author: FAULKNER, Justice.

text:
    Ex parte Willie CLISBY, Jr. (Re Willie Clisby, Jr. v. State of Alabama).
    81-633.
    Supreme Court of Alabama.
    Feb. 11, 1983.

      Stephen R. Arnold of Durward & Arnold, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen. and Ed Carnes, Asst. Atty. Gen., for respondent.
   FAULKNER, Justice.

Willie Clisby, Jr. was indicted and convicted for the capital offense of nighttime burglary during the course of which the victim is intentionally killed. Code 1975, § 13-ll-2(a)(4). Sentence was fixed at death. After the arrest, the District Court Judge ordered a psychiatric evaluation for Clisby, who was then examined by a private psychiatrist under contract with Jefferson County to evaluate prisoners. A social worker informed the court of the psychiatrist’s conclusions, which showed no evidence of psychosis and found Clisby competent to stand trial and able to aid in his defense.

Clisby pleaded not guilty at his arraignment. The record does not reflect an entry of a plea of not guilty by reason of insanity. It does show that both the assistant district attorney and the defense counsel were under the impression that such plea had been entered. There was a question as to whether the plea might have been withdrawn. In any event, during the course of the trial no reference to an insanity defense was made, and no evidence of mental impairment was presented. Three pertinent motions were made: (1) a motion to empanel a lunacy commission, Code 1975, § 15-16-22; (2) a motion for a court appointed psychiatrist; (3) a motion for funds for a private psychiatrist of the defendant’s own choosing.

As to the first two motions, the judge and the defense counsel agreed that these had been dealt with. The psychiatric evaluations found Clisby competent to stand trial and able to aid in his defense and indicated that there was no evidence for involuntary commitment to Bryce Hospital. Regarding the third motion, the judge questioned the issue of funds for a private psychiatrist and this motion was not mentioned again until the sentence hearing. At the sentence hearing, defense counsel argued the right to prove mitigating circumstances relating to mental capacity. Code 1975, §§ 13-11-7(2) and (6). The trial court ruled that the matter had been adequately covered by the orders to conduct psychiatric evaluations and read the two letters regarding the examinations into the records.

At no point was an objection made to the letters nor were requests made to cross-examine the author of the letters and the psychiatrist. The trial court found no mitigating circumstances. The substantive issues are:

I. Were Clisby’s rights of confrontation and cross-examination violated by the trial court’s consideration of the two letters concerning the psychiatrist’s conclusion about Clisby’s mental condition?
II. Was the use of the psychiatric reports at the sentencing hearing a violation of the right to counsel?
III. Should Clisby have been entitled to hire, at the State’s expense, a private psychiatrist to examine him for the purpose of securing expert testimony concerning certain mitigating circumstances?
IV. Were the procedural changes made in the method of sentencing one convicted of a capital offense from those specifically provided by statute an unconstitutional usurpation of legislative authority and did they violate the doctrine of separation of powers?

I and II

Regarding the first two issues, we consider the decisions in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982). Estelle is distinguished in that there the results of the pretrial examination were used to establish aggravating circumstances necessary to impose the death penalty. In Estelle, the psychiatric evaluations were used by the State to establish the defendant’s “future dangerousness.” In this case, the reports were referred to as a reason for denying a motion for continuance by defendant to seek further psychiatric evaluation; the psychiatrist merely reported to the court that Clisby understood the charges against him and was capable of assisting in his defense. In Estelle, counsel did not know what issues were going to be covered during the evaluation. Here, counsel knew.

In Estelle, the defendant was ordered to submit to the pretrial examination after being informed of his right to remain silent. The accused in Estelle neither introduced psychiatric evidence nor indicated that he might do so.

Clisby asked for a pretrial psychiatric evaluation, even though he may not have requested the first psychiatric examination. In fact, Clisby made three motions involving psychiatric evaluations.

In Proffitt, the trial judge, in the presence of the defendant and his counsel, suggested that the accused be examined by two court appointed psychiatrists prior to the final sentence determination. The defendant agreed. The psychiatrists’ evaluation showed that defendant had been capable of distinguishing right from wrong at the time of the offense. The sentence hearing was held with one of the two examining psychiatrists absent, and the defendant requested to cross-examine the absent psychiatrist. The hearing was completed without the opportunity to cross-examine the second psychiatrist. Proffitt, then, addresses the issue of the right to cross-examine adverse witnesses in capital sentence hearings. The Court, citing Gardner v. Florida, 430 U.S. 349, 359, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977), handed down the ruling that death sentences may not be imposed on the basis of information which the defendant has not been able to rebut. The information in that case, however, was not disclosed, and the issue of information presented openly was not addressed. The Court in Proffitt goes on to say that the right to cross-examine is essential and fundamental, even though not absolute: cross-examination is a necessary tool to establish the reliability of the information presented.

Ill

Addressing the third issue, the indigent defendant in a criminal case does not enjoy a constitutional right to have the aid of the State by the appointment of an expert for his exclusive benefit. Thigpen v. State, 372 So.2d 385 (Ala.Cr.App.), cert. denied, 372 So.2d 387 (Ala.1979), cert denied, 444 U.S. 1206, 100 S.Ct. 690, 62 L.Ed.2d 660 (1980). The defendant may have that right where necessary for an adequate defense. Anno., 34 A.L.R.3d 1256"-(1970). However, “there exists no constitutional right to the appointment of a private psychiatrist of the defendant’s own choosing at public expense.” Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir.), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978).

IV

The trial was conducted in accordance with Beck v. State, 396 So.2d 645 (1981), following the decision of the United States Supreme Court in Beck v. Alabama, 447 U.S. 625,100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Clisby challenges the constitutionality of the death penalty statute as construed by Beck. The judicial reconstruction accomplished in Beck was procedural and therefore constitutional, as we noted in Beck: “Under the separation of powers doctrine, this Court cannot change the offense, but a change in procedure to comport with constitutional requirements is not impermissible.”

To meet the requirements of the Eight and Fourteenth Amendments, a death penalty statute must not preclude the consideration of relevant mitigating factors. Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). The Florida and Texas death penalty statutes have survived constitutional challenges because of the judicial interpretation which allowed the consideration of any mitigating circumstances. Lockett v. Ohio, supra. Furthermore, the essential constitutional requirement of appellate review of sentencing was read into the statute by the Florida Supreme Court, even though the statute was silent as to a specific form of review. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976).

