author: MOORE, Judge.

text:
    ALABAMA DEPARTMENT OF PUBLIC HEALTH v. NOLAND HEALTH SERVICES, INC.
    2170404
    Court of Civil Appeals of Alabama.
    July 27, 2018
    Sancha O. Howard, asst. gen. counsel, and Dillon K. Bullard, asst. gen. counsel, Alabama Department of Public Health, Montgomery, for appellant.
    Joseph L. Reese, Jr., of Starnes Davis Florie LLP, Birmingham, for appellee.
   MOORE, Judge.

The Alabama Department of Public Health ("ADPH") appeals from a judgment entered by the Montgomery Circuit Court ("the trial court") in favor of Noland Health Services, Inc. ("Noland"), on Noland's requests for declaratory and injunctive relief against ADPH. We dismiss the appeal.

Procedural History

On November 8, 2016, Noland filed a petition against ADPH seeking a judgment declaring:

"(1) That ADPH lacks the authority to apply [certain rules] to Adult Day Care Programs, including those provided by Noland;
"(2) That ADPH lacks the authority to enforce [the aforementioned rules] against Adult Day Care Programs, including those provided by Noland;
"(3) That ADPH lacks the authority to regulate Adult Day Care Programs, and therefore lacks the authority to take licensure action for or against Adult Day Care Programs, including those provided by Noland; and
"(4) That ADPH cannot require a provider like Noland to use licensed Certificate of Need authorized beds for adult day care services."

After a trial, the trial court entered a judgment on November 30, 2017, awarding Noland declaratory and injunctive relief against ADPH. On January 10, 2018, ADPH filed its notice of appeal.

Discussion

On appeal, ADPH first argues that the trial court lacked jurisdiction over Noland's petition because, it says, ADPH is immune from suit. Although ADPH raises this argument for the first time on appeal, " ' "[t]he assertion of State immunity challenges the subject-matter jurisdiction of the court; therefore, it may be raised at any time by the parties or by a court ex mero motu." ' " Alabama Dep't of Conservation & Natural Res. v. Kellar, 227 So.3d 1199, 1201 (Ala. 2017) (quoting Health Care Auth. for Baptist Health v. Davis, 158 So.3d 397, 402 (Ala. 2013), quoting in turn Atkinson v. State, 986 So.2d 408, 411 (Ala. 2007) ).

In its brief to this court, ADPH cites our supreme court's decision in Kellar, in which our supreme court explained:

" 'Article I, § 14, Alabama Const. of 1901, provides generally that the State of Alabama is immune from suit: "[T]he State of Alabama shall never be made a defendant in any court of law or equity." This constitutional provision "has been described as a 'nearly impregnable' and 'almost invincible' 'wall' that provides the State an unwaivable, absolute immunity from suit in any court." Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala. 2006). Section 14"specifically prohibits the State from being made a party defendant in any suit at law or in equity." Hutchinson v. Board of Trs. of Univ. of Alabama, 288 Ala. 20, 23, 256 So.2d 281, 283 (1971). Additionally, under § 14, State agencies are "absolutely immune from suit." Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala. 2003).'
" Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 839 (Ala. 2008) (emphasis added). In Harbert, also a declaratory-judgment action, this Court held: '[O]nly State officers named in their official capacity -- and not State agencies -- may be defendants in such proceedings.' 990 So.2d at 841.
" In Ex parte Alabama Department of Finance, 991 So.2d 1254, 1257 (Ala. 2008), this Court noted the six general categories of actions that do not come within the prohibition of § 14, one of which is 'actions brought against State officials under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking construction of a statute and its application in a given situation,' and stated that those 'exceptions' 'apply only to actions brought against State officials; they do not apply to actions against the State or against State agencies.' (Emphasis added.)"

227 So.3d at 1200.

Similarly, in the present case, Noland's declaratory-judgment action named ADPH, a state agency, as the sole defendant. ADPH is " ' "absolutely immune from suit." ' " Kellar, 227 So.3d at 1200 (quoting Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 839 (Ala. 2008), quoting in turn Lyons v. River Road Constr., Inc., 858 So.2d 257, 261 (Ala. 2003) ) (emphasis omitted). Because Noland named a state agency and not a state official as a defendant, the aforementioned exception for " 'actions brought against State officials under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking construction of a statute and its application in a given situation' " is inapplicable. Kellar, 227 So.3d at 1200 (quoting Ex parte Alabama Dep't of Fin., 991 So.2d 1254, 1257 (Ala. 2008) ). Therefore, we conclude that the trial court lacked jurisdiction over Noland's petition, and, thus, the resulting judgment is void. Kellar, 227 So.3d at 1201. "A void judgment will not support an appeal, and, therefore, the appeal is dismissed." Id. The trial court is instructed to vacate its void judgment.

