author: CRAWLEY, Presiding Judge.

text:
    ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT v. ASSOCIATION OF REGIONAL COUNCILS.
    2040978.
    Court of Civil Appeals of Alabama.
    July 28, 2006.

      Troy King, atty. gen., and Paul Christian Sasser, Jr., asst. atty. gen., for appellant Alabama Department of Environmental Management.
    J. Doyle Fuller and Susan G. Copeland of Law Office of J. Doyle Fuller, PC, Montgomery, for appellee.
   CRAWLEY, Presiding Judge.

This is an appeal from a declaratory judgment. The Association of Regional Councils (“ARC”) sued the Alabama Department of Environmental Management (“ADEM”), alleging that a lack of data and guidelines supplied by ADEM, as well as a lack of funding at the disposal of ARC’s member regional commissions, compelled a moratorium on the regional commissions’ performance of their statutory duty to issue “statements of consistency” to parties seeking approval of proposed solid-waste-disposal sites.

The trial court entered a judgment declaring that the ARC member commissions cannot perform their, statutory duties and granted a moratorium on performing such duties until the commissions can be properly funded and provided with sufficient guidelines and reliable data to permit the appropriate discharge of the duties imposed on them. Following the entry of the final judgment, the National Solid Waste Management Association (“NSWMA”) filed a motion to intervene and to clarify the judgment. The trial court allowed the intervention, and it modified its judgment to hold that the moratorium also precludes ADEM from requiring statements of consistency to accompany permit applications during the term of the moratorium. ADEM timely appealed, arguing that ARC’s suit against ADEM does not present a justiciable controversy. ADEM did not appeal from the judgment insofar as it related to NSWMA. We hold that this case does not present a justiciable controversy, and we dismiss this appeal.

I. Factual Background

In short, ARC contended to the trial court that its member commissions were incapable of performing their statutory duties because ADEM was not properly helping the commissions perform those ■ duties. However, additional background details are essential in understanding this case.

When enacting the Solid Waste Management Plan Act, § 22-27-40 et seq., Ala. Code 1975, our state legislature made several findings. Among those findings were that there was “an emerging crisis in solid waste management” and that “[t]he absence of comprehensive planning will result in the random, haphazard siting of waste disposal services without relation to the actual needs of particular localities in the state.” § 22-27-40(1) and (10), Ala. Code 1975.

To address those concerns, the state established by statute, § 11-85-1 et seq., Ala.Code 1975, that regional planning and development commissions, each encompassing at least several adjoining counties, should develop a plan for their region that would address several important concerns, including the need for solid-waste disposal.

Pursuant to § 22-27-48(a), Ala.Code 1975, an applicant for a new permit for a solid-waste-disposal site, i.e., a landfill, first must seek approval from the local governing body in the area in which the site will be located. Following the local government’s approval, the applicant must obtain a “statement of consistency” from the regional planning commission, stating that the proposed landfill is consistent with the region’s overall plan. § 22-27-48(b), Ala.Code 1975. Finally, the applicant must submit materials, including the statement of consistency, to ADEM for final approval.

Most of the relevant statutory duties of the regional commissions in this process are outlined in § 22-27-46, § 22-27-48, and Ala. Admin. Code (ADEM), r. 335-13-9-.05. Section 22-27-46 provides as follows:

“(a) Not later than six months from May 16, 1989, each regional planning and development commission in the state shall prepare and adopt a regional needs assessment evaluating solid waste management needs in their respective regions. This regional needs assessment shall be submitted to the department for information and review and shall be considered by units of local government within the region in the development of their individual plans as required herein. Thereafter, the assessment shall be revised and submitted to the department and local governments in the region annually. The regional needs assessment shall include, at a minimum, the following:
“(1) An evaluation of the amount of solid waste generated within the region and the amount of remaining disposal capacity, expressed in years, at each solid waste disposal facility within the region;
“(2) An evaluation of the needs of all localities within the district as to the adequacy or inadequacy of solid waste collection, transportation and disposal within those localities;
“(3) A projection of the expected population and business growth in the region, including specific estimates of the types of businesses which may be entering and leaving the region and the resulting impact such changes will likely have on waste volumes generated in the region;
“(4) An evaluation of the environmental, economic and other relevant factors which would be implicated by acceptance of solid waste from beyond the boundaries of the region.
“(b) In addition to the development of and periodic revision of an assessment of the region’s solid waste management needs, each regional planning commission shall:
“(1) Evaluate, as necessary, the solid waste management needs of all local governments within their regions;
“(2) Formulate, as requested, recommendations to local governments on solid waste management issues including the feasibility of joint efforts within the region acting to develop and operate a solid waste management or disposal facility and foster cooperation on such matters;
“(3) Provide, upon request, assistance to local governments within the region to formulate their own plans for evaluating needs and providing adequate solid waste management within their jurisdictions; and
“(4) Serve as ,a clearinghouse for local governments in the region regarding solid waste management information.”

(Emphasis added.) Also, § 22-27-48, Ala. Code 1975, in part, requires:

“(b) Following local review and approval of any proposal regarding services or activities described in the local solid waste management plan, the applicant shall obtain a statement of consistency from the Regional Planning and Development Commission. Therein, the said commission shall evaluate the proposal using the provisions of the current regional solid waste management needs assessment. In particular, the regional commission shall evaluate the proposal as it relates to available existing capacity within the region and the projected lifetime of such capacity. The evaluation shall also identify any proposed capacity which is in excess of expected regional needs. No statement of consistency shall be required for contracts exclusively for the collection or transportation of solid wastes.”

(Emphasis added.) The pertinent regulation promulgated by ADEM essentially tracks the statutory language of § 22-27-46, but it provides a few more details. The regulation, Ala. Admin. Code (ADEM), r. 335-13-9-.05, provides:

“(1) Each regional planning and development commission or council in the state shall prepare and adopt a regional needs assessment evaluating solid waste management needs in their respective regions as required by Code of Ala.1975, §§ 22-27-46. The regional needs assessment shall be prepared each year and submitted to the Department and to local governments in their region.
“(2) The regional needs assessment shall include, at a minimum, the following:
“(a) An evaluation of the amount of solid waste generated within the region and the amount of remaining design disposal capacity, expressed in years, at each solid waste disposal facility within the region.
“(b) An evaluation of the needs of all localities within the region as to the adequacy or inadequacy of solid waste collection, transportation and disposal within those localities.
“(c) A projection of the expected population and business growth in the region, including specific estimatés of the types of businesses which may be entering and leaving the region and the resulting impact these changes will likely have on waste volumes generated in the region.
■“(d) An evaluation of the environmental, economic and other relevant factors which would be implicated by acceptance of solid waste from beyond the boundaries of the region.
“(3) Each landfill permitted by [ADEM] must provide to the regional planning and development commission or council serving the county in which the facility is located the information as may be necessary to complete the annual regional needs assessment and shall be reported in the following manner:
“(a) Information shall be reported using forms developed by [ADEM] in consultation with the regional planning and development commission or council requesting the information.
“(b) Information shall be submitted to the regional planning and development commission or council not later than March 31 of each calendar year for the immediate past calendar year. However, the first reported information will be due March 31, 2003.
“(4) Annual needs assessments shall be prepared and submitted to [ADEM] and to local governments in their region not later than November 16 of each calendar year. The needs of all governing bodies of the county or municipality with responsibility for solid waste management plans within the region of each regional planning and development commission or council shall be evaluated and reported. The first regional needs assessment utilizing data reported under 335-13-9-05(3) shall be submitted to [ADEM] and to local governments in their region not later than November 16, 2003.”

(Emphasis added.) Thus, it is evident that the relevant statutes and regulations require each regional commission to create a regional “needs assessment” evaluating the solid-waste-management needs for their region, and then to determine whether a proposed new landfill, or a proposed modification of an existing landfill is. consistent with the needs of the region. Section 22-27-48(b), Ala.Code 1975, compels a regional commission to evaluate a proposal as it “relates to the available existing capacity within the region and the projected lifetime of such capacity.” Additionally, the statute requires a regional commission to “identify any proposed capacity which is in excess of expected regional needs.” Id.

ARC alleged at trial that its member commissions lacked the guidelines and data from ADEM and the funding from the legislature necessary to perform their statutory duties. Regarding the lack of funding, ARC argued that the. member commissions lacked the funding necessary to adequately perform the studies necessary to assess a region’s needs and to defermine whether an applicant’s proposal was consistent with the region’s needs and long-range plan. Additionally, ARC argued that only ADEM could obtain certain data, or promulgate guidelines, that the commissions needed to perform their statutory duties. ARC argued that these problems effected the commissions’ performance of their statutory duties and left them vulnerable to suit from third parties, such as counties or landfill applicants.

Regarding the data that ARC alleged only ADEM had in its possession or could obtain, the record is not clear that ARC or its member commissions properly requested that information before the trial began. At the trial, John Clyde Riggs, a witness for ARC and the executive director of the Alabama Tombigbee Regional Commission located in Camden, testified that he was concerned that the commission would be sued by one of the counties in his region if the commission deemed an application for a new landfill in a particular county necessary, He also testified as follows:

“Q [the trial judge]. Okay. Fine. Now, is ADEM required under the legislature, in your opinion, to provide you with the staff or the money to enable 'you to get that information to provide to them?
“A [John Clyde Riggs]. No, sir.
“Q. Okay. So you’re independent— You’re independent of ADEM as far as staff and funds to provide this information?
“A. That’s correct.
“Q [attorney for ADEM]. So you’re saying that you don’t assert that ADEM — that you have controversy with ADEM over the quality of the Needs Assessment or the Statement of Consistency; is that correct?
“A [John Clyde Riggs]. The fact that ADEM is willing to accept that, it’s no problem on that.
“Q. Your controversy, really, is that some of these counties have threatened to sue you, correct?
“A. No. Our controversy is that we cannot perform these duties as set forth by law.
“Q. But who is saying that? -Who is telling you that? The counties, right?
“A. That’s right. Actually, it’s the counties, it’s anybody that’s opposing the legislation.
“Q. It’s not ADEM, right?
“A. No. But we have no other alternative but to go at the legislation, and the fact that ADEM is the one that is providing us the guidelines, and telling us how to collect the data; which is not reasonable to make those assumptions.”

