text:
    James Alexander BRADFORD v. STATE of Alabama.
    CR-04-1462.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.

      Glenn L. Davidson, Mobile, for appellant. ■
    Troy King, atty. gen., and Robin Blevins Scales, asst. atty. gen., for appellee.
   COBB, Judge.

James Alexander Bradford was charged, in separate indictments, with criminal mischief in the first degree, a violation of § 13A-7-21(a)(l), Ala.Code 1975; trafficking in marijuana, a violation of § 13A-12-231(l)(b), Ala.Code 1975; and reckless driving, a violation of § 32-5A-190(a), Ala. Code 1975. Following a jury trial, he was convicted of all three charges. The trial court sentenced Bradford to 20 years in prison for the trafficking conviction; that sentence was split and Bradford was ordered to serve 5 years in prison followed by 5 years on probation. Bradford was sentenced to five years in prison for the criminal-mischief conviction; that sentence was split and Bradford was ordered to serve one year in prison followed by five years on probation. For the remaining conviction, Bradford was sentenced to one year in prison. The sentences were ordered to run concurrently.

I.

Bradford contends that the trial court erred in denying his motion for a judgment of acquittal made at the conclusion of the State’s case. When he made the motion, Bradford argued, in pertinent part, that the State had failed to establish a prima facie case of trafficking in marijuana because, according to Bradford, there was no evidence indicating that he had knowledge of the marijuana or that he exercised dominion and control or intended to exercise dominion and control over the marijuana. Thus, he claimed, the State failed to present evidence to connect him to the marijuana. On appeal Bradford challenges the sufficiency of the evidence, arguing that there was not sufficient circumstantial evidence from which the jury could have inferred that he had knowledge of the marijuana in the back of his brother’s vehicle and, therefore, that he aided and abetted in trafficking that marijuana.

Officer Hyland Robinson of the Prichard Police Department testified that on August 29, 2002, he observed a Ford Expedition sport-utility vehicle with a suspicious temporary license tag, and that when he turned on his siren and lights to pull the Expedition over to investigate, the Expedition sped away. Officer Robinson stated that he could see the driver of the Expedition looking at him in the side mirrors. According to Officer Robinson, after several turns and an extended chase, the Expedition made a sudden left turn and struck a Cadillac automobile, which, in turn, rammed Officer Robinson’s squad car.

According to Officer Robinson, after the collision with the Cadillac, he backed up and continued the pursuit. Officer Robinson testified that the Cadillac followed him, struck his police car on the passenger side of the car, and then turned away. According to Officer Robinson, after numerous changes of direction, he again saw the Cadillac waiting on the side of the road. Officer Robinson stated that the Cadillac pulled out and rammed him again. According to Officer Robinson, the Cadillac continued following and ramming him until, on approximately the fifth collision, the Cadillac knocked his police car up onto the curb and essentially disabled his police car.

According to Officer Robinson, after the final collision, the Cadillac was also effectively stopped because of the damage it had sustained and by additional police cars that had joined the chase and surrounded the Cadillac. Officer Robinson stated that he provided other officers with the description and general location of the Expedition and that those officers located and eventually stopped the Expedition. Officer Robinson stated that his part in the chase lasted over 20 minutes and that he reached speeds of more than 50 miles per hour in residential areas where the posted speed limit was 25 miles per hour, and 70 miles per hour in areas where the posted speed limit was 35 miles per hour.

According to Officer Robinson, he noticed the driver of the Cadillac talking on his cellular telephone during the chase, and the driver of the Cadillac was still on his cellular phone even after his car had been surrounded by police vehicles and he was ordered out of his car by officers. Officer Robinson further stated at trial that the Cadillac had been directly behind the Expedition when he initiated the pursuit.

Captain Eddie Ragland testified that he joined the chase after it had began and that he noticed a brown Cadillac with heavy damage passing in the opposite direction of Officer Robinson’s vehicle and the Expedition. Captain Ragland stated that he stopped and took up an observation point. Captain Ragland further testified that, after hearing dialogue on the police radio, he saw the Expedition drive past him, at which time he began pursuing the Expedition. According to Captain Ragland, the driver of the Expedition was on his cellular telephone while he was pursuing the Expedition. Captain Ragland stated that he noticed the driver’s door of the Expedition open several times during the chase, so he performed a “pit maneuver,” i.e., he struck the Expedition with his squad car and forced the Expedition to stop. (R. 102.) According to Captain Ragland, after a short pursuit on foot, he and other officers caught the driver of the Expedition, whom he identified at trial as Courtney Bradford.

The evidence further indicated that officers discovered approximately 154 pounds of marijuana in the back of the Expedition.

Bradford testified that he and his brother, Courtney, did not live or work together and did not generally associate with the same people. According to Bradford, on the day this incident occurred, Courtney telephoned him and told him that he needed help. Bradford testified that he drove to the location Courtney described. Bradford stated that he saw Courtney and a police car coming toward him and that, in the process of swerving to avoid hitting his brother or the police car head-on, he struck a tree with his Cadillac. According to Bradford, he backed up and began following the police car and his brother’s automobile, at which time he accidentally struck a police car. Bradford denied any knowledge of the marijuana in the Expedition. Bradford stated that he was scared for his brother’s life and that he heard gunshots, both on the telephone when his brother called him and during his participation in the pursuit.

“Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of any part of the plant of the genus Cannabis ... is guilty of a felony, which felony shall be known as ‘trafficking in cannabis.’ ... If the quantity of cannabis involved:
“b. Is 100 pounds or more, but less than 500 pounds, the person. shall be ■sentenced to a mandatory minimum term of imprisonment of five calendar years and to pay a fine of fifty thousand dollars ($50,000).”

Section 13A-12-231(1), Ala.Code 1975.

“ ‘In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). “ ‘The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). “ ‘When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.’ ” Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). “The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.” Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

“In reviewing a conviction based on circumstantial evidence, this court must view that evidence in the light most favorable to the prosecution. The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude. United States v. Black, 497 F.2d 1039 (5th Cir.1974); United States v. McGlamory, 441 F.2d 130 (5th Cir.1971); Clark v. United States, 293 F.2d 445 (5th Cir.1961).
“‘[W]e must keep in mind that the test to be applied is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis but that of guilt; but rather whether the jury might so conclude. Harper v. United States, 405 F.2d 185 (5th Cir.1969); Roberts v. United States, 416 F.2d 1216 (5th Cir.1969). The procedure for appellate review of the sufficiency of the evidence has been aptly set out in Odom v. United States, 377 F.2d 853, 855 (5th Cir.1967):
“ ‘ “Our obligation, therefore, is to examine the record to determine whether there is any theory of the evidence from which the jury might have excluded every hypothesis except guilty beyond a reasonable doubt. Rua v. United States, 5 Cir., 1963, 321 F.2d 140; Riggs v. United States, 5 Cir., 1960, 280 F.2d 949. In Judge Thornberry’s words, the standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every hypothesis other than guilt, but rather whether there was evidence from which the jury might reasonably so conclude.’ Williamson v. United States, 5th Cir., 1966, 365 F.2d 12, 14. (Emphasis supplied).”
“ ‘The sanctity of the jury function demands that this court never substitute its decision for that of the jury. Our obligation is [to] examine the welter of evidence to determine if there exists any reasonable theory from which the jury might have concluded that the defendant was guilty of the crime charged.’ McGlamory, 441 F.2d at 135 and 136.”

