's action's violated the rule if s o , (2) w h e t h e r of any e v i d e n c e the exclusionary seized concluding i n violation whether rule (1) proper Officer commands s u p p r e s s i o n o f Gant. a t 1263, q u o t i n g U n i t e d S t a t e s v. Leon, 906, 104 S . C t . 3 4 0 5 U.S. i s a the announced i n Gant, and, F.3d 462 that S e e D a v i s , 598 468 U.S. 897, (1984), q u o t i n g i n t u r n I l l i n o i s v. Gates, 2 1 3 , 2 3 3 , 103 S . C t . 2317 (1983) e x c l u s i o n a r y s a n c t i o n i s a p p r o p r i a t e l y imposed 31 ("'Whether t h e i na particular CR-09-0399 case ... Fourth rule i s "an issue Amendment separate rights were v i o l a t e d by Initially, we of the police question from the party the i n New United States Y o r k v. B e l t o n , of that that U.S. 454 1259 ("As Belton the was Id., 'widely to [was] vehicle the at 1718."). and the The arrest the time Court of in of a also allow recent the as a Court contemporaneous compartment Davis, explained, to arrestee Gant In i t s holding i n which the passenger See later understood possibility Belton (1981), the 460. Supreme C o u r t incident no at search made a l a w f u l c u s t o d i a l a r r e s t a r r e s t , search automobile." the reexamined o c c u p a n t o f an a u t o m o b i l e , he may, incident invoke to r u l e announced i n Gant. Supreme C o u r t 453 the whether O f f i c e r C l a c k l e y ' s h e l d " t h a t when a p o l i c e m a n has of the seeking whether conduct."'") of Jemison's v e h i c l e v i o l a t e d the Gant, question a F.3d at i t s opinion in vehicle occupant could search.' replaced gain Gant, the 598 rule even i f access 129 search there to the S.Ct. at announced explained: "The e x p e r i e n c e o f t h e 28 y e a r s s i n c e we decided Belton has shown that the generalization underpinning the broad reading of t h a t d e c i s i o n i s u n f o u n d e d . We now know t h a t a r t i c l e s inside the passenger compartment are r a r e l y ' w i t h i n "the area i n t o w h i c h an a r r e s t e e m i g h t r e a c h , " ' 453 U.S., at 32 of in CR-09-0399 460, and blind adherence to Belton's faulty assumption would authorize myriad u n c o n s t i t u t i o n a l s e a r c h e s . The d o c t r i n e of s t a r e d e c i s i s does not require us to approve routine constitutional violations. " " P o l i c e may search a vehicle incident to a recent occupant's a r r e s t o n l y i f the a r r e s t e e is within reaching distance of the passenger compartment a t the time of the search or i t i s reasonable to b e l i e v e the v e h i c l e contains evidence o f t h e o f f e n s e o f a r r e s t . When t h e s e j u s t i f i c a t i o n s a r e a b s e n t , a s e a r c h o f an a r r e s t e e ' s v e h i c l e w i l l be u n r e a s o n a b l e u n l e s s p o l i c e o b t a i n a w a r r a n t o r show that another exception to the warrant requirement applies" U.S. at Here, "reaching he was was , 129 i t is not by justified ground. at 1723-24. undisputed distance arrested S.Ct. However, of the that passenger Jemison searching we believe j u s t i f i e d i n searching not compartment" Officer Clackley. in was at Thus, O f f i c e r Jemison's that vehicle Officer J e m i s o n ' s v e h i c l e on within the Clackley on this Clackley the ground t h a t r e a s o n a b l y b e l i e v e d t h a t he w o u l d f i n d e v i d e n c e r e l a t e d t o drugs recovered Jemison conduct and expectation from the argues that that time was he the scene. he Officer was arrested Clackley had for disorderly no reasonable t h a t he m i g h t f i n d e v i d e n c e o f t h a t o f f e n s e 33 in the CR-09-0399 vehicle. Jemison's Gant i s t o o narrow. Officer had Clackley view o f t h e Supreme Here, i t i s reasonable had probable committed the offense Court's cause holding t o conclude t o suspect that the by t h e time O f f i c e r yard. App. Clackley recovered S e e Woods v . S t a t e , 1996)("Probable circumstances cause exists of reasonable offense has been or i s being citations found in omitted). of the Ecstasy along c o u l d have r e a s o n a b l y drug possession Accordingly, the committed place to the Ecstacy i n a l l the facts and to conclude and t h a t that an contraband searched.")