ARC’s suit sought a declaratory judgment that would relieve the commissions from the performance of their statutory duties so that the commissions would not be subject to potential liability stemming from ADEM’s failure to adequately help the commissions. The trial court made the following factual finding:

“Based upon the evidence presented to the Court in this case, the Court finds that the members of [ARC] have not been provided with guidelines sufficient to allow them to perform the duties imposed upon them, that they have not been granted the authority to require the submission of sufficient reliable data to allow them to perform their functions, and they have not been provided any funding to finance the work they are being required to perform.”

The trial court then noted that, in some circumstances, such as in this case, a statute may be deemed impossible to execute and therefore inoperative and void.

The trial court went on to state that, “[although the management of solid waste is clearly a matter of significant importance to the public, the legislature cannot lawfully require persons or entities within the state to perform tasks that such persons or entities are incapable of performing.” The trial court then, in relevant part, concluded:

“1. That the members of [ARC] cannot properly perform their duties imposed upon them by virtue of the provision of Code of Ala.1975, § 22-27-46, § 22-27-47, and § 22-27-48, due to the lack of funds to do so, and due to the absence of sufficient guidelines and reliable data that is available to them.
“2. It is so impractical to impose upon [ARC’s] members the responsibilities involved, that they are entitled to a moratorium upon such duties until such time as they can be properly funded and provided with sufficient guidelines and reliable data to permit the appropriate discharge of the duties imposed upon them. “3. The members of [ARC] have already requested relief under the provisions of Code of Ala.1975, § 6-6-230, and the Court therefore hereby imposes a moratorium upon the performance of the duties of such members until such time as funding is secured and appropriate guidelines and data are available to them.”

As noted above, following the trial court’s judgment, NSWMA intervened in the case, and a moratorium was granted on the statutory requirement that applicants for a solid-waste-disposal permit or a permit modification must submit to ADEM a statement of consistency from the. pertinent regional commission.

, The result of the trial court’s judgment is that currently the regional commissions are not required to ensure that a proposed change' to a region’s solid-waste-disposal capacity is consistent with the region’s overall plan. Additionally, those who seek a landfill permit or a change to a landfill permit are no longer required to submit to ADEM a “statement of consistency” from the relevant regional commission indicating that the proposed change is consistent with the region’s needs and overall solid-waste-disposal plan.

ADEM appealed the judgment of the trial court, arguing that the action did not present a justiciable controversy between ARC and ADEM.

II. Discussion

Our supreme court recently recited some of the general principles regarding declaratory-judgment actions and justicia-ble controversies in Bedsole v. Goodloe, 912 So.2d 508, 518 (Ala.2005), which we find applicable to this case.

“The Declaratory Judgment Act, §§ 6-6-220 through -232, Ala. Code 1975, ‘does not “ ‘empower courts to ... give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.’ ” ’ Bruner v. Geneva County Forestry Dept, 865 So.2d 1167, 1175 (Ala.2003)(quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994) (quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963))) (emphasis added in Stamps). This Court has emphasized that declaratory-judgment actions must ‘settle a “bona fide justiciable controversy.” ’ Baldwin County v. Bay Minette, 854 So.2d 42, 45 (Ala.2003) (quoting Gulf South Conference v. Boyd, 369 So.2d 553, 557 (Ala.1979)). The controversy must be ‘ “definite and concrete,” ’ must be ‘ “real and substantial,” ’and must seek relief by asserting a claim opposed to the interest of another party ‘ “upon a state of facts which must have accrued.’ ” Baldwin County, 854 So.2d at 45 (quoting Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969)). “‘Declaratory judgment proceedings will not lie for an ‘anticipated controversy.” ’ ” Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002) (quoting City of Dothan v. Eighty-Four West, Inc., 738 So.2d 903, 908 (Ala.Civ. App.1999)). Thus, if a declaratory judgment would not terminate any uncertainty or controversy, the court should not enter such a judgment. Bruner, 865 So.2d at 1175.”

ADEM argues, among other things, that this case does not present a justiciable controversy between ARC and ADEM, because ADEM has not questioned the commissions’ performance of their statutory duties and any potential challenges to the commissions’ performance of those duties would come from third parties. For this argument, ADEM relies primarily on Baldwin County v. Bay Minette, 854 So.2d 42 (Ala.2003), which states:

“To be valid, a declaratory judgment must settle a ‘bona fide justiciable controversy.’ Gulf South Conference v. Boyd, 369 So.2d 553, 557 (Ala.1979).
“ ‘To be justiciable, the controversy must be one that is appropriate for judicial determination. It must be a controversy which is definite and concrete, touching the legal relations of the parties in adverse iegal interest, and it must be a real and substantial controversy admitting of specific relief through a [judgment]. “A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded ...” Anderson, Actions for Declaratory Judgments, Volume 1, § 14.’
“Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969) (emphasis added). ‘Thus, “[djeclaratory judgment proceedings will not he for an ‘anticipated controversy.’ ” ’ Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002)(quoting City of Dothan v. Eighty-Four West, Inc., 738 So.2d 903, 908 (Ala.Civ.App.1999)) (emphasis added). Moreover, ‘justiciability is jurisdictional,’ Ex parte State ex rel. James, 711 So.2d 952, 960 n. 2 (Ala.1998); hence, if necessary, ‘this Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction.’ Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 945 n. 2 (Ala.1994).”

854 So.2d at 45.

The Baldwin County court went on to describe a factual situation similar to the one in this case. In Baldwin County, Baldwin County brought an action against various municipalities within the county, seeking a judgment declaring that it had the exclusive right to issue building permits and to conduct building inspections ■within the police jurisdiction of the cities. Our supreme court noted that, on the face of the complaint, no controversy existed between the county and eight of the named cities in the complaint. 854 So.2d at 42. As to the county’s claims against the cities that allegedly did issue building permits, our supreme court held that it was “only slightly less obvious” that the court also lacks jurisdiction over the action. 854 So.2d at 46. The reason for the lack of jurisdiction was the lack of an existent factual scenario from which to frame a controversy. Baldwin County had argued several hypotheticals, including that residents of the various municipalities may be harmed if they do not know they have not complied with all the requirements for building inspections in the county. Id. In other words, the county posited several situations in which the injury was hypothetical, but it did not allege any existing injury. Id. The Baldwin County court went on to hold:

“The County does not describe an existing dispute that is ‘definite and concrete,’ or ‘real and substantial.’ Copeland v. Jefferson County, 284 Ala. [558] at 561, 226 So.2d [385] at 387 (1969). Nowhere does the county allege that this, or any similar, scenario has, in fact, occurred.”

854 So.2d at 46. In short, the court concluded, the county had alleged only an anticipated controversy for which a declaratory-judgment action will not lie. Id. Thus, the county had,sought an advisory opinion, which courts, under the declaratory-judgment statutes, are riot empowered to decide. 854 So.2d at 47. This case is substantially similar to Baldwin County, despite superficial differences.

In this case, ARC has sued ADEM arguing that because ARC’s member commissions do not have enough funding, and because ADEM has not provided them with proper guidelines or sufficient data necessary to determine their respective regional solid-waste-disposal needs, the commissions cannot properly determine their region’s needs or whether to issue a statement of consistency regarding proposed landfills, or proposed changes to landfills, in their regions. Thus, ARC argues, it is because of ADEM’s lack of help that the commissions are in danger of lawsuits from, for example, either those who want a new landfill or those who do not want a new landfill in their county or in their neighboring county.

In short, it appears that the suit by ARC anticipates a controversy, with adversaries not a party to this suit, that may result from its performance of its member commissions’ statutorily mandated duties. We note that ARC has not sought to compel ADEM to take any action. Additionally, ARC has not claimed that ADEM is threatening the regional commissions with a lawsuit, and ADEM asserts that it does not intend to do so. Thus, it is evident that, like the plaintiff in Baldwin County, ARC has alleged a hypothetical controversy. Granted, the problems ARC’S member commissions face are real, but, at heart, this controversy is only an anticipated controversy, and thus is not a justiciable controversy.

ARC argues that the holding in Gibbs v. Cochran, 281 Ala. 22, 198 So.2d 607 (1967), indicates that.ARC did not need to have proceedings instigated against it to present a justiciable controversy; however, Gibbs is distinguishable. In Gibbs, the plaintiffs were engaged in or connected with the business of dispersing drugs in Mobile County. 281 Ala. at 23, 198 So.2d at 607. The plaintiffs were not registered pharmacists, but they performed the duties of pharmacists. Id. The plaintiffs sued the Board of Pharmacy of the State of Alabama (“the Board”), alleging that a new regulation adopted by the Board was unconstitutional and unenforceable in that it attempted to abridge, modify, or contradicted to the law of the State of Alabama. Id. Our supreme court held that plaintiffs were adversely affected by the new regulation, and that the controversy was justicia-ble despite the fact that there was no allegation that the Board or any other agency had instituted proceedings against the plaintiffs for a violation of that regulation. 281 Ala. at 25, 198 So.2d at 609. Importantly, the new regulation potentially would require the plaintiffs to abandon their pharmacy practices and was also, the plaintiffs argued, in conflict with an Alabama statute. The supreme court reached its conclusion by analyzing the interplay between several statutes, and it ultimately determined that our state legislature intended to permit nonregistered pharmacists to work under the supervision of a registered pharmacist and that, therefore, the statute at issue should not be construed as delegating to the Board the authority to make illegal activities that are not prohibited by statute. 281 Ala. at 26, 198 So.2d at 610.

The controversy in Gibbs was real, and not merely hypothetical. In contrast, ARC’S lawsuit alleged a problem that was at least in part due to ADEM’s failure to provide enough support to the regional commissions, but the potential controversy would be with hypothetical third parties seeking to construct new or to modify existing landfills. Although it is true that a party does not need to have proceedings instituted against it before a controversy becomes real, it is also true that a declaratory judgment will not lie for an anticipated controversy. Creola Land Development, Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala.2002). A controversy must be “definite and concrete, touching the legal relations of the parties in adverse legal interest, and it must be a real and substantial controversy admitting of specific relief through a decree.” Copeland v. Jefferson County, 284 Ala. 558, 561, 226 So.2d 385, 387 (1969). In this case, ARC does not allege a definite and concrete controversy with ADEM.