In Jackson v. State, 337 So.2d 1242 (Miss.1976), the Court rendered a decision which provides further support for the judicial modification of the death penalty statute in Beck. Jackson held that the Court exercised its “inherent power to prescribe rules of procedure” to bring the Mississippi capital punishment statute within the constitutional bounds. The Jackson decision was accepted in Irving v. Hargett, 518 F.Supp. 1127 (N.D.Miss.1981). In addition, certiorari has been denied in three cases challenging judicial reconstruction of the Mississippi capital punishment statute. Jordan v. State, 365 So.2d 1198 (Miss.1979), cert. denied, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979); Irving v. State, 361 So.2d 1360 (Miss.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979); Bell v. State, 360 So.2d 1206 (Miss.1978), cert. denied, 440 U.S. 950, 99 S.Ct. 1433, 59 L.Ed.2d 640 (1979).

Conclusion

After careful consideration of the facts, and in view of the holdings in Estelle v. Smith and Proffitt v. Wainwright, we remand this case to the court of Criminal Appeals with instructions to remand it to the trial court for reconsideration of its handling of Dr. Estock’s report.

We find the procedural challenge without merit.

The decision of the lower court, 456 So. 2d 86, is affirmed in part and reversed in part, and the case is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Willie CLISBY, Jr. v. STATE.
    6 Div. 576.
    Court of Criminal Appeals of Alabama.
    March 29, 1983.
   AFTER REMANDMENT

BOWEN, Judge.

In compliance with the direction of the Supreme Court of Alabama in Clisby v. State, 456 So.2d 95 (Ala.1983), this cause is remanded for the trial court’s reconsideration of its handling of Dr. Estock’s report in view of the holdings of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982).

REMANDED WITH DIRECTIONS.

Appeal after remand, Ala.Cr.App., 456 So.2d 99.

DeCARLO, P.J., and TYSON and HARRIS. JJ., concur.


author: BOWEN, Presiding Judge.

text:
    Willie CLISBY, Jr. v. STATE.
    6 Div. 576.
    Court of Criminal Appeals of Alabama.
    July 19, 1983.
   AFTER REMANDMENT

BOWEN, Presiding Judge.

This cause was remanded to the circuit court for reconsideration of the handling of a pretrial psychiatric report which the court considered as a reason for denying a defense motion for continuance to seek further psychiatric evaluation. Clisby v. State, 456 So.2d 95 (Ala.1983), citing Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), and Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982). The trial court resolved the defendant’s asserted denial of cross examination of the psychiatrist who prepared the report by holding a new sentencing hearing by the court.

On remand, the defendant filed a motion for psychiatric examination “to be conducted in light of those mitigating factors or circumstances” set forth in Alabama Code Section 13-11-7(2) (the capital felony was committed “under the influence of extreme mental or emotional disturbance”) and Section 13-11-7(6) (involving the “substantial impairment” of the accused “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law”). The trial judge granted this motion and the defendant was examined by psychiatrist John Callahan on June 25th and 27th, 1983.

At the new sentencing hearing on remand, Dr. Callahan testified that the defendant was competent and that he did not find any indication that the defendant committed the capital felony while under the influence of extreme mental or emotional disturbance, or that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

Dr. Callahan stated that the defendant had not been suffering from any mental disorder other than possibly an “antisocial personality disorder.”

“A. In speaking to the Defendant I was unable to determine any disorder other than possibly antisocial personality disorder.
“Q. What do you mean antisocial personality disorder?
“A. That he has had difficulty in the past in conforming his conduct to the rules of society. That he is not respectful of the rights of others, that he has a poor work history. That his ability or his —to set long term goals is somewhat different.”

Dr. Callahan also testified that there was no indication of extreme emotional or mental disturbance:

“He (defendant) did not indicate to me that he was under any strong emotional distress or mental illness at any time in his life. I asked him on numerous occasions to give me any instance where he felt that he was under severe emotional distress and he said he could not. He said that any emotional or mental problems that he had were connected with drugs that he had used.”

The only other witness to testify at the new sentencing hearing was the defendant himself. He stated that he started having problems at the age of sixteen when his mother died and that he might have something “wrong” with him but was not sure. He testified that he “hate it happened.

“Q. When did you begin hating that it happened?
“A. I would say after I had did it.”

The trial judge set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentencing hearing held on remand, as required by Alabama Code Section 13-11-4 (1975).

Finding no mitigating circumstances, he sentenced the defendant to death. His finding “that there are no mitigating circumstances” requires that this cause be remanded in light of Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

Since the crime was committed in November of 1979, it is governed by Alabama Code Sections 13-11-1 through 13-11-9. The trial judge’s findings of fact are in full compliance with Section 13-11-4 requiring such findings and stating what they shall contain. Even so, they are deficient under Eddings for the reason we set out below.

Section 13-11-4 states that the judge’s findings of fact “shall at least include the following: * * * (2) Any of the mitigating circumstances enumerated in Section 13-11-7 which it finds insufficient to outweigh the aggravating circumstances.”

The mitigating circumstances of Section 13-11-7 are:

“Mitigating circumstances shall be the following:
“(1) The defendant has no significant history of prior criminal activity;
“(2) The capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance;
“(3) The victim was a participant in the defendant’s conduct or consented to the act;
“(4) The defendant was an accomplice in the capital felony committed by another person and his participation was relatively minor;
“(5) The defendant acted under extreme duress or under the substantial domination of another person;
“(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired; and
“(7) The age of the defendant at the time of the crime.”

The constitution requires that the sentencer in capital cases must be permitted to consider any relevant mitigating circumstance.

In Lockett v. Ohio, 438 U.S. 621, 624, 98 S.Ct. 2981, 2983, 57 L.Ed.2d 1000 (1978), the United States Supreme Court concluded that “the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (emphasis in original). In Eddings, a majority of the Supreme Court declared that the sentencer may not as a matter of law preclude any relevant mitigating factors offered by a defendant: “Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer, refuse to consider, as a matter of law, any relevant mitigating evidence.” (emphasis in original).

