Opinion
CR–12–0406.
2013-07-12
Donald Eugene NIX v. STATE of Alabama.
Kammie B. Lee and John D. Norris, Millbrook, for appellant. Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
Kammie B. Lee and John D. Norris, Millbrook, for appellant. Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
BURKE, Judge.
Donald Eugene Nix appeals his guilty-plea conviction of the illegal possession of a controlled substance, See§ 13A–12–212(a)(1), Ala.Code 1975. Nix was sentenced to 13 months' imprisonment; that sentence was suspended and he was ordered to pay an assessment of $1,000 to the Drug Demand Assessment Fund, $100 to the Department of Forensic Sciences Fund, $50 to the Alabama Crime Victims Compensation Fund, and court costs. His driver's license was suspended for six months.
The record indicates that Nix originally entered a plea of not guilty. He filed a motion to suppress the evidence collected during a search of the vehicle and of his person, and his motion to suppress was denied. Nix pleaded guilty but reserved for appeal the issues concerning the legality of his detention and the search and the seizure of the evidence.
At the hearing on the motion to suppress, defense counsel, who had previously attempted to withdraw as Nix's counsel and submitted that she had unsuccessfully attempted to communicate with Nix, affirmed that Nix was not present for the hearing. She stated that she had attempted to inform Nix through his father, with whom he was living, about the hearing. She stated that she did not want to inconvenience the court or the two witnesses, who were the arresting officers, and that she was willing to proceed. The court determined that the witnesses would testify at that time and that the hearing would be continued and that Nix would be informed of a future date at which he must be present.
Cpl. A.D. Ferguson of the Montgomery Police Department testified that on the date of the offense he and Officer M.E. Mashburn were on patrol when a vehicle traveling toward them from a side street swerved into the officers' traffic lane. Cpl. Ferguson testified that the vehicle almost hit their police car, so they turned the police car around to conduct a traffic stop and engaged the lights and siren on the police car. When the passengers in the vehicle appeared to notice that the police car was pursuing them, they turned into a driveway. A traffic stop was conducted and the officers determined that neither of the two men in the vehicle, who were both Caucasian, lived at the house. Further, the vehicle was later determined not to be registered in either of the men's names. During the stop, according to Cpl. Ferguson, neither the driver nor the passenger was able to produce identification, but both men gave the officers their names. Cpl. Ferguson instructed the driver, who was later confirmed to be William Dowe, to get out of the vehicle, and a patdown search was conducted for safety reasons. Marijuana was discovered on Dowe and he was handcuffed and detained. Officer Mashburn then conducted a patdown search on the passenger, who was later confirmed to be Nix. A crystal-like substance was found on Nix that was subsequently determined to be methamphetamine.
On cross-examination, Cpl. Ferguson testified that they were patrolling in the area of the stop because they were assigned to the crime-reduction team that patrols in areas producing a high volume of complaints, especially for drug activity. He testified that they stopped the vehicle because it almost hit their police car. He testified that while conducting the patdown search, he felt what he believed to be a baggie containing narcotics in Dowe's pocket. He stated that his belief was based on his experience and training. He asked Dowe what the object was and, after Dowe responded that he did not know, Cpl. Ferguson pulled the baggie out of his pocket. He stated that, based on his experience, he believed that the baggie contained marijuana, and he placed Dowe in handcuffs.