ARC also argues that ADEM was the local government’s “virtual representative,” and that, therefore, the case presents a justiciable controversy and the judgment can bind nonparties, such as a county. However, we cannot agree that ADEM adequately represented the interests of those nonparties in the action. Nothing in the record indicates that ADEM was in privity with the hypothetical adversaries in this case. Morris v. Cornerstone Propane Partners, L.P., 884 So.2d 796, 798 (Ala.2003)(stating that to support a finding of virtual representation the parties in an earlier action must have been in some sense proper agents for the latter parties, and noting that an elastic concept of privity violates due process of law).

Thus, it appears that the member commissions of ARC are presented with a legitimate obstacle to their performance of their statutory duties, but that particular controversy is with hypothetical adversaries, not with ADEM. The real potential conflict here is with the parties who may wish to obtain a statement of consistency. ARC did not seek to declare its statutory duties unconstitutional, nor did it seek an order compelling ADEM to perform any particular task or duty. Instead, ARC merely wanted to avoid the risk of liability in the event its performance of statutory duties upset someone. Such a purpose does not present a justiciable controversy.

III. Conclusion

We sympathize with ARC and the regional commissions’ fear of a lawsuit resulting from what they perceive as their inability to perform their statutory duties as a result of inadequate funding from the legislature or the lack of needed assistance and guidelines from ADEM. However, we must hold that the problem ARC and its member commissions face is not a controversy that is definite and concrete with a party holding an adverse legal interest. This case represents a desire on behalf of the commissions to insulate themselves from potential controversy with potential future litigants, and thus it does not present a justiciable controversy; therefore, we must dismiss this appeal. In doing so, the moratoriums imposed by the trial court necessarily must be vacated. Our decision today, we hope, will have the additional benefit of ensuring that solid-waste-disposal sites will not be developed haphazardly, as they potentially could be during the previously installed moratoriums.

APPEAL DISMISSED WITH INSTRUCTIONS.

THOMPSON, PITTMAN, and MURDOCK, JJ., concur.

BRYAN, J., recuses himself.

      . The regional commissions are sometimes referred to as regional councils in the briefs of the parties, and the terms appear to be interchangeable; however, for the sake of consistency, we refer to them in this opinion as commissions.

      . ARC is an association of "regional planning and development commissions.” Those commissions are individually tasked by statute with, among other things, planning for their respective region’s solid-waste-disposal needs.

      . The counties encompassed by this regional commission are Conecuh, Monroe, Clarke, Washington, Choctaw, Sumter, Marengo, Perry, Dallas, and Wilcox counties.

      . ADEM points out that ARC’s member commissions have the capacity to raise funds on ' their own, pursuant to § 11-85-56(12), Ala. Code 1975, which specifically states that regional commissions may “[c]harge fees for services performed by the commission.”


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    STATE of Alabama v. Maurice MONTGOMERY.
    CR-04-2011.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.
    Rehearing Denied June 23, 2006.

      Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellant.
    Paul M. Harden, Jr., Monroeville, for appellee.
   COBB, Judge.

Maurice Montgomery was indicted for one count of third-degree burglary. The State appeals from the trial court’s order granting Maurice Montgomery’s motion to suppress the confession that he made to police officers concerning his involvement in the burglary.

Facts

Tyrone Boykin, of the Conecuh County Sheriffs Department, was the only witness presented at the suppression hearing. He testified to the following.

On the evening of August 29, 2004, David Rankin, owner of Rankin’s, a small general store in the Burnt Corn community of Conecuh County, telephoned authorities to report a burglary at his store. Sgt. Davis was dispatched to the store; Boy-kin arrived approximately 80 minutes after Sgt. Davis. Upon arriving at the scene, Boykin observed that the door of the store had been kicked, someone had attempted’ to pry the door open, and a pair of shoes and one sock were lying in the store’s parking lot. Boykin interviewed David Rankin. Rankin told Boykin that he was asleep in his room next to the store when he was awakened by a “lot of loud knocking” so he got up and went outside. (R. 7.) He told Boykin that he saw “what he thought was two subjects ... [and] one had a white shirt on.” (R. 7.) Rankin stated that he “fired four or five [gun] shots.” (R. 7.) Rankin also told Boykin that the shoes and sock were not lying in the parking lot when he closed the store and that when he fired the gunshots, the individuals had run in the direction where the shoes and sock were later recovered.

As part of the investigation, Boykin contacted the “K-9 unit from Atmore.” (R. 8.) Boykin testified that in Conecuh County the K-9 unit was referred to as “the dog wardens.” (R. 8.) He stated that about “a quarter of a mile” down the road from Rankin’s store, the officers discovered an abandoned automobile parked on the side of the road. (R. 8.) It was determined from the license plate that this automobile was registered to Tyrone Stallworth, a suspect in the burglary. (R. 20.) At approximately 12:30 a.m., the dog wardens arrived and were taken to the location of the shoes and sock. “[T]hey beg[a]n to track” at this time. (R. 9, 28.) Between 5:25 and 5:30 a.m., after tracking a distance of about four miles (R. 17), the dogs “c[a]me out on [Montgomery]” who was on the roadside with a juvenile. Boykin, who had been patrolling the roadways while maintaining radio contact with the dog wardens, was contacted and went to the scene. When Boykin arrived, Montgomery was lying face down on the ground and was handcuffed. (R. 13.) Boykin said that Montgomery and the juvenile were both wearing shoes. Boykin stated that Montgomery was not under arrest at this time. However, Boykin gave the following testimony regarding Montgomery’s status:

“Q. [By defense attorney on cross-examination]: If Maurice Montgomery had gotten up and said ‘I’m leaving,’ would you have stopped him?
“A. I would have had questions I would have had to ask him.
“Q. You would have held him. So he was not free to leave at the time you drove up and found him on the ground, was he?
“A. No, sir.”

(R. 14.) At that time Boykin advised Montgomery of his Miranda rights and a Miranda “form” was reviewed with Montgomery. Regarding the burglary, Boykin said that Montgomery “talked briefly about it, but he didn’t give a whole lot of details.” (R. 11.)

Montgomery was taken to the jail facility in Evergreen. Boykin testified that Montgomery was not under arrest but that he was not free to leave the jail. Montgomery was again read his Miranda rights, and the officers again went over their standard Miranda form to assure that he understood his Miranda rights. The officers then took a statement from Montgomery in which he confessed to being involved in the burglary. Boykin stated that after Montgomery confessed, he was arrested for the burglary at Rankin’s store.

Boykin testified that at the time Montgomery was handcuffed and taken to the jail, the only evidence Boykin had indicating that Montgomery had been involved in the burglary was that, after approximately four of five hours of tracking, the dog wardens had tracked Montgomery to the roadside location. (R. 18.) Boykin stated: “I didn’t have nothing but the dogs tracking him,” and Boykin said that he “needed [Montgomery’s] confession in order to arrest him for burglary.” (R. 19.) Boykin also confirmed that the only circumstance connecting Montgomery to the shoes and sock found in Rankin’s parking lot was Rankin’s statement that the suspects had run away from the store in the direction of the area in which the shoes and sock were found.

The defense argued at the suppression hearing that dog-tracking evidence cannot establish probable cause. The trial court considered the argument in the following context without objection:

“THE COURT: Let’s assume that they’ll [dog trainers] say exactly what they always say, which is, they train the dogs—
“— and once they put the dog on a scent, he is infallible and will find the person that’s there.
“I assume the dog wardens would testify that they started at the store and the dog bayed and made the type— engaged in the type of behavior that told them they were on track all the way down until they found [Montgomery].
“If they testified to that, the question is: Is that probable cause to arrest for this burglary?”

(R. 21-22.)

After taking this question under advisement, the trial court granted Montgomery’s motion to suppress by noting “Granted” on the face of the motion. (CR. 8.)

Issue

The State argues that dog-tracking evidence alone can establish probable cause to arrest, and, thus, that the trial court erred in granting the motion to suppress.

Standard Of Review

“This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).” State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App. 2004). “A trial court’s ultimate legal conclusion on a motion to suppress based on a given set of facts is a question of law that is reviewed de novo on appeal. See State v. Smith, 785 So.2d 1169 (Ala.Crim.App. 2000).” State v. Hargett, 935 So.2d 1200, 1204 (Ala.Crim.App.2005). Here, the facts are uncontested; the only issue is the circuit court’s application of the law to those facts.

Analysis

First, despite Boykin’s assertion that Montgomery-was-not under arrest when he was seized by officers, the facts indicate that Montgomery was placed under arrest when he was seized at the roadside. “An individual has been arrested when he is not free to go, whether or not formal words of arrest are used.” Michele G. Hermann, Search and Seizure Checklists § 4.1 (Thompson West 2006).

“ ‘A determination of “custody” is not based on “the subjective evaluation of the situation by the defendant or the police officers.” Davis [v. Allsbrooks, 778 F.2d 168,] at 171 [(4th Cir.1985)]. Where there has not been a formal arrest (as here), an objective test is used to determine whether the suspect’s freedom of action has been restricted by the police in any significant manner. Davis, supra at 171; [United States v.] Miller, [587 F.Supp. 1296, 1299 (W.D.Pa.1984) ]; Warrick [v. State, 460 So.2d 320, 322 (Ala.Cr.App.1984) ]; Hall [v. State, 399 So.2d 348, 351 (Aia.Cr.App.1981) ]. “The only relevant inquiry is how a reasonable man in the suspect’s position would have understood his position.” United States v. Jonas, 786 F.2d 1019, 1022 (11th Cir.1986) (quoting Berkemer v. McCarty, 468 U.S. 420, [442], 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984)).’”

Barksdale v. State, 788 So.2d 898, 903 (Ala.Crim.App.2000)(quoting Hooks v. State, 534 So.2d 329, 348 (Ala.Crim.App. 1987), aff'd, 534 So.2d 371 (Ala.1988)).