Cumbo v. State, 368 So.2d 871, 874-75 (Ala.Crim.App.1978).

Although the marijuana was found in the Expedition and not the Cadillac Bradford was driving, it is well-settled that a person present and aiding and abetting in the commission of a crime is guilty as a principal and punishable equally with the perpetrator of the crime.

“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
“(1) He procures, induces or causes such other person to commit the offense; or
“(2) He aids or abets such other person in committing the offense.... ”

§ 13A-2-23, Ala.Code 1975. Further,

“[t]he words ‘aid and abet’ encompass all assistance by acts, words of encouragement, or support, or presence, actual or constructive, to render assistance should it become necessary. Wright [v. State, 494 So.2d 936 (Ala.Crim.App.1986)]; Sanders v. State, 423 So.2d 348 (Ala.Crim.App.1982). Actual participation in the crime need not be proved by positive testimony to convict someone of aiding and abetting. ‘The jury is to determine whether the appellant’s participation exists and the extent of it from the conduct of the parties and all the testimony presented.’ Walls v. State, 378 So.2d 1186, 1191 (Ala.Cr.App.1979), cert. denied, Ex parte Walls, 378 So.2d 1193 (Ala.1980). Such facts as the defendant’s presence in connection with his companionship, and his conduct at, before, and after the commission of the act, are potent circumstances from which participation may be inferred. Sanders v. State, supra; Smith v. State, 57 Ala.App. 151, 326 So.2d 680 (1975), cert. denied, 295 Ala. 419, 326 So.2d 686 (1976).”

Henry v. State, 555 So.2d 768, 769 (Ala.Crim.App.1989). Additionally,

“[a]ny word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether or not the one so contributing is present, brings the accused within the statute that makes any person concerned in the commission of a felony, directly or indirectly, a principal. No particular acts are necessary to make one an aider and abettor....”

Scott v. State, 374 So.2d 316, 318-19 (Ala.1979) (citation omitted). Finally,

“ ‘[w]here the evidence is conflicting as to the defendant’s connection as an accomplice or co-conspirator, a jury question is presented.’ Sanders v. State, [423 So.2d 348 (Ala.Crim.App.1982) ], citing Watkins v. State, 357 So.2d 156, 160 (Ala.Cr.App.1977), cert. denied, 357 So.2d 161 ([Ala.]1978).”

Henry, 555 So.2d at 770.

From the evidence, the jury could have concluded that Bradford and- Courtney were traveling in tandem when Officer Robinson observed the suspicious tag on Courtney’s vehicle and attempted to initiate a traffic stop to investigate. There was evidence from which the jury could have concluded that Courtney telephoned Bradford to update him on his location in the pursuit and that Bradford attempted to assist Courtney in evading the police by repeatedly ramming Officer Robinson’s police car. Finally, the jury could have inferred from the testimony regarding Bradford’s conduct and actions that he knew the marijuana was in the back of the Expedition. Thus, there was evidence from which the jury could have reasonably concluded that Bradford knowingly aided and abetted Courtney in the trafficking of marijuana. Therefore, the trial court’s denial of Bradford’s motion for a judgment of acquittal was proper, and Bradford is not entitled to any relief on this claim.

II.

Bradford further avers that the trial court erred in denying his motion for a new trial. Specifically, Bradford argues:

“Following his conviction, Bradford filed a motion for new trial (C-82) based on the affidavit of Courtney Bradford (C-84) in which Courtney Bradford stated that James Bradford had no knowledge of the marijuana in the back of [Courtney’s] vehicle, that he had nothing to do with it, and that Courtney Bradford alone was responsible for it. The affidavit and motion state that Courtney Bradford entered a guilty plea on the day of James Bradford’s trial and that he'did not testify because he was advised not to do so by his lawyer. After taking testimony at a hearing on the motion, the trial court denied the motion.
“The decision of a trial court on a motion for new trial alleging newly discovered evidence will not be reversed on appeal absent an abuse of discretion. Banks v. State, 845 So.2d 9 (Ala.Cr.App.2002). Bradford submits the trial court abused its discretion in denying the motion. Courtney Bradford was not available as a witness due to his exercise of his Fifth Amendment rights. His testimony would have had a substantial impact on the trial, and the outcome would likely have been different on the trafficking in marijuana charge. The trial court erred in denying the motion.”

(Bradford’s brief at p. 20.)

We note that

“[I]n order to establish the necessity for a new trial based on newly discovered evidence, the appellant must prove: (1) that the evidence was discovered after the trial; (2) that the evidence could not have been discovered prior to trial by due diligence on the part of the movant; (3) that the evidence is material to the issue of the appellant’s guilt; (4) that the evidence is not merely cumulative or impeaching; and (5) that the evidence would probably change the outcome if a new trial was granted.”

Gillespie v. State, 644 So.2d 1284, 1289 (Ala.Crim.App.1994).

Here, Bradford obviously knew of the existence of Courtney’s involvement in the drug-trafficking enterprise; further, Bradford knew whether he himself was also involved in the trafficking enterprise with Courtney. Thus, this evidence is more accurately characterized as “newly disclosed evidence” rather than “newly discovered evidence.” See Travis v. State, 776 So.2d 819, 845-47 (Ala.Crim.App.1997) (ruling that the defendant’s knowledge about his involvement in the murder revealed that his “newly discovered evidence” — a codefendant’s confession to the crime — amounted only to “newly disclosed evidence”). Further, “[a] motion for new trial should not be granted to call a witness who refused to testify in the original trial.” Stout v. State, 547 So.2d 894, 898 (Ala.Crim.App.1988). Therefore, the trial court did not abuse its discretion in denying Bradford’s motion for a new trial.

III.

Finally, Bradford argues that his one-year sentence for reckless driving exceeded the statutory maximum for a conviction for reckless driving.

The indictment charging Bradford with reckless driving alleged that Bradford

“did operate a motor vehicle carelessly and heedlessly and in willful and wanton disregard for the rights or safety of other persons or property, to-wit: intentionally rammed the vehicle of a police officer, in violation of § 32-5A-190 of the Code of Alabama....”

