T.G. v. State (Ex parte T.G.)

Decision Date17 April 2015
Docket Number1140122.
Citation181 So.3d 321 (Mem)
Parties Ex parte T.G. (In re T.G. v. STATE of Alabama).
CourtAlabama Supreme Court

Tobie J. Smith, Legal Aid Society of Birmingham, Birmingham, for petitioner.

Submitted on certiorari petition only.

SHAW, Justice.

WRIT DENIED. NO OPINION.

STUART, PARKER, MURDOCK, MAIN, WISE, and BRYAN, JJ., concur.

BOLIN and SHAW, JJ., concur specially.

MOORE, C.J., dissents.

SHAW, Justice (concurring specially).

I concur to deny the petition. The petitioner, T.G., who is represented by counsel, challenges whether a patdown for weapons, which resulted in the seizure of contraband, was permissible.1 Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a law-enforcement officer, for his or her own protection and safety, may conduct a patdown to find weapons he or she reasonably believes or suspects are then in the possession of a person subject to an investigatory stop. Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Further, "[t]he Court recognized in Terry that the policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

Officers stopped the vehicle T.G. was driving for committing a traffic violation. The stop occurred in a high crime area at night. The person seated next to T.G. had an outstanding warrant for her arrest. The Supreme Court of the United States has recognized that "[t]raffic stops ... are ‘especially fraught with danger to police officers.’ " Arizona v. Johnson, 555 U.S. 323, 324, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (quoting Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) ). T.G.'s presence in a high crime area, the surrounding darkness, and T.G.'s proximity to and confederation with someone who had an outstanding warrant2 are all circumstances that allowed the officer to believe "that the persons with whom he [was] dealing may be armed and presently dangerous" and thus entitled him "for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." Terry, 392 U.S. at 30, 88 S.Ct. 1868. Under the totality of the circumstances, the officer was justified in conducting the patdown search for weapons. To hold that it is impermissible to frisk for weapons under these facts would create a dangerous legal precedent and, more importantly, would create a dangerous environment for all law-enforcement officers.

The Court of Criminal Appeals in its unpublished memorandum, T.G. v. State (No. CR–13–1068, Sept. 26, 2014), ––– So.3d –––– (Ala.Crim.App.2014) (table), noted that T.G. challenged only the justification for the patdown; he did not challenge the further search of the cigarette box containing a controlled substance discovered by the officer during the patdown. In his certiorari petition, T.G. again does not challenge the search of the cigarette box even though the Court of Criminal Appeals pointed out the issue; it is his prerogative to decline to do so. Further, it is a well settled principle that an appellate court will consider only the issues raised by the parties "and will not search out errors which have not been properly preserved or assigned." Ex parte Riley, 464 So.2d 92, 94 (Ala.1985). In our adversarial system, "we should rely on the parties to raise issues they believe worthy of review." Ex parte Conner, 165 So.3d 556, 558 (Ala.2014) (Shaw, J., concurring specially). If T.G. does not believe that the search of the cigarette box violated his constitutional rights and was, as the Chief Justice characterizes it, like those conducted by " ‘authoritarian governments,’ " then I believe that we should address only the arguments he actually presents. 165 So.3d at 558 (Moore, C.J., dissenting) (quoting Ex parte Warren, 783 So.2d 86, 96 (Ala.2000) (Johnstone, J., concurring specially)).3 Criminal cases routinely involve searches and seizures by law enforcement; I do not believe that it is advisable or practicable to perform a plain-error review in all such cases.

BOLIN, J., concurs.

MOORE, Chief Justice (dissenting).

In my estimation, the frisk of petitioner T.G. in this case very likely violated the Fourth Amendment to the United States Constitution. I would therefore grant his petition for a writ of certiorari to review the unpublished memorandum of the Court of Criminal Appeals affirming his conviction. State v. T.G. (No. CR–13–1068, Sept. 26, 2014), ––– So.3d –––– (Ala.Crim.App.2014) (table).

