author: JOINER, Judge.

text:
    STATE of Alabama v. Natasha Rae LEE. State of Alabama v. Justin Andrew Bailey. State of Alabama v. Jennifer Leigh Clayton.
    CR-11-1865, CR-11-1866, and CR-11-1867.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 2013.
    Certiorari Denied as to Natasha Lee Nov. 15, 2013 Alabama Supreme Court 1130032.

      Luther Strange, atty. gen., and Michael G. Dean, asst. atty. gen., for appellant.
    Russell Tuner Duraski, Montgomery; and Christopher R. East, Montgomery, for Natasha Rae Lee.
    Branch Donelson Kloess, Montgomery, for Justin Andrew Bailey.
    Raymond E. Johnson, Montgomery, for Jennifer Leigh Clayton.
   On Application for Rehearing

JOINER, Judge.

This Court’s opinion of June 7, 2013, is withdrawn, and the following is substituted therefor.

Natasha Rae Lee and codefendants Justin Andrew Bailey and Jennifer Leigh Clayton filed separate pretrial motions to suppress evidence from two warrantless searches conducted by the police on January 7, 2011, and January 28, 2011. After a hearing, the trial court granted the motions to suppress. The State appeals.

On November 9, 2011, the trial court held a hearing on the motions to suppress. At the hearing, Officer James Taylor, an employee with the Montgomery Police Department, testified that between 12:00 and 1:00 a.m. on January 7, 2011, he responded to a dispatch regarding an anonymous call about a methamphetamine lab at a particular apartment on Stonehenge Drive in Montgomery. After Officer Taylor arrived at the apartment complex and got out of his vehicle, he smelled an “ammonia like” odor that, from his training and experience, appeared to be from a methamphetamine lab. Officer Taylor admitted on cross-examination that he did not know exactly which apartment the smell was coming from. Officer Taylor testified that shortly thereafter Sgt. John Hall, along with members of the Montgomery Fire Department, arrived on the scene. Officer Taylor and Sgt. Hall knocked on the door of the apartment that was the subject of the anonymous call, and Bailey opened the door. Officer Taylor said he noticed that, after Bailey opened the door, the odor he had smelled earlier got stronger. Officer Taylor testified that he did not see any fire or smoke inside the apartment. Officer Taylor testified that he and Sgt. Hall advised Bailey that they had received several calls about a methamphetamine lab in his residence and that Bailey denied any illegal activity and stated that “it must have been a prank call.” (R. 23.) Officer Taylor testified that the fire chief advised him and Sgt. Hall that members of the fire department were not going to “clear” the apartment. Officer Taylor testified that he and Sgt. Hall thereafter entered the apartment; Officer Taylor testified, on cross-examination, that Bailey had given him permission to enter the apartment. Officer Taylor testified that Clayton and two children who appeared to be two to four years old were inside the apartment and that the apartment appeared to be safe. After Officer Taylor left the apartment, he detained Bailey and learned, after running a warrant check, that Bailey had two misdemeanor warrants. After Officer Taylor ran the warrant checks he also found a bag of marijuana in Bailey’s pocket, and he later took Bailey to the city jail. Officer Taylor testified that members of the fire depart.ment later advised him that they had found an inactive methamphetamine lab in the apartment.

Sgt. Hall testified that on January 7 he responded to a dispatch regarding a possible active methamphetamine lab at an apartment on Stonehenge Drive. Sgt. Hall testified that as he approached the building, he smelled a strong, pungent odor that, through his training and experience, indicated that there was a methamphetamine lab. Sgt. Hall testified that he could not tell from which particular apartment the smell was coming but that the odor became much stronger after Bailey opened the door to the apartment. Sgt. Hall did not observe any smoke or fire, and he and Officer Taylor thereafter entered the apartment at the request of the fire department. Sgt. Hall admitted, on cross-examination, that he did not obtain a warrant before entering the apartment. Sgt. Hall testified that he was in the apartment between 5 and 10 minutes. Sgt. Hall testified that while in the apartment he felt like he was in immediate danger because of the odor he smelled; Sgt. Hall explained, on cross-examination, that “[m]eth labs are known to explode as well as produce noxious fumes that can harm people.” (R. 64-65.) Sgt. Hall testified that members of the fire department later showed him what they believed to be an active methamphetamine lab inside the apartment. Sgt. Hall testified that he followed all “protocols” regarding the methamphetamine lab.

Detective Joel Roberson testified that on January 7 he along with members of the hazardous-material squad of the fire department, responded to a 911 call reporting a methamphetamine lab in an apartment on Stonehenge Drive. Det. Roberson testified that on January 7, he entered the apartment and noticed a smell he associated with a methamphetamine lab; Det. Roberson later explained, on cross-examination, that, with regard to those who could be affected by the hazards of a methamphetamine lab, “[i]f you can smell it, you’re at risk.” (R. 150.) Det. Roberson found precursor elements to a methamphetamine lab in the apartment, including lithium batteries, a funnel, and some plastic bags. Det. Roberson testified that the methamphetamine lab appeared to be inactive at that time. Roberson testified that no individuals were taken into custody on January 7.

Officer Raquel Sansing testified that around 12:00 to 1:00 a.m. on January 28, 2011, she responded to a dispatch regarding a possible methamphetamine lab at the same apartment on Stonehenge Drive that had been the subject of the January 7 call. Officer Sansing testified that after she arrived at the apartment, she observed Bailey, Clayton, and Lee coming down the stairs from the apartment. Officer Sans-ing testified that the door to the apartment had been left open and that she smelled a “strong, bitter ammonia-type smell.” (R. 82.) Officer Sansing testified that, while Officer Michael Anderson and members of the fire department searched the apartment, she detained Bailey, Clayton, and Lee. Officer Sansing testified that while she was detaining Bailey, Clayton, and Lee, she conducted a patdown search of Clayton and found a pill bottle containing a Xanax tablet, some nonprescription medication, and a pipe used for smoking methamphetamine. Officer Sansing said that when she felt those items during the pat-down, she knew that they were not weapons. Officer Sansing testified that she observed an officer perform a patdown search of Lee that produced two or three pipes used for smoking methamphetamine, a bag containing a substance believed to be marijuana, and a grinder containing marijuana substance; Officer Sansing testified that a patdown search of Bailey revealed two or three pipes used for smoking methamphetamine.

Officer Anderson testified that on January 28 he was sent by dispatch to Stonehenge Drive to investigate a possible methamphetamine lab. After Officer Anderson arrived at the apartment building, he encountered Bailey, Clayton, and Lee outside the apartment and asked them where they were going, to which they replied that they were going to do laundry despite not having any laundry detergent or “anything like that that would really kind of sell that to make me believe that they were going to go — all running to do laundry at 1:20 in the morning.” (R. 115— 16.) Officer Anderson testified that while he was standing at the bottom of the stairs, he noticed an “ammonia” smell that, having previously encountered methamphetamine labs during his training and experience as a police officer, he would relate to a methamphetamine lab. Officer Anderson along with members of the fire department notified residents in adjacent apartments according to the standard procedure for a fire in an apartment complex. Officer Anderson testified that the fire chief indicated that he wanted the apartment to be “cleared” before he allowed members of the fire department to enter the apartment. Officer Anderson testified on cross-examination that a “haze smoke” inside the apartment was visible to him from outside the apartment. Officer Anderson and another officer thereafter equipped themselves with oxygen tanks and masks and entered the apartment. Officer Anderson admitted on cross-examination that no search warrant had been obtained before he entered the apartment. After Officer Anderson entered the apartment, he observed components he recognized as being used in a methamphetamine lab, but he did not touch anything. Officer Anderson observed that the source of the “haze smoke” was coming from a bubbling, pink liquid substance inside a two-liter bottle located in the back bedroom of the apartment.

Det. Roberson also testified that on January 28 he, along with members of the hazardous-material squad of the fire department, responded to a 911 call about a methamphetamine lab at the same address. Det. Roberson entered the apartment and observed a two-liter bottle containing a red substance that, he said, looked like “broken-down” pseudoephed-rine pills. Det. Roberson testified that he also saw two cans of butane, table salt, lithium batteries, pliers, and a marijuana cigarette. Det. Roberson testified that the evidence confirmed to him the presence of an active methamphetamine lab. Det. Roberson testified that, based on his observations, Lee, Bailey, and Clayton were taken into custody. Det. Roberson admitted on cross-examination that there was not a search warrant and that permission to enter the apartment had not been granted.

“Initially, this Court notes:

“ ‘ “ ‘When evidence is presented ore tenus to the trial court, the court’s findings of fact based on that evidence are presumed to be correct,’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); ‘[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,’ Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986); and we make ‘“all the reasonable inferences and credibility choices supportive of the decision of the trial court.” ’ Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761. ‘[A]ny conflicts in the testimony or credibility of witnesses during a suppression hearing is a matter for resolution by the trial court.... Absent a gross abuse of discretion, a trial court’s resolution of [such] conflictos] should not be reversed on appeal.' Sheely v. State, 629 So.2d 23, 29 (Ala.Crim.App.1993) (citations omitted). However, ‘ “[w]here the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the [appellate] 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.” ’ State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quoting Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980). ‘ “ ‘[W]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.’ ” ’ Ex parte Jackson, 886 So.2d 155, 159 (Ala.2004), quoting Hill, 690 So.2d at 1203, quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). A trial court’s ultimate legal conclusion on a motion to suppress based on a given set of facts is a question of law that is reviewed de novo on appeal. See State v. Smith, 785 So.2d 1169 (Ala.Crim.App.2000).” ’

“C.B.D. v. State, 90 So.3d 227, 237 (Ala.Crim.App.2011) (quoting State v. Hargett, 935 So.2d 1200, 1203-04 (Ala.Crim. App.2005)). ““ “ ‘A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision.’ ” ”” Byrd v. State, 78 So.3d 445, 450-51 (Ala.Crim.App.2009) (quoting Hodges v. State, 926 So.2d 1060, 1072 (Ala.Crim.App.2005), quoting in turn State v. Jude, 686 So.2d 528, 530 (Ala.Crim.App.1996), quoting in turn Dowdy v. Gilbert Eng’g Co., 372 So.2d 11, 12 (Ala.1979), quoting in turn Premium Serv. Corp. v. Sperry & Hutchinson, Co., 511 F.2d 225 (9th Cir.1975)).