(internal of the circumstances h i s f l i g h t , and t h e recovery J e m i s o n ' s f l i g h t p a t h -- O f f i c e r Clackley b e l i e v e d t h a t he w o u l d u n c o v e r evidence or distribution we d o n o t b e l i e v e drug-related be Given the t o t a l i t y Officer r u l e announced i n Gant by s e a r c h i n g of where caution -- J e m i s o n ' s s u s p i c i o u s b e h a v i o r , of drug-related w i t h i n the o f f i c e r ' s knowledge are s u f f i c i e n t t o a person be Jemison 695 S o . 2 d 6 3 6 , 640 ( A l a . C r i m . warrant would that o f d i s o r d e r l y conduct, see Part I o f t h i s o p i n i o n , a n d t h a t J e m i s o n h a d c o m m i t t e d some offense in offenses. 34 i n Jemison's vehicle. Clackley violated the Jemison's c a r f o r evidence CR-09-0399 M o r e o v e r , e v e n i f we a r e t o a s s u m e t h a t O f f i c e r violated Gant determine whether from by the vehicle appropriate searching Jemison's the suppression pursuant remedy for this Court found that although to vehicle, we of the evidence the exclusionary Gant Clackley violation. must gathered rule i s an In Davis, the the p o l i c e o f f i c e r violated the rule announced i n Gant, t h e a p p l i c a t i o n o f t h e e x c l u s i o n a r y r u l e t o the evidence appropriate seized remedy. from the The C o u r t vehicle would not be explained: " ' [ T ] h e e x c l u s i o n a r y r u l e i s n o t an i n d i v i d u a l right'; i t ' a p p l i e s o n l y where i t " r e s u l t [ s ] i n appreciable deterrence,"' and 'the b e n e f i t s of deterrence must o u t w e i g h t h e c o s t s . ' H e r r i n g v. United States, U.S. , 129 S . C t . 695, 7 0 0 , 172 L . E d . 2 d 4 9 6 ( 2 0 0 9 ) ( q u o t i n g [ U n i t e d S t a t e s v . ] Leon, 468 U.S. [ 8 9 7 ] a t 9 0 9 , 104 S . C t . 3405 [(1984)]) (alteration i n original). Whether to s u p p r e s s e v i d e n c e o b t a i n e d from an u n c o n s t i t u t i o n a l s e a r c h t h u s ' t u r n s on t h e c u l p a b i l i t y o f t h e p o l i c e and t h e p o t e n t i a l o f e x c l u s i o n t o d e t e r wrongful p o l i c e c o n d u c t . ' I d . a t 698, 129 S . C t . 6 9 5 . B e c a u s e the exclusionary rule ' c a n n o t be e x p e c t e d , and should not be applied, to deter objectively reasonable l a w e n f o r c e m e n t a c t i v i t y , ' t h e Supreme C o u r t has e s t a b l i s h e d an e x c e p t i o n t o t h e r u l e ' s application f o r cases i n which the o f f i c e r s who conducted an illegal search 'acted i n the o b j e c t i v e l y reasonable b e l i e f that t h e i r conduct d i d n o t v i o l a t e t h e F o u r t h A m e n d m e n t . ' L e o n , 4 68 U.S. a t 9 1 9 , 104 S . C t . 3 4 0 5 . 35 an CR-09-0399 "In this case, Sergeant Miller d i d not d e l i b e r a t e l y v i o l a t e Davis's c o n s t i t u t i o n a l r i g h t s . Nor c a n he be h e l d r e s p o n s i b l e f o r t h e u n l a w f u l n e s s o f t h e s e a r c h he c o n d u c t e d . A t the time of the s e a r c h , we a d h e r e d t o t h e b r o a d r e a d i n g o f B e l t o n t h a t t h e Supreme C o u r t l a t e r d i s a v o w e d i n G a n t, a n d a search performed i n accordance w i t h our erroneous interpretation of Fourth Amendment law i s not c u l p a b l e p o l i c e c o n d u c t . Law e n f o r c e m e n t o f f i c e r s i n t h i s c i r c u i t a r e e n t i t l e d t o r e l y on o u r d e c i s i o n s , and '[p]enalizing the o f f i c e r f o r the [court's] error, rather than h i s own, cannot logically contribute to the deterrence of Fourth Amendment v i o l a t i o n s , ' L e o n , 468 U.S. a t 9 2 1 , 104 S . C t . 