atlanta and judge brad grant is and atlanta and we're here for all arguments and ken if you gene smith versus the commissioner of the alabama department of corrections  mister thomas this will be our courtroom deputy and he is the time keeper and he will advise you when your time to argue has expired and i believe the appellant smith has a reserve robert grass here for kenneth eugene smith richard durham and anderson is here for the commissioner of the alabama department of corrections mister crab grass are you ready to proceed with your argument i am your suppress the evidence mister smith's trial counsel failed to investigate and make the legal argument that the water was facially invalid which would have led to suppression of the evidence t search warrant in this case was directed to any sheriffs in the state of alabama that alabama law at the time required that it be directed to the lauderdale county sheriff's or mister smith was living and where the search took place that conclusion follows from two sources that were available to smith mister smith's trial counsel at the time of this trial the st sources the plane wording of the statute governing the court see unlike the statute that governs the search in mister smith's case which explicitly require that the search warrant warrant may be directed to any volunteer force men officer with in alabama and so based on that per s distinction the alabama court of criminal appeals in the recent case of states versus hunt decided this year concluded that a warrant directed to any law enforcement officer in alabama is valid not withstanding section fifteen dash five that's five which has more limiting requirements so search criminal procedure even though they would be invalid under the statutes that governed when the search took place at mister smith's home as issued would have been valid but as said the outset i disagree that there could have been retroactive application of the rules of criminal facto application is in violation of the united states now bama constitutions and we cited cases in our  cases as as you suggest regardless of when they were initiated and the court concluded that you can't retroactively apply that rule when the rule in existence appeals court cases that were decided under the old rule that hold the validity of warrants containing similar language to the one we have in this case your honor i think that those cases are consistent with the statutory framework as we construe it and that is that  of the statute which says that the warrant must be directed to a law enforcement officer from the issuing account and that's because it's directed so if it's not directed to a law enforcement officer from the issuing county then section fifteen dash fifty seven doesn't require that if the executed by law enforcement officer from the i count and i think that's the way rivers versus state has to be understood in that context in that case he the reason that the warrant wasn't valid in rivers was because it was directed improperly and there has to be a properly there has to be a valid laurents before we worry about who executes it or how it's executed and i think that the cases all can be considered or should be considered under that framework statue is construed in that way then it really doesn't matter how the statute was or there is compliance with section fifteen dash fifty five dollars because the statute could be directed for example to any sheriffs without geographic limitations at all or any person without geographic limitation at all as long as a local law enforcement officer participated in the execution and that kind of my question because i don't see any case think to me in the cases like that wilson mentioned and also in rivers the alabama code provisions are construed very leniently is there a case where any alabama alabama law as well as alabama state court sessions say that the statute must be strictly construed and none of them say that close enough is good enough and so  they have to be strictly construed because what the legislature had in mind was that a local law enforcement officer would be in charge of searches within that also service jurisdiction and if the if in contra by necessary definition invites officers outside the local jurisdiction to execute search warrants insipient charge of search warrants in outside their local executing it and was in charge of the team that executed the search warrant so that that's so we just like what the court said in rivers where the court said their efforts referring to the says you are reading that correctly the question is what exactly did the rivers of court mean by that and in the context of the statutory framework where the only to the a b c agents at issue in the case and i think that the other cases that judge wilson referred to are also construed  in the context of the statutory framework so there are some cases where the courts upheld searches under search warrants directed to law enforcement officers from the issuing county as required by section fifteen days five days five who then requested the assistance of law enforcement offices from outside the issuing count that he as permitted by section fifteen that's five to seven and the courts held that the fact that officers outside the issuing county were present at the execution of the search warrant didn't vitiate to the search warrant because the thing that's five to seven state which judge wilson also mentioned then on which the district court relied too much don't address issues related to section fifteen that's five dollars five cents or section fifteen that's five  because the courts in those cases found that there was independent authority under section twelve of the alabama code for magistrate for municipal the lauderdale county deputy sheriff was authorized to execute the warrant and actually executed a warrant go right that's true but the water dale county sheriff's deputy charles ford participated in execution of the lawrence at the request with the time that you have left why don't you tell us why if we accept your argument the good faith exception to the