“These cases establish that, subject only to the loose evidentiary requirement of relevance, capital defendants have a right to offer any evidence they choose on character or record or circumstances of the offense. Further, a death penalty scheme must allow the sentencing authority to consider and give independent weight to mitigating factors in addition to those listed in the death penalty statute. The cases thus create an asymmetry weighed on the side of mercy: while a sentencing authority may consider only those aggravating circumstances listed in the relevant statute, Proffitt v. Wainwright, 685 F.2d 1227, 1266-70 (11th Cir. 1982), it may consider any mitigating factors that it wishes.” Stanley v. Zant, 697 F.2d 955, 960 (11th Cir.1983) (emphasis in original).

In Jacobs v. State, 361 So.2d 640, 652-53 (Ala.1978), cert. denied, 439 U.S. 1122, 99 S.Ct. 1034, 59 L.Ed.2d 83 (1979), the Alabama Supreme Court found that Alabama’s sentencing scheme in death cases did not violate the holding in Lockett because the statutes broadly allow the accused to present evidence of any mitigating circumstance. In Beck v. State, 396 So.2d 645, 663 (Ala.1980), that same court held that “the court must permit the defendant to introduce any matter relating to any mitigating circumstances including those enumerated in Code 1975, Section 13-11-7.”

From the trial judge’s written findings, we cannot determine whether he considered the defendant’s mental deficiency as a mitigating circumstance and then determined that the degree of mental disability was simply insufficient to support those mitigating circumstances defined in Section 13-11-7(2) and (6), or whether he merely decided that the defendant’s mental disability could not be considered as a mitigating circumstance as a matter of law because it did not measure up to the statutory standard. As we noted in Berard v. State, 402 So.2d 1044, 1051 (Ala.Cr.App.1980), both subsections (2) and (6) of Alabama Code Section 13-11-7 are concerned with “the degree of the accused’s mental disability: ‘extreme mental or emotional disturbance’ in (2) and ‘capacity ... substantially impaired’ in (6).” (emphasis in original). In light of Eddings, we cannot make the assumption that the trial judge’s finding of no mitigating circumstances is “tantamount to a holding that the degree of disability necessary to support those (statutory) mitigating circumstances was lacking.” Berard, supra. See also Lewis v. State, 380 So.2d 970, 977 (Ala.Cr.App.1979).

In Eddings, the court specifically found that evidence of “a difficult family history and of emotional disturbance” constitutes relevant mitigating evidence. In this case, as in Eddings, evidence was presented that the defendant had an antisocial personality. Here, the defendant’s mental or emotional disturbance must be considered as relevant mitigating evidence. However, it is for the trial judge to determine the weight to be given that evidence. As stated in Eddings, “the sentencer, ... may determine the weight to be given relevant mitigating evidence. But (he) may not give it no weight by excluding such evidence from (his) consideration.”

We emphasize that the existence of a mitigating circumstance does not necessarily require a sentence of life imprisonment without parole rather than death. Lewis, 380 So.2d at 977. The process ... of weighing the aggravating and mitigating circumstances is not “a mere tallying of aggravating and mitigating circumstances for the purpose of numerical comparison.” Alabama Code Section 13A-5-48 (1975). It is a balancing process wherein one aggravating circumstance may outweigh any amount of mitigating evidence or any number of statutory mitigating circumstances. On the other hand, the sen-tencer may give one mitigating factor— whether or not defined by statute — such emphasis that it outweighs several aggravating circumstances. Lewis, supra.

This cause is remanded to the trial court with directions that the sentencing judge enter specific written findings concerning the existence or nonexistence of each aggravating circumstance enumerated in Section 13-11-6, each mitigating circumstance enumerated in Section 13-11-7, and dny additional mitigating evidence offered. These findings shall also reflect the sentence imposed.

REMANDED WITH DIRECTIONS.

All Judges concur.

      . Alabama Code Section 13A-5-51 (1975), which applies to capital offenses committed after July 1, 1981, lists these same mitigating circumstances but provides "(m)itigating circumstances shall include, but not be limited to, the following.” See also Section 13A-5-52.


text:
    Willie CLISBY, Jr. v. STATE.
    6 Div. 576.
    Court of Criminal Appeals of Alabama.
    Nov. 29, 1983.
    Opinion Modified Dec. 1, 1983.
    Rehearing Denied Dec. 19, 1983.
   AFTER REMANDMENT II

BOWEN, Presiding Judge.

This cause was remanded to the circuit court for further written findings concerning the existence or nonexistence of each statutory mitigating circumstance and of any additional mitigating evidence offered in light of Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

On remand, the trial judge allowed arguments from both the State and defense counsel and offered each side the opportunity to present any evidence in support of the argument. After argument, the judge issued his written findings wherein he listed each particular statutory mitigating circumstance found in Alabama Code Section 13-11-7 (1975) and stated the reason or reasons why each particular circumstance and any additional mitigating evidence offered did not apply in this case. Specifically, the judge found that the mitigating evidence of an antisocial personality disorder and Clisby’s remorse, even if it existed, was “outweighed by the aggravating circumstances.”

In concluding his written findings, the judge found:

“The Court having considered all the statutory mitigating circumstances and any additional mitigating evidence offered as shown above in No. (6) and further after consideration of all the matters that were presented to the Court during any of the hearings, both in mitigation and by aggravation and taking into consideration all other matters that were properly before the Court as herein-above stated, this Court now does find and is convinced beyond a reasonable doubt and to a moral certainty that the aggravating circumstances as shown above and brought before this Court outweigh any mitigating circumstances as shown above and that the aggravating circumstances are sufficient to uphold the Jury’s finding of punishment at death.
“It is, therefore, the judgment of this Court that the sentence of death as previously imposed on the defendant on May 10, 1983, should be carried out by the State of Alabama.”

The findings of the trial judge are in full compliance with the Eddings requirement that any relevant mitigating factor must be considered. The judge’s conscientious handling of this matter displays an attitude of caution and deliberation proportionate to the finality and magnitude of the sentence imposed.

SENTENCE REVIEW

In compliance with the statutory command of Alabama Code Section 13A-5-53(b) (1975), this Court makes the following determinations:

(1) There is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor.