3 4 0 5 . As t h e T e n t h C i r c u i t e x p l a i n e d , t h e g e n e r a l ' p u r p o s e of the e x c l u s i o n a r y r u l e i s t o deter misconduct by law enforcement o f f i c e r s , n o t o t h e r e n t i t i e s , ' and t h e r e w o u l d be l i t t l e ' s i g n i f i c a n t d e t e r r e n t e f f e c t i n e x c l u d i n g e v i d e n c e b a s e d upon t h e m i s t a k e s o f those uninvolved in or attenuated from law e n f o r c e m e n t . ' McCane, 573 F . 3 d a t 1044. "Because t h e e x c l u s i o n a r y r u l e i s justified s o l e l y by i t s p o t e n t i a l t o d e t e r p o l i c e misconduct, suppressing evidence obtained from an unlawful s e a r c h i s i n a p p r o p r i a t e when t h e o f f e n d i n g o f f i c e r r e a s o n a b l y r e l i e d on w e l l - s e t t l e d precedent. " W i t h t h i s d e c i s i o n , we j o i n t h e F i f t h a n d T e n t h C i r c u i t s i n refusing t o apply the exclusionary rule when t h e p o l i c e h a v e r e a s o n a b l y r e l i e d on c l e a r a n d well-settled precedent. See, [ U n i t e d S t a t e s v.] McCane, 573 F . 3 d [1037] a t 1045 [ ( 1 0 t h C i r . 2009) cert. denied, U.S. , 130 S . C t . 1 6 8 6 ( M a r . 1, 2010)] ('[T]his court declines to apply the e x c l u s i o n a r y r u l e when l a w e n f o r c e m e n t o f f i c e r s a c t i n o b j e c t i v e l y r e a s o n a b l e r e l i a n c e upon t h e s e t t l e d case law o f a U n i t e d S t a t e s Court o f A p p e a l s . ' ) ; [ U n i t e d S t a t e v.] J a c k s o n , 825 F . 2 d [853] a t 866 [ ( 5 t h C i r . 1987)] ('[T]he e x c l u s i o n a r y r u l e s h o u l d 36 CR-09-0399 n o t b e a p p l i e d t o s e a r c h e s w h i c h r e l i e d on Fifth C i r c u i t law p r i o r t o the change of t h a t law '). We s t r e s s , h o w e v e r , t h a t o u r p r e c e d e n t on a g i v e n p o i n t m u s t be u n e q u i v o c a l b e f o r e we w i l l s u s p e n d t h e e x c l u s i o n a r y r u l e ' s o p e r a t i o n . We h a v e n o t f o r g o t t e n t h e i m p o r t a n c e o f t h e ' i n c e n t i v e t o e r r on t h e s i d e of c o n s t i t u t i o n a l behavior,' a n d we do n o t mean t o encourage police to adopt a '"let's-waituntil-it's-decided approach"' to 'unsettled' questions o f F o u r t h Amendment l a w . Johnson, 457 U.S. a t 561, 102 S.Ct. 2579 (quoting Desist v. U n i t e d S t a t e s , 394 U.S. 2 4 4 , 2 7 7 , 89 S . C t . 1 0 3 0 , 22 L . E d . 2 d 248 (1969) ( F o r t a s , J . , d i s s e n t i n g ) ) . "The c l a r i t y o f t h e B e l t o n r u l e we followed b e f o r e Gant i s thus c r i t i c a l t o our d e c i s i o n today. Although the Court i n Gant i n s i s t e d t h a t Belton c o u l d h a v e b e e n i n t e r p r e t e d i n e i t h e r o f two w a y s , i t a l s o a c k n o w l e d g e d t h a t B e l t o n was p r e m i s e d on a ' f a u l t y assumption' to which the d o c t r i n e of s t a r e d e c i s i s d i d n o t r e q u i r e a d h e r e n c e . G a n t , 129 S.Ct. a t 1719, 1723. I n d e e d , we, l i k e most of the other c o u r t s of appeals, t r e a t e d the broader, permissive r e a d i n g o f B e l t o n as w e l l - s e t t l e d . I t i s p r e c i s e l y i n s i t u a t i o n s l i k e t h i s , when t h e p e r m i s s i b i l i t y o f a s e a r c h was c l e a r u n d e r p r e c e d e n t t h a t has since been overturned, that applying the good-faith exception m a k e s s e n s e . When t h e