REL:   08/29/2014




Notice: This opinion is subject to formal revision before publication in the advance
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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014

                         _________________________

                                  1121414
                         _________________________

                     Ex parte George Willie Pollard

                     PETITION FOR WRIT OF CERTIORARI
                    TO THE COURT OF CRIMINAL APPEALS

                         (In re:      State of Alabama

                                          v.

                           George Willie Pollard)

                    (Lee Circuit Court, CC-11-418;
                Court of Criminal Appeals, CR-10-1560)

WISE, Justice.

       The writ of certiorari is quashed.
1121414

     In quashing the writ of certiorari, this Court does not

wish to be understood as approving all the language, reasons,

or   statements   of   law   in   the Court   of Criminal   Appeals'

opinion.   Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155

(1973).

     WRIT QUASHED.

     Stuart, Bolin, Parker, Murdock, Main, and Bryan, JJ.,

concur.

     Moore, C.J., and Shaw, J., dissent.




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SHAW, Justice (dissenting).

     I dissent from quashing the writ of certiorari in this

case.

     On January 12, 2011, law-enforcement officials received

an e-mailed "Meth Check Alert," apparently as part of the

National     Precursor   Law      Enforcement     Exchange     Program,

indicating    that    George      Willie    Pollard    had    purchased

pseudoephedrine at a store in Opelika.          The alert was relayed

to Detective Michael Rogers, a narcotics investigator with the

Opelika Police Department.

     Rogers drove to a position near Interstate 85 to observe

vehicular traffic traveling north, apparently in an attempt to

observe Pollard's vehicle. Rogers was familiar with both

Pollard and Pollard's wife, Christy.            He spotted a vehicle

driving past his location that was occupied by "two black

males and a redheaded female."          Rogers knew that Christy had

red hair, so he decided to follow the vehicle to determine

whether Christy was the female in the vehicle and whether

Pollard was with her. When Rogers saw Pollard in the vehicle,

he   performed   a   check   of   the    vehicle's    tag    number   and

determined that the vehicle was registered to Steve Madden,


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who allegedly had an outstanding warrant.                  According to

Rogers,      he   then   conducted   a    traffic   stop   based   on   the

outstanding warrant for Madden coupled with the information he

had   that    Pollard    had   recently    purchased   pseudoephedrine.

After the vehicle was stopped, the driver, Madden, consented

to a search of the vehicle.          During the course of the search,

Rogers    discovered      several     items   commonly     used    in   the

manufacture of methamphetamine.

      Pollard was ultimately indicted for first-degree unlawful

manufacture of a controlled substance.               Ala. Code 1975, §

13A-12-218.        He filed a pretrial motion to suppress the

evidence seized from the vehicle, arguing that the traffic

stop and the resulting search were illegal.

      The issue discussed at the hearing on the motion to

suppress was whether the e-mailed "alert" received by law-

enforcement officials was sufficient cause to initiate a

traffic stop.       It appears from the record that the issue was

extensively argued by both Pollard and the State. Ultimately,

the trial court granted the motion to suppress under the

rationale that the e-mail alert did not provide a sufficient




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basis for an investigatory stop of the vehicle.              The State

appealed to the Court of Criminal Appeals.

      On appeal, the State contended that the trial court erred

in overlooking Rogers's testimony that the driver of the

vehicle, Madden, had a warrant outstanding for his arrest.

The   Court   of   Criminal   Appeals   agreed,    holding   that   the

evidence of the arrest warrant for Madden established a

second, independent reason for conducting the investigatory

stop. State v. Pollard, [Ms. CR-10-1560, August 13, 2013] ___

So. 3d ___ (Ala. Crim. App. 2013).

      On appeal to the Court of Criminal Appeals (and in his

certiorari petition to this Court), Pollard contended that the

State's argument that the outstanding arrest warrant for

Madden    provided   a   basis   for   the   investigatory   stop   was

improper because the State failed to raise this claim first in




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the trial court.1    In its opinion, the Court of Criminal

Appeals addressed this issue as follows:

    "The Alabama Supreme Court has noted that

          "'"[a]lthough    on    appeal    from    an
          intermediate court the higher court may be
          limited to the questions of law raised or
          argued at the trial, it is not limited to
          the arguments there presented." 5 C.J.S.
          Appeal and Error § 978 (2007) (emphasis
          added). In other words, "[n]ew arguments or
          authorities may be presented on appeal,
          although no new questions can be raised."
          4 C.J.S. Appeal and Error § 297 (emphasis
          added).'

    "Ex parte Jenkins, 26 So. 3d 464, 473 n. 7 (Ala.
    2009). Thus, under Jenkins, a party waives on appeal
    questions of law not first raised in circuit court.

         "As stated above, the only question of law
    before the circuit court was whether the 'evidence
    and statements are due to be suppressed in that
    [the] search leading to the discovery of [the]
    evidence and statements [was] conducted without a
    search warrant.' (C. 24.) The State on appeal is


    1
     Both the State's failure to raise the issue of the
outstanding arrest warrant and the trial court's failure to
recognize it are understandable. On a motion to suppress, the
State responds to the specific arguments presented by the
movant. Here, Pollard raised a novel legal issue, the State
responded to that issue, and the trial court endeavored to
determine what the law would require with respect to what
appeared to be an issue of first impression. That an arrest
warrant for Madden existed was only briefly mentioned in
testimony, and both the parties and the trial court instead
focused their efforts on the unique legal issue concerning the
e-mail alert.
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      merely asserting an argument--based on undisputed
      evidence presented to the circuit court--as to why
      the circuit court erred in ruling on the question of
      law that Pollard raised in his motion to suppress."

Pollard, ___ So. 3d at ___ n.3.

      I have serious concerns as to whether Ex parte Jenkins,

26 So. 3d 464 (Ala. 2009), relied on by the Court of Criminal

Appeals, was correctly decided.       Assuming that it is easy to

distinguish between a legal "question" and a mere "argument"

as to that question, it seems that, if any "question" is

defined broadly enough, anything can be preserved for review

and   considered   on   appeal.   This   drastically   alters   the

traditional duties of parties to preserve issues for appellate

review.   Further, there should be consideration as to whether

the parties must take some initiative to ensure that the trial

court has the opportunity to make the correct decision.

Parties should be required to direct the trial court to the

correct "arguments" instead of allowing the focus to dwell on

immaterial issues or, intentionally or not, "sandbagging" the

trial court with inconsequential "arguments," while leaving

the appellate courts to address the true "questions" never

before brought to the attention of the lower court.        In his

brief, Pollard asks this Court to "revisit" Jenkins and to

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clarify its holding.   I would do so.   I thus dissent from

quashing the writ.




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