(2) Our review and independent weighing of the aggravating and mitigating circumstances indicate that death was the proper sentence. We fully concur in the trial judge’s finding that the aggravating circumstances far outweigh any mitigating circumstance.

(3) This Court also determines that the sentence of death is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

In compliance with Beck v. State, 396 So.2d 645 (Ala.1980), we make the following determinations:

(1) The crime was in fact one punishable by death. Nighttime burglary of an occupied building during the course of which one of the occupants is intentionally killed or murdered is in fact a crime punishable by death under Alabama Code Section 13-ll-2(a)(4) (1975).

(2) While there have been few burglary-intentional killing cases tried, the crime is analogous to robbery-intentional killing which has resulted in approximately two-thirds of the death sentences imposed in this state. Beck v. State, 396 So.2d 645, 654 n. 5 (Ala.1980). This Court has repeatedly held that death is an appropriate sentence for robbery-murder, e.g., Luke v. State, 444 So.2d 393, 396 (Ala.Cr.App.1983); Womack v. State, 435 So.2d 754, 763 (Ala.Cr.App.1983); Raines v. State, 429 So.2d 1104, 1109 (Ala.Cr.App.), affirmed, 429 So.2d 1111 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983), and we find that death is an appropriate sentence for burglary-murder.

(3) The final Beck -mandated inquiry is whether death is an appropriate sentence for this particular defendant in this particular case. Beck v. State, 396 So.2d at 664. It clearly is. Clisby beat to death with an axe a fifty-eight-year-old man who was on crutches. In addition to the Section 13-11-6(4) aggravating circumstance established by the verdict of conviction itself, see, Percy Leo Dobard v. State, 435 So.2d 1338, 1344 (Ala.Cr.App.1982), the Section 13-11-6(2) aggravating circumstance (that the defendant was previously convicted of another felony involving the use of violence to the person) was also present. The State proved at the original sentence hearing that Clisby had been convicted of second degree murder in 1980. In addition, the State also proved that Clisby had been convicted in 1974 of first degree burglary (nighttime burglary of an occupied dwelling), which was relevant to negate the Section 13-11-7(1) mitigating circumstances (no significant history of prior criminal activity). Clisby had no accomplices.

The judgment of the circuit court sentencing Clisby to death for the offense of nighttime burglary during the course of which he intentionally killed Fletcher Hand-ley is affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    Ex parte Willie CLISBY, Jr. (Re Willie Clisby, Jr. v. State).
    83-382.
    Supreme Court of Alabama.
    July 13, 1984.
    Rehearing Denied Aug. 24, 1984.

      Stephen R. Arnold of Durward & Arnold, Birmingham, for petitioner.
    Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Willie Clisby, Jr., was indicted and convicted in the Circuit Court of Jefferson County, Alabama, for the capital offense of nighttime burglary during the course of which the victim is intentionally killed. Section 13-ll-2(a)(4), Ala.Code 1975 (repealed 1981, Act No. 81-178, § 20, effective as to conduct occurring on or after July 1, 1981). On February 27, 1981, Clisby was sentenced to death.

The Court of Criminal Appeals affirmed the conviction and sentence. Clisby v. State, 456 So.2d 86 (Ala.Crim.App.1982). After granting certiorari, this Court on February 11, 1983, remanded the case to the Court of Criminal Appeals with instructions to remand the ease to the trial court for reconsideration of the report of Dr. Robert Estock, which was considered at the sentencing hearing before the trial court. Dr. Estock is a psychiatrist who had examined Clisby following his arrest to determine his competency to stand trial and once again after the grant of defendant’s motion for a psychiatric examination made at his arraignment. Ex Parte Clisby, 456 So.2d 95 (Ala. 1983). On March 29, 1983, the Court of Criminal Appeals, pursuant to this Court’s order, remanded the case to the trial court for reconsideration of the psychiatrist’s report, specifically in view of the holdings of Estelle v. Smith, 451 U.S. 454 (1981), and Proffitt v. Wainwright, 685 F.2d 1227 (11th Cir.1982).

While the case was on remand before the trial court, Clisby filed a new motion for psychiatric examination into the existence or non-existence of mitigating circumstances involving his mental and emotional state at the time of the crime. A hearing was held on this motion on April 26, 1983. At that hearing, the trial court heard testimony from Dr. John Callahan, the second psychiatrist to examine the petitioner, and testimony from petitioner himself. The hearing was continued until May 10, 1983, at which time further testimony was heard from Dr. Callahan. The trial court also heard arguments from both sides concerning the proper sentence for Clisby, who was sentenced to death in accordance with the trial court’s written findings of fact.

On July 19, 1983, the Court of Criminal Appeals reviewed the sentence and the trial court’s actions on remand. The Court again remanded the case to the trial court for clarification of its findings concerning mitigating circumstances. Clisby v. State, 456 So.2d 99 (Ala.Crim.App.1983).

The trial court conducted another hearing on the second remand on July 29, 1983. At that hearing, neither side offered any additional testimony, but both sides argued the matter to the court. The trial court then took the matter under consideration and, on August 3, 1983, entered a written sentence order containing findings of fact and again sentenced Clisby to death.

The Court of Criminal Appeals, upon review of the trial court’s actions, affirmed the sentence on November 29, 1983. This opinion was modified on December 1, 1983, to add an express review of the death sentence in this case. Clisby v. State, 456 So.2d 102 (Ala.Crim.App.1983) (as modified December 1, 1983).

Clisby thereupon petitioned this Court for writ of certiorari for review of his sentence. The writ was granted pursuant to Rule 39(c), A.R.A.P.

This case has been tried once and reviewed twice by the trial court and three times by the Court of Criminal Appeals. This is the second time the case has been before this Court for review. This appeal concerns the treatment of the mitigating circumstances, the weight given those mitigating circumstances in the sentencing process, and whether the jury is required to specify the aggravating and mitigating factors it found and considered in reaching its verdict. In addition, we are compelled to review the propriety of the death sentence in this particular case.