“Further, it is well settled that war-rantless searches and seizures are per se unreasonable under the Fourth Amendment unless the State establishes that the search or seizure falls within a recognized exception. Ex parte Hilley, 484 So.2d 485, 488 (Ala.1985). Exceptions to the warrant requirement include: 1) objects in plain view; 2) consensual searches; 3) a search incident to a lawful arrest; 4) hot pursuit or emergency situations; 5) probable cause coupled with exigent circumstances; and 6) an investigatory detention and search for weapons pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Ex parte Tucker, 667 So.2d 1339, 1343 (Ala.1995).”

State v. Moore, 115 So.3d 187, 189-90 (Ala.Crim.App.2012). “Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard v. State, 335 So.2d 924 (Ala.1976).” Williams v. State, 995 So.2d 915, 918 (Ala.Crim.App.2008). Here, the State argues that the trial court erred in finding, as to both searches, that there was no probable cause coupled with exigent circumstances.

“Whether there is probable cause to merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). ‘Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ Sheridan v. State, 591 So.2d 129, 130 (Ala.Crim.App.1991).”

State v. Stallworth, 645 So.2d 323, 325 (Ala.Crim.App.1994). In the present case, the tip came from an anonymous 911 call. “[A]nonymous tips may establish probable cause when corroborated by independent police investigation.” Bell v. State, 611 So.2d 1167, 1169 (Ala.Crim.App.1992) (quoting Illinois v. Gates, 462 U.S. 213, 241, 103 S.Ct. 2317, 2334, 76 L.Ed.2d 527 (1983)).

“This court has explained what the State must prove to show the existence of exigent circumstances as follows:
“ ‘ “ ‘[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed.’ Welsh [v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)]; Mincey [v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)]. ‘ “[T]he mere presence of narcotics, without more, is not such an exigent circumstance as would permit entry into private' premises without a proper warrant.” ’ People v. Lee, 83 A.D.2d 311, 444 N.Y.S.2d 100, 102-103 (1981), cert. denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 798 (1983). See also People v. Ouellette, 78 Ill.2d 511, 36 Ill.Dec. 666, 669-70, 401 N.E.2d 507, 510-11 (1979). “‘The presence of contraband without more does not give rise to exigent circumstances.” United States v. Torres, 705 F.2d 1287, 1297 (11th Cir.1983).’
“ ‘ “There have been various attempts to formulate an all encompassing definition of exigent circumstances. See Harbaugh and Faust, ‘Knock on Any Door’-Home Arrests After Payton and Steagald, 86 Dick. L. Rev. 191 (1982); Donnino and Girese, Exigent Circumstances For A Warrantless Home Arrest, 45 Alb. L. Rev. 90 (1980); Comment, Warrant-less Arrests: Justification By Exigent Circumstances, 6 Hamline L. Rev. 191 (1983); W. LaFave, 2 Search and Seizure § 6.5 (1978). However, ‘[t]he exigent circumstances doctrine applies only when the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.’ United States v. Satterfield, 743 F.2d [827, 844 (11th Cir.1984)]. The possibility that evidence will be destroyed is an exigent circumstance widely recognized by the courts. Note, Exigent Circumstances for Warrantless Home Arrests, 23 Ariz. L. Rev. 1171, 1177 (1981). ‘[W]hen police officers have probable cause to search a residence for evidence, and they reasonably believe that such evidence is threatened with loss from any source, they may make a warrantless search of the premises in order to preserve and protect that evidence.’ Case note, Residential Searches to Prevent the Destruction of Evidence: An Emerging Exception to the Warrant Requirement, 47 U. Colo. L. Rev. 517, 532 (1976); Comment, Residential Searches to Prevent Destruction of Evidence: A Need for Strict Standards, 70 J. Crim. L. & Crim. 255 (1979); 2 Search § 6.5(b).
“ ‘ “In finding the existence of exigent circumstances due to the threatened destruction of evidence, the courts have applied such broad tests as the ‘ “great likelihood that the evidence will be destroyed or removed before a warrant can be obtained,” that the evidence is “threatened with imminent removal or destruction,” or that the police “reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant.” ’ 2 Search at p. 438, § 6.5(b).
“ ‘ “ ‘When Government agents, however, have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant, ...; (2) reasonable belief that the contraband is about to be removed, ...; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, ...; (4) information indicating the possessors of the contraband are aware that the police are on their trail, ...; and (5) the ready destructibility of the contraband and the knowledge “that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.”...’ United States v. Rubin, 474 F.2d 262, 268-69 (3rd Cir.1973) (citations omitted). See also 2 Search at pp. 439-450.”
‘Youtz v. State, 494 So.2d 189, 193-94 (Ala.Crim.App.1986).’
“Cameron [v. State], 861 So.2d [1145] at 1151-52 [(Ala.Crim.App.2003)].”

Williams, 995 So.2d at 918.

In Cameron v. State, 861 So.2d 1145 (Ala.Crim.App.2003), this Court considered whether' the odor of marijuana emanating from a house constituted sufficient'probable cause for a warrantless search. In Cameron, a police officer noticed an illegally parked vehicle outside a housing project and approached the apartment. The officer testified that he smelled a strong odor that, based on his experience and training as a police officer, he recognized to be marijuana and that he observed heavy smoke in the apartment. The officer also testified that, upon seeing the officer at the front door, the defendant turned and ran. In upholding the trial court’s denial of a motion to suppress the marijuana evidence found during the warrantless search, we relied on Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), which states:

“ ‘At the ' time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain defendant’s contention, erroneously made, on the strength of Taylor v. United States, 286 U.S. 1 [(1932)], that odors cannot be evidence sufficient to constitute probable grounds for any search. That decision held only that odors alone do not authorize a search without [a] warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.’ ”

861 So.2d at 1150. We held “that the strong and overwhelming smell of marijuana emanating from the house, combined with [an officer’s] testimony regarding his ability to identify the distinctive odor of marijuana, established the existence of [an officer’s] probable cause to believe that contraband was present inside the residence.” 861 So.2d at 1150. See Smith v. State, 606 So.2d 174 (Ala.Crim.App.1992); Key v. State, 566 So.2d 251 (Ala.Crim.App.1990); and Sterling v. State, 421 So.2d 1375 (Ala.Crim.App.1982).

On appeal, the State argues that on January 7 and January 28, the police had probable cause to believe that contraband was present in the apartment because they could smell an odor of what they thought, based on the officers’ training and experience, was an operating methamphetamine lab emanating from the apartment. The State also argues that the presence of an active methamphetamine lab is an exigent circumstance that justified immediate .entry into the apartment. We agree with the State that there was probable cause coupled with exigent circumstances to justify the January 28 search of the apartment; however, we hold that the trial court did not err in granting the motions to suppress regarding the January 7 search of the apartment and the January 28 searches of Lee, Bailey, and Clayton.

The trial court specifically identified the basis for granting the pretrial motions to suppress regarding the January 7 and January 28 searches of the apartment as follows: (1) on January 7, neither officer obtained permission to enter the apartment; (2) one officer testified that he entered the apartment on January 7 and that he did not feel he was in any danger; (3) both officers testified that on January 7 they could smell a suspicious odor when they arrived on the scene, but could not tell from .which apartment it was coming; (4) one of the officers testified that on January 7 he could not see any smoke, fire, or contraband from the door of the apartment; (5) on January 7 there was no active methamphetamine lab in the apartment; (6) on January 28 neither officer could see any fire or smoke from outside the apartment; (7) on January 28 there were no outward signs that danger was imminent; (8) one police officer testified he entered the apartment on January 28 and that did not feel he was in any type of danger; and (9) there was a lack of testimony about an emergency on January 28.

I. The Searches of the Apartment

In Williams, this Court recognized that the discovery of an operating methamphetamine lab “constitutes an exigent circumstance justifying a warrantless search.” 995 So.2d at 921. In that case, the police conducted a “knock and talk” after having received information from a confidential informant regarding a methamphetamine lab at a certain address. An officer noticed a chemical odor that he associated with the manufacture of methamphetamine and saw, in the shed behind the mobile home, a vase that contained a boiling liquid. Based on the officer’s belief that a methamphetamine lab was operating inside the mobile home, the police conducted a warrantless search of the mobile home. This Court held:

“Based on the inherent dangers of an operating methamphetamine lab, we now hold that discovery of such a lab by law-enforcement officials constitutes an exigent circumstance justifying a war-rantless search. Here, law-enforcement officials were investigating a tip from a confidential informant that a methamphetamine lab was being operated at a certain location. Upon arriving at that location, the investigators smelled odors associated with a methamphetamine lab in a shed and emanating from Williams’s mobile home. One of the investigators saw an ongoing ‘cook’ of methamphetamine in the shed. Under these circumstances, the law-enforcement officials acted properly in entering the mobile home and searching it room by room to clear it. Therefore, the trial court properly denied Williams’s motion to suppress evidence seized during the search of the mobile home.”