Officer M.E. Mashburn, of the Montgomery Police Department, also testified at the hearing. He stated that he was riding with Cpl. Ferguson at the time of the offense and was able to see the men in the vehicle before the stop. Officer Mashburn testified that “both white males inside the vehicle were very nervous, seemed to be shooken [sic] up by our presence when they saw us.” (R. 28.) He stated that the vehicle almost ran a stop sign before nearly colliding with the police car in a T-bone fashion. The vehicle pulled into a driveway, and the owner of the home later confirmed that he did not know the men in the vehicle. The driver was unable to produce any identification, and neither man could produce vehicle ownership; both men indicated that they did not own the car. Officer Mashburn stated that, as Cpl. Ferguson removed the driver from the vehicle, he continued to speak with the passenger and “noticed there was shaking, sweating, [he] wouldn't look me in the eye.” (R. 29.) While Nix was still seated in the passenger side of the vehicle, Officer Mashburn observed in his pocket “a knot and a small clear part of a plastic bagg[ie]” in his right front change pocket. (R. 29.) Based on his experience and training, he believed that the baggie contained narcotics. Cpl. Ferguson then found marijuana on the driver, so Officer Mashburn had the passenger get out of the vehicle because, he said, they did not know who owned the vehicle and the driver did not have a license. He conducted a patdown search of the passenger and removed the plastic baggie which he believed contained crystal methamphetamine. He then asked the passenger if there was any more in the car, and the passenger refused to answer and would not look Officer Mashburn in the eye. Officer Mashburn testified that he then continued the patdown search and found a “big bulge in his left back pocket.” (R. 32.) He removed a zippered bag that contained two large clear plastic bags containing what appeared to be crystal methamphetamine. Officer Mashburn stated that he handcuffed the passenger, Nix, and transported him to narcotics headquarters, where he discovered Nix's name.
Following this testimony, defense counsel argued that the narcotics evidence should be suppressed because, she argued, the search of the driver was performed without probable cause and was therefore illegal, and this “carrie[d] over” to the subsequent search of Nix. Because Nix was searched after marijuana was illegally seized from Dowe, defense counsel argued that the methamphetamine should be suppressed as the fruit of the poisonous tree.
On a subsequent date, Nix appeared for sentencing and entered a guilty plea following a colloquy, reserving the right to appeal “on the suppression.” (R. 40.) He was sentenced approximately two weeks later.
On appeal, Nix argues that his motion to suppress should have been granted because, he says, the evidence was discovered as a result of an illegal search and seizure. He contends that, because Officer Mashburn testified that he could see the bag only from the knot upward in Nix's pocket and could not see the methamphetamine in the baggie, it was not in plain view and it was not discovered pursuant to the plain-feel exception.
Both the plain-sight and the plain-feel exceptions to a warrantless search have equal application to the propriety of the discovery of narcotics, so long as the patdown search was proper under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The United States Supreme Court has held also that a police officer may intrude beyond the outer clothing of a suspect if, during the patdown, the officer ‘feels an object whose contour or mass' gives him ‘probable cause to believe that the [object] is contraband.’ Minnesota v. Dickerson, 508 U.S. 366, 375–76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).” Ex parte James, 797 So.2d 413, 418 n. 1 (Ala.2000). “While this pat-down is designed to secure the officers' safety and discover any weapons or other tools that could harm the arresting officer, if, during the pat-down, an officer plainly views an item of contraband or discovers an item of contraband through ‘plain feel,’ the officer may investigate and seize that item (so long as it turns out actually to be contraband). [United States v.] Campbell, 549 F.3d [364,] 373 [ (6th Cir.2008) ]; United States v. Garcia, 496 F.3d 495, 505 (6th Cir.2007).” Webster v. United States, (No. 1:10–0002) (M.D.Tenn. April 8, 2010) (not reported in F.Supp.2d) (“[Officer] Ward had testified that the tip of a baggie, which was of the type consistently used to transport small quantities of drugs, was plainly visible during the pat-down, as it was sticking out of Webster's front pocket. Also, Ward had testified that, when patting down this area from which the baggie was sticking out, he felt a ‘large lump,’ also consistent with the presence of drugs in the pocket.... Based on this testimony, Officer Ward was justified in removing and seizing the baggie under the ‘plain feel’ and ‘plain view’ doctrines.”) See also State v. Olden, (No. 23137, Jan. 22, 2010) (Ohio Ct.App.2010) (not published in Ohio Reports or North Eastern Reporter) (Officer felt a lump and a baggie in Olden's pocket and saw a portion of the baggie sticking out of Olden's pocket, which he believed, based on his experience, to contain narcotics; thus, the incriminating nature of the evidence was immediately apparent and the seizure was justified). United States v. Walker, 181 F.3d 774, 778 (6th Cir.1999) (police may seize nonthreatening contraband detected by touch during a protective patdown search if the search stays within the bounds marked by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).