“Probable cause to support a warrant-less arrest must exist at the time of the arrest. Davis v. State, 507 So.2d 1023 (Ala.Cr.App.1986). Probable cause exists if facts and circumstances known to the arresting officer are sufficient to warrant a person of reasonable. caution to believe that the suspect has committed a crime. United States v. Rollins, 699 F.2d 530 (11th Cir.) cert. denied, 464 U.S. 933, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983). ‘In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act....’ Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1891 (1949). ‘ “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” ’ Id. ‘Probable cause to arrest is measured against an objective standard and, if the standard is met, it is unnecessary that the officer subjectively believe that he has a basis for the arrest.’ Cox v. State, 489 So.2d 612 (Ala.Cr.App.1985). The officer need not have enough evidence or information to support a conviction in order to have probable cause for arrest. Only a probability, not a prima facie showing, of criminal activity is the standard of probable cause. Stone v. State, 501 So.2d 562 (Ala.Cr.App.1986). ‘ “[P]robable cause may emanate from the collective knowledge of the police ....’” Ex parte Boyd, 542 So.2d 1276, 1284 (Ala.1989) (citations omitted).”

Dixon v. State, 588 So.2d 903, 906 (Ala. 1991)..

Here, when the dog wardens tracked the scent to Montgomery, he was seized by officers, handcuffed, “Mirandized,” and taken to the jail facility without the option of leaving. Essentially, from- the moment the dog wardens tracked the scent the dogs had been given to Montgomery, Montgomery’s freedom of movement was completely curtailed for what was to be an indefinite period. These circumstances equate to an arrest.

“[T]he general rule [is] that every arrest, and every seizure having the essential attributes of a formal arrest, is unreasonable unless it is supported by probable cause.” Michigan v. Summers, 452 U.S. 692, 700, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). “In order for a police officer to make a valid arrest without a warrant, the officer must have ‘probable cause to believe that a felony has been committed, or is being committed, and that the person to be arrested committed it.’ Rule 4.1, Ala. R.Crim. P.; see also Brooks v. City of Dothan Police Dep’t, 562 So.2d 162 (Ala.[1990]); Ex parte Beck ,.., 485 So.2d 1207 (Ala.198[5]).” State v. Johnson, 682 So.2d 385, 388 (Ala.1996)(Maddox, J., concurring specially)..

“Rule 4.1, Ala.R.Crim.P., and § 15-10 — 3(a)(3), Ala.Code 1975, provide that a police officer may arrest a person without a warrant when the officer has probable cause to believe that the person arrested committed a felony. ‘Reasonable cause,’ as set out in § 15 — 10—3(a)(3), is equated with ‘probable cause.’ See Smith v. State, 727 So.2d 147 (Ala.Crim. App.1998), aff'd, 727 So.2d 173 (Ala. 1999), cert. denied, 528 U.S. 833 120 S.Ct. 91, 145 L.Ed.2d 77 (1999).”

Williams v. State, 830 So.2d 45, 49 (Ala. Crim.App.2001).

Exigent circumstances for a war-rantless arrest are not necessary in this circumstance. “ ‘[P]robable cause’ to justify an arrest means facts and circumstances within the officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979).

The Alabama Supreme Court has defined probable cause as follows:

“Probable cause exists if facts and circumstances known to the arresting officer are sufficient to warrant a person of reasonable, caution to believe that the suspect has committed a crime. ‘In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and, practical considerations of everyday life.on which reasonable and prudent men, not legal technicians act....’ “‘The - substance of all the definitions of probable cause is a reasonable ground for belief of guilt.” ’ ‘Probable cause to arrest is measured against an objective standard and, if the standard is met, it. is unnecessary that the officer subjectively believe that he has a basis for the arrest.’ The officer need not have enough evidence or information to support a conviction in order to have probable cause for arrest. - Only a probability, not a prima facie showing, of criminal activity is the standard of probable cause.’ ”

Dixon v. State, 588 So.2d 903, 906 (Ala. 1991), (quoted, subsequently to Scarbrough v. State, 621 So.2d 996, 1000 (Ala.Crim. App.1992), aff'd, 621 So.2d 1006 (Ala. 1993)).

It is undisputed that Montgomery was advised of his Miranda rights. The issue for disposition is whether officers had probable cause to support Montgomery’s detention (which we will hereinafter refer to as his arrest), which was not based on a warrant. If they did not, then the arrest was illegal, and the fruit of the arrest, i.e., Montgomery’s confession at the jail, was tainted by the violation of Montgomery’s constitutional rights and the trial court properly suppressed it. We believe that evidence that the dog wardens tracked a scent from the scene to Montgomery created sufficient probable cause to arrest Montgomery based on the following rationale.

Evidence that a defendant was apprehended as the result of dog-tracking has a long history of being admissible at trial in Alabama.

“The admissibility of dog-tracking evidence upon a proper predicate has been recognized in Alabama for over a century. See Burks v. State, 240 Ala. 587, 200 So. 418 (1941); Orr v. State, 236 Ala. 462, 183 So. 445 (1938); Loper v. State, 205 Ala. 216, 87 So. 92 (1920); Gallant v. State, 167 Ala. 60, 52 So. 739 (1910); Hargrove v. State, 147 Ala. 97, 41 So. 972 (1906); Richardson v. State, 145 Ala. 46, 41 So. 82 (1906); Little v. State, 145 Ala. 662, 39 So. 674 (1905); Hodge v. State, 98 Ala. 10, 13 So. 385 (1893); Holcombe v. State, 437 So.2d 663 (Ala. Crim.App.1983); Moore v. State, 26 Ala. App. 607, 164 So. 761 (1935); and Allen v. State, 8 Ala.App. 228, 62 So. 971 (1913). As the Alabama Supreme Court noted in 1893, ‘[i]t is common knowledge that dogs may be trained to follow the tracks of a human being with considerable certainty and accuracy.’ Hodge, 98 Ala. at 11, 13 So. at 386. The majority of states also recognize the admissibility of dog-tracking evidence as long as the proper foundation is laid. See generally J.M. Zitter, Annotation, Evidence of [Trailing] by Dogs in Criminal Cases, 81 A.L.R.5th 563 (2000), and the cases cited therein.”

Gavin v. State, 891 So.2d 907, 971 (Ala.Crim.App.2003)(footnote omitted).

Assessing probable cause is less rigorous than assessing the admissibility of evidence at trial on the merits. Because probable cause does not concern guilt or innocence, “ ‘ “ ‘the strict standard of proof beyond a reasonable doubt does not apply. Brown v. State, 353 So.2d 1384 (Ala.1977). “The only standard which must be met is whether a reasonable man would believe the crime occurred and that the defendant committed it.” ””” W.T.K v. State, 598 So.2d 33, 36 (Ala.Crim.App.1992)(quoting Slaton v. State, 555 So.2d 814, 815 (Ala.Crim.App. 1989), quoting in turn Ash v. State, 424 So.2d 1381, 1383 (Ala.Crim.App.1982)). “ ‘An officer need not have enough evidence or information to support a conviction [in order to have probable cause for arrest].... “Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” ’ Stone v. State, 501 So.2d 562, 565 (Ala.Cr.App. 1986).” State v. Johnson, 682 So.2d 385, 387-88 (Ala.1996).

“[A]t the arrest stage we are dealing only with probabilities, and not the more stringent standard required for a conviction. The probable cause standard does not require an arresting officer to rule out all other possible suspects before he or she detains a particular individual. See State v. Johnson, 682 So.2d 385, 391 (Ala.1996)(Maddox, J., concurring specially); see also Darden v. State, 571 So.2d 1272, 1279-80 (Ala.Cr.App.1990), quoting 1 W. Lafave, Search and Seizure § 3.2(e) at 591-92 n. 148 (2d ed. 1987) (‘ “If the function of arrest were merely to produce persons in court for purposes of their prosecution, then a more-probable-than-not-test would have considerable appeal. But there is also an investigative function which is served by the making of arrests.” ’ (Footnote omitted.)).”

Melson v. State, 775 So.2d 857, 879 (Ala. Crim.App.1999), aff'd, 775 So.2d 904 (Ala. 2000).

We also note that at the suppression hearing there appeared to be some question as to whether a predicate had to be laid before testimony concerning dog tracking could be considered. The trial court dispensed with the uncertainty by finding that the dog wardens were sufficiently trained and reliable. (See Melson.) Though dicta, we note the distinction between obtaining a warrant based on probable cause and admitting evidence at trial discussed in Fitzgerald v. State, 153 Md. App. 601, 837 A.2d 989 (2003), aff'd, 384 Md. 484, 864 A.2d 1006 (2004):

‘[TJhere are [no] such requirements or qualifications that must be satisfied before the results from a canine sniff can be considered in a warrant application in the assessment of probable cause. By analogy, a confession must be shown to be voluntary before it may be introduced in court. A warrant application may make reference to a confession without any such qualification. A lineup identification must be shown to be reliable before it can be introduced in court. There is no such threshold requirement for it to be considered in a warrant application. Prior criminal records that may never be introduced in court are standard fare in a warrant application. The warrant-issuing process is ex parte and is far less formal than a courtroom proceeding.’

“(Emphasis supplied).”

Fitzgerald v. State, 153 Md.App. at 632-33, 837 A.2d at 1006 (quoting Emory v. State, 101 Md.App. 585, 635, 647 A.2d 1243 (1994)). It follows that this distinction would also hold true in a suppression hearing reviewing probable cause for a war-rantless arrest. The requirements in place to assure a conviction beyond a reasonable doubt have no place in discerning probabilities to arrest.

We also note that in the context of arrest pursuant to a warrant, an affidavit asserting that a trained dog tracked a suspect or alerted to the presence of illegal drugs is sufficient probable cause to obtain a warrant. See generally drug searches: Fitzgerald v. State, 153 Md.App. 601, 837 A.2d 989 (2003); United States v. Meyer, 536 F.2d 963 (1st Cir.1976); United States v. Sentovich, 677 F.2d 834 (11th Cir.1982); United States v. Berry, 90 F.3d 148, 153 (6th Cir.1996); United States v. Klein, 626 F.2d 22, 27 (7th Cir.1980); United States v. Kennedy, 131 F.3d 1371 (10th Cir.1997).