995 So.2d at 921 (emphasis added).

In this case, on January 28 Officers Sansing and Anderson responded to an apartment building after having received a dispatch regarding an anonymous 911 call about an operating methamphetamine lab. In determining that the State had failed to prove probable cause in this case, the trial court noted in its written order that on January 28 the police had only an anonymous call before they approached the apartment and that they could have appeared before a magistrate to secure a warrant prior to the search. As explained below,' however, the evidence presented indicated that police work was done to corroborate the anonymous tip. Officer Sans-ing testified that the door to the apartment had been left open and that she smelled a “strong, bitter ammonia-type” odor emanating from the apartment. Similarly, Officer Anderson testified that while standing outside the apartment, he smelled an “ammonia” odor that, having previously encountered methamphetamine labs during his training and experience as an officer, he would relate to a methamphetamine lab. Additionally, Officer Anderson testified that on January 28 Bailey, Clayton, and Lee were unable to “sell” him their story that they were leaving the apartment to do laundry. In Cameron, we noted that in determining whether an officer has probable cause to enter a dwelling “requires only that facts available to the officer at the moment of [entry] would warrant a person of reasonable caution to believe that the action taken by the officer was appropriate.” 861 So.2d at 1149. In light of the uncontroverted testimony described above regarding the January 28 search of the apartment, we conclude that the police had probable cause to believe that an active methamphetamine lab was in the apartment on January 28. Cameron, supra.

Further, the trial court enumerated in its written order regarding the January 28 search that “there was a lack of testimony about an emergency.” Officer Anderson’s testimony, however, indicated that he believed that an active methamphetamine lab was present in the apartment. Williams, supra. Indeed, Officer Anderson testified that, in addition to the “ammonia” smell that was emanating from the open door to the apartment, he observed a “haze smoke” while standing outside the apartment. Officer Anderson testified that he, along with members of the fire department, notified residents in adjacent apartments according to standard procedure taken when there is a fire in an apartment complex. Officer Anderson thereafter entered the apartment and observed the source of the “haze smoke” as coming from the bubbling, pink liquid substance inside a two-liter bottle located in the back bedroom of the apartment, which was later confirmed as an active methamphetamine lab.

Based on the undisputed evidence that there was “haze smoke” visible from outside the apartment, coupled with the strong “ammonia” odor emanating from the open door of the apartment, we find that the record does not support the trial court’s written findings in support of granting the suppression motion as to the January 28 search of the apartment. See State v. Moore, 115 So.3d 187 (Ala.Crim.App.2012) (‘“Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the [appellate] 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.’ ” (quoting C.B.D. v. State, 90 So.3d 227, 237 (Ala.Crim.App.2011))).

Conversely, the State has not demonstrated that the trial court erred in its finding that the January 7 search of the apartment lacked sufficient evidence of the existence of exigent circumstances.' On January 7, Officers Taylor and Hall were unable to determine from which apartment the odor they were smelling was coming until Bailey opened the door to the apartment. Officer Taylor testified that he did not see any fire or smoke inside the apartment. In fact, Officer Taylor testified that the apartment appeared to be safe. Thus, based on Taylor’s testimony that the apartment appeared to be safe and the testimony that the officers were unable to determine from which apartment the odor they were smelling was coming, the trial court did not abuse its discretion in finding there was a lack of testimony about the existence of exigent circumstances on January 7, and the State has not shown that the trial court improperly granted the motion to suppress with regard to the January 7 search.

II. January 28 Searches of Lee, Bailey, and Clayton

The State concedes that the trial court properly suppressed the evidence seized from Lee, Bailey, and Clayton on January 28th. Although the State points to testimony by Officer Sansing indicating that the patdown searches were conducted to ensure officer safety, it acknowledges that the record is otherwise silent. Thus, the State contends that while conducting the patdown searches to ensure officer safety was likely reasonable under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), there was no evidence in the record to show that the actual seizure of the evidence was justified under Terry. Further, the State notes that no evidence was presented to show if the searches were conducted pursuant to any exception under the warrant requirement, including a search incident to a lawful arrest. Based on this record, it cannot be said that the State met its burden of proving that the warrantless searches were constitutional. Accordingly, the trial court properly suppressed the drug paraphernalia recovered from the January 28 searches of Lee, Bailey, and Clayton.

III. Conclusion

That part of the trial court’s order granting the motions to suppress the evidence seized as a result of the January 7 search of the apartment and the January 28 searches of Lee, Bailey, and Clayton is affirmed. That part of the order granting the motion to suppress the evidence seized as a result of the January 28 search of the apartment is reversed, and the cases are remanded for further proceedings consistent with this opinion.

CR-11-1865 — APPLICATIONS OVERRULED; OPINION OF JUNE 7, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CR-11-1866 — APPLICATIONS OVERRULED; OPINION OF JUNE 7, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CR-11-1867 — APPLICATIONS OVERRULED; OPINION OF JUNE 7, 2013, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

WINDOM, P.J.; and WELCH, KELLUM, and BURKE, JJ., concur.

      . In July 2011, Natasha Rae Lee was indicted . for two counts of unlawful possession of a controlled substance, see § 13A-12-212, Ala. Code 1975, one count of second-degree unlawful possession of marijuana, see § 13A-12-214, Ala.Code 1975, and one count of first-degree unlawful manufacturing of a controlled substance, see § 13A-12-218, Ala.Code 1975; Jennifer Leigh Clayton was indicted for two counts of first-degree unlawful manufacturing of a controlled substance, see § 13A-12-218, Ala.Code 1975, and one count of unlawful possession of drug paraphernalia, see § 13A-12-260, Ala.Code 1975; and Justin Andrew Bailey was indicted for two counts of first-degree unlawful manufacturing of a controlled substance, see § 13A-12-218, Ala.Code 1975, one count of second-degree unlawful possession of marijuana, see § 13A-12-214, Ala.Code 197, and one count of unlawful possession of drug paraphernalia, see § 13A-12-260, Ala.Code 1975.

      . We have consolidated the three appeals for the purpose of issuing one opinion.

      . Officer Taylor explained that members of the fire department refused to enter the apartment until he and Sgt. Hall had rendered it safe for them to enter the apartment.

      . Officer Taylor testified specifically "that [Bailey] basically said, 'See for yourself.’" (R. 44.) We note that the trial court stated in its order that neither officer obtained permission to enter the apartment. Although consent is an exception to the warrant requirement, see, e.g., Baird v. State, 849 So.2d 223, 229 (Ala.Crim.App.2002), the circuit court’s order rejected Officer Taylor’s assertion that Bailey consented to the search, and the State does not argue on appeal that Bailey consented to the January 7 search.

      . In its brief, the State argues that the January 7 search of Bailey’s person was constitutionally permissible because it was conducted pursuant to a lawful search incident to arrest. Bailey’s motion to suppress initially addressed only the January 28 searches. Prior to the hearing, Bailey moved to amend his m.otion to suppress to include the January 7 searches of his person and apartment. The motion to amend was not specifically ruled upon by the circuit court. On appeal, Bailey argues that the January 7 search of his person resulted in both an unlawful-possession-of-marijuana charge with the City of Montgomery, case no. 2011CRA000138D, and an indictment — the subject of which is discussed in this opinion. Bailey argues that the municipal charge was later nol-prossed by Municipal Court Judge Les Hayes on March 9, 2012. We pote that the circuit court does not directly address the January 7 search of Bailey’s person; therefore, we do not express any opinion as to that search.

      . Sgt. Hall testified: "I was advised by the fire department that they needed to clear that residence to make sure that there was nothing in there that would endanger the public. But they would not clear that residence until after I cleared the residence to make sure there were no other people inside for their safety.” (R. 52-53.)

      . Sgt. Hall explained that the “protocols” regarding a possible methamphetamine lab include having "to keep the residence or business or whatever area clear and secure so that no one goes in there, because people can get hurt from the odors. Meth labs are known to explode. So we also have to contact — we also had to contact all the surrounding apartments and clear those apartments out until such time as it is deemed safe for them to go back in.” (R. 55-56.)

      . Det. Roberson’s testimony that the methamphetamine lab found on January 7 was inactive was inconsistent with Sgt. Hall's testimony that members of the fire department later showed him what they believed to be an active methamphetamine lab inside the apartment.

      . In light of our holding that the evidence from the January 7 search should have been suppressed and because the State has asserted that Lee has not been charged based on any evidence from the January 7 search, we need not address whether Lee had standing to .challenge the January 7 search. We further note that the State does not challenge standing with regard to Bailey and Clayton; thus, the propriety of that search is properly before üs.


source: Caselaw Access Project

author: STUART, Justice. MURDOCK, Justice

license: Public Domain

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Jennifer Leigh CLAYTON). Ex parte State of Alabama. (In re State of Alabama v. Justin Andrew Bailey).
    1130012 and 1130013.
    Supreme Court of Alabama.
    April 4, 2014.

      Luther Strange, atty. gen., John C. Nei-man, Jr., deputy atty. gen., and Michael G. Dean, asst. atty. gen., for petitioner.
    Raymond Johnson, Montgomery, for respondent Jennifer Leigh Clayton.
    R. Donelson Kloess, Montgomery, for respondent Justin Andrew Bailey.
   STUART, Justice.

Jennifer Leigh Clayton and Justin Andrew Bailey filed separate motions requesting that the trial court suppress evidence seized in a warrantless search of their apartment by law-enforcement officers on January 7, 2011. After a hearing, the trial court granted their motions to suppress the evidence. The State appealed, and the Court of Criminal Appeals affirmed the trial court’s order as to the January 7 search. State v. Lee, 155 So.3d 278 (Ala.Crim.App.2013). The State petitioned this Court for certiorari review of the decision of the Court of Criminal Appeals. We reverse and remand.