APPEAL DISMISSED WITH INSTRUCTIONS.

Thompson, P.J., and Pittman and Thomas, JJ., concur.

Donaldson, J., concurs specially.

DONALDSON, Judge, concurring specially.

I concur with the main opinion. The record shows that Noland Health Services, Inc. ("Noland"), operates a day-care program for adults. Noland disputed the authority of the Alabama Department of Public Health ("the Department") to apply and/or enforce certain rules of the Department that affected Noland's operation of the day-care program. Noland filed a complaint against the Department in the Montgomery Circuit Court ("the trial court") challenging the rules and seeking declaratory and injunctive relief. Noland followed exactly the procedure set out in § 41-22-10, Ala. Code 1975, which provides, in part:

"The validity or applicability of a rule may be determined in an action for a declaratory judgment or its enforcement stayed by injunctive relief in the circuit court of Montgomery County, unless otherwise specifically provided by statute, if the court finds that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. The agency shall be made a party to the action...."

(Emphasis added.)

But because the Department is a state agency, it is absolutely immune from suit under the doctrine of sovereign immunity. See Alabama Dep't of Conservation & Natural Res. v. Kellar, 227 So.3d 1199, 1200 (Ala. 2017). Although § 41-22-10 mandates that the Department be named as a party in the type of action filed by Noland, the legislature cannot waive sovereign immunity. Druid City Hosp. Bd. v. Epperson, 378 So.2d 696 (Ala. 1979). The Department did not raise immunity as a defense in the trial court, but sovereign immunity may be raised for the first time on appeal. Alabama Dep't of Conservation & Natural Res. v. Kellar, 227 So.3d at 1201. "[A] complaint filed solely against the State or one of its agencies is a nullity and is void ab initio." Alabama Dep't of Corr. v. Montgomery Cty. Comm'n, 11 So.3d 189, 192 (Ala. 2008) (citing Ex parte Alabama Dep't of Transp. (In re Russell Petroleum, Inc. v. Alabama Dep't of Transp.), 6 So.3d 1126 (Ala. 2008) ). Because the only named defendant in the complaint was the Department, the trial court lacked subject-matter jurisdiction, and the entire case must be dismissed. See id. at 191-92.

I write to observe that we have held that a trial court had subject-matter jurisdiction over an action seeking declaratory and injunctive relief pursuant to § 41-22-10 when the action was brought against both a state agency and state officials in their representative capacities of the agency. See Ex parte Alabama State Bd. of Chiropractic Exam'rs, 11 So.3d 221, 225 (Ala. Civ. App. 2007). We are not presented in this case with the issue whether naming only a state official in a representative capacity, and not the agency, as a defendant would suffice for purposes of § 41-22-10. But it is a strange procedure indeed if a plaintiff must name both the state agency (knowing it is immune and not subject to suit) and at least one state official for the trial court to have subject-matter jurisdiction under § 41-22-10.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Shiela VON ALVENSLEBEN v. Michael Von Cassiner DUBUISSON
    2170520
    Court of Civil Appeals of Alabama.
    July 27, 2018
    Mary E. Murchison, Foley, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

Shiela Von Alvensleben appeals from an order of the Baldwin Circuit Court ("the trial court") denying her motion to set aside a default judgment entered against her and in favor of Michael Von Cassiner Dubuisson. Both parties appeared pro se before the trial court.

The record indicates that on November 16, 2017, Dubuisson, who was incarcerated in the Baldwin County jail, filed a complaint alleging that he was entitled to $18,000 that, he said, his aunt, Von Alvensleben, had made from the sale of certain property ("the property") in Baldwin County. Von Alvensleben lives in California. Dubuisson claimed that the property belonged to Frances Marian Styron Dubuisson ("Frances"), and, he said, he was "a living Heir" and "a legal child" of Frances's. He claimed there was a "living will" pertaining to the property. Therefore, Dubuisson asserted, he had "a right to a fair amount from" the sale of the property.

In a subsequent filing in the trial court, Dubuisson said that he had been adopted by Frances. He also amended the amount of money he was seeking, asserting that he was entitled to $8,900 as his share of the proceeds from the sale of the property and that he was seeking an additional $2,000 because, he said, Von Alvensleben had sold the property without his signature and without notifying him.

