REL: 08/29/2014

Notice : This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions , Alabama A p pellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, i n o rder that corrections may be made before the opinion is printed in Southern Reporter . 

# SUPREME COURT O F ALA BAMA

SPECI AL TE RM, 2 014

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_____ _____ _____ _____ _____ Ex pa rte G eorge Will ie Po llard PETIT ION F OR WR IT OFCERT IORAR I TO TH E COURT OFCRIM INAL APPEALS (In r e: S tate of Al abama

v. Georg e Wil lie P ollar d) (Lee Circu it Co urt, CC-11 -418; Courtof C rimin al Appeals , CR- 10-15 60) WISE, Just ice. The w rit o f cer tiora ri is quas hed.11214 14

In quash ing the wr i t o f certi orari , this Court does not wish to be under stood as appro ving all the langu age, reaso ns,

or state ments of law in t he Court of Crimi nal Appea ls'

o p i n ion. Horsl ey v. Horsl ey, 291 Ala. 782, 280 So. 2 d 1 5 5 (1973 ). WRIT QUASH ED. Stuar t, Bolin , Parke r, Murdo ck, M ain, and Bryan , JJ.,

concu r. Moore , C.J ., an d Sha w, J. , dis sent.

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SHAW, Just ice ( disse nting ). I disse nt from quash ing the writ of certi orari in this

case. On Jan uary 12, 2011, law-e nforc ement offic ials recei ved

an e-mai led "Meth Check Alert ," appar ently as p a r t of the Natio nal Precu rsor Law Enfor cemen t Excha nge Progr am, i n d icati ng that Georg e Willi e Polla rd had purch ased pseud oephe drine at a store in Opeli ka. The alert was relay ed to Detec tive Micha el Roger s, a narco tics inves tigat or with the Opeli ka Po lice Depar tment . Roger s drove to a posit ion near Inter state 85 to obser ve vehic ular traff ic trave ling north , appar ently in an attempt to obser ve Polla rd's vehic le. Roger s was famil iar with both Polla rd and Polla rd's w i f e, Chris ty. He spott ed a vehic le drivi ng past his locat ion that was occup ied by "t w o b l ack males and a red heade d fem ale." Rog ers k new t hat C hrist y had red hair, so he decid ed to follo w the vehic le to deter mine wheth er Ch r i s t y was the femal e in the vehic le and wheth er Polla rd was with her. When Roger s saw Polla rd in the vehic le, he perfo rmed a check o f t h e vehic le's tag numbe r and deter mined that the vehic le was regis tered to St eve Madde n,

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who alleg edly had a n o u tstan ding warra nt. Accor ding to Roger s, he then condu cted a traff ic stop b a s e d on the outst andin g warra nt for Madde n coupl ed with the infor matio n he had that Polla rd had r e centl y purch ased pseud oephe drine . After the vehic le wa s sto pped, the drive r, Ma dden, cons ented to a searc h of the vehic le. Durin g the cours e of the searc h, Roger s disco vered sever al items commo nly used in the manuf actur e of metha mphet amine . Polla rd was ultim ately indic ted for first -degr ee unlaw ful manuf actur e of a co n t r o l led subst ance. Ala. Code 1975, § 13A-1 2-218 . He filed a pretr ial motio n to suppr e ss the evide nce seize d fr o m the vehic le, argui ng that the traff ic stop and t he re sulti ng se arch were illeg al. The iss u e d i scuss ed at the heari ng on the motio n to suppr ess was wheth er the e-mai led "aler t" recei ved by lawenfor cemen t offic ials was suff icien t cause to initi ate a traff ic st op. It ap pears fromthe recor d tha t the issu e was exten sivel y argue d by both Polla rd and the State . Ultim ately , the t r i a l c ourt grant ed the motio n to suppr ess under the ratio nale that the e -mail aler t didnot provi de a suffi cient