Facts and Procedural History

The following evidence was presented at the suppression hearing. On January 7, 2011, between 12 a.m. and 1 a.m., Officer James Taylor and Sgt. James Hall, Montgomery law-enforcement officers, as well as other Montgomery law-enforcement officers and Montgomery firefighters, received a dispatch indicating that a methamphetamine laboratory was in operation at an apartment on Stonehenge Drive in Montgomery. Officer Taylor and Sgt. Hall testified that when they arrived at the apartment complex they could smell an odor that they knew from their training and experience was consistent with the chemicals used during the production of methamphetamine. Officer Taylor described the odor as a distinct, strong, “ammonia-like,” nauseating odor that is easily recognizable once one knows it to be consistent with the process of manufacturing methamphetamine. Sgt. Hall described the odor as very strong, pungent, and offensive, explaining that it almost burned the sinuses when inhaled.

The officers, in an effort to determine the origin of the odor, knocked on the door of the apartment. The officers testified that when Bailey opened the door the odor they knew to be consistent with the manufacture of methamphetamine grew stronger. The officers informed Bailey that they had received calls about a strong odor coming from his residence and that it had been reported that a methamphetamine laboratory was being operated in the apartment. Bailey responded that the calls had to be prank calls because no illegal activity was going on in the apartment. Sgt. Hall informed Bailey and Clayton, who was also present with two small children, that law-enforcement officers had to enter the apartment and conduct a protective sweep to clear the residence of all occupants so that the fire department could enter and check the apartment for safety reasons.

Sgt. Hall and Officer Taylor testified that they then searched each room of the apartment “to make sure there was nobody else in the apartment.” Officer Taylor testified that they spent approximately five minutes in the apartment and that the apartment “appeared to be safe.” Sgt. Hall testified that because of the odor he and his officers did not stay in the apartment long, just “long enough to make sure that the apartment was clear, long enough to allow the infant to be properly clothed for the cold weather.” After Officer Taylor and Sgt. Hall completed the protective sweep and left the apartment with Bailey, Clayton, and her two children, they turned the apartment over to the firefighters, who went inside to “mak[e] sure there [were] no chemicals in there that could explode endangering the other residents in the building.” Additionally, law-enforcement officers had the residents of the other apartments leave their residences until the fire department determined that they were not in danger from the process of manufacturing methamphetamine and it was safe to reenter the apartments.

During the firefighters’ search of the apartment, they located a methamphetamine “laboratory” inside a cooler in a closet. The laboratory was not operating at the time. After the firefighters showed the laboratory to Sgt. Hall, Sgt. Hall notified the on-call narcotics officer, Detective Joel Roberson. Sgt. Hall testified that even after the methamphetamine laboratory was found he and the officers continued to secure the area because “people can get hurt from the odors” and “meth labs are known to explode.”

Detective Roberson testified that when he arrived at the apartment complex he could smell an odor that, based on his training and experience, he knew to be consistent with the odor created during the manufacture of methamphetamine. Detective Roberson stated that when he entered the apartment with the Montgomery Fire Department’s hazardous-materials crew a member of the crew showed him a foam cooler, which contained “everything you needed to [manufacture] methamphetamine.” Detective Roberson also found other materials in the apartment known to be associated with manufacturing methamphetamine, including lithium batteries, a funnel hidden under a bed, and small plastic bags. After Detective Roberson had photographed the methamphetamine laboratory, a crew from the Drug Enforcement Administration collected and disposed .of the materials.

When questioned at the hearing on the motion to suppress about the reason for conducting a warrantless entry into and search of the apartment, Sgt. Hall testified that “[m]eth[amphetamine] labs are known to explode as well as produce noxious fumes that can harm people” and that his intent in going into the apartment was “to make sure that the public remain safe.” Sgt. Hall further stated that when he was “clearing” the apartment he felt like he was in danger and could be harmed by the odor. He stated that he limited the number of officers who entered the apartment because of the adverse health effects breathing the chemicals used in the manufacture of methamphetamine can cause. Sgt. Hall testified that he filed a letter of notice with his supervisor documenting that he had been exposed to a methamphetamine laboratory in case health issues later arose from the exposure. When defense counsel asked Sgt. Hall if he felt like he was in immediate danger, Sgt. Hall responded: ‘Tes, sir. I did.... Due to the odor that I was smelling, and I knew ... what those odors- can cause, harmful to me, so yes, sir, I did feel like that I was in danger and could be harmed.”

Likewise, Officer Taylor testified that, because of the odor, he did not want to enter the apartment. He explained that, although the odor in the apartment did not appear to hurt him, Sgt. Hall, Clayton, Bailey, or the children, an emergency situation existed because “there was still the odor.”

Detective Roberson testified that the manufacture of methamphetamine creates a high risk of explosion because the chemicals used in the process become extremely volatile when combined and can react violently, bursting into flames. He further testified that the manufacture of methamphetamine creates a health hazard for anyone who is near the methamphetamine laboratory. He explained:

“If you can smell it, you’re at risk. The proper way to handle this [investigation of a methamphetamine laboratory is] ... anybody that goes anywhere near this lab should have on a respirator, protective clothing, protective suit and that kind of stuff.... You know, it can — anywhere that there is air ducts, air vents that the chemicals can travel, it can affect those areas, too.”

The trial court concluded that no exigent circumstances existed to justify entry into, or the search of, the apartment because “there was no outward sign that danger was imminent” and because one officer testified that “he entered the apartment and did not feel he was in any type of danger.” The trial court granted Clayton’s and Bailey’s motions to suppress. The Court of Criminal Appeals affirmed the trial court’s order as to the January 7 search.

Standard of Review

“ ‘ “ ‘This Court reviews pure questions of law in criminal cases de novo.’ ” ’ Ex parte Brown, 11 So.3d 933, 935 (Ala.2008) (quoting Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004), quoting in turn Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).” Hiler v. State, 44 So.3d 543, 546 (Ala.2009).

Discussion

The State contends that the Court of Criminal Appeals erred in holding that the trial court properly granted Clayton’s and Bailey’s motions to suppress the evidence seized from the January 7, 2011, warrant-less entry into and search of their apartment.

The Fourth Amendment to the United States Constitution states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”

Article I, § 5, Ala. Const, of 1901, states the same fundamental principle and also applies to this case.

In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), the United States Supreme Court recognized that there are situations where the requirement that law-enforcement officers secure a warrant before entry into a person’s residence may be obviated. The Supreme Court explained:

“Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.
“There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with.”

333 U.S. at 14-15.

In Cameron v. State, 861 So.2d 1145, 1149 (Ala.Crim.App.2003), the Alabama Court of Criminal Appeals recognized one of the exceptional circumstances that justifies a warrantless entry and search of a residence, stating:

“ ‘It is well settled that warrantless entries to and searches of a residence are presumptively unreasonable and that the burden is on the government to demonstrate exigent circumstances justifying a warrantless entry and search. Welsh v. Wisconsin, 466 U.S. 740 (1984); Payton v. New York, 445 U.S. 573 (1980); Landreth v. State, 600 So.2d 440 (Ala.Cr.App.1992). To justify a warrantless entry and search, the state needs to show both the existence of probable cause and exigent circumstances. United States v. Rodgers, 924 F.2d 219 (11th Cir.1991), cert. denied, 501 U.S. 1221, 111 S.Ct. 2884, 115 L.Ed.2d 1003 (1991), appeal after remand, 981 F.2d 497 (11th Cir.1993); Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982).’

“A.A.G. v. State, 668 So.2d 122, 126 (Ala.Crim.App.1995) (some internal citations, altered).”

In Wedgeworth v. State, 610 So.2d 1244, 1247-48 (Ala.Crim.App.1992), the Court of Criminal Appeals held that law-enforcement officers may conduct a warrantless search of a motel room if the officers have probable cause to believe that an illegal activity had been or was being committed and there is an exigent circumstance, stating:

“This court has ... held ... that probable cause combined with the existence of exigent circumstances justifies a warrantless search. Cooper v. State, 480 So.2d 8 (Ala.Cr.App.1985). See also Blaine v. State, 366 So.2d 353 (Ala.Cr.App.1978). Moreover, an officer has probable cause to conduct a search if a reasonably prudent person based on the facts and circumstances that the officer knows would be justified in concluding that the object of the search or items sought are connected with criminal activity, and that they will be found in the place to be searched. Gord v. State, 475 So.2d 900 (Ala.Cr.App.1988 198[5]).
“... [T]his court has ruled that exigent circumstances exist to justify a warrantless search upon a reasonable cause to believe that those premises contain individuals in imminent danger of death or severe bodily harm. Ash v. State, 424 So.2d 1381 (Ala.Cr.App.1982). Moreover, where exigent circumstances exist and there is probable cause to believe that evidence of a crime may be found, an immediate warrantless search is justified as an exception to the Fourth Amendment’s warrant requirement. Hancock v. State, 368 So.2d 581 (Ala.Cr.App.), writ denied, 368 So.2d 587 (Ala. ... 1979).
“... The Fourth Amendment does not require police officers to delay in the course of an investigation of a serious crime if to do so would endanger the lives of others. Jones v. State, 49 Ala.App. 438, 272 So.2d 910 (1973).”

Mindful of these principles of law, this Court now considers whether the law-enforcement officers had probable cause to believe that an illegal activity had been or was being committed in Clayton and Bailey’s apartment coupled with an exigent circumstance so as to justify the warrant-less entry and search of the apartment.