We also recognize that an alert by a trained drug-sniffing dog provides probable cause to search without a warrant. See United States v. Banks, 3 F.3d 399 (11th Cir.1993); Rudolph ex rel. Williams v. Lowndes County Bd. of Educ., 242 F.Supp.2d 1107 (M.D.Ala.2003); Webster v. State, 662 So.2d 920 (Ala.Crim.App.1995); Dalton v. State, 575 So.2d 603 (Ala.1990); Rainey v. State, 575 So.2d 608 (Ala.Crim. App.1990); Sawyer v. State, 598 So.2d 1035 (Ala.Crim.App.1992).

Thus, based on the above, together with the fact that in Alabama “ ‘[i]t is common knowledge that dogs may be trained to follow the tracks of a human being with considerable certainty and accuracy,’ ” Gavin v. State, 891 So.2d at 971, we find that the results of dog tracking can provide probable cause to arrest. Issues of predicate and weight of the evidence are trial issues.

■ In the instant case the facts and circumstances within Boykin’s knowledge were that two suspects had left the scene of the burglary on foot and had not returned to what appeared to be the getaway vehicle. Trained dogs from Atmore prison had been put on the scent of these individuals from clothing apparently left at the crime scene. The dogs tracked the scent for several hours to Montgomery, who was traveling with a companion on the roadside at approximately 5:00 a.m. These circumstances were sufficient to warrant a prudent person, or one of reasonable caution, to believe that Montgomery had committed the burglary.

Conclusion

The trial court improperly granted Montgomery’s motion to suppress, and that judgment is hereby reversed. We remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, PM., and BASCHAB, SHAW, and WISE, JJ, concur.

      . Sgt. Davis’s first name is not disclosed in the record before the Court.

      . Boykin testified that at the time of the suppression hearing, Stallworth was serving time at Atmore prison.

      . Officer Boykin also referred to this as the dogs being put on the scent of the perpetrators.

      . There was no other testimony about what Montgomery or the juvenile were wearing.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . "For dog-tracking evidence to be admissible, the State must establish the following: the training and reliability of the dog, the qualifications of the person handling the dog, and the circumstances surrounding the tracking by the dog. The foundational evidence need not be overwhelming or specific, but must be sufficient to indicate reliability of the evidence.” Gavin v. State, 891 So.2d at 971.


author: WISE, Judge.

text:
    Kelvin Dewayne RASH v. STATE of Alabama.
    CR-05-1323.
    Court of Criminal Appeals of Alabama.
    Nov. 3, 2006.

      Kelvin Dewayne Rash, pro se.
    Troy King, atty. gen., and Madeline Hin-son Lewis, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Kelvin Dewayne Rash, appeals from the circuit court’s dismissal of his petition for postconviction relief, filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his October 2004 conviction for breaking and entering a vehicle and the resulting sentence of 22 years’ imprisonment. Rash appealed his conviction; however, while his appeal was pending-before this Court, Rash moved to dismiss his appeal. On August 2, 2005, this Court dismissed Rash’s appeal and entered a certificate of judgment.

On September 24, 2005, Rash filed a Rule 32 petition, in which he alleged that his trial counsel had rendered ineffective assistance. Rash alleged that his trial counsel had rendered ineffective assistance because, he said, (1) counsel failed to challenge the legality of the arrest warrant pursuant to which Rash was arrested; (2) counsel failed to move to suppress a statement Rash made to law-enforcement officials; (3) counsel failed to adequately investigate an insanity defense or to request a competency hearing, despite Rash’s history of mental illness and/or drug addiction; and (4) counsel failed to inform Rash of a plea offer from the State that would have resulted in a lesser sentence than the one imposed by the trial court. Rash further alleged that the trial court lacked jurisdiction to render a judgment and to impose sentence; however, Rash failed to set out any facts in support of this claim. Without requiring a response from the State, the circuit court dismissed Rash’s petition on March 31, 2006. The court stated in its order that Rash’s ineffeetive-assistance-of-trial-counsel claim was procedurally barred because Rash had not raised this claim in his motion for a new trial. The circuit court determined that Rash’s challenge to its jurisdiction to render a judgment and to impose sentence had not been pleaded with sufficient specificity. This appeal followed.

On appeal, Rash argues that the trial court erred in summarily denying his Rule 32 petition because, he says, his petition presented claims of ineffective assistance of counsel that were meritorious on their face.

Rule 32, Ala.R.Crim.P., requires the circuit court judge to conduct an evi-dentiary hearing on a Rule 32 petition that appears meritorious on its face. However, the Alabama Supreme Court has held that a circuit court judge who presided over a petitioner’s trial and who observed the conduct of the petitioner’s attorneys at trial need not hold a hearing on a petition challenging the effectiveness of those attorneys. Ex parte Hill, 591 So.2d 462, 463 (Ala.1991). The fact that a circuit court judge is not required to conduct an eviden-tiary hearing on a petitioner’s claims of ineffective assistance of trial counsel if that judge personally observed the conduct of counsel does not, however, relieve that judge of the responsibility of entering a sufficiently specific order addressing each of the petitioner’s claims of ineffective assistance of trial counsel. See Alvis v. State, 762 So.2d 380, 381 (Ala.Crim.App. 1999); Benefield v. State, 583 So.2d 1370, 1370 (Ala.Crim.App.1991) (noting in both cases that meritorious allegations “warrant either an evidentiary hearing or an adequate explanation for their denial”).

Here, Rash raised a number of alleged instances of ineffective assistance of counsel against his trial counsel. Of particular concern to this Court are Rash’s claim that his counsel failed to investigate a possible insanity defense, despite evidence of Rash’s history of mental illness, and Rash’s claim that trial counsel failed to advise him of a plea offer from the State. Moreover, Rash’s claim of ineffective assistance of trial counsel is not precluded because Rash could not have reasonably presented his ineffeetive-assistance-of-trial-counsel claim in a motion for a new trial. See Ex parte Ingram, 675 So.2d 863, 866 (Ala.1996) (the proper method for presenting an ineffective-assistanee-of-trial-coun-sel claim that cannot reasonably be presented in a motion for a new trial is by filing a Rule 32 petition). Thus, it appears that this Rule 32 petition was the first opportunity Rash had to raise his claim of ineffective assistance of his trial counsel. See Andersch v. State, 716 So.2d 242, 245 (Ala.Crim.App.1997). Thus, the circuit court incorrectly determined that Rash’s claim was precluded from review.

Rash’s ineffeetive-assistance-of-eounsel claim also appears to be facially meritorious. Further, because the circuit court did not require the State to file a response to Rash’s claim, there is nothing in the record to refute Rash’s factual claims or his claim of that his trial counsel’s performance was deficient. Therefore, we must remand this cause for the circuit court to enter a new order addressing the merits of Rash’s allegations of ineffective assistance of counsel. It is not necessary, however, for the circuit court to address Rash’s claim that the trial court lacked jurisdiction to render a judgment or to impose sentence, given that this claim consists of nothing more than a bare allegation with no factual support, and thus fails to meet the specificity requirements set out in Rule 32.6(b), Ala.R.Crim.P.

Should the trial court deem it necessary to hold an evidentiary hearing before entering its new order addressing Rash’s allegations of ineffective assistance of counsel, the circuit court’s return to remand shall include a transcript of those proceedings. Rule 32.9(d), Ala. R.Crim.P., requires the circuit court to “make specific findings of fact relating to each material issue of fact presented.” See also Ex parte Walker, 652 So.2d 198 (Ala.1994); Smith v. State, 665 So.2d 954 (Ala.Crim. App.1994). However,

“if the court finds that a particular allegation fails to meet the requirements of specificity of Rule 32.6(b), we encourage the court to so note with particularity in its written findings. It is to do likewise if it finds that a particular allegation fails to state a claim or to present any material issue of fact or law that would entitle [the petitioner] to relief. In other words, the court’s written findings are to address individually each claim not precluded by Rule 32.2.”

Harper v. State, 676 So.2d 949, 950 (Ala. Crim.App.1995), aff'd, 698 So.2d 796 (Ala. Crim.App.1996) (table). In making these factual determinations, the circuit court may take judicial notice of the record in Rash’s 2004 trial. If the court’s findings are based on its personal knowledge of Rash’s trial, then the order should so state. See Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989). As we have stated, “[a] statement of the basis of the [circuit] court’s decision is essential to afford the appellant due process.” Owens v. State, 666 So.2d 31, 32 (Ala.Crim.App. 1994).

The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur; SHAW, J., concurs in the result.

      . Although the date stamp supplied by the clerk of the Russell Circuit Court does not indicate that Rash’s petition was “filed” until March 21, 2006, our review of the record indicates that Rash stated in his sworn petition that it was mailed on September 24, 2005. The date discrepancy appears to have resulted from the circuit court's denial of Rash’s motion to proceed in forma pauperis, resulting in Rash's petitioning this Court for a writ of mandamus directing the circuit court to allow him to proceed in forma pauperis. On March 8, 2006, we ordered the circuit court to allow Rash to proceed in forma pauperis. (C. 2.) Accordingly, Rash’s petition should be considered “filed” on September 24, 2005, the date it was placed in the prison mail system to be mailed to the Russell Circuit Clerk. See Thomas v. State, 893 So.2d 563, 565 n. 4 (Ala.Crim.App.2002) (citing Allen v. State, 825 So.2d 271 (Ala.2002)).

      . We have reviewed our records of Rash's direct appeal of his conviction, see Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App. 1992) (this Court may take judicial notice of its own records), and have determined that Rash was sentenced on November 18, 2004. However, the entire trial transcript was not available until April 19, 2005, well beyond the 30-day deadline for filing a motion for a new trial.

      . The court may take evidence as provided in Rule 32.9(a), Ala.R.Crim.P.