Moreover, under the plain-view doctrine, if the police are lawfully in a position to see an object and the incriminating nature of the evidence is immediately apparent, the evidence may be seized without a warrant. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).
“The rationale of the plain-view doctrine is that if contraband is left in open view and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no ‘search’ within the meaning of the Fourth Amendment—or at least no search independent of the initial intrusion that gave the officers their vantage point. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983); Texas v. Brown, 460 U.S. 730, at 740, 103 S.Ct. [1535] at 1542 [(1983) ]. The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. See [ Arizona v.] Hicks, [480 U.S. 321,] at 326–327, 107 S.Ct., at 1153 [ (1987) ]; Coolidge v. New Hampshire, 403 U.S. 443, 467–468, 469–470, 91 S.Ct. 2022, 2028–2029, 2040, 29 L.Ed.2d 564 (1971) (opinion of Stewart, J.).”
Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). “Furthermore, the requirement for a warrantless search that the officer immediately recognize the object as evidence of wrongdoing requires that the officer's judgment be grounded in probable cause. However, the officer need not be convinced beyond a reasonable doubt as to the incriminating nature of the evidence discovered, and it is sufficient if the evidence raises the probability that criminal activity is afoot.” Wedgeworth v. State, 610 So.2d 1244, 1248 (Ala.Crim.App.1992).
In the present case, the vehicle in which Nix was traveling ran a stop sign and nearly hit a police car. Officer Mashburn testified that the men were visibly nervous when they became aware of the officers. They pulled their vehicle into an unknown person's driveway. They had no identification or driver's licenses and the vehicle did not belong to them. The officers patted the men down for safety. Before Nix was patted down, Officer Mashburn saw the knotted baggie protruding from the coin pocket of Nix's pants. Moreover, Officer Mashburn testified that, based on his experience, he immediately believed that the baggie contained narcotics. This factually distinguishes the instant case from Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), Adams v. State, 815 So.2d 574 (Ala.Crim.App.1999), and Tolbert v. State, 111 So.3d 747 (Ala.Crim.App.2011). In those cases, the officer reached into the defendant's pocket without first observing anything protruding from it.
Second, it was reasonable for Officer Mashburn to rely upon his experience to suspect that the plastic baggie in Nix's coin pocket contained illegal drugs. His suspicions were further confirmed by Nix's nervous demeanor. Thus, unlike the facts of Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the seizure was supported by more than the sight of the protruding plastic baggie. Here, there were reasonable and particularized grounds on which to conclude that Nix was guilty of possessing narcotics in the plastic baggie. See, e.g., People v. Harris, 62 Cal.2d 681, 683, 43 Cal.Rptr. 833, 401 P.2d 225 (1965) (probable cause existed to search defendant where arresting officer saw “exposed portion of the plastic bag in her pocket; he knew from his experience as a narcotics investigator ... that narcotics are commonly packaged in plastic bags; and he knew that [Harris's husband] had just been arrested”).
The United States Supreme Court in Dickerson held that the plain-view doctrine did not support the warrantless search of a lump in defendant's pocket where the incriminating object was not immediately identifiable as contraband.
Because the baggie was in plain view and was immediately identified by Officer Mashburn as containing contraband, and based on the totality of the circumstances, Officer Mashburn had probable cause to seize the methamphetamine during the lawful patdown.
AFFIRMED. WINDOM, P.J., and JOINER, J., concur.
WELCH, J., dissents, with opinion.
KELLUM, J., joins in dissent by Judge WELCH.
WELCH, Judge, dissenting.