According to the State Judicial Information System ("SJIS") case-action summary, Von Alvensleben was served with the summons and complaint on December 13, 2017. On January 11, 2018, Dubuisson filed a motion for default. On January 16, 2018, the trial court granted the motion for default and rendered a default judgment in favor of Dubuisson in the amount of $18,000, plus court costs. The default judgment was entered in SJIS on January 18, 2018.

On January 23, 2018, Von Alvensleben wrote a letter asking the trial court to set aside the default judgment. The trial court treated the letter, which was filed January 29, 2018, as a motion to set aside the default judgment. In the letter, Von Alvensleben apologized to the trial court and explained that she had "misread" an order, believing that she was required to appear in court in May. She also explained that, since December, she had been caring for her brother and sister-in-law, both of whom were seriously ill.

Von Alvensleben contended that, in 2006, she visited Alabama and learned that Dubuisson had had Frances revoke the power of attorney she had given Von Alvensleben. Von Alvensleben also claimed that Dubuisson was forwarding Frances's Social Security checks to one of his friends because, she said, Dubuisson was returning to prison. Frances was suffering from Alzheimer's disease and Parkinson's disease, Von Alvensleben said, so Von Alvensleben had Frances placed in a secure nursing home in Foley. By that time, Von Alvensleben said, Dubuisson had "spent all [of Frances's] money," Frances's mobile home was apparently being repossessed, and, Von Alvensleben said, Dubuisson and others "took all her rent and paid no bills."

Von Alvensleben attached to her letter a warranty deed that appears to be dated May 31, 1990, in which Frances and her husband, Andrew, conveyed the property to Von Alvensleben. According to the deed, Frances and Andrew retained a life estate in the property. Dubuisson's name does not appear on the deed. Von Alvensleben also provided the trial court with a copy of letters of guardianship/conservatorship concerning Frances. The letters were dated August 2006.

On January 30, 2018, the trial court summarily entered an order that said, in its entirety: "Motion to Set Aside Default filed by Von Alvensleben ... is hereby DENIED." Von Alvensleben filed a timely notice of appeal to this court.

The dispositive issue on appeal is whether the trial court abused its discretion in failing to hold an evidentiary hearing on Von Alvensleben's motion to set aside the default judgment and in failing to apply the factors set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala. 1988), to determine whether the default judgment was due to be set aside.

" Rule 55(c), Ala. R. Civ. P., provides, in pertinent part, that a trial court may 'set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment.' The husband filed his motion to set aside two days after the trial court's entry of the default judgment; thus, the husband's motion to set aside was a timely filed Rule 55(c) motion.
" 'In Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600 (Ala. 1988), this Court held that the trial court has broad discretion in determining whether to grant or to deny a defendant's motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgments--judicial economy and the defendant's right to defend on the merits. Kirtland, 524 So.2d at 604. These interests must be balanced under the two-step process set out in Kirtland.
" 'Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider "1) whether the defendant has a meritorious defense;
2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant's own culpable conduct." Kirtland, 524 So.2d at 605.'
" Sampson v. Cansler, 726 So.2d 632, 633 (Ala. 1998)."

Thibodeau v. Thibodeau, 10 So.3d 592, 595 (Ala. Civ. App. 2008).

In other words, a trial court's consideration of the Kirtland factors is not optional.

" 'As we stated in Richardson v. Integrity Bible Church, Inc., 897 So.2d 345 (Ala. Civ. App. 2004) :
" ' "Because of the importance of the interest of preserving a party's right to a trial on the merits, this court has held that where a trial court does not demonstrate that it has considered the mandatory Kirtland factors in denying a motion to set aside a default judgment, such as where a Rule 55(c) [, Ala. R. Civ. P.,] motion is denied by operation of law, the denial of the motion to set aside the default judgment will be reversed and the cause remanded for the trial court to address the Kirtland factors."
" ' 897 So. 2d at 349. However, in order to trigger the mandatory requirement that the trial court consider the Kirtland factors, the party filing a motion to set aside a default judgment must allege and provide arguments and evidence regarding all three of the Kirtland factors. See Carroll v. Williams, 6 So.3d 463, 468 (Ala. 2008) ("Because Carroll has failed to satisfy his initial burden under the Kirtland analysis [of providing allegations and evidence relating to all three Kirtland factors], we will not hold the trial court in error for allowing Carroll's motion to set aside the default judgment to be denied by operation of law without having applied the Kirtland analysis."). See also Maiden v. Federal Nat'l Mortg. Ass'n, 69 So.3d 860, 867 n. 3 (Ala. Civ. App. 2011) (noting that we will not reverse the denial by operation of law of a motion to set aside a default judgment when the movant fails to argue the existence of the Kirtland factors in his or her motion).'
" Brantley v. Glover, 84 So.3d 77, 81 (Ala. Civ. App. 2011) (footnote omitted)."