p o l i c e c o n d u c t a s e a r c h i n r e l i a n c e on a b r i g h t - l i n e j u d i c i a l r u l e , the c o u r t s have a l r e a d y e f f e c t i v e l y d e t e r m i n e d the search's constitutionality, and applying the e x c l u s i o n a r y r u l e on t h e b a s i s o f a j u d i c i a l e r r o r c a n n o t d e t e r p o l i c e m i s c o n d u c t . C f . K r u l l , 480 U.S. a t 360 n. 17, 107 S.Ct. 1160. ('[T]he question whether the e x c l u s i o n a r y r u l e i s a p p l i c a b l e i n a p a r t i c u l a r c o n t e x t depends s i g n i f i c a n t l y upon the a c t o r s who a r e m a k i n g t h e r e l e v a n t d e c i s i o n t h a t t h e rule i s designed to i n f l u e n c e . ' ) . "Our d e c i s i o n h e r e i s t h e r e f o r e c o n s i s t e n t w i t h our h o l d i n g i n U n i t e d S t a t e s v. C h a n t h a s o u x a t , 342 F.3d 1271, 1280 (11th C i r . 2 0 0 3 ) , t h a t 'the good 37 CR-09-0399 f a i t h e x c e p t i o n t o t h e e x c l u s i o n a r y r u l e ... s h o u l d not be e x t e n d e d t o excuse a v e h i c u l a r s e a r c h b a s e d on an o f f i c e r ' s m i s t a k e o f l a w ' ( e m p h a s i s added). The j u s t i f i c a t i o n s f o r t h e g o o d - f a i t h e x c e p t i o n d o not extend t o s i t u a t i o n s i n which p o l i c e officers have i n t e r p r e t e d ambiguous p r e c e d e n t o r r e l i e d on t h e i r own e x t r a p o l a t i o n s f r o m e x i s t i n g c a s e l a w . When the police rely on novel extensions of our p r e c e d e n t , t h e y engage i n t h e s o r t o f l e g a l a n a l y s i s better reserved to judicial officers, whose ' d e t a c h e d s c r u t i n y ... i s a m o r e r e l i a b l e s a f e g u a r d a g a i n s t improper searches than t h e h u r r i e d judgment of a law enforcement o f f i c e r engaged i n t h e o f t e n competitive enterprise of ferreting out crime,' U n i t e d S t a t e s v . C h a d w i c k , 4 3 3 U.S. 1, 9, 97 S . C t . 2 4 7 6 , 53 L . E d . 2 d 538 ( 1 9 7 7 ) ( q u o t a t i o n marks and citation omitted), quoted i n Leon, 468 U.S. a t 913-14, 104 S.Ct. 3405. When law enforcement officers rely on precedent to resolve legal q u e s t i o n s a s t o w h i c h ' [ r ] e a s o n a b l e m i n d s ... may d i f f e r , ' L e o n , 468 U.S. a t 9 1 4 , 104 S . C t . 3 4 3 0 , t h e exclusionary rule i s well-tailored to hold them accountable f o rt h e i r mistakes. " A l t h o u g h an o f f i c e r ' s m i s t a k e o f l a w c a n n o t p r o v i d e o b j e c t i v e l y r e a s o n a b l e grounds f o r a s e a r c h , C h a n t h a s o u x a t , 342 F . 3 d a t 1 2 7 9 , t h e m i s t a k e o f l a w h e r e w a s n o t a t t r i b u t a b l e t o t h e p o l i c e . On t h e contrary, the governing law i n this circuit unambiguously allowed Sergeant M i l l e r t o search the c a r . R e l y i n g on a c o u r t o f a p p e a l s ' w e l l - s e t t l e d a n d u n e q u i v o c a l p r e c e d e n t i s a n a l o g o u s t o r e l y i n g on a s t a t u t e , c f . [ I l l i n o i s v . ] K r u l l , 480 U.S. 3 4 0 , 107 S . C t . 1 1 6 0 , 94 L . E d . 2 d 364 [ ( 1 9 8 7 ) ] , o r a f a c i a l l y s u f f i c i e n t w a r r a n t , c f . Leon, 468 U.S. 8 9 7 , 104 S.Ct. 3405, 82 L.Ed.2d 677-not to personally misinterpreting the law. "In this case, Sergeant M i l l e r performed a s e a r c h t h a t o u r contemporaneous interpretation of B e l t o n c l e a r l y p e r m i t t e d . Had t h e Supreme C o u r t n o t s u b s e q u e n t l y r e j e c t e d t h a t i n t e r p r e t a t i o n i n Gant, 38 CR-09-0399 we undoubtedly would have u p h e l d the search as c o n s t i t u t i o n a l . B e c a u s e t h e s e a r c h was objectively reasonable under our then-binding precedent, s u p p r e s s i n