Donald Eugene Nix pleaded guilty to illegal possession of a controlled substance (methamphetamine), a violation of § 13A–12–212(a)(1), Ala.Code 1975. Before entering his guilty plea, Nix reserved the right to appeal the trial court's denial of his motion and amended motion to suppress the methamphetamine an officer seized from his pants pocket during a traffic stop. See Smith v. State, 884 So.2d 3, 6 (Ala.Crim.App.2003) (noting that before entering his guilty plea, a defendant must reserve any issue he or she wishes to appeal); see also Rule 26.9(b)(4)(i), Ala. R.Crim. P. (stating that “before entering the plea of guilty [the defendant must have] expressly reserved his or her right to appeal with respect to a particular issue or issues”).
A hearing was conducted on Nix's motions to suppress. Corporal A.D. Fergusonof the Montgomery Police Department gave the following testimony. On September 21, 2010, at approximately 11:30 a.m., he and his partner, Corporal M.E. Mashburn were driving in their patrol car on Rigby Street near Lower Wetumpka Road in Montgomery as part of a “crime-reduction team” created to “ferret out crime in a neighborhood that's been identified as a high crime area,” because the police department had received several complaints regarding drugs being sold in this area. (R. 17.) An automobile driven by William Dowe, in which Nix was the only passenger, swerved into Cpl. Ferguson's lane, almost hitting his patrol car head-on. Because the officers had witnessed a traffic infraction and because they needed to investigate whether the driver was intoxicated or “high,” the officers turned their vehicle around and turned on the “lights” and siren, to initiate a traffic stop of the automobile. (R. 19, 20.) When Dowe and Nix saw the officers in pursuit, they parked their automobile in the driveway of a nearby house. Cpl. Ferguson opined that Dowe and Nix parked in the driveway believing that it would somehow be to their benefit if the officers believed they lived there. The officers parked behind Dowe's vehicle to conduct the traffic stop. The officers discovered that neither Dowe nor Nix lived in the house attached to the driveway where they had parked nor did they know the homeowner; neither had any identification; and the automobile in which they were riding did not belong to either of them. Cpl. Ferguson removed Dowe from the automobile and conducted a safety patdown for weapons. (R. 23.) Cpl. Ferguson discovered a plastic bag containing marijuana in the change pocket of Dowe's pants. According to Cpl. Ferguson, “[a]t that time,” Cpl. Mashburn had Nix get out of the vehicle, and pursuant to a patdown search of Nix, Officer Mashburn found a plastic bag containing crystal methamphetamine in Nix's pants pocket. (R. 13.)
Cpl. Mashburn, gave testimony similar to that of Cpl. Ferguson with the following exceptions and additions. Cpl. Mashburn stated that Dowe and Nix almost “T-boned” the officer's patrol car because Dowe and Nix were apparently looking at the officers, causing Dowe to drive through a stop sign. (R. 34.) Dowe and Nix then made a left turn so they were traveling in the opposite direction from the officers. He said that “before” the traffic stop was initiated, both Dowe and Nix were “very nervous” and “seemed to be very sh [aken] up” when they noticed the officers in their patrol car. (R. 28–29.)
After the stop was initiated and Cpl. Ferguson had removed Dowe from the vehicle, Cpl. Mashburn stated that he continued to talk to Nix, who was still seated inside the vehicle. Cpl. Mashburn stated that Nix was “shaking, sweating, [and] wouldn't look me in the eye.” (R. 29.) However, Cpl. Mashburn conceded that Nix's demeanor could have been caused as a result of to the near traffic accident that had occurred moments earlier. Cpl. Mashburn stated that “[he] looked down, and [he] saw something in [Nix's] pocket at the time. [He] saw a knot and a small clear part of a plastic baggy.” (R. 29.) Cpl. Mashburn asserted that because the plastic bag was knotted, he knew it had something inside the bag. Cpl. Mashburn stated that in his work experience he has seen about 500 plastic bags similar to the one he saw protruding from Nix's pocket and that those bags had contained narcotics; therefore, based on his experience and training, when he sees a plastic bag “like that,” he thinks it is narcotics. (R. 29.) However, Cpl. Mashburn conceded that he “could not see what was in the bottom of the plastic bag. [He] could just see from the knot up.” (R. 30.) Cpl. Mashburn stated that “without being able to see through [Nix's] pockets” he was “speculating there might be narcotics involved.” (R. 35.)