       Note from the reporter of decisions: On April 20, 2007, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On May 11, 2007, that court denied rehearing, without opinion.


author: SALCINES, Judge.

text:
    Glenn E. CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5540.
    District Court of Appeal of Florida, Second District.
    July 27, 2007.
    Rehearing Denied Oct. 31, 2007.
    James Marion Moorman, Public Defender, and Paul C. Helm, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Glenn E. Chapman appeals his convictions and sentences for grand theft of a motor vehicle, aggravated fleeing to elude, and battery on a law enforcement officer. Chapman first argues that the trial court erred by failing to conduct an inquiry concerning the reasons he sought to discharge his attorney. Finding no reversible error on this point, we affirm without discussion. Chapman next argues that his sentences were illegal. Chapman asserts that his offenses arose from the same transaction and thus he could not be sentenced as a Prison Releasee Reoffender on one offense followed by consecutive Criminal Punishment Code sentences on the remaining offenses. Because the sentencing structure challenged by Chapman did not result in an illegal sentence, we affirm Chapman’s sentences. See Reeves v. State, 957 So.2d 625 (Fla. May 17, 2007).

Affirmed.

ALTENBERND and CANADY, JJ., Concur.


author: CANADY, Judge. FULMER, Judge,

text:
    I.R.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-0777.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2007.

      James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   CANADY, Judge.

I.R.C. appeals his adjudication for possession of cannabis, which was entered after I.R.C. pleaded no contest reserving the right to appeal the denial of a disposi-tive motion to suppress. The cannabis which I.R.C. sought to suppress was discovered after I.R.C. was removed from his classroom at a public high school by a deputy sheriff and his bag was searched by the deputy. The sole argument presented by I.R.C. on appeal is that the trial court should have granted the motion to suppress because I.R.C.’s “consent to the search” which revealed the cannabis “was not voluntary” but “was mere acquiescence to police authority.” We reject this argument and affirm the adjudication of delinquency.

As the factual predicate for his argument, I.R.C. relies on his testimony that when the officer requested consent to search his bag, I.R.C. felt that he had no choice but to consent and believed that if he had declined to consent he “would have been pinned to the ground and [his] bag would have been searched anyways.” I.R.C. also relies on the circumstance that the deputy did not inform him that he was free to withhold his consent to the search.

The deputy testified that because he “felt it important to explain to [I.R.C.] why [he was] removed ... from his classroom,” he explained to I.R.C. that the deputy had “received information that [I.R.C.] was in possession of cannabis.” The deputy further testified that when he “asked [I.R.C.] for consent to search his bag and his person for illegal drugs,” I.R.C. “handed [the deputy] his bag and consented to the search.” According to the deputy’s testimony, I.R.C. “said go ahead” and “put his arms out as if to search his person.”

In the review of a trial court’s ruling on a motion to suppress, we are governed by the standard that “mixed questions of law and fact that ultimately determine constitutional rights should be reviewed ... using a two-step approach, deferring to the trial court on questions of historical fact but conducting a de novo review of the constitutional issue.” Connor v. State, 803 So.2d 598, 605 (Fla. 2001).

“[A] search pursuant to consent” if “properly conducted, is a constitutionally permissible and wholly legitimate aspect of effective police activity. But the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “[I]t is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.” Id. at 233, 93 S.Ct. 2041. “In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 229, 93 S.Ct. 2041.

Accordingly, “[w]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (footnote omitted). “When a law enforcement officer claims authority to search ..., he announces in effect that the [suspect] has no right to resist the search.” Id. at 550, 88 S.Ct. 1788. Such a “situation is instinct with coercion,” and “[w]here there is coercion there cannot be consent.” Id. Just as coercion generally may be exercised “by explicit or implicit means,” Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041, a claim of authority to search may be express or implied.

The circumstance that consent is given by an individual who is under arrest or otherwise detained does not establish that the consent was involuntary. “[T]he fact of custody alone has never been enough in itself to demonstrate a coerced ... consent to search.” United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Nor does “the absence of proof’ that the person giving consent while in custody “knew he could withhold his consent” compel the conclusion that the consent was invalid. Id. Although the absence of such proof “may be a factor in the overall judgment,” it “is not to be given controlling significance.” Id. “[K]nowledge of a right to refuse is not a prerequisite of a voluntary consent.” Schneckloth, 412 U.S. at 234, 93 S.Ct. 2041.

While knowledge of the right to refuse is a relevant factor in the analysis of voluntariness, there is no “presumption of invalidity [which] attaches if a citizen consented without explicit notification that he or she was free to refuse to cooperate. Instead, ... the totality of circumstances must control, without giving extra weight to the absence of this type of warning.” United States v. Drayton, 536 U.S. 194, 207, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).

Here, the record does not support I.R.C.’s assertion that his consent was a “mere acquiescence to police authority.” Contrary to I.R.C.’s suggestion, the failure to warn of the right to withhold consent “is not a poison pill.” United States v. Laine, 270 F.3d 71, 75 (1st Cir.2001). No strength is added to I.R.C.’s argument by his testimony that he felt he had no choice but to consent. Although the “vulnerable subjective state of the person who consents,” Schneckloth, 412 U.S. at 229, 93 S.Ct. 2041, is undoubtedly relevant to the determination of voluntariness, I.R.C. has pointed to no factors—such as his age, education, intelligence, or mental condition—that evidence such a vulnerable state. Nor has I.R.C. pointed to any coercive circumstance or to any conduct by the deputy—such as a show of force, other threatening conduct, a prolonged detention, verbal threats, inveigling, or importuning—that provides an objective grounding for I.R.C.’s professed inability to decline the deputy’s request to search.

Other than the absence of notice of the right to refuse consent, all we have is I.R.C.’s testimony—which the trial court was entitled to discredit—concerning what he “felt.” If such testimony could—as I.R.C. contends—compel a determination that a consent to search was involuntary, it would be very rare indeed for a consent to be upheld. Such self-serving testimony by a defendant concerning his state of mind does not compel a determination of involuntariness. See State v. Kuntzwiler, 585 So.2d 1096, 1096 (Fla. 4th DCA 1991) (upholding trial court’s determination that consent was voluntary notwithstanding defendant’s testimony that “she believed she had no choice but to allow the search”). In short, I.R.C. points to nothing that the trial court was required to credit as establishing that I.R.C. submitted to an implicit or explicit claim of authority.

I.R.C.’s argument thus provides no basis for concluding that the State failed to meet its burden of showing that I.R.C.’s consent was voluntary, a burden which is met by a preponderance of the evidence unless there is illegal conduct by the police. See Reynolds v. State, 592 So.2d 1082, 1086 (Fla.1992). The record shows a simple request to search followed by a clearly expressed consent to search. There is no hint of coercion. Based on the totality of relevant circumstances, we conclude that the trial court did not err in denying the motion to suppress.

The dissent contends that “[b]ecause I.R.C. was seized without a showing of justification, any consent to search that followed was tainted.” There is no doubt that when a consent to search is obtained during an unlawful detention, the taint of the unlawful detention may—if the taint is not removed—result in a determination that the consent was involuntary. See Faulkner v. State, 834 So.2d 400, 403 (Fla. 2d DCA 2003). There is also no doubt that the lawfulness of I.R.C.’s detention is not at issue in this case. At no point in this appeal or in the proceedings before the trial court has I.R.C. argued that his detention was unlawful. In considering I.R.C.’s appeal, we are limited to the specific issues that I.R.C. has raised. “[W]e are precluded from reviewing the issue” of the lawfulness of the detention “because it was not raised on appeal.” Grimsley v. State, 939 So.2d 123, 125 (Fla. 2d DCA 2006); see Johnson v. State, 660 So.2d 637, 645 (Fla.1995) (“The law is well settled that failure to raise an available issue constitutes an admission that no error occurred.”). Furthermore, the issue of the lawfulness of the detention was unavailable for argument on appeal because it was not properly preserved in the trial court.

The dissent asserts that by challenging the voluntariness of his consent on the specific ground that the consent resulted from a mere acquiescence to authority, I.R.C. put at issue the lawfulness of his detention. The position adopted by the dissent implies that whenever a defendant moves to suppress evidence, the State has the burden of adducing evidence with respect to every conceivable circumstance that might have a bearing on the defendant’s claim that the challenged evidence should be suppressed. Under the reasoning of the dissent, the State must meet this burden even with respect to circumstances that the defense does not specifically put at issue in the trial court. Furthermore, under the dissent’s reasoning, on appeal the State, as appellee, must not only respond to the specific reasons for reversal advanced by the defense but also anticipate and respond to other reasons for reversal that may be advanced by the reviewing court.

We reject the view expressed in the dissent because it is at odds with the structure of the appellate process which requires that a reviewing court ordinarily reverse only on the basis of the specific arguments presented by the appellant. See Philip J. Padovano, Florida Appellate Practice § 16.10, at 310 (2007 ed.) (“Generally, the appellate court will not reverse a case on a ground that was not argued in the briefs.”). The dissenting view is also inconsistent with the well-established law concerning the preservation of error under which an argument is “cognizable on appeal” only if it was a “specific contention asserted as legal ground” in the trial court for the appellant’s position. Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982); see also § 924.051(3), Fla. Stat. (2005); § 924.051(1)(b).

The inappropriateness of reversing for a reason that has not been specifically argued by the appellant is illustrated by the court’s application of the preservation requirement in Perez v. State, 919 So.2d 347 (Fla.2005). In Perez, the defendant sought to suppress statements he had made to the police. Before the trial court, he contended that his statements were subject to suppression because “he made the statements ‘without a knowing and voluntary waiver of his rights,’ ” because he was “misled regarding his custody status,” and because he was subjected to “ ‘coercive measures, duress due to the time period involved.’” Id. at 359. On appeal, the defendant argued for the first time that suppression was required because the “recitation of the Miranda warnings” by the interrogating officer “was incomplete” and because of certain other circumstances related to the defendant’s interrogation, including an alleged promise that the “police would protect his family if he gave a statement.” Id. The court held that these points could not be considered on appeal because they were not “presented to the trial court.” Id.