(C. 18.) The offense of reckless driving is set out in § 32-5A-190, Ala.Code 1975, as follows:

“(a) Any person who drives any vehicle carelessly and heedlessly in willful or wanton disregard for the rights or safety of persons or property, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving.
“(b) Every person convicted of reckless driving shall be punished upon a first conviction by imprisonment for a period of not less than five days nor more.than 90 days, or by fine of not less than $25.00 nor more than $500.00, or by both such fine and imprisonment, and on a second or subsequent conviction shall be punished by imprisonment for not less than 10 days nor more than six months, or by a fine of not less than $50.00 nor more than $500.00, or by both such fine and imprisonment....”

It is clear from the record that Bradford was sentenced to one year in prison for his conviction in case no. CC-03-487. Although we agree that this sentence exceeds the statutory maximum punishment for reckless driving, we must first determine what offense Bradford was actually convicted of committing.

As is noted above, the indictment clearly charged Bradford with reckless driving, a violation of § 32-5A-190. However, we note that, without objection from Bradford, throughout the course of the trial the trial court referred to the charge against Bradford as reckless endangerment, which is a violation of § 13A-6-24, Ala.Code 1975. Further, the case action summary lists the charge as reckless endangerment rather than reckless driving. Similarly, the verdict form reads as follows: “We, the jury, find the defendant James Alexander Bradford guilty of the offense of Reckless Endangerment, as charged in the indictment.” (C. 19.) Finally, we note that the characterization of the offense as reckless endangerment was not limited to the trial court; defense counsel too referred to the offense as reckless endangerment.

In Tinker v. State, 932 So.2d 168 (Ala.Crim.App.2005), this Court reversed a conviction where the appellant was indicted for conspiracy to commit trafficking, but the jury verdict form omitted any reference to conspiracy and, instead, provided the jury was to find Tinker either “ ‘guilty of trafficking cocaine, as charged in count one of the indictment’ ” or “ ‘not guilty of trafficking cocaine, as charged in count one of the indictment.’ ” Tinker, 932 So.2d at 177. In Tinker, the appellant was alleged to have conspired with others to sell cocaine, but there were no allegations that he had actually trafficked in cocaine. This Court noted that the trial court’s jury instructions on conspiracy to traffic in cocaine contained an instruction regarding the offense of trafficking in cocaine to assist the jury in determining whether Tinker had conspired to traffic in cocaine. We stated, however, that it was “conceivable that a layperson on the jury could have easily construed the instructions as requiring the jury to determine whether Tinker was guilty of trafficking in cocaine.” Id. at 177. Thus, we concluded that under the facts of that case, it was unclear whether the jury intended its verdict to be a finding that Tinker had conspired to traffic in cocaine, as charged in the indictment, or a finding that he had actually trafficked in cocaine, an offense for which he had not been charged and was not a lesser-included offense under the circumstances of his case.

Here, however, unlike in Tinker, the jury’s intent is clear from the record. The trial court’s oral instructions to the jury were-, in pertinent part, as follows:

“[Bradford] is also charged with the offense of reckless endangerment. A person commits the crime of reckless endangerment in the State of Alabama if a person drives any vehicle carelessly and heedlessly in willful or wanton disregard for the rights of safety of another person and without due caution and cir-cum — circumspection and at a speed or a manner so as to endanger or be likely to endanger any person or property. If a person commits these particular acts, they shall be guilty of reckless endangerment.
“If you find that the State has proved each of the above elements of the offense of reckless endangerment, then you shall find [Bradford] guilty of reckless endangerment. If you find that the State has failed to prove any one or more of the elements of reckless endangerment, then you cannot find [Bradford] guilty of reckless endangerment.”

(R. 186-87.)

The jury was never instructed on the elements of reckless endangerment, as set out in § 13A-6-24, Ala.Code 1975, which provides that “[a] person commits the crime of reckless endangerment if he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.” Rather, the jury was instructed only on the elements that constitute the offense of reckless driving, i.e., the offense for which Bradford was indicted. Thus, the erroneous reference on the verdict form to the charge as reckless endangerment does not draw the jury’s intent into question, because the jury could not have found Bradford guilty of an offense as to whose elements it had not been instructed. Clearly, the jury in this case found Bradford guilty of violating § 32-5A-190, Ala.Code 1975, because those were the only elements given in that charge.

Thus, having determined that Bradford was convicted of reckless driving, a violation of § 32-5A-190, as charged in the indictment, we agree with his contention that his one-year sentence is illegal. Therefore, this case is due to be remanded for the trial court to resentence Bradford for his reckless-driving conviction to a sentence within the statutory range of punishment for that offense. The ease action summary and the sentencing order should be amended to reflect the correct charge. Due return should be filed with this Court no later than 28 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.

      . Bradford was also ordered to pay a $50,000 fine pursuant to § 13A-12-231(a)(2), a $1,000 drug fine pursuant to § 13A-12-281, and a $100 fine for deposit into the Alabama Forensic Services Trust Fund pursuant to § 36-18-7(a), Ala.Code 1975.

      . Officer Robinson stated that he did not hear any gunshots until after his and Bradford’s automobiles had been disabled by Bradford’s repeated ramming of his police car. Captain Ragland testified that he heard gunshots sometime after he arrived in the area but before joining in the pursuit of the Expedition.


source: Caselaw Access Project

author: SHAW, Judge.

license: Public Domain

text:
    Timothy Lee HARRIS v. STATE of Alabama.
    CR-04-0274.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 2006.
    Rehearing Denied April 14, 2006.
    Certiorari Denied Aug. 11, 2006 Alabama Supreme Court 1051042.

      Richard R. Klemm, Dothan, for appellant.
    Troy King, atty. gen., and Nancy M. Kirby, deputy atty. gen., for appellee.
   SHAW, Judge.

Timothy Lee Harris was convicted of trafficking in marijuana, a violation of § 13A-12-23K1), Ala.Code 1975. He was sentenced, as a habitual felony offender, to life imprisonment.

On appeal, Harris contends that the trial court erred in denying his motion to suppress the marijuana evidence found as a result of a warrantless search of his automobile because, he says, the search did not fall within the automobile exception to the warrant requirement. Specifically, he argues (1) that there was no probable cause to search his vehicle, and (2) that his vehicle was parked on private property at the time of the search and the automobile exception, even if there was probable cause to search, does not apply to vehicles parked on private property.

The evidence adduced at the suppression hearing and at trial indicated the following. Carlton Ott, a corporal with the Dothan Police Department assigned to the vice-intelligence division, testified that on August 19, 1999, he received information from a confidential informant, who had provided reliable information in the past, that Harris was in possession of a large amount of marijuana at his residence at 2401 Brown Street. The informant said that he had seen Harris in possession of the marijuana within the last few hours; that the marijuana was located in Harris’s white Plymouth Laser automobile, which was parked outside the residence; and that a second automobile, a white Mazda 929, was also parked outside the residence. That evening, approximately six hours after receiving the information from the informant, Cpl. Ott and Mark Nelms, a sergeant in the vice-intelligence division of the Dothan Police Department, set up surveillance at Harris’s residence, a mobile home, to corroborate the information received from the informant. They saw both vehicles described by the informant parked in the front yard of the mobile home.