Cpl. Mashburn stated that when Cpl. Ferguson found marijuana on Dowe, Mashburn instructed Nix to exit the vehicle and “the first thing [he] did was remove that clear plastic baggy.” (R. 31.) The plastic bag contained crystal methamphetamine. Continuing the patdown, Cpl. Mashburn found more crystal methamphetamine in Nix's back pockets. Nix was handcuffed and taken to narcotics headquarters where Nix was positively identified and charged.
In support of his motion seeking to suppress the crystal methamphetamine, Nix argued that it was the fruit of a poisonous tree because, he says, he was searched as a direct consequence of what he alleged was an illegal search of Dow, and because the seizure of the plastic bag was based on only Cpl. Mashburn's observation of the top knot of the bag protruding from Nix's pocket, without Cpl. Mashburn's knowing what was in the bag. The trial court denied the motion. Nix reserved the right to challenge on appeal the denial of his motion to suppress and then entered a plea of guilty.
On appeal Nix contends that because Cpl. Mashburn testified that he saw only the top knot of the plastic bag protruding from Nix's pocket and because there was no testimony that he believed the bag to be a weapon and because he did not conduct a “feel” test to determine what was in the bag before removing it from Nix's pocket, the seizure of the plastic bag was unlawful; therefore, Nix argues, the trial court should have granted his motion to suppress. The majority upholds the trial court's denial of the motion to suppress, finding that probable cause existed to seize the plastic bag from Nix's pocket. The majority states:
“[b]ecause the baggie was in plain view and was immediately identified by Officer Mashburn as contraband, and based on the totality of the circumstances, he had probable cause to seize the methamphetamine during the lawful patdown.”
Although I believe there may have been reasonable suspicion to justify further investigation, I do not believe that probable cause existed to justify seizure of the plastic bag. I believe the plastic bag was illegally seized; therefore, I must respectfully dissent.
“ ‘ “Whether there is probable cause to merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). ‘Probable cause exists where all the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ Sheridan v. State, 591 So.2d 129, 130 (Ala.Cr.App.1991).” ' ”
Abner v. State, 741 So.2d 440, 443 (Ala.Crim.App.1998) (quoting Woods v. State, 695 So.2d 636 (Ala.Crim.App.1996), quoting in turn State v. Stallworth, 645 So.2d 323, 325 (Ala.Crim.App.1994)).
Based on the fact scenario in this case, the only possible justification for finding probable cause to seize the plastic bag is the plain-view doctrine. The plain-feel doctrine has no application in this case because no patdown of the pocket was conducted.
“It is well established that under certain circumstances the police may seize evidence in plain view without a warrant.” Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), citing Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
“[T]he United States Supreme Court has identified three requirements for application of the plain view doctrine, which are 1) that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, 2) that the incriminating character of the evidence must be immediately apparent, and 3) that the officer have a lawful right of access to the object itself.”
Cauls v. Virginia, 55 Va.App. 90, 99, 683 S.E.2d 847, 851 (2009), citing Horton v. California, 496 U.S. 128, 136–37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). The traffic stop involving Nix was lawful; therefore, Cpl. Mashburn did not violate the Fourth Amendment in arriving at the place from which he could see the top knot of the plastic bag protruding from Nix's front pants pocket. The determination before this Court is whether the “incriminating character of the plastic baggy was immediately apparent,” giving Cpl. Mashburn the right to seize the plastic bag. Cauls v. Virginia 55 Va.App. at 100, 683 S.E.2d at 851. If “the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object—i.e., ‘if its incriminating character [is not] immediately apparent,’ ... the plain-view doctrine cannot justify its seizure.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (emphasis omitted) (quoting Horton v. California, 496 U.S. at 136).