g t h e gun f o u n d i n D a v i s ' s j a c k e t would s e r v e no d e t e r r e n t p u r p o s e . I n a c c o r d a n c e w i t h o u r h o l d i n g t h a t the g o o d - f a i t h e x c e p t i o n a l l o w s the use of evidence obtained i n reasonable reliance on well-settled precedent, we refuse to apply the exclusionary rule here." 598 F.3d at 1265-68. At the time O f f i c e r it Clackley searched Jemison's vehicle, i s u n e q u i v o c a l t h a t the r u l e announced i n B e l t o n c o n c e r n i n g automobile was the searches c a r r i e d o u t as i n c i d e n t t o l a w f u l controlling Sheffield v. precedent State, 606 So. 2d in Alabama. 183, 187 arrests See, (Ala. Crim. 1 9 9 2 ) ( " A f t e r a r r e s t i n g t h e d r i v e r o f an a u t o m o b i l e , an 'may, as a c o n t e m p o r a n e o u s i n c i d e n t o f t h a t a r r e s t , passenger any York compartment' of t h a t c a r , i n c l u d i n g c o n t a i n e r s found v. L.Ed.2d Belton, 768 C r i m . App. we were pursuant the 453 U.S. the 454, to aff'd, conclude t o an to 768 that passenger 460, ( 1 9 8 1 ) . " ) ; Mason v. 1998), motion within State, So. 2 d 1008 the search i n v e n t o r y search, the suppress is 101 due 39 to officer search the compartment.' 2860, So. 2d 2864, 981 was not 69 i f authorized court's denial affirmed New (Ala. (Ala. 2000)("Even trial be App. 'the c o n t e n t s of S.Ct. 768 e.g., because of the CR-09-0399 search of the appellant's incident t o an like Court was the in search under settled Applying Officer vehicle as to an the exclusionary good-faith to u n c o n s t i t u t i o n a l 357, 364 police after its arrest suppress Clackley his on the to on See operates as Ex 'a evidence remedy effect, U.S. Thus, violated arrest, 338, even i f we Gant by we 348 do rather well settled purpose parte 468 Tyson, U.S. at (1974)].") were believe 40 906-08 judicially than a 784 created generally personal aggrieved.' United States searching not for deterrent s e r v e s no searches. rule] deterrent [414 lawful law based the appropriate reliance c o n s t i t u t i o n a l r i g h t of the p a r t y original). of arresting remedy d e s i g n e d t o s a f e g u a r d F o u r t h Amendment r i g h t s Calandra, Thus, authorized the (Ala. 2000), q u o t i n g Leon, [exclusionary through search 187."). was to a mistake in that incident p r e c e d e n t b e c a u s e d o i n g so 2d at no Clackley as precedent. Clackley's Belton 2d that rule Officer ("The conclude from Jemison's v e h i c l e i s not seized So. we lawful So. Officer Clackley Belton, Jemison's was S h e f f i e l d , 606 Davis, a t t r i b u t a b l e to Jemison, well arrest. vehicle to (alteration assume Jemison's the that v. in Officer vehicle after exclusionary rule CR-09-0399 should be a p p l i e d Accordingly, his be Gant to Officer affords Jemison with respect to Ecstasy pills was any Accordingly, the t r i a l motion t o suppress. trial circuit court Officer Clackley did not subject seizure. implicating to no r e l i e f actions. suppressed. Jemison t o an u n l a w f u l the good-faith c l a i m t h a t t h e e v i d e n c e s e i z e d f r o m h i s v e h i c l e was due t o As p r e v i o u s l y d i s c u s s e d , the Clackley's not Fourth Likewise, recovered Amendment court erred the bag containing during right search of Jemison. i n granting Jemison's B a s e d 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 for the court t o set aside i t s order g r a n t i n g Jemison's motion suppress and t o r e s t o r e Jemison's case to i t sactive docket. APPLICATION OVERRULED; OPINION OF JULY 30, 2010, WITHDRAWN; O P I N I O N S U B S T I T U T E D ; R E V E R S E D AND REMANDED. Wise, P.J., a n d W e l c h , Windom, a n d M a i n , 41 J J . , concur.

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