Cpl. Ott testified that at approximately 10:10 p.m. they saw Harris leave the mobile home and get in the Plymouth Laser. According to Cpl. Ott, Harris sat in the vehicle for a few minutes until a black female drove up in a maroon Hyundai Sonata automobile and parked on the street in front of the residence. At that point, Cpl. Ott said, Harris got out of the Plymouth Laser and got into the Hyundai Sonata; Harris and the driver of the Sonata sat in the vehicle for a few minutes and then drove away. Cpl. Ott then radioed two backup officers and told them to stop the Sonata. Cpl. Ott said that he saw no bulges in Harris’s clothing when he got out of the Laser and into the Sonata; that he had no information on the driver of the Sonata; and that no' arrests were made during the stop. According to Cpl. Ott, no more than three minutes after the stop was completed, the Sonata returned to Harris’s residence, Harris got out of the Sonata and got in the Laser, and then drove the Laser toward the back of the mobile home. At that point, Cpl. Ott said, they decided to “move in” because “[i]t was obvious ... that criminal activity was taking place.” (R. 28.)

Cpl. Ott and Sgt. Nelms, as well as the officers who had stopped the Sonata, entered the premises and met Harris as he was walking around from the back to the front of the mobile home. They detained Harris and conducted a Terry patdown of his person. Cpl. Ott testified that Harris told him that his mother was inside the residence, and Cpl. Ott then knocked on the front door. According to Cpl. Ott, he informed Harris’s mother that he had information that Harris was in possession of marijuana, and Harris’s mother gave him permission to search her mobile home. Cpl. Ott testified that Harris did not appear nervous about the search of the mobile home. However, shortly after detaining Harris, Cpl. Ott called for a K-9 unit to come to the residence so that a drug-sniffing dog could sniff the Laser. When Harris heard that Cpl. Ott had called for a K-9 unit, Cpl. Ott said, Harris became nervous and began calling for his mother. Cpl. Ott then asked Harris for the key to the Laser, and Harris handed him a key. However, Cpl. Ott recognized that the key Harris gave him was not a Chrysler-product key and he then asked Harris if he was sure this was the key to the Laser. According to Cpl. Ott, Harris told him that the key fit the Mazda 929 and that he did not have a key to the Laser. Cpl. Ott testified that the officer who had conducted the patdown of Harris told him that Harris had another key ring in the pocket of his shorts and Cpl. Ott then reached in Harris’s pocket and retrieved the key to the Laser.

Shortly after Cpl. Ott retrieved the key, the K-9 unit arrived, and the K-9 officer walked his dog around the Laser; the dog alerted to the presence of narcotics at the réar of the vehicle. At that point, Cpl. Ott used the key to open the vehicle and discovered in the rear hatchback portion of the vehicle three one-gallon Ziploc brand plastic bags that were later determined to contain 2.92 pounds of marijuana. In addition, a large amount of currency was found in the center console, various papers with Harris’s name on them were found in the glove compartment, and the registration indicated that the vehicle was registered to “Tim or Patricia Harris.” (R. 74.)

Standard of Review

“When an appellate court reviews the findings and holdings of a trial court resulting from a hearing on a motion to suppress evidence, if the evidence before the trial court was undisputed, the ‘ore tenus rule,’ pursuant to which the trial court’s conclusions on issues of fact are presumed correct, is inapplicable, and the reviewing court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.”

Ex parte Kelley, 870 So.2d 711, 714 (Ala.2003). Here, the evidence was undisputed; the only issue is whether the trial court properly applied the law regarding probable cause and the automobile exception to the warrant requirement to the undisputed facts. Therefore, we review de novo the trial court’s denial of Harris’s motion to suppress.

Probable Cause

“A warrantless search of a vehicle is justified where there is probable cause to believe the vehicle contains contraband.” Lykes v. State, 709 So.2d 1335, 1337 (Ala.Crim.App.1997).

“ ‘Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ Sheridan v. State, 591 So.2d 129, 130 (Ala.Cr.App.1991). ‘The requisite probable cause is present “if a reasonably prudent person, based on the facts and circumstances which the officer knows, would be justified in concluding that the items sought are connected with criminal activity and that they will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213 [103 S.Ct. 2317, 76 L.Ed.2d 527] ... (1983).’” Day v. State, 539 So.2d 410, 413-14 (Ala.Cr.App.1988). “‘The test for probable cause is ‘whether the facts available to the officer at the moment of the seizure or search, would warrant a man of reasonable caution to believe that the action taken was appropriate.’ ” ’ Ivey v. State, 698 So.2d 179, 185-86 (Ala.Cr.App.1995), aff'd, 698 So.2d 187 (Ala.1997) (quoting Riley v. State, 583 So.2d 1353, 1355 (Ala.Cr.App.1991)).”

Johnson v. State, 719 So.2d 272, 273 (Ala.Crim.App.1998). “Probable cause to search a vehicle exists when all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and the vehicle contains contraband.” State v. Odom, 872 So.2d 887, 891 (Ala.Crim.App.2003). See also State v. Ivey, 709 So.2d 502, 505 (Ala.Crim.App.1997) (“Probable cause to believe a vehicle contains contraband exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that a search of the vehicle would produce contraband.”).

“ ‘Probable cause is concerned with “probabilities,” that “are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.” ’ ” Chevere v. State, 607 So.2d 361, 368 (Ala.Crim.App.1992), quoting Carter v. State, 435 So.2d 137, 139 (Ala.Crim.App.1982), quoting in turn Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

“ ‘Probable cause does not require an officer to compile an airtight case against a suspect.’ Williams v. State, 440 So.2d 1139, 1145 (Ala.Cr.App.1983). ‘It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief’ that certain items may be contraband ... it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required.’ Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (citations omitted).”

Mewbourn v. State, 570 So.2d 805, 808-09 (Ala.Crim.App.1990). “ ‘ “[PJrobable cause does not require certainty of criminal activity, but only probability.... First-hand observations of criminal activity by a reliable informant in conjunction with police corroboration of factual details provides just this probability.” ’ ” Harrelson v. State, 897 So.2d 1237, 1241 (Ala.Crim.App.2004), quoting McBride v. State, 492 So.2d 654, 658 (Ala.Crim.App.1986), quoting in turn United States v. Thompson, 751 F.2d 300, 302 (8th Cir.1985).

Initially, we note that on appeal Harris confines his probable-cause argument to those circumstances that occurred before the officers’ entry onto his premises. However, he does not challenge on appeal the officers’ entry onto his premises, the Terry patdown of his person, the search of his pocket to obtain the key to the Laser, or the use of the drug-sniffing dog. Therefore, he has waived any inquiry into the propriety of those actions, and this Court, in determining whether probable cause existed, can and will consider all of the circumstances within the officers’ knowledge at the time of the search, including those circumstances that occurred after the officers’ entry onto Harris’s premises.