In sentencing Clisby to death following the second remand, the trial court entered specific findings as to each of the statutory mitigating circumstances contained in § 13-11-7, Ala. Code 1975. The trial court concluded as follows:

“ ‘(1) The defendant has no significant history of prior criminal activity.’ This circumstance is not applicable in that the defendant, as shown by the findings of fact from the sentence hearing by the Court as a part of this record had previously been convicted of the felony offense of burglary in the first degree (nighttime burglary of an inhabited dwelling with the intent to commit a felony) and also the felony offense of Murder in the Second Degree;
“ ‘(2) The Capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance.’ This circumstance is not applicable in that Dr. Callahan having testified that he did not find any indication that the defendant committed the Capital felony while under the influence of extreme mental or emotional disturbance or that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law were substantially impaired.
“ ‘(3) The victim was a participant in the defendant’s conduct or consented to the act.’ This circumstance is not applicable in that there has never been any evidence presented in any of the hearings to show that the victim, Fletcher Hand-ley, was a participant in the defendant’s conduct or consented to the act.
“ ‘(4) The defendant was an accomplice in the Capital felony committed by another person and his participation was relatively minor.’ This circumstance is not applicable in that there has never been any evidence introduced that there was ever an accomplice to the commission of the Capital felony by the defendant. To the contrary, it has been shown that the defendant acted alone in the commission of this Capital felony.
“ ‘(5) The defendant acted under extreme duress or under substantial domination of another person.’ This circumstance is not applicable in that there has never been any evidence introduced at any of the hearings to show that any other person acted in concert with the defendant. To the contrary, the evidence has been that the defendant acted alone in the commission of the capital felony.
“ ‘(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.’ Dr. Callahan stated that the defendant had not been suffering from any mental disorder other than possibly an ‘antisocial personality disorder.’
“ ‘A. In speaking to the Defendant I was unable to determine any disorder other than possibly antisocial personality disorder.
“ ‘Q. What do you mean antisocial personality disorder?
“ ‘A. That he has had difficulty in the past in conforming his conduct to the rules of society. That he is not respectful of the rights of others, that he has a poor work history. That his ability or his — to set long term goals is somewhat different.’
“Dr. Callahan also testified that there was no indication of extreme emotional or mental disturbance:
“ ‘He (defendant) did not indicate to me that he was under any strong emotional distress or mental illness at any time in his life, I asked him on numerous occasions to give me any instance where he felt that he was under severe emotional distress and he said he could not. He said that any emotional or mental problems that he had were connected with drugs that he had used.’
“The only other witness to testify at the new sentencing hearing was the defendant himself. He stated that he started having problems at the age of sixteen when his mother died and that he might have something ‘wrong’ with him but was not sure. He testified that he ‘hate[d] it happened.’
“ ‘Q. When did you begin hating that it happened?
“ ‘A. I would say after I had did it.’ “Although this circumstance may exist in the form of ‘antisocial personality disorder' and the defendant now having shown some remorse in that he testified that he ‘hate[d] it happened,’ the Court finds that this mitigating circumstance is outweighed by the aggravating circumstances as previously indicated.
“ ‘(7) The age of the defendant at the time of the crime.’ This circumstance is not applicable in that at the time of the commission of the offense on, to-wit, November 6, 1979, the defendant was 32 years of age.
“The Court having considered all the statutory mitigating circumstances and any additional mitigating evidence offered as shown above in No. (6) and further after consideration of all the matters that were presented to the Court during any of the hearings, both in mitigation and by aggravation and taking into consideration all other matters that were properly before the Court as herein-above stated, this Court now does find and is convinced beyond a reasonable doubt and to a moral certainty that the aggravating circumstances as shown above and brought before this Court outweigh any mitigating circumstances as shown above and that the aggravating circumstances are sufficient to uphold the Jury’s finding of punishment at death.”

Petitioner contends that the trial judge erred in his consideration of the possible existence of statutory mitigating circumstances, particularly the possible existence of the subsection (6) mitigating circumstance that “[t]he capacity of the defendant to appreciate the criminality of his conduct or conform his conduct to the requirements of the law is substantially impaired.” Petitioner claims that the evidence of mitigating circumstances was ignored. We cannot agree. Rather, we agree with the Court of Criminal Appeals, which found that the decision of the trial judge and his detailed findings reflect “an attitude of caution and deliberation proportionate to the finality and magnitude of the sentence imposed.”

In keeping with the dictates of the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the sentencing authority in Alabama, the trial judge, has unlimited discretion to consider any perceived mitigating circumstances, and he can assign appropriate weight to particular mitigating circumstances. The United States Constitution does not require that specific weights be assigned to different aggravating and mitigating circumstances. Murry v. State, 455 So.2d 53 (Ala.Crim.App.1984), rev’d on other grounds, 455 So.2d 72 (Ala.1984). Therefore, the trial judge is free to consider each case individually and determine whether a particular aggravating circumstance outweighs the mitigating circumstances or vice versa. Moore v. Balk-corn, 716 F.2d 1511 (11th Cir.1983). The determination of whether the aggravating circumstances outweigh the mitigating circumstances is not a numerical one, but instead involves the gravity of the aggravation as compared to the mitigation.

In the case at bar, the trial judge had the duty to consider both the aggravating and the mitigating circumstances. He considered the evidence that the defendant had six months previously been convicted of murder in the second degree and sentenced .to twenty-seven years in the penitentiary. He also considered the evidence that the defendant suffered from an antisocial personality disorder, his unfortunate loss of his mother, and his upbringing, as well as his remorse, or lack of remorse, over the crime. In addition, the record reflects that the trial judge considered other statutory, as well as non-statutory, aggravating and mitigating circumstances in reaching his decision.

The order entered by the trial judge expressly states that:

“The Court having considered all the statutory mitigating circumstances and any additional mitigating evidence offered ... and further after consideration of all matters that were presented to the Court during any of the hearings, both in mitigation and by aggravation and taking into consideration all other matters that were properly before the Court ..., this Court now does find ... that the aggravating circumstances ... outweigh any mitigating circumstances ... [and] are sufficient to uphold the Jury’s finding of punishment at death.” (Emphasis added.)

Such an evaluation comports with the constitutional requirement of an individualized sentencing decision. Lockett, supra; Moore, supra; Ford v. Strickland, 696 F.2d 804 (11th Cir.1983) (en bane).