A. Probable Cause

The State contends that the law-enforcement officers had probable cause to enter and search Clayton and Bailey’s apartment because, it argues, when Bailey opened the apartment door the odor known to them to be consistent with the process of manufacturing methamphetamine grew stronger in intensity, indicating that the occupants of the apartment were engaging in an illegal activity — the manufacture of methamphetamine — inside the apartment.

In Adams v. State, 815 So.2d 578, 580-81 (Ala.2001), this Court recognized the standard for determining the existence of probable cause, stating:

“In Woods v. State, 695 So.2d 636 (Ala.Crim.App.1996), the Court of Criminal Appeals explained the standard for determining the existence of probable cause:
“ ‘ “Whether there is probable cause [to] merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S.
213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). ‘Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ Sheridan v. State, 591 So.2d 129, 130 (Ala.Crim.App.1991).”
‘State v. Stallworth, 645 So.2d 323, 325 [(Ala.Crim.App.1994)].... “When we speak of probable cause, we are dealing with probabilities which are factual and practical considerations of everyday experience.” [Sterling v. State, 421 So.2d 1375, 1381 (Ala.Crim.App.1982)].’
695 So.2d at 640 (citations omitted).”

In Johnson v. United States, supra, law-enforcement officers had received information from a confidential informant that a person was smoking opium, an illegal controlled substance, in a hotel room. The law-enforcement officers, who had been sent to investigate the odor, were experienced in narcotics, recognized the odor of burning opium while they were in the hall, and determined that the odor was emanating from a certain room. The officers knocked and informed the occupant that they were law-enforcement officers. When the occupant opened the door, one of the officers stated that he wanted to discuss the opium smell in the room. The occupant denied that there was such a smell. The law-enforcement officers then arrested the occupant, searched the room, and seized opium and its smoking apparatus. Although the United States Supreme Court held that the warrantless entry and search of the room was unconstitutional because an exigent circumstance did not exist to excuse the need for a warrant, the Court did state that the odor known to the officers as the odor of burning opium could constitute probable cause for issuing a warrant, stating:

“At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a warrant. We cannot sustain defendant’s contention, erroneously made, on the strength of Taylor v. United States, 286 U.S. 1 [(1932)], that odors cannot be evidence sufficient to constitute probable cause grounds for any search. That decision held only that odors alone do not authorize a search without [a] warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.”

333 U.S. at 13. See also Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (“Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause.”).

In Cameron v. State, supra, the Court of Criminal Appeals held that the overwhelming odor of marijuana emanating from a house, combined with the law-enforcement officer’s testimony explaining his ability, based on his training and experience, to identify the odor of marijuana established that probable cause existed for the officer to believe that an illegal substance was located inside the residence. Cf. Blake v. State, 772 So.2d 1200, 1205 (Ala.Crim.App.2000) (holding that the odor of drugs emanating from a vehicle provided probable cause to search the vehicle); Adams v. State, 815 So.2d at 581 (“A police officer’s detecting the smell of raw or burned marijuana coming from a particular place or person is sufficient to provide probable cause to search that place or person.”).

In this case, the evidence establishes that the law-enforcement officers had probable cause to believe that an illegal activity — the unlawful manufacturing of methamphetamine — was or had been occurring inside Clayton and Bailey’s apartment. The law-enforcement officers testified that when Bailey opened the door to the apartment the odor that they knew, based on their training and experience, to be consistent with the process of manufacturing of methamphetamine became stronger. Because the evidence established that the odor consistent with the process of manufacturing methamphetamine emanated from Clayton and Bailey’s apartment and that the officers, based on their training and experience, had the ability to recognize the odor, the law-enforcement officers had probable cause to believe that the occupants of the apartment were engaged in the illegal activity of manufacturing methamphetamine inside the apartment. A.A.G. v. State, 668 So.2d 122, 127 (Ala.Crim.App.1995) (“The establishment of probable cause requires only that facts available to the officer at the moment of [entry] would warrant a person of reasonable caution to believe that the action taken by the officer was appropriate.”). Cf. Adams v. State, supra.

B. Exigent Circumstance

The State contends that the dangers to the public created by the process of manufacturing methamphetamine constitute an exigent circumstance that requires immediate action from law-enforcement officers to protect the public and that overcomes the delay incident to obtaining a warrant. Clayton and Bailey disagree, arguing that the statements and actions of the law-enforcement officers in this case establish that there was no danger of harm to themselves or the public. Therefore, they maintain that an exigent circumstance did not exist that authorized the warrantless entry into and search of their apartment by law-enforcement officers.

“ ‘The exigent circumstances doctrine applies only when the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.”’ Youtz v. State, 494 So.2d 189, 193 (Ala.Crim.App.1986) (quoting United States v. Satterfield, 743 F.2d 827, 844 (11th Cir.1984)).

“The burden rests on the State to prove the existence of an exigent circumstance to overcome the presumption of unreasonableness that attaches to warrantless residential entries and searches. McCammon v. State, 499 So.2d 811 (Ala.Crim.App.1986) (citing Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)). See also Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) (‘The burden rests on the State to show the existence of such an exceptional situation.’).
“ ‘ “[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed.” Welsh [v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)]; Mincey [v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)]. “[T]he mere
presence of narcotics, without more, is not such an exigent circumstance as would permit entry into private premises without a proper warrant.” People v. Lee, 83 A.D.2d 311, 444 N.Y.S.2d 100, 102-103 (1981), cert, denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 798 (1983). See also People v. Ouellette, 78 I11.2d 511, 36 IlLDee. 666, 669-70, 401 N.E.2d 507, 510-11 (1979). “The presence of contraband without more does not give rise to exigent circumstances.” United States v. Torres, 705 F.2d 1287, 1297 (11th Cir.1983).
“ ‘There have been various attempts to formulate an all encompassing definition of exigent circumstances. See Harbaugh and Faust, “Knock on Any Door” — Home Arrests After Payton and Steagald, 86 Dick. L.Rev. 191 (1982); Donnino and Gírese, Exigent Circumstances For A Wam~antless Home Arrest, 45 Alb. L.Rev. 90 (1980); Comment, Warrantless Arrests: Justification By Exigent Circumstances, 6 Hamline L.Rev. 191 (1983); W. LaFave, 2 Search and Seizure § 6.5 (1978). However, “[t]he exigent circumstances doctrine applies only when the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.” United States v. Satterfield, 743 F.2d [827, 844 (11th Cir.1984) ].’ ”

Cameron v. State, 861 So.2d at 1150-51 (quoting Youtz, 494 So.2d at 193). See Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001)(de-fíning exigent circumstances as a “specially ' pressing or urgent law enforcement need”); Brigham City, Utah v. Stuart, 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (noting that any warrantless search entry based on exigent circumstances must be supported by a genuine exigency).

The United States Supreme Court has held that “‘[t]he need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ ” Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir.1963)). For example, law-enforcement officers can enter a residence without a warrant to render emergency assistance to an injured person or to protect a person from immediate injury. Mincey, 437 U.S. at 392. Moreover, the state of mind of the law-enforcement officer is immaterial “as long as the circumstances, viewed objectively, justify [the officer’s] action.” Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).

Courts have recognized the dangers created during the process of manufacturing methamphetamine, and numerous cases have upheld warrantless searches by law-enforcement officers who had probable cause to believe that they had located an active methamphetamine-manufacturing operation. See Williams v. State, 995 So.2d 915 (Ala.Crim.App.2008); Kleinholz v. United States, 339 F.3d 674 (8th Cir.2003) (noting that the volatile nature of an operating methamphetamine laboratory can create a danger supporting the finding of an exigent circumstance justifying an immediate search); Louisiana v. Shumaker, 914 So.2d 1156, 1167-68 (La.Ct.App.2005) (holding the chemical smell known to be associated with the illegal manufacture of methamphetamine and the dangers of the manufacture of methamphetamine established an immediate need for the officers to enter the residence without a warrant to protect the public); United States v. Lloyd, 396 F.3d 948, 954 (8th Cir.2005); United States v. Walsh, 299 F.3d 729, 734 (8th Cir.2002) (“[Potential hazards of methamphetamine manufacture are well documented, and numerous cases have upheld limited warrantless searches by police officers who had probable cause to believe they had uncovered an on-going methamphetamine manufacturing operation.”); United States v. Wilson, 865 F.2d 215, 217 (9th Cir.1989); United States v. Echegoyen, 799 F.2d 1271, 1278-79 (9th Cir.1986); United States v. Brock, 667 F.2d 1311, 1318 (9th Cir.1982); and People v. Messina, 165 Cal.App.3d 937, 212 Cal.Rptr. 75 (1985). At least one state has codified the exigent circumstance created by the process of manufacturing methamphetamine. Ohio Revised Code .Section 2933.33 provides:

“If a law enforcement officer has probable cause to believe that particular premises are used for the illegal manufacture of methamphetamine, for the purpose of conducting a search of the premises without a warrant, the risk of explosion or fire from the illegal manufacture of methamphetamine causing injury to the public constitutes exigent circumstances and reasonable grounds to believe that there is an immediate need to protect lives, or property, of the officer and other individuals in the vicinity of the illegal manufacture.”