Considering the totality of the circumstances, we conclude that there clearly was probable cause to search Harris’s vehicle. Within a few hours of receiving information from a reliable confidential informant that Harris was in possession of a large amount of marijuana, which was located in his white Plymouth Laser automobile at his residence, Cpl. Ott and Sgt. Nelms conducted surveillance at Harris’s residence and confirmed that both vehicles the informant had described as being at the residence were, in fact, parked in front of the residence. During their surveillance, Cpl. Ott and Sgt. Nelms saw Harris come out of his residence, sit in the Laser for a few minutes, and then leave in a Hyundai Sonata that had arrived at the residence. Although a stop of the Sonata did not result in any arrests, within three minutes after the stop, Harris returned and pulled the Laser around the back of his residence. When the officers first approached Harris on his premises and obtained consent from his mother to search the residence, Harris did not appear nervous; however, when Harris discovered that a K-9 unit had been called to sniff the Laser, he became nervous and began calling for his mother. In addition, when asked for the key to the Laser, Harris gave the officers the key to the other vehicle parked at the residence and claimed that he did not have a key to the Laser. Harris, however, had just driven the Laser from the front to the back of the mobile home and the key to the Laser was discovered in Harris’s pocket. Finally, when the drug-sniffing dog arrived at the scene and circled the vehicle, it alerted near the rear of the vehicle. These circumstances would warrant a person of reasonable caution to conclude that the Laser contained contraband. Therefore, there was probable cause to search the vehicle.

Automobile Exception

In California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), the United States Supreme Court explained the automobile exception to the warrant requirement as follows:

“The Fourth Amendment protects the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ This fundamental right is preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer. There are, of course, exceptions to the general rule that a warrant must be secured before a search is undertaken; one is the so-called ‘automobile exception’ at issue in this case. This exception to the warrant requirement was first set forth by the Court 60 years ago in Carroll v. United States, 267 U.S. 132 (1925). There, the Court recognized that the privacy interests in an automobile are constitutionally protected; however, it held that the ready mobility of the automobile justifies a lesser degree of protection of those interests. The Court rested this exception on a long-recognized distinction between stationary structures and vehicles:
“ ‘[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ Id., at 153 (emphasis added).
“The capacity to be ‘quickly moved’ was clearly the basis of the holding in Carroll, and our cases have consistently recognized ready mobility as one of the principal bases of the automobile exception. See, e.g., Cooper v. California, 386 U.S. 58, 59 (1967); Chambers v. Maroney, 399 U.S. 42, 52 (1970); Cady v. Dombrowski, 413 U.S. 433, 442 (1973); Cardwell v. Lewis, 417 U.S. 583, 588 (1974); South Dakota v. Opperman, 428 U.S. 364, 367 (1976). In Chambers, for example, commenting on the rationale for the vehicle exception, we noted that ‘the opportunity to search is fleeting since a car is readily movable.’ 399 U.S., at 51. More recently, in United States v. Ross, 456 U.S. 798, 806 (1982), we once again emphasized that ‘an immediate intrusion is necessary’ because of ‘the nature of an automobile in transit....’ The mobility of automobiles, we have observed, ‘creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible.’ South Dakota v. Opperman, supra, at 367.
“However, although ready mobility alone was perhaps the original justification for the vehicle exception, our later cases have made clear that ready mobility is not the only basis for the exception. The reasons for the vehicle exception, we have said, are twofold. 428 U.S., at 367. ‘Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office.’ Ibid.
“Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified application of the vehicular exception. See, e.g., Cady v. Dombrowski, supra. In some cases, the configuration of the vehicle contributed to the lower expectations of privacy; for example, we held in Cardwell v. Lewis, supra, at 590, that, because the passenger compartment of a standard automobile is relatively open to plain view, there are lesser expectations of privacy. But even when enclosed ‘repository’ areas have been involved, we have concluded that the lesser expectations of privacy warrant application of the exception. We have applied the exception in the context of a locked car trunk, Cady v. Dombrowski, supra, a sealed package in a car trunk, Ross, supra, a closed compartment under the dashboard, Chambers v. Maroney, supra, the interior of a vehicle’s upholstery, Carroll, supra, or sealed packages inside a covered pickup truck, United States v. Johns, 469 U.S. 478 (1985).
“These reduced expectations of privacy derive not from the- fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways. Cady v. Dombrowski, supra, at 440-441. As we explained in South Dakota v. Opperman, an inventory search case:
“ ‘Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.’ 428 U.S., at 368.
“The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, ‘individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate’s prior evaluation of those facts.’ Ross, supra, at 806, n. 8. In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.
“When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes — temporary or otherwise — the two justifications for the vehicle exception come into play. First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving. Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling. At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable.”

471 U.S. at 390-93, 105 S.Ct. 2066 (footnote omitted). No additional exigent circumstances are required for the warrant-less search of a vehicle; probable cause alone is sufficient to bring a search within the automobile exception. See Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996), wherein the United States Supreme Court upheld the warrantless search of a vehicle parked in the driveway of a farmhouse, and stated that “[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.” See also Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999), wherein the United States Supreme Court, reaffirming its holding in Labron, stated:

“The Fourth Amendment generally requires police to secure a warrant before conducting a search. California v. Carney, 471 U.S. 386, 390-391 (1985). As we recognized nearly 75 years ago in Carroll v. United States, 267 U.S. 132, 153 (1925), there is an exception to this requirement for searches of vehicles. And under our established precedent, the ‘automobile exception’ has no separate exigency requirement. We made this clear in United States v. Ross, 456 U.S. 798, 809 (1982), when we said that in cases where there was probable cause to search a vehicle ‘a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not been actually obtained.’ (Emphasis added.) In a case with virtually identical facts to this one (even down to the bag of cocaine in the trunk of the car), Pennsylvania v. Labron, 518 U.S. 938 (1996) (per curiam), we repeated that the automobile exception does not have a separate exigency requirement: ‘If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.’ Id., at 940.
“In this case, the Court of Special Appeals found that there was ‘abundant probable cause’ that the car contained contraband. This finding alone satisfies the automobile exception to the Fourth Amendment’s warrant requirement, a conclusion correctly reached by the trial court when it denied respondent’s motion to suppress. The holding of the Court of Special Appeals that the ‘automobile exception’ requires a separate finding of exigency in addition to a finding of probable cause is squarely contrary to our holdings in Ross and La-drón. We therefore grant the petition for writ of certiorari and reverse the judgment of the Court of Special Appeals.”

In arguing that the automobile exception to the warrant requirement does not apply to a vehicle parked on private property, Harris principally relies on the last paragraph in Carney quoted above, specifically, the following statement: “When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes — temporary or otherwise — the two justifications for the vehicle exception come into play.” 471 U.S. at 392-93, 105 S.Ct. 2066 (footnote omitted; emphasis added). However, Harris’s reliance on this single sentence is misplaced.