As an additional point of error, petitioner asserts that the failure of the jury to specify the specific aggravating circumstances and mitigating circumstances considered in reaching its verdict renders Alabama’s sentencing procedure unconstitutional. This Court has previously addressed this issue and has concluded that there is no statutory or constitutional requirement that the jury make specific findings of aggravating or mitigating circumstances considered during the sentence phase of the proceedings. The jury’s verdict is advisory only. Section 13-11-4, Ala. Code 1975. It is sufficient that the trial court, which is in no way bound by the jury’s recommendation concerning sentencing, is required to, and in this case did, make written findings concerning the existence or non-existence of each aggravating and mitigating circumstance. Whisenhant v. State, [MS. November 23, 1982] (Ala.Crim.App.1982), aff’d in part and rev’d in part, [MS. 82-332, 82-333, July 8, 1983] (Ala.1983); Bush v. State, 431 So.2d 555 (Ala.Crim.App.1982), aff’d, 431 So.2d 563 (Ala.1983).

Petitioner also argues that death is not the appropriate sentence in this case. We are compelled by § 13A-5-53(a), Ala. Code 1975, and under the mandates of Beck v. State, 396 So.2d 645, 664 (Ala.1980), to review the appropriateness of the sentence as regards this particular defendant. Having done so, we concur in the Court of Criminal Appeals’ conclusion that Clisby’s death sentence was properly arrived at and is appropriate, being neither excessive nor disproportionate under the circumstances of this case.

The decision of the Court of Criminal Appeals is hereby affirmed.

AFFIRMED.

All the Justices concur.


author: HARRIS, Presiding Judge.

text:
    Ida Mae SAWYER v. STATE.
    7 Div. 954.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 1982.
    Rehearing Denied Dec. 28, 1982.
    Kathleen M. Warren, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen. and Jane LeCroy Brannan, Asst. Atty. Gen., for ap-pellee.
   HARRIS, Presiding Judge.

Appellant was indicted by the Etowah County Grand Jury for the unlawful possession of a controlled substance, in violation of § 20-2-70(a), Code of Alabama 1975. At arraignment, appellant entered a plea of not guilty. After a hearing on, and denial of, her motion to suppress evidence on February 24, 1982, appellant withdrew her plea of not guilty and entered a plea of guilty. Before accepting appellant’s guilty plea, the trial court conducted an examination of appellant to determine that the plea was voluntarily and understanding^ made. The trial court accepted appellant's guilty plea and sentenced her to two years’ imprisonment in the state penitentiary.

Appellant seeks to raise on appeal the issues of warrantless search and probable cause, contending that, upon entering her guilty plea at trial below, she “specifically reserved the issue of the illegal search and seizure for appeal.”

A voluntarily and understandingly made guilty plea waives all nonjurisdictional defects in the prior proceedings against the accused. Bailey v. State, 375 So.2d 519 (Ala.Cr.App.1979). Such nonjurisdic-tional matters include the court’s refusal to suppress evidence. Roden v. State, 384 So.2d 1248 (Ala.Cr.App.1980).

The waiver of nonjurisdictional defects wrought by the guilty plea does not apply where the trial court has clearly assured the accused that he may still present a particular nonjurisdictional issue despite his guilty plea. However, this exception to waiver does not apply to an accused’s mere subjective beliefs with regard to what matters may be appealed after entering the guilty plea. Bailey, supra.

The record reflects the following occurred at the time appellant entered her plea of guilty:

“MS. WARREN: Judge, at this time my client, the Defendant, would like to withdraw her plea of not guilty and enter a plea of guilty with a specific reservation that the issue of the search and seizure for appeal.
“THE COURT: All right. Before I can accept your plea of guilty there are certain questions I’ve got to ask you that you’ll have to answer and the Court Reporter will have to take down your answers, so speak up so she can get your answers.”

The trial judge then proceeded to question appellant at length to determine her understanding of the crime against her and her willingness to voluntarily plead guilty. Included in the questions and answers is the following:

“THE COURT: Now, you understand if you tell me that you are guilty of this crime you give up all the constitutional rights that I have just named over to you?
“THE DEFENDANT: Yes.
“THE COURT: And if you tell me that you are guilty I could give you the same punishment as if you said you were not guilty and were convicted by a jury and I also may not give probation?
“THE DEFENDANT: Yes.
“THE COURT: You waive a pre-sen-tence investigation?
“MS. WARREN: Yes, sir.
“THE COURT: Has anyone threatened or promised to reward you, your family or anyone else to get you to say that you are guilty?
“THE DEFENDANT: No.
“THE COURT: Has anyone told you or promised or suggested to you that you will receive a lighter sentence or probation or any other favor to get you to say that you are guilty?
“THE DEFENDANT: I didn’t understand that.
“THE COURT: Has anyone told you or promised or suggested to you that you will receive a lighter sentence or probation or any other favor to get you to say that you are guilty?
“THE DEFENDANT: No.
“THE COURT: How do you intend to plead to this indictment?
“THE DEFENDANT: Guilty.
“THE COURT: Having ascertained in open court that Defendant fully understands her Constitutional rights, the nature of the crime charged in the indictment, the consequences of her guilty plea, the Defendant understandingly and voluntarily pleads guilty and waives her Constitutional rights. It is hereby ordered that Defendant’s plea of guilty and waiver be accepted and entered in the minutes of the Court.”

The only reference in the record to a reservation of the search and seizure issue made by appellant, her attorney or the trial judge, appears as quoted above. This reference is made by way of an ungrammatical statement made by appellant’s counsel which was neither a motion nor a request for a ruling by the trial court; neither did the trial court make any ruling in this regard. The use of the term “all right” is condemned for the purpose of indicating a ruling. Gross v. State, 395 So.2d 485 (Ala.Cr.App.1981).

There is nothing in the record before us to indicate that the trial court in any way assured either appellant or her counsel that this issue would be preserved for review. The case is not factually analogous to Bailey, supra, in which the trial court made this statement to the accused:

“THE COURT: Right, you have reserved that by the record of this Court and the Court has advised him.
“ ‘He had filed, Mr. Vigliante, a motion to dismiss the indictment against him for lack of prosecution averring in this motion filed with this Court, which was overruled by this Court today, that he did not get a speedy trial.’ ”

Bailey, 375 So.2d at 521.