In Williams, supra, the Court of Criminal Appeals held that the observation of an operating methamphetamine laboratory by law-enforcement officers constituted an exigent circumstance justifying a warrantless search. The Court' of Criminal Appeals stated:

“The State contends that the methamphetamine lab itself created an exigent circumstance that enabled law-enforcement officials to conduct a warrantless search of Williams’s mobile home. The appellate courts of Alabama have not previously addressed the narrow issue whether the threat posed by an operating methamphetamine lab constitutes an exigent circumstance allowing a war-rantless search of a residence law-enforcement officials suspect contains a methamphetamine lab.
“Jurisdictions that have tackled the issue have held that the dangers posed by an operating methamphetamine lab are sufficient to constitute an exigent circumstance for purposes of conducting a warrantless search of a residence. For example, in United States v. Layne, 324 F.3d 464, 468-69 (6th Cir.2003), the United States Court of Appeals for the Sixth Circuit noted that the production of methamphetamine ‘ “poses serious dangers to both human life and to the environment ... [and] these chemicals and substances are utilized in a manufacturing process that is unstable, volatile, and highly combustible. Even small amounts of these chemicals, when mixed improperly, can cause explosions and fires.” ’ Id., quoting H.R. Rep. 106-878, pt. 1 at *22 (September 21, 2000).
“The Maine Supreme Court also has held that discovery of an operating methamphetamine lab can provide an exigent circumstance that would allow a warrantless search. State v. Bilynsky, 932 A.2d 1169 (Me.2007). In its opinion, the Maine court included a catalog of those jurisdictions that have held that discovery of an operating methamphetamine lab constitutes an exigent circumstance, beginning with United States v. Williams, 431 F.3d 1115 (8th Cir.2005), in which the United States Court of Appeals for the Eighth Circuit held that the discovery of an operating methamphetamine lab in the defendant’s home rendered a protective sweep of the home necessary to protect the safety of the officers and local residents.
“The Bilynsky court then cited other cases consistent with Williams, stating that
“ ‘the Eighth Circuit noted that “[t]he potential hazards of methamphetamine manufacture are well documented, and numerous cases have upheld limited warrantless searches by-police officers who had probable cause to believe they had uncovered an ongoing methamphetamine manufacturing operation.” United States v. Walsh, 299 F.3d 729, 734 (8th Cir.2002). The court cited five cases [in Walsh ] from the Ninth and Tenth Circuits to support that proposition. Id. Courts outside the Eighth, Ninth, and Tenth Circuits have reached the same result. See, e.g., United States v. Denson, No. 1:05-CR-088 ... (E.D.Tenn. Feb. 2, 2006) [(not reported in F.Supp.)]; People v. Duncan, 42 Cal.3d 91, 227 Cal.Rptr. 654, 720 P.2d 2, 10-11 (1986); Holder v. State, 847 N.E.2d 930, 939-40 (Ind.2006); State v. Castile, No. M2004-02572-CCA-R3-CD ... (Tenn.Crim.App. June 28, 2006)[(not reported in S.W.3d)].’
“State v. Bilynsky, 932 A.2d 1169, 1175-76 (Me.2007).
“The Iowa Supreme Court has found that ‘[t]he volatile nature of the dangers created, by methamphetamine labs can be exigent circumstances justifying an immediate limited search of premises harboring such a lab.’ State v. Simmons, 714 N.W.2d 264, 273 (Iowa 2006); see also Kleinholz v. United States, 339 F.3d 674, 677 (8th Cir.2003) (explaining that the volatile nature of methamphetamine labs presents exigent circumstances justifying an immediate limited search when officers smelled odor associated with the production of methamphetamine); and State v. Chapman, 107 Or.App. 325, 332-33, 813 P.2d 557, 560-61 (1991) (concluding that a working methamphetamine lab provided exigent circumstances for warrantless search).
“Based on the inherent dangers of an operating methamphetamine lab, we now hold that [the observation] of such a lab by law-enforcement officials constitutes an exigent circumstance justifying a warrantless search.”

995 So.2d at 920-21.

In Williams, the law-enforcement officers were investigating a tip from a confidential informant that a methamphetamine laboratory was being operated at a certain location. When the officers arrived at the location, they smelled an odor known to them, based on their training and experience, to be consistent with the process of manufacturing methamphetamine coming from a shed and a mobile home on the premises. Additionally, one of the officers observed the operating methamphetamine laboratory in the shed. The Court of Criminal Appeals held that the totality of the circumstances established that an exigent circumstance existed making the law-enforcement officers’ warrantless entry into and search of the mobile home proper. Williams establishes that the observation of a methamphetamine laboratory in the process of making methamphetamine, as evidenced by the law-enforcement officer’s testimony that he saw the laboratory in operation, creates an exigent circumstance.

In this case, the question presented is whether the process of manufacturing methamphetamine, evidenced by the odor known by law-enforcement officers to be generated during the manufacturing process, establishes a sufficient risk of danger to the public, creating an exigent circumstance justifying an immediate entry into and search of a residence by law-enforcement officers.

In United States v. Clarke, 564 F.3d 949 (8th Cir.2009), the United States Court of Appeals for the Eighth' Circuit confronted this same issue. In Clarke, law-enforcement officers had received an anonymous tip that methamphetamine was being produced at Clarke’s residence. When the officers arrived at the residence, they smelled a chemical odor around the house that they knew, based on their training and experience, to be associated with the manufacture of methamphetamine. When no one responded to their knocks on the door, the officers entered the residence to ensure the safety of any occupants. After determining that the officers had probable cause, the Eighth Circuit Court of Appeals held that exigent circumstances existed, stating:

“Because the officers had probable cause to believe methamphetamine was being produced in Clarke’s home, the officers reasonably concluded there was a potential threat to the safety of the officers, anybody inside the home, and anyone in the surrounding area. See United States v. Walsh, 299 F.3d 729, 734 (8th Cir.2002) (declaring, ‘[o]ur court has consistently considered safety factors in determining whether exigent circumstances existed,’ and ‘[t]he potential hazards of methamphetamine manufacture are well documented, and numerous cases have upheld limited warrantless searches by police officers who had probable cause to believe they had uncovered an on-going methamphetamine manufacturing operation’).”

564 F.3d at 959

In United States v. Rhiger, 315 F.3d 1283, 1288 (10th Cir.2003), the United States Court of Appeals for the Tenth Circuit noted that it had, in an earlier decision, determined that the

“ ‘basic aspects of the “exigent circumstances” exception [with regard to the manufacturing of methamphetamine] are that (1) law enforcement officers must have reasonable grounds to believe that there is immediate need to protect their lives or others or their property or that of others, (2) the search must not be motivated by an intent to arrest and seize the evidence, and (3) there must be some reasonable basis, approaching probable cause to associate an emergency with the area or place to be searched.’ ”

(Quoting United States v. Wicks, 995 F.2d 964, 970 (10th Cir.1993).) See also People v. Doll, 21 N.Y.3d 665, 998 N.E.2d 384, 975 N.Y.S.2d 721 (2013).

The record in this case establishes that an exigent circumstance existed requiring immediate action by the law-enforcement officers to protect themselves, the occupants of the apartment, and the public. Here, when the law-enforcement officers arrived at the apartment complex in response to a dispatch informing them that it had been reported that methamphetamine was being manufactured iii Bailey and Clayton’s apartment, they smelled an odor they recognized, based on their training and experience, to be consistent with the process of manufacturing methamphetamine. The officers testified that when Bailey opened the apartment door the odor grew stronger. The record establishes that the inhalation of the odor of the chemicals used in the manufacturing of methamphetamine has adverse health effects, that the process of manufacturing methamphetamine creates a high risk of explosion, and that the officers believed that they, the occupants of the apartment, and the public were in immediate danger. The immediacy of the situation is evidenced not only by the officers’ expeditious protective sweep of the apartment, but by the presence of the firefighters at the apartment complex and the evacuation of the other residents of the complex. Additionally, the record establishes that the purpose of the officers’ entry into and search of the apartment was to remove any occupants from the potential harm manufacturing methamphetamine can cause and to secure the apartment for the firefighters to investigate the source of the odor, not to search for evidence. Here, exigent circumstances existed, requiring immediate action, because the law-enforcement officers reasonably believed that methamphetamine was being manufactured in Clayton and Bailey’s apartment and because the process of manufacturing methamphetamine constitutes an emergency, life-threatening situation that requires immediate action to protect the law-enforcement officers and the public.

Here, the law-enforcement officers were justified in entering and searching the apartment because the officers, acting on probable cause and in good faith, reasonably believed from the totality of the circumstances that the nature of the manufacture of methamphetamine posed a risk of danger to them and the public. See Moore v. State, 650 So.2d 958, 962-63 (Ala.Crim.App.1994) (“Whether exigent circumstances exist depends upon whether an ‘emergency situation’ exists. An emergency situation exists ‘when the officers in good faith believe that they or someone within are in peril of bodily harm.... ’ ”).

This Court does not find persuasive Clayton and Bailey’s argument that the behavior of the officers indicated that there was no need for immediate action. A fair reading of the record establishes that, in light of the odor the law-enforcement officers recognized to be consistent with the process of manufacturing methamphetamine, the law-enforcement officers were concerned about their safety and the safety of the occupants of the apartment and the public. The fact that Sgt. Hall remained in the apartment to allow Clayton to dress her two-year-old child before escorting them outside into the cold temperature does not extinguish the urgency of the situation or the concern for public safety; rather, it exhibits Sgt. Hall’s desire not to cause additional risk to the child’s health. Additionally, the record clearly demonstrates that the officers remained inside the apartment just long enough to remove its occupants and then left as quickly as possible. Cf. United States v. Echegoyen, supra (rejecting defendant’s argument that the behavior of the officers before, during, and after the search indicated that the alleged exigent circumstance was pretextual and holding that the evidence supported the conclusion that there was a potentially dangerous fire hazard based on testimony regarding the chemical smell and the risk of fire posed by the illegal manufacturing of narcotics).