exclusionary rule would not apply search warrant which the court ultimately concluded was not authorized by alabama law and the state there relied on the good faith exception and said that well that's the fault of the officers who executed the search warrant that they had a good faith basis to rely on the  excluded and the reason was that the warrant in fact was not valid the officers were acting under an invalid who aren't the court that issued the warrant was required to follow the determine they're going to give me the cite for that case again well that was not authorized that no anticipatory warrants were allowed at all as opposed to here i think we can fairly say it's best characterized as a technical violation rather than a search that there would be no way to get a warrant for in the  st place doesn't that leave a pretty big gap between this case and turner your honor i have two responses to count the question counsel you have two minutes thank you your honor i have very briefly i have two responses to that question the st response is that i think that the point in turner was that the warrant in fact was invalid and here too the warrant was in fact invalid and before we can worry about who executes the why aren't there needs to be could have been addressed more broadly at that time to any sheriff in alabama he was was executed by a police officer from the city of  who was authorized to execute the warrant under the rules of civil procedure and the court nevertheless held that the explicit exclusionary rule applied to exclude the evidence obtained because under six fifty seven dollars the officer was not and officer to whom the warrant was directed and so there even though there could have been a lawful search under existing judges to issue search warrants to pull police officers who then could execute them and here there was no independent authority sheriff's office executed and returned was quote invalid on its face close quote because it was generally directed to any share of the state of alabama not specifically directed to the lauderdale can't share and the trial counsel was ineffective for not challenging the war on the ground the st thing i would like to note is that smith's argument this is judge wilson the man with the search warrant could have been conducted to law enforcement officers outside of dale county i would say in this case that what matters is that the general form of address any sheriff in the state of alabama included the lauderdale county sheriff and when we look at the actual context of the case as an alabama court would have been sure to do we see clearly abundant evidence that the warrant was executed by the lauderdale county sheriff's department could not have that's correct they say the county sheriff could not have executed the search even though it was directed to any law enforcement officer of the state of alabama that's correct the style the state would maintain is the style of the warrant the direction of it is essentially a ministerial thing and so long as it encompasses the officer who actually executes and gives him authority then it complie referred to a little while ago specifically rejected that idea hypertechnical construction but i want to point out just as a practical matter if you take this hyper technical approach you will then the only person who could carry out a search in any alabama county would be the sheriff himself and he would have to be present every search but it's clear from the whole scope of alabama law in this time period that deputy sheriffs could conduct searches deputized law enforcement officers could conduct searches investigators conduct searches a strict reading of the rule would require it to be the sheriff himself of course that's not the way the alabama courts treat it as just prior has recognized earlier th because that that's really the reverse gives us a good idea of why the legislature did that and tells us what the alabama courts think about why the legislature did that and rivers it was because it was the of the legislature to ensure that local officials will be in charge of searches within their counties and of course that purpose was accomplished here so the alabama courts are going to look and have looked at these cases challenges to search warrants under the statutory scheme to see if the legislative purpose was a cheat and here it certainly was but i want to mecca one point here that this of the fact that we're having this conversation and this argument about what the meaning of the statutory scheme is is really the st and most glaring fall in mess hall claim because this is a very novel issue novel argument now and it was a novel argument twenty years ago we're here on the six the men client of course and that means that smith doesn't just have to show that there's some possible argument about the statutory scheme and race under strickland he has to show that no reasonable counsel would have failed to raise this objection as shown from our brief and from an extensive search of alabama case point being in all of this time when these types of generally addressed warrants were in use not just no reasonable counsel but apparently no counsel ever challenge a war that ground and that just demonstrates that petitioner cannot possibly show in this case that no reasonable counsel would have failed to raise an objection that no one has ever raised before  i also would note that that is further buckfast by the fact that on direct appeal the court of criminal appeals engaged in plain error review because this is a capital case the court held that two and this is when the war itself there was actually a challenge to the war and trial there was a suppression hearing the warrant was that issue and certainly the court of criminal appeals would have reviewed that entire warrant including its style every conceivable constitutional helmar be wiped from this court noted that trial counsel could reasonably overlook a novel issue but even more than that wrong about alabama law and he's wrong about rivers the rivers state is the tent pole petitioner's argument but also the