Gilbert v. Gilbert, 207 So.3d 741, 742-43 (Ala. Civ. App. 2016).

In Gilbert, this court reversed a trial court's denial of a motion to set aside a default judgment, noting:

"In his motion to set aside the default judgment, the father discussed, and attempted to apply, the Kirtland factors, and he provided evidence in the form of an affidavit that, he asserted, supported his arguments for setting aside the default judgment. Thus, we reverse the denial of the father's motion to set aside the default judgment, and we remand the cause for the trial court to consider the relevant factors."

Id. at 743.

In this case, although Von Alvensleben did not mention the Kirtland factors by name, she attempted, as was the case in Gilbert, to demonstrate to the trial court through her motion and accompanying documents that she had a meritorious defense, that is, that Dubuisson did not have an interest in the property for which he is seeking a share of the sale proceeds.

This court notes that the trial court entered the default judgment against Von Alvensleben only 36 days after she was served with the summons and complaint in this case. Von Alvensleben also pointed out to the trial court that, at the time Dubuisson filed the complaint, he was in jail and "on his way to prison again." She also alleged that Dubuisson had engaged in conduct detrimental to Frances, at least economically. Considering Von Alvensleben's assertions, coupled with the importance of the interest of preserving a party's right to a trial on the merits and the short time between the service of the summons and complaint and the entry of the default judgment, Von Alvensleben at least raised the probability that Dubuisson would not be prejudiced by setting aside the default judgment. " '[T]he prejudice warranting denial of a Rule 55(c) motion must be substantial.' " Phillips v. Randolph, 828 So.2d 269, 276 (Ala. 2002) (quoting Kirtland, 524 So.2d at 607 ). Furthermore, " '[m]ere delay or increased cost is not sufficient to justify a refusal to set aside a default judgment.' " Hambright v. Hambright, 935 So.2d 1185, 1188 (Ala. Civ. App. 2006) (quoting Ex parte Gilliam, 720 So.2d 902, 906 (Ala. 1998) ).

Finally, Von Alvensleben explained to the trial court that she misunderstood the need for filing an answer to the complaint, stating that she thought she had to be in court in May. In other words, Von Alvensleben asserted that the default judgment was not caused by culpable conduct on her part. Our supreme court has held that "[c]onduct committed wilfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. Negligence by itself is insufficient." Kirtland, 524 So.2d at 607. Willful or bad-faith conduct includes "incessant and flagrant disrespect for court rules, deliberate and knowing disregard for judicial authority, or intentional nonresponsiveness." Id. at 608. "However, a defaulting party's reasonable explanation for inaction and noncompliance may preclude a finding of culpability." Id. Von Alvensleben's failure to answer the complaint does not rise to the level of willful or bad-faith conduct warranting a default judgment.

In reviewing Von Alvensleben's motion to set aside the default judgment and her supporting documentation, we conclude that the motion contained sufficient information to trigger the mandatory Kirtland analysis.

In Gray v. Gray, 213 So.3d 593, 596 (Ala. Civ. App. 2016), this court reversed the denial of an entry of default when it did not appear from the record that a hearing was held on the motion to set aside the default and the trial court's order denying the motion to set aside did not state whether the trial court had considered the Kirtland factors. See also R.D.J. v. A.P.J., 142 So.3d 662, 667 (Ala. Civ. App. 2013). Accordingly, we reverse the trial court's order denying Von Alvensleben's motion to set aside the default judgment and remand the cause with instructions to the trial court to consider the Kirtland factors in determining whether to set aside the default judgment.

REVERSED AND REMANDED.

Thomas, Moore, and Donaldson, JJ., concur.

Pittman, J., concurs in the result, without writing.


author: KELLUM, Judge.

text:
    STATE of Alabama v. Michael Jerome CHEATWOOD
    CR-17-0569
    Court of Criminal Appeals of Alabama.
    July 13, 2018
    Steve Marshall, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellant.
    Jessie Edward Lowe, Oneonta, for appellee.
   KELLUM, Judge.