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basis for an inves tigat ory stop of the vehic le. The State appea led t o the Cour t of Crimi nal Appeal s. On appea l, the State conte nded that the trial court erred in overl ookin g Roger s' s t estim ony that the drive r of the vehi c le, Madde n, had a warra nt outst andin g for his arres t. The Court of Crimi nal Appea l s a g r eed, holdi ng that the evide nce of the arres t warra nt for Madde n estab l i s h e d a

secon d, indep en d e n t reaso n for condu cting the inves tigat ory stop. State v. Polla rd, [Ms. CR-10 -1560 , Augus t 13, 2013]

___ So. 3 d ___(Ala . Cri m. Ap p. 20 13). On appea l to the Court of Crimi nal Appea ls (and in his certi orari petit ion to this Court ), Polla rd conte nded that the State 's argum ent that the outst andin g arres t warra nt for Madde n pro v i d e d a basis for the inves tigat ory stop was impro per becau se the State faile d to raise this claim first in

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the trial court . In its opini on, the Court of C r i m i nal 1 Appea ls ad dress ed th is is sue a s fol lows: "The Alaba ma Su preme Cour t has note d tha t "'"[a ]ltho ugh on appea l from an inter media te court the highe r court may be limit ed to the quest ions of law raise d or a r gued at the trial , it is not limit ed to the argum ents there prese nted. " 5 C.J.S . A ppeal and Error § 978 (2007 ) (emph as i s added ). In other words , "[n]e w argum ents or autho ritie s may be prese nted on appea l, altho ugh no n e w quest ions can be raise d." 4 C.J.S . Appea l and Error § 297 (emph asis added ).' "Ex parte Jenki ns, 26 So. 3d 464, 473 n. 7 (Ala. 2009) . Thus, under Jenki ns, a party waive s on appea l quest ions of law not first raise d in circuit court . "As s t a ted above , the only quest ion of law befor e the circu it court was wheth er the 'evi dence and st a t e m ents are due to be suppr essed in that [the] searc h leadi ng to the disco very of [the] evide nce and state ments [was] condu cted with out a searc h warra nt.' (C . 2 4.) The State on appea l is

Both the State 's failu re to r a i s e the issue of the 1 out stand ing arres t warra nt and the trial court 's failu re to recog nize it are under stand able. On a motio n to suppr ess, the State respo n d s to the speci fic argum ents prese nted by the movan t. H ere, Polla rd ra ised a nov el le gal i ssue, the State respo nded to that issue , and the t r i al court endea vored to deter mine what the l a w would requi re with respe ct to what appea red t o be an is sue o f fir st impress ion. That an a rrest warra nt for Mad d e n exist ed was only brief ly menti oned in testi mony, and both the parti es and the trial c ourt inste ad focus ed their effor ts on the uniqu e legal issue conce rning the e-mai l ale rt. 611214 14

merel y asser ting an argum ent-- based on undis puted evide nce prese nted to the circu it court --as to why the circu it court erred in rulin g on the quest ion of law that Polla rd raise d in his motio n to suppr ess." Polla rd, ___ So . 3d at ___ n.3 . I have serio u s c o n c erns as to wheth er Ex parte Jenki ns, 26 So. 3d 464 (Ala. 2009) , relie d on by the Court of Crimi nal Appea ls, w as co rrect ly de cided . As sumin g tha t it is ea sy to disti nguis h bet ween a leg al "q uesti on" a nd a mere "argu ment"

as to that quest ion, it seems that, if any "ques tion" is defin ed br oadlyenou gh, a nythi ng ca n be prese rved for r eview and consi dered on appea l. This drast icall y alter s the tradi tiona l dutie s of parti es to prese rve issue s for appel late revie w. Furth er, there shoul d be consi derat ion as to wheth er the parti es must take some initi ative to ensur e that the trial court has the oppor tunit y to make the corre c t d ecisi on. P a r t ies shoul d be requi red to direc t the trial court to the

corre ct "argu ments " inste ad of allow ing the focus to dwell on immat erial issue s or, inten tiona lly or not, "sand baggi ng" the trial court with incon seque ntial "argu ments ," while l e a v i ng the appel late court s to addre ss t h e true "ques tions " never befor e broug ht to the atten tion of the lower cour t . I n h i s brief , Polla rd asks this Court to "re v i s it" Jenki ns and to 711214 14

clari fy its holdi ng. I would do so. I thus disse nt from quash ing t he wr it.

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