I do not believe that the incriminating character of the contents of the plastic bag were immediately apparent. Cpl. Mashburn testified that, while Nix was still seated in his vehicle, Cpl. Mashburn saw the top knot of the plastic bag in question protruding from Nix's pocket, and Cpl. Mashburn believed, based on his past law-enforcement experience, that plastic bags similar to Nix's bag contain narcotics. However, Cpl. Mashburn stated he was speculating as to the contents of Nix's plastic bag based on his past experience. Cpl. Mashburn stated that he did not actually know that the plastic bag contained narcotic because he neither saw narcotics nor conducted a patdown of the pocket concealing the contents of the plastic bag. Nevertheless, Cpl. Mashburn testified that when he instructed Nix to exit his vehicle, the first thing he did was remove the plastic bag from Nix's pocket.
This Court has previously reversed a conviction in a case with similar facts. In Abner v. State, supra, the arresting officer, Officer Drummond, “walked up to the appellant ... at which point Officer Drummond saw a clear plastic bag sticking partly out of the appellant's right front pants pocket.” Concisely, the following facts and conclusion were presented in Abner:
“The state argues that the cocaine was lawfully seized from the appellant because, it says, Officer Drummond had probable cause to believe that a crime was being committed in his presence. The state relies on the following facts to support its argument: (1) that the appellant was observed with or near a large group of people who had congregated in the street and who were playing loud music and drinking beer; (2) that when the police officers approached, the people in the group became nervous and started to mill around ‘as if they wanted to get out of the area’; (3) that the area was known to police to be an area where drug activity occurred; (4) that when Officer Drummond asked the appellant to get off the car he was sitting on, the appellant looked away and refused to make eye contact with the officer; (5) that there was a clear plastic bag in the appellant's pants pocket, and Officer Drummond's experience was that plastic bags were frequently used to transport drugs; and (6) that when the appellant got off the car, he quickly turned from Officer Drummond so that the officer could not see the plastic bag. We hold that these facts, considered individually or taken together, did not constitute sufficient facts and circumstances upon which to find probable cause to arrest the appellant, to search his person, or to seize the plastic bags from his pocket.
“....
“Based on Ex parte Tucker, [667 So.2d 1339 (Ala.1995),] and our analysis of the ‘totality of the circumstances' in this case, we must conclude that the circumstances did not supply probable cause to search the appellant or to seize the plastic bags from his pants pocket. Thus, Officer Drummond's intrusion into the appellant's pocket to remove the plastic bags was unlawful. Any evidence uncovered by Officer Drummond after his initial unlawful intrusion into the appellant's pocket and his removal of the first plastic bag was unlawfully obtained. Consequently, the cocaine contained in the second plastic bag found in and removed from the appellant's pocket was seized pursuant to an unlawful search, and it was error for the trial court to deny the appellant's motion to suppress the evidence.”
741 So.2d at 443–446 (footnote omitted; emphasis added).
I agree with the conclusion reached in Abner:
“It is not the primary purpose of plastic bags to hold illegal drugs, and the fact that an officer has first-hand experience with plastic bags containing drugs cannot, without more, provide probable cause to seize each plastic bag the officer may encounter. Moreover, as was the case in Ex parte Tucker, [667 So.2d 1339 (Ala.1995) ], the fact that the appellant was in an area known for drug activity and the fact that he had a clear plastic bag in his pocket that was partially exposed ‘do not by themselves, or taken together, constitute sufficient “facts and circumstances” upon which to base a finding of probable cause to search’ the appellant. See Ex parte Tucker, 667 So.2d [1339] at 1347 [ (Ala.1995) ].”
741 So.2d at 445.
Based on the above, I respectfully dissent.
KELLUM, J, concurs.