The Perez court’s holding on the preservation issue is squarely at odds with the view expressed in the dissent that once a defendant has challenged the voluntariness of his consent, any circumstance relevant to voluntariness can provide a basis for reversal even if that circumstance has never been suggested as a basis for reversal by the defendant. In Perez, the circumstances raised for the first time on appeal were clearly relevant to the voluntariness issue, but the failure of the defense to properly preserve an argument based on those circumstances precluded consideration of the circumstances as a basis for reversal.

Properly preserving an argument that a consent was involuntary requires that the defendant articulate to the trial court the specific reason or reasons that the consent was involuntary. The argument must be “sufficiently precise” to “fairly apprise [] the trial court” of the “grounds” asserted by the defendant as establishing the involuntariness of the consent. § 924.051(1)(b). A defendant may not argue in the trial court that a consent was involuntary for certain reasons and then obtain a reversal on appeal on the ground that the consent was involuntary for other reasons. Any specific reason for reversal must be a specific reason that was advanced by the appellant in the trial court. See Morrison v. State, 818 So.2d 432, 446 (Fla.2002); San Martin v. State, 705 So.2d 1337, 1345 (Fla.1997); Reyes v. State, 952 So.2d 1262, 1265 (Fla. 2d DCA 2007); Cady v. State, 817 So.2d 948, 949 (Fla. 2d DCA 2002); Phillips v. State, 877 So.2d 912, 913 (Fla. 4th DCA 2004); Forrester v. State, 565 So.2d 391, 393 (Fla. 1st DCA 1990).

Here, of course, consideration of the lawfulness of the detention is precluded not only because that specific basis for reversal was not preserved but also because it was not argued by I.R.C. on appeal.

The dissent also specifically asserts that “[b]ecause the State elected to not rely on the confidential tip as a justification for the deputy’s actions, it was unable to meet its burden” of establishing that I.R.C.’s consent was voluntary. The dissent thus concludes that somehow in the course of a dispute between the State and the defense over the deputy’s testimony concerning the information received from the confidential informant, the State effectively conceded that the detention of I.R.C. was unjustified. We doubt that this is a correct reading of what transpired in the trial court. In any event, we need not — and cannot— reach this specific point for one very simple reason: The point has never been argued by I.R.C.

We disagree with the view that we should reverse a judgment for reasons that were not presented by the appellant either before the trial court or on appeal.

Affirmed.

WHATLEY, J., Concurs.

FULMER, J., Dissents with opinion.

FULMER, Judge,

Dissenting.

I respectfully dissent. I would reverse the adjudication because the State failed to show that the warrantless search of I.R.C.’s backpack was consensual or was justified by another valid exception to the warrant requirement.

On November 22, 2005, counsel for I.R.C. appeared before the court for a hearing on I.R.C.’s motion to disclose the identity of a confidential informant (Cl). Defense counsel informed the court that he intended to file a motion to suppress and that he wanted to obtain the identity of the informant because the officer based his search of I.R.C. on probable cause stemming from the Cl’s tip. The prosecutor informed the court that a tip was given at school and that consent was given by I.R.C. for a search of his book bag. The court concluded that because the State was proceeding on a consent search, the fact of the Cl’s tip would not be relevant to the suppression issue. Therefore, ■ the court denied the defense motion to disclose the CL

On November 30, 2005, the parties appeared before the court for the hearing on I.R.C.’s motion to suppress. The State’s only witness was Deputy Kranitz with the Polk County Sheriffs Office. The deputy worked in' the school resource unit at George Jenkins High School. The deputy began to testify about information he received with respect to I.R.C. Defense counsel objected, citing the prior hearing and the State’s representation that it was proceeding on a consent search. The prosecutor responded, “That’s fine.” Thus, the. State did not elicit from the deputy the substance of the CDs tip relating to I.R.C.

The deputy then testified that he responded to a portable classroom. He went inside, and “I asked I.R.C. if he wouldn’t mind grabbing his things and step outside with me.” I.R.C. complied. The deputy explained to I.R.C. that he had information that I.R.C. was in possession of cannabis. The deputy testified: “I felt it important to explain to. [I.R.C.] why I removed him from his classroom. At that point I asked [I.R.C.] for consent to search his bag and his person for illegal drugs. He handed me his bag and consented to the search.” When asked how I.R.C. consented, the deputy testified: “I asked him, he handed me the bag, he said go ahead. He put his arms out as if to search his person. I had his bag first so I searched his bag.” On cross-examination, the deputy acknowledged that the incident occurred during the regular school day and that he did not inform I.R.C. that he was free to refuse to consent. The deputy also acknowledged that when he removed I.R.C. from the classroom, he did not give I.R.C. the option to refuse. When asked if I.R.C. would have been punished if he had left the school that day, the deputy stated, “I don’t take part in any school discipline ma’am, I don’t know.”

The defense presented the testimony of I.R.C., who testified that he did not feel like he had a choice to refuse consent. When asked, “What do you believe would have happened had you not consented?”, he responded, “I would have been pinned to the ground and my bag would have been searched anyways.”

The defense argued that based on the totality of the circumstances the State failed to meet its burden of showing that the consent was freely and voluntarily given:

[Defense counsel]: Your Honor, the State has failed to meet its burden showing that the consent that [I.R.C.] supposedly gave [the deputy] to search his bag was voluntary. The officer testified that he removed him from his classroom. He did not inform him he was free to refuse to consent. He did not inform him he was free to leave. In fact it was during the normal school day and he could not have left without serious consequences for leaving school. He was — -there is no testimony that the voluntary was consensual [sic]. It was not voluntary. It was not knowing. He acquiesce[d] to authority. He — [I.R.C.] ■testified that he believed that had he refused he would have been arrested and searched anyway.
I submit to the court that under the totality of the circumstances the State has failed to meet its burden. That the consent supposedly given by [I.R.C.] was freely and voluntarily and knowingly given. And that it was a mere acquiescence] to authority. And we would ask the court to grant our Motion to Suppress.

I conclude that the trial court erred in rejecting this argument.

The deputy admitted on cross-examination that he removed I.R.C. from his classroom and did not give him the option to refuse to go with the deputy. There is no testimony in the record establishing that the deputy had probable cause or reasonable suspicion to detain I.R.C. As previously explained, the State elected to not disclose the Cl and the basis upon which 1.R.C. was seized from his classroom. If the deputy had encountered I.R.C. in a common area during a time when students were changing classes, the encounter would have been deemed consensual because I.R.C. would have had the right to walk away. However, by removing I.R.C. from a classroom, the deputy exercised his legal authority over I.R.C. in such a way that constituted a seizure.

Although there is no litmus-paper test for distinguishing a consensual encounter from a seizure, a significant identifying characteristic of a consensual encounter is that the officer cannot hinder or restrict the person’s freedom to leave or freedom to refuse to answer inquiries, and the person may not be detained without a well-founded and articulable suspicion of criminal activity. State v. Simons, 549 So.2d 785 (Fla. 2d DCA 1989). This Court has consistently held that a person is seized if, under the circumstances, a reasonable person would conclude that he or she is not free to end the encounter and depart. Jacobson v. State, 476 So.2d 1282 (Fla. 1985). Whether characterized as a request or an order, we conclude that Deputy Wilmoth’s direction for Popple to exit his vehicle constituted a show of authority which restrained Popple’s freedom of movement because a reasonable person under the circumstances would believe that he should comply. See Dees v. State, 564 So.2d 1166 (Fla. 1st DCA 1990).

Popple v. State, 626 So.2d 185, 187-88 (Fla.1993) (footnote omitted).

Because I.R.C. was seized without a showing of justification, any consent to search that followed was tainted. “Consent given after police conduct determined to be illegal is presumptively tainted and deemed involuntary, unless the state proves by clear and convincing evidence that there was a clear break in the chain of events sufficient to dissolve the taint.” Delorenzo v. State, 921 So.2d 873, 879 (Fla. 4th DCA 2006) (citing Scott v. State, 696 So.2d 1335, 1336 (Fla. 4th DCA 1997); Faulkner v. State, 834 So.2d 400, 403 (Fla. 2d DCA 2003)). The State did not prove a break in events from the time Deputy Kranitz removed I.R.C. from his classroom until the deputy asked him if he could search him. With no break in the events, any consent given remained tainted and cannot vitiate the illegality.

The majority deems the seizure of I.R.C. from the classroom as irrelevant to the issue of whether the consent was voluntary, stating, “There is ... no doubt that the lawfulness of I.R.C.’s detention is not at issue in this case.” The majority reaches this conclusion by reasoning that the lawfulness of the detention was not specifically raised as an issue on appeal.

This reasoning is faulty because it fails to recognize that the issue of whether I.R.C. gave a voluntary consent to search requires an examination of the totality of the circumstances and one of the relevant circumstances which must be considered was how I.R.C. came to be in the presence of Deputy Kranitz. Only by ignoring the seizure of I.R.C. from the classroom is the majority able to declare, “There is no hint of coercion.” The majority thus overlooks a key circumstance bearing on the only issue before this court, whether the alleged consent given by I.R.C. was voluntary.

It was the State’s burden to demonstrate that the seizure of I.R.C. from his classroom was justified. However, when the State elicited testimony from the deputy concerning the information he received with respect to I.R.C., the defense objected based on the State’s prior objection to disclosing the Cl and the trial court’s denial of the defendant’s motion to disclose the Cl. The State responded to defense counsel’s objection by simply stating, “That’s fine.” Because the State elected to not rely on the confidential tip as a justification for the deputy’s actions, it was unable to meet its burden.

I would therefore conclude that the State did not carry its burden of showing voluntary consent and would reverse the trial court’s order denying the motion to suppress.

      . The trial court overruled an objection to this testimony, stating: "I would overrule because he’s merely telling him what information he received and why he was talking to him. I understand that’s not a basis to support a search.”