Further, in overruling the accused’s motion in Bailey, the trial court specifically stated: “I am going to overrule the motion. You can take this up on appeal.”

The record indicates appellant’s guilty plea was voluntarily and understandingly made. As well, we find that no ruling by the trial court, either implicitly or explicitly, gave appellant any assurance that she could still present the search and seizure issue on appeal, despite her guilty plea. Parmley v. State, 397 So.2d 183 (Ala.Cr.App.180), cert. denied, 397 So.2d 184 (Ala.1981).

No error harmful to the substantial rights of the appellant having been demonstrated, this case is affirmed.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte Ida Mae SAWYER. (Re Ida Mae Sawyer v. State of Alabama).
    82-346.
    Supreme Court of Alabama.
    June 3, 1983.
    Kathleen M. Warren, Gadsden, for petitioner.
    Charles A. Graddick, Atty. Gen. and Helen P. Nelson, Asst. Atty. Gen., for respondent.
   SHORES, Justice.

The Court of Criminal Appeals, 456 So.2d 110, affirmed the petitioner’s conviction, expressly holding that the record failed to show that she had reserved her right to raise the search and seizure issue on appeal, despite her guilty plea.

After the Court of Criminal Appeals released its opinion on November 2, 1982, the petitioner filed an application for rehearing accompanied by the following supplemental record pursuant to Rule 10(f), Alabama Rules of Appellate Procedure:

“STIPULATION FOR CORRECTION OR “MODIFICATION OF THE RECORD

“Pursuant to Rule 10(f) of the Alabama Rules of Appellate Procedure, the Defendant/Appellant by and through her attorney, Kathleen M. Warren, and the State of Alabama by and through its prosecutor, Charles D. Martin, hereby stipulate to a material omission in the trial court record.
“1. Immediately following the trial court’s denial of the defendant’s motion to suppress the evidence, a brief recess was granted. During that recess, the attorney for the defendant and the prosecuting attorney engaged in a discussion outside the presence of the trial judge.
“2. Upon the return of the defense attorney, the prosecuting attorney and the defendant to the trial judge’s chambers, a conversation occurred between the defense attorney, the prosecuting attorney and the trial judge which was mistakenly omitted from the record. In summary, the omitted discussion was that the trial judge was informed by counsel for the defendant and by the prosecuting attorney that an agreement had been reached between them, in which the defendant concurred, that a guilty plea would be entered by the defendant conditioned upon the reservation of the issue of unlawful search and seizure for appeal. The trial judge agreed to accept the guilty plea under those conditions and assured defense counsel and the defendant that the issue of the unlawful search and seizure would be preserved on appeal.

‘7s/ Kathleen M. Warren

“KATHLEEN M. WARREN

“1024 Forrest Avenue
“Gadsden, Alabama 35901
“ATTORNEY FOR DEFENDANT/APPELLANT

“/s/ Charles D. Martin

“CHARLES D. MARTIN

“823 Forrest Avenue
“Gadsden, Alabama 35901
“ASSISTANT DISTRICT ATTORNEY”

“ORDER

“Having received and considered the Stipulation for Correction or Modification of the Record filed in this case, and based also on my own independent recollection of the material omitted from the record, it is hereby ORDERED, ADJUDGED AND DECREED that the record on appeal in this cause be corrected to include the following at page 15 just after the granting of the recess and just prior to the colloquy which began the entering of the guilty plea by the defendant:
“The court was informed by counsel for the defendant and by the prosecuting attorney that an agreement had been reached between them, in which the defendant concurred, that a guilty plea would be entered by the defendant conditioned upon the reservation of the issue of unlawful search and seizure for appeal. The court agreed to accept the guilty plea under those conditions and assured defense counsel and the defendant that the issue of the unlawful search and seizure would be preserved on appeal.
“It is further ORDERED, ADJUDGED AND DECREED, that a copy of the Stipulation for Correction and Modification of the Record and this Order will be certified by the Circuit Court Clerk of Etowah County and transmitted to the Alabama Court of Criminal Appeals immediately.
“Done this the 9th day of November, 1982.

“/s/ Cyril L. Smith “CYRIL SMITH, CIRCUIT JUDGE, “PRESIDING”

The Court of Criminal Appeals denied rehearing without comment.

We reverse and remand the cause to the Court of Criminal Appeals for consideration of the search and seizure issue in light of the record as now properly supplemented under ARAP 10(f). Ballou v. State, 365 So.2d 352 (Ala.Cr.App.1978).

The supplemented record supports the petitioner’s claim that the search and seizure issue was preserved for consideration on appeal. We do not, however, reach the merits of her claim, leaving that for consideration by the Court of Criminal Appeals, taking into account the supplemented record.

REVERSED AND REMANDED.

All the Justices concur.


author: HARRIS, Judge.

text:
    Ida Mae SAWYER v. STATE.
    7 Div. 954.
    Court of Criminal Appeals of Alabama.
    Aug. 14, 1984.
   HARRIS, Judge.

Appellant was indicted on December 9, 1981, for violation of the Alabama Uniform Controlled Substances Act. At arraignment, appellant entered a plea of not guilty. On February 18, 1982, a Motion to Suppress the evidence of the marijuana and other controlled substance seized by the State of Alabama was filed by the appellant. The case was called for trial and a hearing was held February 24, 1982 on appellant’s Motion to Suppress. The Motion to Suppress was denied by the trial judge and the appellant then entered a guilty plea after stipulating for appeal the reservation of the issue questioning the legality of the warrantless search and seizure.

Before accepting appellant’s guilty plea, the trial court conducted an examination of appellant and determined that the plea was voluntarily and understandingly made. The guilty plea was then accepted by the trial court and the court pronounced sentence of two years’ imprisonment in the state penitentiary.

This case was previously before us and we affirmed the lower court’s order, 456 So.2d 110, expressly holding that the record failed to show that the appellant had reserved her right to raise the search and seizure issue on appeal. The Alabama Supreme Court, 456 So.2d 112, reversed and remanded this case to us, holding that the search and seizure issue was properly preserved for appeal.