Background

In January 2014, two Birmingham police officers, patrolling a "high crime area," pulled over a car for failing to yield the right-of-way. T.G., the 17–year–old driver, produced a driver's license, as did the two passengers. On checking the licenses, the officers discovered that the female passenger had an active warrant with the City of Birmingham. The officers ordered all the passengers out of the car and frisked the two male passengers. According to the unpublished memorandum issued by the Court of Criminal Appeals, Officer Josh Phillips, when patting down T.G., "discovered a cigarette box in the top of his jacket and one in his pocket." Officer Phillips opened the cigarette boxes and in one of them found pills that were later determined to be a Schedule IV controlled substance.

During the criminal proceedings, T.G. filed a motion to suppress the pills on the basis that the initial patdown was illegal. At the suppression hearing, Officer Demarcus Blanding stated that T.G. had done nothing to prompt the frisk. Verified Statement of Facts, at 2. Reserving the right to appeal the denial of his motion to suppress, T.G. pleaded true to a delinquency petition. The trial court sentenced T.G. to probation. The Court of Criminal Appeals affirmed. T.G. now seeks certiorari review, arguing that the frisk of his person violated the Fourth Amendment.

Discussion

I believe T.G. has stated a sufficient conflict with precedent to warrant review of the constitutionality of the frisk at its inception. To stop a citizen and perform a frisk for weapons on less than probable cause that a crime has been committed, a police officer must have reasonable suspicion that the suspect is armed and dangerous. Terry v. Ohio, 392 U.S. 1, 24, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion requires "specific and articulable facts," not a mere "inchoate and unparticularized suspicion or ‘hunch.’ " Terry, 392 U.S. at 21, 27, 88 S.Ct. 1868. "The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked ...." Ybarra v. Illinois, 444 U.S. 85, 94, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (emphasis added).

Nonetheless, even if I were to concede that the frisk was constitutional at its inception, the opening of the cigarette boxes discovered during the frisk violated the Fourth Amendment by exceeding the permissible scope of a Terry -stop search for weapons. The Court of Criminal Appeals, however, noted that T.G. had not presented this specific sub-issue for review and thus had waived it: "T.G. challenges only the justification for the initial patdown; he does not challenge Officer Phillips's further search of the cigarette box recovered from T.G.'s person, and we do not address it." Although "it is this Court's practice not to address issues not presented on appeal," Travelers Indem. Co. of Connecticut v. Miller, 86 So.3d 338, 347 (Ala.2011), I believe that the search of the cigarette boxes is a subsidiary issue fairly included within the issue T.G. raised regarding the legality of the search of his person under the Terry exception to the Fourth Amendment. Once the patdown revealed no weapons, the justification for the Terry search dissipated, rendering illegal any further search of T.G.'s person without probable cause of criminal activity.

I would not view T.G.'s challenge to the search of his person under a Terry rationale so narrowly as to exclude from its ambit the continuation of that search once the rationale for it no longer existed. The requirement that a police officer must have reasonable suspicion to initiate a Terry search is inseparable from the parallel requirement that the search must cease once that suspicion is determined to be groundless. The search was one event, and T.G., in my view, by challenging the constitutionality of the search, has reasonably brought before the appellate courts for review not only the initiation of the search but also its continuation.

T.G. was adjudicated delinquent for possessing pills, the discovery of which was outside the scope of a permissible frisk of his person. A patdown search for weapons for the purpose of "neutraliz[ing] the threat of physical harm," Terry, 392 U.S. at 24, 88 S.Ct. 1868, "must ... be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." 392 U.S. at 29, 88 S.Ct. 1868. Because a Terry stop is "a carefully limited search of the outer clothing ... in an attempt to discover weapons which might be used to assault" the officer, id. at 30, 88 S.Ct. 1868, that search is "not justified by any need to prevent the disappearance or destruction of evidence of crime." Id. at 29, 88 S.Ct. 1868. "Nothing in Terry can be understood to allow ... any search whatever for anything but weapons." Ybarra, 444 U.S. at 93–94, 100 S.Ct. 338. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (noting that "[t]he purpose of this limited search is not to discover evidence of crime").

Once the absence of weapons has been confirmed, a further search of the person in the absence of probable cause of criminal activity violates the Fourth Amendment. In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, ...

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