      . The record indicates that the deputy was employed by the sheriff's office and he was not involved with school disciplinary matters. See State v. D.S., 685 So.2d 41 (Fla. 3d DCA 1996) (discussing distinction between school police officers employed by the district school board and outside police officers who are employed by a county governmental entity unrelated to the school district). Because the deputy acted alone without any involvement of school officials, the probable cause standard applies rather than the reduced reasonable suspicion standard, which governs searches conducted by school officials. Cf. State v. N.G.B., 806 So.2d 567, 568-69 (Fla. 2d DCA 2002) (concluding that reasonable suspicion was appropriate legal standard by which to assess legality of search by deputy because the investigation was initiated by assistant principle who enlisted the deputy's assistance); State v. Whorley, 720 So.2d 282, 283 (Fla. 2d DCA 1998) (observing that school resource officer who participated in search conducted by assistant principal needed only reasonable suspicion to justify search).


author: KELLY, Judge.

text:
    LIBERTY MUTUAL INSURANCE COMPANY and Norma J. Peele, Appellants, v. Colleen M. STEADMAN, Appellee.
    No. 2D04-1428.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 2007.
    Rehearing Denied Nov. 1, 2007.

      Steven L. Brannock and Sarah C. Pel-lenbarg of Holland and Knight LLP, Tampa, and Chris N. Kolos and Christopher Annunziato of Holland and Knight LLP, Orlando, for Appellants.
    Matthew D. Valdes, P.A., Orlando, for Appellee.
   KELLY, Judge.

This case is before us on remand from the Florida Supreme Court. In Liberty Mutual Insurance Co. v. Steadman, 895 So.2d 434 (Fla. 2d DCA 2005), this court reversed the trial court order denying Liberty Mutual and Norma Peele’s motions to dismiss the complaint Colleen Steadman filed against them alleging a claim for intentional infliction of emotional distress. Liberty Mutual is the workers’ compensation insurance carrier for Steadman’s employer, and Peele is the Liberty Mutual employee who handled Steadman’s claim for benefits. In our decision we cited In-services, Inc. v. Aguilera, 837 So.2d 464 (Fla. 3d DCA 2002) (Aguilera I), which the supreme court subsequently quashed. See Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla.2005) (.Aguilera II). The supreme court quashed our decision without reaching the merits and remanded for reconsideration because we had cited, among other cases, Aguilera I. The supreme court directed this court to reconsider our decision in light of Aguilera II. See Steadman v. Liberty Mut. Ins. Co., 932 So.2d 1034 (Fla. 2006).

At issue is whether Liberty Mutual and Peele are immune from suit by virtue of the workers’ compensation immunity afforded in chapter 440, Florida Statutes (2002),. the Workers’ Compensation Act (the Act). In our prior opinion, we concluded that Steadman had not alleged any wrongdoing independent of the elaims-han-dling process, and more specifically, that her claim was based entirely on Liberty Mutual’s nine-month delay in authorizing lung transplant surgery that the Judge of Compensation Claims (JCC) had previously directed it to authorize. Because Stead-man’s claim did not fall within any exception to the statutory immunity afforded a carrier under the Act, we concluded that the trial court should have dismissed her complaint. See Liberty Mutual, 895 So.2d at 436.

In Aguilera II, the court recognized the continued viability of “cases holding that the mere delay of payments or simple bad faith in handling workers’ compensation claims are not actionable torts, and that employees are not permitted to transform such simple delays into actionable torts cognizable in the circuit court.” 905 So.2d at 91. The court reaffirmed the principle that “the workers’ compensation legislation does immunize an insurance carrier for mere negligent conduct, simple bad faith, and minor delays in payment.” Id. at 93. The court stressed,.however, that the Act did “not' afford blanket immunity for all conduct during the claim process, particularly the insurance carrier’s intentional tortious conduct.” Id. The court elaborated on what it viewed as the flaw in Aguilera I, stating that the court’s focus should have been on the elements of the intentional tort alleged, not on whether the tort occurred in the context of the claims process:

The district court erred in utilizing the yardstick by which it measured the sufficiency of Aguilera’s complaint with regard to whether his allegations stated a viable common law cause of action for an intentional tort against the insurance carrier. The Third District should not have limited itself to considering whether Aguilera’s allegations involved wrongdoing totally separate and independent of the workers’ compensation claim process itself. Pursuant to Sibley [v. Adjustco, Inc., 596 So.2d 1048 (Fla.1992) ], if an insurance carrier engages in outrageous actions and conduct that constitutes an intentional tortious act while processing the claim beyond mere short delays in payment and simple bad faith, the carrier is not cloaked with a shield of immunity flowing from the workers’ compensation provisions.

Id. at 93-94 (citation omitted). Thus, we conclude that to determine whether the trial court correctly rejected Liberty Mutual and Peele’s claims of immunity, our inquiry should be directed to whether Steadman’s complaint states a cause of action for intentional infliction of emotional distress.

In Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277, 278 (Fla. 1985), the supreme court held that Florida recognizes the tort of intentional infliction of emotional distress as defined in section 46, Restatement (Second) of Torts (1965). To state a cause of action for intentional infliction of emotional distress, a complaint must allege four elements: (1) deliberate or reckless infliction of mental suffering; (2) outrageous conduct; (3) the conduct caused the emotional distress; and (4) the distress was severe. Dependable Life Ins. Co. v. Harris, 510 So.2d 985, 986 (Fla. 5th DCA 1987). Behavior claimed to constitute the intentional infliction of emotional distress must be “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.’ ” Ponton v. Scarfone, 468 So.2d 1009, 1011 (Fla. 2d DCA 1985) (quoting Metropolitan, 467 So.2d at 278). In applying that standard, the subjective response of the person who is the target of the actor’s conduct does not control the question of whether the tort of intentional infliction of emotional distress occurred. Id. Rather, the court must evaluate the conduct as objectively as is possible to determine whether it is “ ‘atrocious, and utterly intolerable in a civilized community.’ ” Id. (quoting Metropolitan, 467 So.2d at 278). Whether conduct is outrageous enough to support a claim of intentional infliction of emotional distress is a question of law, not a question of fact. Gandy v. Trans World Computer Tech. Group, 787 So.2d 116, 119 (Fla. 2d DCA 2001); Ponton, 468 So.2d at 1011.

Steadman’s complaint lists an assortment of acts she contends were “intentional and outrageous,” but the primary focus of her complaint is that Liberty Mutual and Peele delayed authorizing a double lung transplant even after the JCC had ordered Liberty Mutual to pay for it. Steadman alleges that Peele and Liberty Mutual’s actions were “predicated on the fact that [Steadman] would die from her condition in a short time and the problem would go away” and that Peele and Liberty Mutual knew based on physician testimony that Steadman was not expected to survive until the following year. Steadman contends that based on that knowledge, Liberty Mutual intentionally denied and delayed payment for treatment in an effort to speed up her demise, to induce stress that it knew would be detrimental to her health, and to inflict emotional distress. Steadman alleges she suffered severe emotional distress and that the distress caused her physical condition to deteriorate.

The real issue in this case is not whether Steadman’s complaint contains all the elements of a claim for intentional infliction of emotional distress — it does — but whether the “pleaded facts ... ascend, or perhaps descend, to a level permitting us to say that the benchmarks enunciated in Metropolitan have been met.” Ponton, 468 So.2d at 1011. In making that evaluation, we find comment “f” to section 46 of the Restatement (Second) of Torts instructive because it explains how knowledge of a person’s particular susceptibility to emotional distress is relevant to determining whether the conduct is sufficiently extreme and outrageous to constitute intentional infliction of emotional distress:

f. The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. It must be emphasized again, however, that major outrage is essential to the tort; and the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.

Viewed in isolation, the conduct Stead-man has alleged with respect to the lung transplant is not so outrageous that it qualifies as “ ‘atrocious, and utterly intolerable in a civilized community.’ ” See Metropolitan, 467 So.2d at 279 (quoting Restatement (Second) of Torts, § 46 cmt. d). However, paired with her specific allegation that Liberty Mutual and Peele knew, based on testimony from Steadman’s physicians, that she had a very limited life expectancy, and further considering that Steadman was well aware that the clock was ticking and that the additional emotional distress caused by the delay could well hasten her demise, we conclude that the conduct falls within the ambit of comment “f ’ of section 46. Further, comment “e” explains that the unequal position of the parties in a relationship, where one asserts and has the power to affect the interests of the other, may also supply the heightened degree of outrageousness required for a claim of intentional infliction of emotional distress. See Restatement (Second) of Torts, § 46 cmt. e. Liberty Mutual was in such a position in relation to Steadman. Finally, accepting the allegations in the complaint as true, Liberty Mutual’s delay was wholly unjustified because the issue of Steadman’s entitlement to the lung transplant had been litigated, and the JCC had ordered Liberty Mutual to authorize the transplant. See Harris, 510 So.2d at 989 (holding that the insured sufficiently alleged a cause of action for intentional infliction of emotional distress where the insurer rejected the insured’s claim for disability payments without any justification and where coverage had been previously determined to exist). Compare Metropolitan, 467 So.2d at 279 (holding that the insured failed to allege a cause of action for intentional infliction of emotional distress where the insurer asserted its “legal rights in a legally permissible way” by withholding benefits until the insured provided certain information in accordance with the policy).

Accordingly, we conclude that the conduct alleged in Steadman’s complaint is “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency’ ” and thus meets the standard adopted in Metropolitan, 467 So.2d at 278-79 (quoting Restatement (Second) of Torts, § 46 cmt. d). We affirm the trial court’s denial of Liberty Mutual and Peele’s motion to dismiss Steadman’s complaint, and we remand for further proceedings.

Affirmed.

CANADY and WALLACE, JJ.,. Concur.

      . Because we are reviewing an order on a motion to dismiss, our standard of review is, of course, de novo. Wishnatzki v. Coffman Const., Inc., 884 So.2d 282 (Fla. 2d DCA 2004). However, the question of whether conduct is outrageous enough to support a claim of intentional infliction of emotional distress remains one of law for the court to determine in the first instance whether at summary judgment or at trial. See Baker v. Fla. Nat’l Bank, 559 So.2d 284, 287 (Fla. 4th DCA 1990) (stating that the trial court acted properly in making a decision at the summary judgment stage regarding the adequacy of the facts to support claim for intentional infliction of emotional distress and noting that the decision can also be made on a motion for a directed verdict).