REL: 08/29/2014

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SUPREME COURT OF ALABAMA

SPECIAL TERM, 2014

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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.
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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 lawenforcement 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. In its opinion, the Court of Criminal 1

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

Both the State's failure to raise the issue of the 1

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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