achilles heel you can't understand the rivers case without understanding the question presented there the error alleged in rivers was that a search warrant was issued to and executed by a b c agents when quote an a b c enforcement agent has no since the warrant was directed to any a b c agent rather than a cat a county official and was executed by a b c agents without the authority of county officials the evidence had to be excluded official will be in charge of searches within his county and judge wilson are recognized you're concerned about ensuring that that intent of the legislature is followed and when we look at the facts in this case in the record in this case we say that the execution fully carried out that intent of the legislature and the intent of rivers the warrant was executed by a lot of dale county officials in cooperation which smith made exhibit trial details their investigative efforts including the investigation information that led to obtain a warrant how they work together with lauderdale county officials principally the sheriff's investigator charles ford but also the district attorney of lauderdale county personnel from the largo county d a s office all of this and obtaining the warrant when it came time to execute the warrant the narrative actual execution of the warrant team was assembled to execute the warrant and the record actually tells us who was on that train present at the time of execution of the search warrant was investigator charles forward with lardo county sheriff's department lauderdale county district attorney's investigators bradford florence and i will note that florence is a city in lauderdale trial record it is if anything it confirms the state's version of events and refuse petitioners statement that ford was not in charge of   judge priors questions about the good faith exception the record in this case makes it clear to us that the officers involved knew what the legal requirements were if you go back to that same testimony he will could be shown that the officers involved or the magistrate issued the warrant would have thought or would have had any reason to believe that this was an actual conflict as opposed to hyper technical conflict with the statute but even then that would still leave the good base exception which i turn to briefly  a search by a person authorized to do the search there's no reason to think that the if it's a problem the ministerial problem of the inclusive general nature of the address would where the officers essentially did everything right where there's no indication of bad faith certainly on the part of the officers and that's just what we have here let me ask  and his house and then he confessed but other than his statement and the v c r was in his house i'm just curious what was the brief make mention of several other witnesses what we will not invalidate a search warrant by interpret it in a hypertechnical rather than a common manner and a common sense interpretation of the search warrant in this case when we look at the evidence that is directed  all of these things in practical common sense terms demonstrate that the warrant was intended for proper execution by personnel of the lauderdale county sheriff's  that i have not extensively looked into this because it's my belief that it's pretty clear that the statute was was obeyed common sense terms so i have not is informative to look at the rules that were actually promulgated by the alabama supreme court and whether they tell us anything about how important specific addresses and search warrants ar alabama law and of course to that extent the common practice now the is everywhere universally to generally address the warrant to effectively anybody who can l  the if i could have just a moment and i do want to address one question that judge pryor asked earlier where she referred to looking at the case was cited by the state in the tended to consistently interpret the statutes consistent with the intent of the legislature so as to give effect to that legislative intent that's what they did in rivers that's what they've done in respectfully the tail wagging the dog the legislature could have written a statute that says that the warrant must be executed by a local law enforcement official that's not how the statutory framework operates instead the legislature said that the warrant must be directed to a local law enforcement official and there is good reason for them to have done that also is directed to the pike county sheriff the montgomery county sheriff the mobile county sheriff culvert county sheriff and every other sheriff in alabama and the legislature to ensure that a local law enforcement officer would be in charge of the search wanted to make sure that it was both direct the two and therefore executed by a local law supports the argument and although there has been discussion and i'm not sure i fully answered judge wilson's argument on my opening i'm sorry judge wilson's question on my opening argument the other cases which the state relies simply did not address this argument so meade vs state addresses the legality of an arrest warrant doesn't address the search warrant suddenly versus state address is whether there was probable cause to issue the warrant not whether it was probably properly directed and executed and haynes versus state obtained from it should have been excluded one final point is i believe that judge wilson asked about what other evidence was th going to prejudice i think it's clear and the state has not disputed in this court that mister smith's capital murder weapon and the only thing other than the c c r in the custodial statement is testimony from various acquaintances of mister smith but that testimony none of them were eyewitnesses that testimony vaguely described mister smith's statements about being hired to beat capital murder conviction and so there was no there really is no dispute in this case that absent the seized evidence this capital murder conviction would have got have stood and for the reasons that we've discussed the court should reverse the judgment of the district court