As directed by the Alabama Supreme Court, we must decide the merits of appellant’s claims regarding the warrantless search and seizure.

A review of the facts reveals that the Gadsden Police Department received a tip on August 13, 1981, from an unnamed informant that a man by the name of Theo Brookins was in town with a supply of illegal drugs. Lieutenant Morris Alexander testified for the State at appellant’s Motion to Suppress hearing that it was well known information in the Gadsden Police Department that Theo Brookins was a dealer in narcotics.

After receiving the call and after checking several places where Theo Brookins was known to frequent, Lieutenant Alexander and Sheriff’s Deputy Johnny Grant discovered a car identified by Lieutenant Alexander as belonging to Theo Brookins at the Holiday Inn. Deputy Grant then set up a surveillance while Lieutenant Alexander made a call requesting a search warrant.

However, prior to securing the search warrant a man identified as Theo Brookins by Lieutenant Alexander and the appellant left a motel room and drove away in separate cars. The law enforcement officers then followed the appellant — choosing not to follow, stop, question or arrest Theo Brookins.

The appellant proceeded to a grocery store where she apparently purchased several items. After she left the grocery store and while driving down the highway, the appellant was stopped by a uniformed policeman in a marked car at the request of Lieutenant Alexander and Deputy Grant. Immediately upon the scene were four officers and three police cars. Deputy Grant instructed the appellant to get out of the car and to open her purse. Appellant complied with both orders without protest. A quantity of the drug phenmetracine was found in appellant’s purse.

Subject to only a few exceptions, the Fourth and Fourteenth Amendments of the United States Constitution support the proposition that a search conducted without a warrant issued on probable cause is unreasonable. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973) listed the applicable exceptions:

“(1) In ‘plain view’, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971);
“(2) With ‘consent’ voluntarily, intelligently and knowingly given, see Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
“(3) As ‘incident to a lawful arrest’, see Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959);
“(4) In ‘hot pursuit’ or ‘emergency’ situations, see Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. [436] (1947); State v. Sutton (Mo.1970) 454 S.W.2d 481;
“(5) Where ‘exigent circumstances' exist coincidental with ‘probable cause’ (as in the case of movables), see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); and
“(6) In ‘stop and frisk’ situations, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 889 (1968).”

To pass the constitutional test, the warrantless search and seizure in the case at bar must fall within one or more of the above exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The burden is on the State to make such a showing that the warrantless search meets an exception. Murray v. State, 396 So.2d 125 (Ala.Crim.App.1981).

The only issue that merits consideration is whether the law enforcement officers had probable cause in conjunction with exigent circumstances to justify a warrantless search of appellant’s person, automobile, and containers found in the automobile.

The record reflects that the appellant stipulated that exigent circumstances existed at the time of the search and therefore that issue is decided and does not merit our attention. However, we must now turn our attention to the question of whether probable cause coincided with those exigent circumstances to justify the warrantless search.

The appellant argues that if the informant’s information (hearsay) from an unidentified source is the sole basis for a finding of probable cause, then the two requirements set out in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), must be met. Briefly stated, the Aguilar prongs related to the informant’s “reliability” and his “basis of knowledge.”

However, the “two-pronged test” established in Aguilar, supra, and later reaffirmed in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) was abandoned by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In its place, the court reaffirmed the “totality of circumstances” analysis that has traditionally determined probable cause issues.

Nevertheless, nothing in the informant’s tip even concerned the appellant. The informant’s tip was insufficient to establish any sort of probable cause coincidental with exigent circumstances against this appellant.

We must now decide whether probable cause developed from appellant’s conduct as observed by the law enforcement officers justified a warrantless search and seizure.

It is our belief that none of the appellant’s activities while under surveillance by the law enforcement officers gave rise to probable cause for a warrantless search and seizure. The only facts known to the law enforcement officers about the appellant at the time of the stop, search and seizure was that she left a motel room with a man known to have a reputation as a drug dealer, and that she drove away in her own automobile. It appears that the only basis the law enforcement officers had for suspecting the appellant’s involvement in a crime is that she was observed in the company of a known drug dealer.

Probable cause to stop the appellant did not exist simply due to her association with a drug dealer. In Roberson v. State, 340 So.2d 459 (1976), the State contended that the fact that the appellant was a reputed bootlegger and that he was arrested upon entering a dry county from a wet county supplied the requisite basis for probable cause. Judge Bookout, writing for our court in Roberson v. State, supra, stated that “[ajppellant’s reputation and where he was driving are relevant factors which may be considered, but standing alone, they do not supply a sufficient basis for probable cause.” The case went on to hold that a conclusion based solely on the accused’s reputation and his action of driving from a wet county to a dry county did not constitute probable cause. See also Young v. State, 372 So.2d 409 (Ala.Crim.App.1979). Therefore an analogy may be drawn between Roberson, supra, and our case at bar. Since probable cause would not have existed to stop and search a known drug dealer upon his leaving a motel room without a warrant, it follows that probable cause would not exist to stop another that exits the same motel room and proceeds on his or her way. In Roberson, supra, the law enforcement authorities received an uncorroborated tip from an informant in a manner that is much the same as our instant case. Furthermore, while the officers may have been somewhat suspicious of appellant’s conduct, suspicion alone is not enough to justify probable cause for a warrantless search. Young v. State, supra.

In our case at bar, we find that the reputation of the drug dealer is the one in question, not the appellant. No evidence has been offered to show that the appellant has or ever has had a reputation in drug dealings. Furthermore, even if such a showing had been made, appellant’s reputation could only be considered along with other factors to show probable cause for a search and seizure. Murray v. State, supra.

The facts and circumstances of this case indicate that the “exigent circumstances coincidental with probable cause” exception to the Fourth Amendment search warrant requirement cannot be applied. Therefore, the search conducted of the appellant by the law enforcement officers cannot be justified and likewise, the “fruits” of the search should not be admitted into evidence. Having decided that the instant search was illegal, we hold that the results thereof should have been suppressed and appellant’s Motion to Suppress the evidence should have been granted.

REVERSED AND RENDERED.

All the Judges concur.