As the South Carolina Supreme Court explained in State v. Cox, 290 S.C. 489, 351 S.E.2d 570 (1986):

“In a plurality opinion the Court [of Appeals of South Carolina] held the ‘automobile exception’ to the warrant requirement was not applicable because Cox’s car was found at his residence. The Court, relying upon California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), concluded that ‘an automobile found parked at a person’s home is protected from warrantless searches.’ 287 S.C. [260,] 264, 335 S.E.2d [809,] 811 [ (Ct.App.1985) ].
‘We disagree.
“The automobile exception was first articulated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Since Carroll, the doctrine has been applied on a case-by-case basis to various sets of facts. See generally cases cited in Annot, 66 L.Ed.2d 882, Validity of Warrantless Search of Motor Vehicles.
“The two bases for the exception are: (1) the ready mobility of automobiles and the potential that evidence may be lost before a warrant is obtained; and (2) the lessened expectation of privacy in motor vehicles which are subject to governmental regulation.
“The source of the Court of Appeals’ ruling is the following language from Carney:
“ ‘When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes — temporary or otherwise — the two justifications for the vehicle exception come into play.’ [Emphasis supplied].
471 U.S. at 392, 105 S.Ct. at 2070, 85 L.Ed.2d at 414.
“The plurality interpreted this to mean that the automobile exception does not apply to any vehicle parked at a residence. However, Carney dealt with a motor home, or camper vehicle. Even though the language cited above may appear to apply to all motor vehicles, a close reading, in context, makes it clear that the Court was addressing only the inapplicability of the exception as to motor homes set up on a site and used as a residence. In the same paragraph from which the above sentence is cited, the Carney Court states ‘there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulations inapplicable to a fixed dwelling.’ [Emphasis supplied]. 471 U.S. at 393, 105 S.Ct. at 2070, 85 L.Ed.2d at 414. The emphasized pronoun ‘its’ in this sentence clearly refers to a motor home.
“No prior Supreme Court cases have recognized a distinction between vehicles parked in public and private places. Indeed, such a distinction would not harmonize with the Court’s reasoning in automobile search cases.
“The Carney Court makes clear that under the automobile exception, probable cause alone is sufficient to justify a warrantless search. 'As the Court stated, ‘the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches [of vehicles] without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.’ [Emphasis supplied]. 471 U.S. at 392, 105 S.Ct. at 2070, 85 L.Ed.2d at 414. That is, the inherent mobility of automobiles provides the requisite exigency.”

290 S.C. at 491-92, 351 S.E.2d at 571-72. We agree. Carney involved the warrant-less search of a motor home, readily capable of use either as a home or as a vehicle. In upholding the warrantless search under the automobile exception to the warrant requirement, the United States Supreme Court relied in part on the location of the motor home — in a parking lot in downtown San Diego — in concluding that the motor home was “so situated that an objective observer would conclude that it was being used not as a residence, but as a vehicle.” Carney, 471 U.S. at 393, 105 S.Ct. 2066. Indeed, the Court'pointed out that it “need not pass on the application of the vehicle exception to a motor home that is situated in a way or place that objectively indicates that it is being used as a residence.” 471 U.S. at 394 n. 3, 105 S.Ct. 2066. Thus, the Court’s statement in Carney that the automobile exception applies when a vehicle is found “in a place not regularly used for residential purposes,” 471 U.S. at 392, 105 S.Ct. 2066, was a reference to the limitation of the automobile exception to motor homes (or other objects that are equally capable of use as either a home or a vehicle) that are situated in such a place and in such a manner as to indicate their use as vehicles rather than homes.

Other courts have similarly construed this language in Carney. In United States v. Brookins, 345 F.3d 231 (4th Cir.2003), the United States Court of Appeals for the Fourth Circuit stated:

“On appeal, Brookins proposes an interpretation of the ‘automobile exception,’ which he grounds largely in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).[] In Coolidge, the Supreme Court, by the opinion of a four-justice plurality, declined to apply Carroll [v. United States, 267 U.S. 132 (1925),] under circumstances evincing no exigency whatsoever. Specifically, the defendant’s automobile was parked in his own driveway and contained no contraband. Additionally, the police had developed probable cause well in advance of the warrantless search. Brookins maintains that Coolidge represents the sole Supreme Court decision to address ‘head-on’ the war-rantless search of an automobile at a private residence. Based upon the facts of Coolidge, Brookins would posit a bright-line rule, whereby the automobile exception may never apply when a vehicle is stationed on private, residential property.
“Brookins seeks additional support for this theory in California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), where the Supreme Court held that a mobile home, on the facts presented, was more characteristic of an automobile than a fixed residence. The Court did look to the nature of the location where the vehicle was discovered, but only to ascertain whether the vehicle itself was, in an ontological sense, in use as a ‘movable vessel’ or as a fixed residence. Hence, the Court’s reference to a ‘place not regularly used for residential purposes,’ Carney, 471 U.S. at 392, 105 S.Ct. 2066—from which the police would be less likely to infer that the object was residential in nature — served as a guidepost to determine, ab initio, whether the object encountered was a vehicle or a residence. After considering these circumstances, the Court concluded that the warrantless search of the mobile home was covered by the ‘automobile exception.’ Id. at 394, 105 S.Ct. 2066. Brookins’ invocation of Carney to buttress his reading of Coolidge as generating a bright-line approach to the application of the ‘automobile exception’ is therefore flawed. The Supreme Court has expressly held that the ‘automobile exception’ is applicable ‘[i]f a car is readily mobile and probable cause exists to believe it contains contraband.’ [Maryland v.] Dyson, 527 U.S. [465,] 466, 119 S.Ct. 2013 [(1999)] (internal quotation and citation omitted).
“In light of the Supreme Court’s holding in Dyson, we find the ‘automobile exception’ applicable to the case before us. First, the motor vehicle at issue was clearly operational and therefore ‘readily movable.’ Second, as discussed in greater detail above, the police officers had probable cause to conclude that there was contraband in the vehicle, as the party responsible for the vehicle’s flight, Brookins’ wife, was present on the scene at her mother’s home. Given these facts, the warrantless search of Brookins’ vehicle by law enforcement officers did not violate his Fourth Amendment rights.

345 F.3d at 237-38. Similarly, in State v. Marquardt, 247 Wis.2d 765, 635 N.W.2d 188 (Ct.App.2001), the Wisconsin Court of Appeals noted:

“Despite the ‘public place’ language that appears in [various Wisconsin] cases, we conclude that the automobile exception is nonetheless applicable to Marquardt. The genesis of the language was [California v.] Carney, [471 U.S. 386 (1985),] which involved the search of a fully mobile motor home located in a public place. See Carney, 471 U.S. at 387, 105 S.Ct. 2066. United States Supreme Court cases subsequent to Carney have not recognized a public place requirement for the automobile exception. See, e.g., [Maryland v.] Dyson, 527 U.S. [465,] 467, 119 S.Ct. 2013 [ (1999) ]. Thus, to the extent that Carney ever intended to impose a public place requirement, it is no longer applh cable.”