Moreover, to hold, as Bailey and Clayton urge, that the law-enforcement officers had to secure a warrant before entering the residence would have placed the safety of all in the vicinity of the odor in danger. This Court finds it immaterial in our determination whether an exigent circumstance existed that the methamphetamine laboratory found in the apartment was inactive. The pivotal consideration is that the record establishes that at the time the law-enforcement officers entered the apartment they had a good-faith belief, based on the odor known to them to be consistent with the process of manufacturing methamphetamine, that methamphetamine was being manufactured in the apartment and that the process of manufacturing methamphetamine posed a danger to the occupants of the apartment, the officers, and the public.

Conclusion

Because the law-enforcement officers had probable cause to believe that methamphetamine was being manufactured inside the apartment and because the process of manufacturing methamphetamine, in light of its explosive nature, creates an exigent circumstance, the law-enforcement officers’ warrantless entry into and search of Bailey and Clayton’s apartment on January 7, 2011, was proper. Therefore, the judgment of the Court of Criminal Appeals holding otherwise is reversed, and this case is remanded to that court for proceedings consistent with this opinion.

1130012 — REVERSED AND REMANDED.

1130013 — REVERSED AND REMANDED.

BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

MURDOCK, J., concurs specially.

MOORE, C.J., concurs in the result.

MURDOCK, Justice

(concurring specially).

It appears that the police had a right to be in the hallway outside the apartment in question. When the door to the apartment was voluntarily opened by one of its occupants, two things happened: (1) the police became aware of a strong smell consistent with the operation of an illegal “meth lab” inside the apartment and (2) the occupants became aware that the police were aware of the foregoing. Although I concur in the main opinion, I write separately to note that the only argument made by the State is that the health risks associated with the possible presence of a meth lab constituted an exigent circumstance justifying a war-rantless search of the apartment by members of the fire department. The State does not argue in this case that the prospect for the destruction of evidence of a crime given items (1) and (2) above would constitute an exigency justifying the immediate search of the apartment by the police without the necessity of a warrant or the involvement of the fire department acting in the interest of public safety. See generally Kentucky v. King, 563 U.S. -, -, 131 S.Ct. 1849, 1858, 179 L.Ed.2d 865 (2011) (“[Wjarrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement. Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.”).

      . A Montgomery grand jury issued an indictment charging Clayton with two counts of first-degree unlawful manufacturing of methamphetamine, a violation of § 13A-12-218, Ala.Code 1975, and one count of unlawful possession of drug paraphernalia, a violation of§ 13A-12-260(C), Ala.Code 1975.

      . A Montgomery grand jury issued an indictment charging Bailey with two counts of first-degree unlawful manufacturing of methamphetamine, a violation of § 13A-12-218, Ala. Code 1975; one count of unlawful possession of marijuana for personal use, a violation of § 13A-12-214, Ala.Code 1975; and one count of unlawful possession of drug paraphernalia, a violation of § 13A-12-260(C), Ala.Code 1975.

      . The Court of Criminal Appeals reversed the trial court’s order as to a later search of the apartment and remanded the case.

      . A third codefendant, Natasha Rae Lee, was an appellee in the Court of Criminal Appeals (case no. CR-11-1865), which issued one opinion addressing all three codefendants. She petitioned this Court for certiorari review of the Court of Criminal Appeals’ decision. This Court denied her petition on November 15, 2013 (case no. 1130032).

      . It appears that the dispatcher had received a call from a citizen who identified himself and indicated that a methamphetamine laboratory was operating in the apartment.

      . The apartment complex had eight apartments.

      . A police officer is not required to have a warrant to approach a residence and knock because that is "no more than any private citizen might do.” Kentucky v. King, 563 U.S. -,-, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011).


text:
    STATE of Alabama v. Justin Andrew BAILEY. State of Alabama v. Jennifer Leigh Clayton.
    CR-11-1866.
    Court of Criminal Appeals of Alabama.
    June 13, 2014.
    Luther Strange, atty. gen., and Michael G. Dean, asst. atty. gen., for appellant.

      Branch Donelson Kloess, Montgomery, for appellee Justin Andrew Bailey.
    Raymond E. Johnson, Montgomery, for appellee Jennifer Leigh Clayton.
   On Remand from the Alabama Supreme Court

JOINER, Judge.

Natasha Rae Lee and codefendants Justin Andrew Bailey and Jennifer Leigh Clayton filed separate motions to suppress the evidence seized from two separate warrantless searches of their apartment on January 7, 2011, and January 28, 2011, as well as searches of their person on January 28, 2011. The Montgomery Circuit Court granted the motions. The State appealed.

On rehearing, this Court in State v. Lee, 155 So.3d 278 (Ala.Crim.App.2013), affirmed the trial court’s order granting the motions to suppress the evidence seized as a result of the January 7 search of the apartment and the January 28 searches of Lee, Bailey, and Clayton. This Court reversed that part of the trial court’s order granting the motion to suppress the evidence seized as a result of the January 28 search of the apartment. The Alabama Supreme Court granted the State’s petition for certiorari review in case no. CR-11-1866 (Bailey) and case no. CR-11-1867 (Clayton) as to the January 7 search of the apartment and reversed this Court’s judgment. State v. Clayton, 155 So.3d 290 (Ala.2014).

In accordance with the Alabama Supreme Court’s opinion in Clayton, we reverse that part of the circuit court’s order granting the motions to suppress the evidence seized as a result of the January 7 search of the apartment, and remand these cases to the circuit court for proceedings consistent with the Alabama Supreme Court’s opinion in Clayton.

CR-11-1866 — REVERSED AND REMANDED.

CR-11-1867 — REVERSED AND REMANDED.

WINDOM, P.J., and WELCH, KELLUM, and BURKE, JJ., concur.

      . The Alabama Supreme Court denied Lee’s petition for a writ of certiorari in case no. CR-11-1865.


author: BURKE, Judge.

text:
    William L. BURNETT v. STATE of Alabama.
    CR-12-1906.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2013.

      William L. Burnett, pro se.
    Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   BURKE, Judge.

William L. Burnett appeals the circuit court’s summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief. The petition challenged his June 5, 2001, convictions for five counts of first-degree robbery, a violation of § 13A-8-41(a)(1), Ala.Code 1975. Burnett was sentenced on count 3 and count 5 to consecutive life sentences, and he was sentenced to life imprisonment on count 1, count 2, and count 4, to run concurrent with count 3. Burnett did not file a direct appeal of his convictions.

On or about February 22, 2013, Burnett filed the instant petition for postconviction relief, in which he alleged that his convictions violated his right against double jeopardy because all five charges arose from one robbery in which all the individual victims were employees of the business that was robbed, which he claims resulted in an illegal sentence and excessive punishment. He also argued that his trial counsel was ineffective for advising him to plead guilty despite having knowledge of the double-jeopardy issue.

On May 17, 2013, the State filed a motion to dismiss Burnett’s petition, arguing that Burnett’s convictions do not violate the principles of the Double Jeopardy Clause because Alabama law allows for multiple convictions when more than one person is injured as the result of a single act and because Burnett admits that he stole from multiple victims. The State also contended that Burnett’s claim of ineffective assistance of counsel was barred as successive, was time-barred, and was mer-itless.

Following a response from Burnett, the circuit court denied Burnett’s petition, finding that Burnett’s allegation that his convictions violated his rights against double jeopardy was meritless because Burnett' admits that he stole from four individual victims in the store and from the business that he robbed and that, thus, because Alabama law clearly permits multiple punishments arising from multiple statutory offenses occurring out of the same course of events, it was proper for him to be charged with, convicted of, and sentenced for five separate counts of robbery. Additionally, the court found that Burnett’s ineffective-assistance-of-counsel claim was meritless because he failed to show that there was a reasonable probability that, but for his counsel’s error in failing to advise him of the potential double-jeopardy issue, he would not have pleaded guilty. The court also stated that Burnett’s ineffective-assistance-of-counsel claim failed to meet the requirements of Rule 32.6(b), Ala. R.Crim. P., because his claim was a bare allegation without specific factual support.

On appeal, Burnett reiterates the claims raised in his petition and argues that the circuit court abused its discretion in denying his petition. We first note that a circuit court may summarily deny a petitioner’s Rule 32 petition pursuant to Rule 32.7(d), Ala. R.Crim. P.,

“[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition.”

See also Hannon v. State, 861 So.2d 426, 427 (Ala.Crim.App.2003); Cogman v. State, 852 So.2d 191, 193 (Ala.Crim.App.2002); and Tatum v. State, 607 So.2d 383, 384 (Ala.Crim.App.1992).

Burnett contends that his counsel was ineffective for advising him to plead guilty despite, he says, his counsel’s knowledge that his convictions were in violation of double-jeopardy principles. To prevail on a claim of ineffective assistance of counsel, the petitioner must ultimately prove that (1) counsel’s performance was deficient and (2) that the deficient performance actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Burnett’s claim of ineffective assistance of counsel fails to satisfy the second prong of the Strickland test because it fails to allege any prejudice. Burnett makes a blanket statement that his counsel was ineffective for failing to argue that the convictions violated his right to be protected against double jeopardy. He then repeats his first claim that his rights were violated. He fails to make any claim that, but for his counsel’s actions, he would not have pleaded guilty. See Davis v. State, [Ms. CR-10-0224, August 30, 2013] — So.3d -, -(Ala.Crim.App.2013)(“ “When an appellant’s claim of ineffective assistance of counsel arises from alleged errors committed by counsel in the guilty plea process, the prejudice prong of the Strickland analysis is satisfied by the appellant’s establishing ‘that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” ’ Culver v. State, 549 So.2d 568, 572 (Ala.Crim.App.1989), quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).”).