247 Wis.2d at 790, 635 N.W.2d at 200. See also United States v. Fladten, 230 F.3d 1083 (8th Cir.2000); United States v. Markham, 844 F.2d 366 (6th Cir.1988); United States v. Moscatiello, 771 F.2d 589 (1st Cir.1985), vacated on other grounds sub nom. Carter v. United States, 476 U.S. 1138, 106 S.Ct. 2241, 90 L.Ed.2d 688 (1986); United States v. Hamilton, 792 F.2d 837 (9th Cir.1986); People v. Garvin, 235 Mic.App. 90, 597 N.W.2d 194 (1999); and Commonwealth v. A Juvenile (No. 2), 411 Mass. 157, 580 N.E.2d 1014 (1991) (all upholding warrantless searches of vehicles parked on private property).

There appears to be a consensus among other jurisdictions that the language in Carney does not indicate a per se rule precluding application of the automobile exception to vehicles parked on private property, but there also appears to be a split among jurisdictions as to whether Carney requires the presence of exigent circumstances, beyond the ready mobility of vehicles, before the automobile exception is applicable to a vehicle parked on private property. See, e.g., United States v. Shepherd, 714 F.2d 316, 319-20 (4th Cir.1983) (“[T]he danger posed by the inherent mobility of an automobile must outweigh whatever enhanced privacy interest exists when the car is parked at home if it appears the car is about to take flight.”); State v. Lejeune, 276 Ga. 179, 183, 576 S.E.2d 888, 893 (2003) (holding “that the automobile exception does not apply where ... the suspect’s car was legally parked in his residential parking space [and] the suspect and his only alleged cohort were not in the vehicle or near it and did not have access to it”), and State v. Roaden, 98 Ohio App.3d 500, 504, 648 N.E.2d 916, 919 (1994) (“[A]bsent exigent circumstances, the automobile exception does not apply to the warrantless search or seizure of an automobile from the driveway of a private residence.”). In United States v. Reis, 906 F.2d 284 (7th Cir.1990), the United States Court of Appeals for the Seventh Circuit explained:

“The automobile exception allows vehicles that are being used on the highway or are readily capable of such use to be searched without a warrant ‘so long as the overriding standard of probable cause is met.’ California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 2070, 85 L.Ed.2d 406, 414 (1985). The reasons underlying the exception are twofold: The reduced expectation of privacy an individual has in a car, and the ‘exigencies attendant to ready mobility’ of the vehicle combine to create a situation justifying a search without taking the time to obtain the prior approval of a magistrate. Id., 471 U.S. at 392-93, 105 S.Ct. at [2070], 85 L.Ed.2d at 414; United States v. Rivera, 825 F.2d 152, 158 (7th Cir.), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987).
“Reis, however, points out that the Supreme Court stated in Carney that the automobile exception is applicable ‘[w]hen a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes.’ California v. Carney, 471 U.S. at 392, 105 S.Ct. at 2070, 85 L.Ed.2d at 414 (emphasis added). Reis argues that because his car was in a place that is regularly used for residential purposes [parked in the street in front of his residence], the above-quoted language from Carney renders the automobile exception inapplicable, unless exigent circumstances can be shown to exist.
“Reis misconstrues the meaning of Carney. In that case, the Supreme Court was faced with the issue of whether a mobile home comes within the automobile exception, and the Court looked to the location where the vehicle was parked solely for the purpose of determining whether the mobile home was being used more like an automobile (so that it would come within the exception) or more like a residence (so that a heightened expectation of privacy would exist, necessitating either a warrant or the existence of exigent circumstances before a search properly could be carried out). Carney does not establish a requirement that additional exigent circumstances be present merely because an automobile is parked at a residence.
“Indeed, this circuit and others have, either expressly or implicitly, construed Carney as recognizing that the inherent mobility of automobiles by itself provides the only exigent circumstance needed, so that as long as probable cause exists to search an automobile, that automobile may be searched without a warrant. See e.g., United States v. Paulino, 850 F.2d 93, 96 (2d Cir.1988), cert. denied, [490] U.S. [1052], 109 S.Ct. 1967, 104 L.Ed.2d 435 (1989); United States v. Markham, 844 F.2d 366, 369 (6th Cir.1988); United States v. Rivera, 825 F.2d [152,] 158 [(7th Cir.1987)]; Autoworld [Specialty] Cars, Inc. v. United States, 815 F.2d 385, 389 (6th Cir.1987); United States v. Bagley, 772 F.2d 482, 490-91 (9th Cir.1985), cert. denied, 475 U.S. 1023, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986). Even in circuits which construe Carney as imposing a requirement that additional exigent circumstances be demonstrated before the automobile exception is applicable, see, e.g., United States v. Alexander, 835 F.2d 1406, 1409-10 (11th Cir.1988); United States v. Hepperle, 810 F.2d 836, 840 (8th Cir.), cert. denied, 483 U.S. 1025, 107 S.Ct. 3274, 97 L.Ed.2d 772 (1987), circumstances such as those found in this case — the car parked outside the arrestee’s residence, with the possibility of either the registered owner or family members of the arrestee removing the car or destroying evidence in the car before a warrant could be obtained — have been found to constitute exigent circumstances sufficient to activate the automobile exception. See, e.g., United States v. Alexander, 835 F.2d at 1410. Furthermore, the fact that the detectives could have obtained a warrant in the hours between the initial encounter on the freeway and the arrest, but did not, does not change this analysis. ‘Clearly, the Carney majority ... did not contemplate that an agent’s inability to obtain a search warrant be a prerequisite to the application to the automobile exception.’ United States v. Markham, 844 F.2d at 369.”

906 F.2d at 290-91.

We have found no cases by either this Court or the Alabama Supreme Court squarely addressing this issue; however, this Court has touched on the issue in two cases. In Robinette v. State, 531 So.2d 682 (Ala.Crim.App.1987), rev’d on other grounds, 531 So.2d 697 (Ala.1988), this Court upheld the search of a vehicle parked in the yard of a residence at which law-enforcement officers had executed a search warrant. This Court held that the search was within the scope of the warrant, but, in the alternative, stated that the search also fell within the automobile exception to the warrant requirement. In analyzing the automobile exception, this Court noted:

“Most of the cited cases deal with vehicles located on public highways and in parking lots. In the instant ease, the vehicle in question was parked on private property; it was parked within the curtilage of the Hatcher residence. The courts have recognized that a car traveling on a public highway is afforded less privacy than the home, but that one’s expectation of privacy in a vehicle is enhanced when the car is nestled in the driveway. Coolidge v. New Hampshire, [403 U.S. 443 (1971) ]; Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974); United States v. Shepherd, 714 F.2d 316 (4th Cir.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1914, 80 L.Ed.2d 462 (1984). We find in 3 W. LaFave, [Search and Seizure] § 7.2(b) (2d ed.1987), the following:
“ ‘To the extent that the vehicle search cases continue to emphasize the existence of such [exigent] circumstances, they may have somewhat greater legitimacy. It is well to stress once again, however, that these cases generally utilize a very loose and uncritical type of exigent circumstances inquiry, quite different from that which would be employed if the warrantless search were of premises. In this sense, then, these decisions are unquestionably relying also upon the notion that vehicles carry with them a lesser expectation of privacy. (This means that genuine exigent circumstances must exist when the car can be searched only by first intruding inside private premises to gain access to the vehicle, for the lesser expectation of privacy does not also extend to premises housing a vehicle.)’ (Footnote omitted, emphasis added [in Ro-binette ].)
“Accordingly, out of abundance of caution, we have reviewed the circumstances of the instant search for the existence of exigent circumstances and conclude that the search of Robinette’s vehicle, following his activities in the house leading to his arrest, was based on probable cause and exigent circumstances and, thus, did not violate the Fourth Amendment guarantees against unreasonable searches.”

531 So.2d at 692-93. This Court did not specifically hold in Robinette that additional exigent circumstances were required before the automobile exception could be applied to vehicles parked on private property, but merely noted “out of [an] abundance of caution” that there were exigent circumstances present. 531 So.2d at 693.

In Stanfield v. State, 529 So.2d 1053 (Ala.Crim.App.1988), this Court upheld the search of a vehicle parked in a public parking space at an apartment complex where law-enforcement officers had executed a search warrant for one of the apartments. After concluding that the search was valid under the automobile exception to the warrant requirement absent any additional exigent circumstances, we noted:

“Upon this authority, we hold, generally, a vehicle may be searched on probable cause without a warrant and without a demonstration of any exigent circumstances other than its own inherent or ready mobility. The exception to this general rule applies when the vehicle is located on premises where the defendant has a legitimate expectation of privacy, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Robinette v. State, [531 So.2d 682 (Ala.Crim.App.1987), rev’d on other grounds, 531 So.2d 697 (Ala.1988) ]....”

529 So.2d at 1060. This statement, however, was merely dicta because the vehicle in that case was not on private property.

We agree with those jurisdictions cited above that have held that the automobile exception applies to vehicles located on private property without any additional exigency requirement. This view appears to be more in line with the underlying rationales for the automobile exception — the ready mobility and pervasive regulation of vehicles — and with the more recent pronouncements on the exception by the United States Supreme Court. The location of the vehicle does not change the inherent mobility and regulation of a vehicle. And in Labron, supra, the United States Supreme Court reversed the Pennsylvania Supreme Court’s holding that the warrant-less search of a vehicle parked in the driveway of a farmhouse was invalid under the automobile exception to the warrant requirement absent additional exigent circumstances on the ground that the holding “rest[ed] on an incorrect reading of the automobile exception to the Fourth Amendment’s warrant requirement.” 518 U.S. at 939, 116 S.Ct. 2485. Although the location of the vehicle does not appear to have been a specific issue in the case, it is nevertheless instructive that the Supreme Court held that the search was valid based on probable cause alone and absent any additional exigent circumstances. Therefore, to the extent that Robinette and Stanfield imply that the automobile exception to the warrant requirement does not apply to vehicles parked on private property without any additional exigent circumstances, they are hereby overruled.

Conclusion

In this case, there was probable cause to search Harris’s vehicle, and the search of the vehicle was valid under the automobile exception to the warrant requirement without more. Therefore, the trial court properly denied Harris’s motion to suppress.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMillan, p.j., and cobb, BASCHAB, and WISE, JJ„ concur.

      . This Court may consider both the evidence at the suppression hearing and at trial in determining whether the denial of a motion to suppress was proper. See, e.g., Ex parte Price, 725 So.2d 1063 (Ala.1998).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . In his brief, Harris makes the following statement: “When Harris returned to his home [after the traffic stop of the Hyundai Sonata], the officers intruded without probable cause upon Harris's premises. [The] officers intruded not with knowledge of a crime in progress, but upon a suspicion, to simply determine if a resident engaged in a crime.'' (Harris's brief at p. 15.) To the extent that Harris intended this single sentence to be a challenge to the officers' entry onto his premises, it fails to comply with Rule 28(a)(10), Ala.R.App.P., and, thus, is deemed to be waived.

      . Although not cited in his brief on appeal, Harris relied in large part on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), in arguing his motion to suppress in the trial court.

      "8We decline to adopt this construction of Coolidge. Nor do we find it necessary to determine the contours of the expectation of privacy in and around one’s private property. Although heightened privacy interests may be triggered when a vehicle is encountered on private property, the Coolidge plurality opinion cannot be fairly read to create a bright-line rule precluding war-rantless searches on private property under all circumstances.”

      . We note that, except for the Georgia case, these cases were decided before the United States Supreme Court’s specific disavowance of any separate exigency requirement for the automobile exception in Dyson and Labron, supra. Therefore, it is unclear whether those courts would continue to hold that additional exigent circumstances are necessary when a vehicle is parked on private property.


author: WISE, Judge. COBB, J., COBB, Judge,

text:
    Luther Allen SMITH v. STATE of Alabama.
    CR-04-2336.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.
    Rehearing Denied June 16, 2006.
    Certiorari Denied Aug. 11, 2006 Alabama Supreme Court 1051388.
    Jonathan L. Tindle, Bessemer, for appellant.
    Troy King, atty. gen., and Nancy M. Kirby, deputy atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and SHAW, J., concur.

COBB, J.,

concurs in part as to the rationale and concurs in the result, with opinion.

BASCHAB, J., concurs in the result.

COBB, Judge,

concurring in part as to the rationale and concurring in the result.

I concur fully as to Issues II and III of the unpublished memorandum. I concur in the result only as to Issue I, for the reasons stated below.

Luther Allen Smith was convicted of two counts of murder made capital because it was committed during the course of a burglary. § 13A-5-40(a)(4), Ala.Code 1975. The trial court denied Smith’s challenge for cause of veniremember L.P. even though L.P. had informed the court that she was personal Mends with members of the victim’s family and she had expressed concern that her relationship with the victim’s family might prevent her from rendering a fair verdict. For the reasons expressed in my special writing in Bowman v. State, 875 So.2d 1231 (Ala.Crim.App.2003)(Cobb, J., concurring in the result), I believe that L.P.’s answers to questions propounded to her established probable prejudice and that the trial court should have granted the challenge for cause. However, because Smith exercised a peremptory challenge and removed L.P. from the venire, the trial court’s error was harmless. Clearly, the better practice in a case such as this one, where a venire-member repeatedly expresses concerns that he or she might not be able to give the accused a fair trial, is to grant the challenge for cause.