Further, as the State properly contended in its motion to dismiss, this claim was also time-barred. A claim alleging ineffective assistance of counsel is not jurisdictional and is subject to the preclu-sionary bars of Rule 32.2, Ala. R.Crim. P. See, e.g., Cogman v. State, 852 So.2d 191, 192 (Ala.Crim.App.2002) (an ineffective-as-sistanee-of-counsel claim is not jurisdictional). In the present case, Burnett was sentenced on June 5, 2001, and the instant petition was not filed until on or about February 22, 2013. Because Burnett’s petition was filed well after the limitations period had expired, the circuit court did not err when it dismissed Burnett’s claim alleging ineffective assistance of counsel.

Burnett also claims that his convictions were in violation of the principles of the Double Jeopardy Clause because all five charges arose from the same robbery in which all the individual victims were employees of the business that was robbed, and, thus, he asserts, all the charges arose from one single transaction. This Court has recognized that double-jeopardy principles are not violated when multiple convictions involving multiple victims are obtained from one criminal transaction. See Brooks v. State, 973 So.2d 380, 402 (Ala.Crim.App.2007) (quoting McKinney v. State, 511 So.2d 220 (Ala.1987)) (“[T]he Alabama Supreme Court adopted the view of the majority of states that when a single criminal transaction involves multiple victims, multiple convictions are permitted.”). Here, Burnett’s four separate indictments charging him with robbing four separate individuals properly supported four of the convictions. However, Burnett could not be convicted of robbing both the business and one of the victims, Edna Newton, who was an employee of the business. Although, in one count, the property alleged to have been taken from this individual was the individual’s personal property and, in another count, the property alleged to have been taken from this individual was the business’s money, robbery is a crime against a person and the robbery of the same person cannot support two convictions. To do so violates double jeopardy and is a jurisdictional matter. See Craig v. State, 893 So.2d 1250 (Ala.Crim.App.2004); Strickland v. State, 92 So.3d 179 (Ala.Crim.App.2011).

Because Burnett could not be convicted of robbing the same victim of both her property and the business’s property, arising from the same theft, this case is due to be remanded to the circuit court to vacate one of the convictions naming Edna Newton as the victim.

Due return shall be made to this Court within 28 days of the issuance of this opinion.

REMANDED WITH DIRECTIONS.

WINDOM, P.J., and WELCH, KELLUM, and JOINER, JJ., concur.

      . On August 1, 2002, Rule 32.2(c), Ala. R.Crim. P., was amended to shorten the limitations period to one year where the time for appeal expired on or after August 1, 2002. Where the time for appeal fell before August 1, 2001, the applicable limitations period remained two years.


author: KELLUM, Judge.

text:
    STATE of Alabama v. Dre A. DERAMUS.
    CR-12-1540.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2013.
    Rehearing Denied Jan. 81, 2014.
    Certiorari Denied May 16, 2014 Alabama Supreme Court 1130507.
    Luther Strange, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellant.
    Jerry M. Blevins, Montgomery, for ap-pellee.
   KELLUM, Judge.

Dre A. Deramus was arrested and charged with receiving stolen property in the second degree, a violation of § 13A-8-18, Ala.Code 1975. Deramus filed a pretrial motion to suppress statements he made to police during a custodial interrogation. Following a suppression hearing, the circuit court granted Deramus’s motion to suppress on the ground that the statements were obtained in violation of Deramus’s Fifth Amendment rights under Ex parte Jackson, 564 So.2d 891, 893 (Ala.1990). Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the circuit court’s order suppressing Deramus’s statements.

The record indicates the following pertinent facts. In 2010, Sgt. Mike Vineyard of the Prattville Police Department was assigned to investigate a home burglary. Sgt. Vineyard’s investigation led him to believe that Deramus was a suspect in selling property stolen during that burglary to a local Gamestop video-game store. On June 4, 2010, Deramus was transported to the Prattville Police Department for questioning. While he was in police custody and before questioning him, officers advised Deramus of his constitutional rights, reading the standard adult Miranda warning to Deramus. Deramus then executed a written post-Miranda statement acknowledging that he had sold the stolen goods to Gamestop and alleging the involvement of his codefendant. At the time he committed the crime and at the time he gave his statement, Deramus was 18 years, 8 months, and 5 days old.

The State’s sole contention on appeal is that the circuit court erred in granting Deramus’s motion to suppress his statement to police. Specifically, the State argues that Deramus’s confession should not have been suppressed on the basis that officers failed to administer a juvenile Miranda warning because Deramus was 18 years old at the time of the offense and interrogation. Because Deramus’s case involves only issues of law and the application of the law to undisputed facts, our review is de novo. See, e.g., Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003); State v. Hill, 690 So.2d 1201, 1203-04 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).

Initially, we note that in addition to the standard requirements of Miranda, § 12-15-202(b), Ala.Code 1975, has additional protections for children who are subjected to custodial interrogation. Specifically § 12-15-202(b) requires:

“Before the child is questioned about anything concerning the charge on which the child was taken into custody, the person asking the questions shall inform the child of the following rights:
“(4) That the child has a right to communicate with his or her parent, legal guardian, or legal custodian, whether or not that person is present. If necessary, reasonable means will be provided for the child to do so.”

Section 12-15-102(3), Ala.Code 1975, defines a child as “an individual under the age of 18 years.” Therefore, in order for a defendant to be entitled to juvenile Miranda rights, he or she must be under 18 years of age.

In Ex parte Jackson, 564 So.2d 891 (Ala.1990), the Alabama Supreme Court stated:

“We issued a writ of certiorari to address one issue:
“ ‘Whether an 18-year-old defendant’s confession should be suppressed when he is not told of his right, guaranteed by law, to consult with his parents, and later it is determined that he should be tried as an adult.’
“... The Court held [in Ex parte Whisenant, 466 So.2d 1006 (Ala.1985)]: ‘If any one or more [of the Rule 11(A) Ala. R. Juv. P.] warnings are omitted, the use in evidence of any statement given by the child is constitutionally proscribed.’ 466 So.2d at 1007.
“Jackson argues that under Whisenant his motion to suppress is due to be granted, because [Officer] Fowler did not inform him of his rights pursuant to Rule 11(A)(4), as Whisenant requires. Jackson argues that he should have been informed of his right to consult with his parents even though he might later be tried as an adult, and that his confession should have been suppressed. The State argues that the trial court’s determination that Jackson was to be tried as an adult cures the error committed by Fowler in failing to inform Jackson of his constitutional rights as a juvenile.
“We agree with Jackson that the alleged confessions are due to be suppressed. As in Whisenant, the evidence in this case is an inculpatory statement of the accused, the admission of which is violative of his constitutional right to remain silent, unless he had first been advised of that right. 466 So.2d at 1007. An individual with the right to remain silent has the right to remain silent without regard to whether an officer has told him of that right. Ex parte Marek, 556 So.2d 375, 382 (Ala.1989). Accordingly, the trial court’s determination that Jackson was to be tried as an adult did not cure the error made by Fowler in failing to advise Jackson of his constitutional rights as a juvenile.”

Jackson, 564 So.2d at 891-93.

The Supreme Court’s decision in Ex parte Jackson, however, is inapplicable to the facts in this case. Rather, this Court’s decision in Burks v. State, 600 So.2d 374,(Ala.Crim.App.1991), is more akin to Deramus’s case. In Burks, this Court distinguished Jackson, noting:

“Age was not an issue in Jackson. The only mention of the appellant’s age in the opinion, other than in the specific issue framed by the Supreme Court and quoted above, is found in the statement of the facts that ‘[a]t the hearing on that motion [to suppress], Fowler testified that when he interrogated Jackson, he thought Jackson was 18 or 19.’ Id. at 892.
“This Court takes judicial notice of the record filed in this Court on the direct appeal in Jackson. Jackson’s exact date of birth is not clear from that record, which indicates that it was June 17 of either 1968 or 1969. Depending on which birthdate is used, Jackson was either 19 years, 9 months, and 4 days old or 18 years, 9 months, and 4 days old on the date of the crime (March 21, 1988). The attorney general candidly admits that in Jackson, the State’s briefs filed in the Court of Criminal Appeals and in the Supreme Court failed to address the fact that an 18-year-old is not a child. Apparently, this fact was never presented to, or considered by, either this Court or the Alabama Supreme Court. While this Court is bound by the decisions of the Alabama Supreme Court, we do not interpret Jackson as extending Rule 11 to an 18-year-old or to any person not within the statutory definition of a ‘child’ pursuant to § 12 — 15—1 (3) (b). This Court holds that the appellant was not a ‘child’ at the time of the crime. Therefore, he was not entitled to be advised of his ‘juvenile Miranda rights’ under Rule 11.”

600 So.2d at 377.

Thus, in order for Deramus to be entitled to juvenile Miranda rights, he must have been under the age of 18 years when he was interrogated. Deramus was over the age of 18 both in April 2010 when the crime was committed and 2 months later, in June 2010, when he gave his statement to the police. By statutory definition, Der-amus was not a child. Accordingly, § 12-15-202(b)(4) has no application to this case. See Mitchell v. State, 706 So.2d 787, 801 (Ala.Crim.App.1997) (holding that a defendant was not entitled to the benefits of juvenile Miranda rights because he was 18 years and 6 months old). Therefore, the circuit court erred in suppressing Dera-mus’s confession.

Based upon the foregoing, the judgment of the circuit court is reversed, and this case is remanded for the circuit court to set aside its order suppressing Deramus’s statement and restore Deramus’s case to its active docket.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH, BURKE, and JOINER, JJ., concur.

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

      . Deramus was born on September 30, 1991.