Michael Jerome Cheatwood was arrested and charged with unlawful possession of a controlled substance, see § 13A-12-212(a)(1), Ala. Code 1975, and possession of drug paraphernalia, see § 13A-12-260, Ala. Code 1975. Cheatwood filed a pretrial motion to suppress the evidence seized as a result of a Terry frisk, namely, a pill bottle containing methamphetamine. Following an evidentiary hearing, the circuit court granted Cheatwood's motion to suppress. Pursuant to Rule 15.7, Ala. R. Crim. P., the State appeals the circuit court's ruling.

The evidence presented at the suppression hearing established the following: On August 21, 2014, Deputy Chris McGahee with the Blount County Sheriff's Department received a request for a welfare check at the Dollar General discount store in Warrior, Alabama. Deputy McGahee found Cheatwood "passed out" in his vehicle in the parking lot outside the store. (R. 4.) Deputy McGahee approached Cheatwood and spoke to him from outside the vehicle. He testified that Cheatwood smelled of alcohol and that he had an open can of alcohol in the center console of his car. Deputy McGahee asked Cheatwood if he had "been drinking" and Cheatwood responded that he had. (R. 4.) After Cheatwood admitted he had consumed alcohol, Deputy McGahee initiated an investigation to determine whether Cheatwood was "under the influence." (R. 5.) Deputy McGahee ordered Cheatwood out of his vehicle and conducted a patdown search "for officer safety." (R. 5.) Cheatwood raised his shirt, revealing a pocketknife. Deputy McGahee removed the pocketknife and noticed an unlabeled pill bottle protruding from Cheatwood's back pocket. Deputy McGahee asked about the bottle and Cheatwood told him that it contained crushed up caffeine pills. When Deputy McGahee ordered him to hand over the bottle, Cheatwood placed the bottle behind his back and passed it from hand to hand. Deputy McGahee eventually seized the bottle; a subsequent field test indicated that the bottle contained methamphetamine. Deputy McGahee testified that he had 18 years of law-enforcement experience at the time of the suppression hearing. According to Deputy McGahee, people often keep contraband in pill bottles.

Following Deputy McGahee's testimony, the circuit court granted Cheatwood's motion to suppress evidence of the methamphetamine. The court stated:

"At this time, it is going to be the Court's order that based upon the testimony -- my understanding of the Terry v. Ohio [, 392 U.S. 1 (1968),] and that analysis, that the right to engage an individual having probable cause for arrest is separate and distinct from the right to conduct a frisk or pat-down. It is my understanding that it is whether there is reason to believe that the officer did believe he was armed and a dangerous individual regardless of whether he has probable cause to make an arrest or charge an offense, that a frisk comes in to play. The officer must have particular facts in which he believes or could infer that the individual is armed and dangerous. I do not find from the testimony of the officer that he gave any testimony that would support a reasonable belief that Mr. Cheatwood was armed and dangerous. It is my understanding that the contraband was noted or discovered as a result of the frisk. Therefore, based on the testimony, I'm going to suppress the evidence."

(R. 12-13.)

On appeal, the State contends that the circuit court erred by granting Cheatwood's motion to suppress. Specifically, the State argues that, based on the totality of the circumstances, Deputy McGahee had reasonable suspicion of illegal conduct to perform a "stop and frisk" pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Cheatwood argues that the circuit court's ruling should be affirmed on the basis that the patdown was not supported by reasonable suspicion and argues further that, even if it was, the circuit court's ruling is due to be affirmed on the alternative ground that the patdown "exceeded the narrowly drawn scope of a Terry search." (Cheatwood's brief, p. 10.); see Washington v. State, 922 So.2d 145, 169 n.9 (Ala. Crim. App. 2005) ("If a trial court's ruling on a motion to suppress is correct for any reason, it will be affirmed by this Court.").

In State v. Landrum, 18 So.3d 424 (Ala. Crim. App. 2009), this Court explained:

" 'This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996) ; State v. Otwell, 733 So.2d 950, 952 (Ala. Crim. App. 1999).' State v. Skaggs, 903 So.2d 180, 181 (Ala. Crim. App. 2004). In State v. Hill, 690 So.2d 1201 (Ala. 1996), the trial court granted a motion to suppress following a hearing at which it heard only the testimony of one police officer. Regarding the applicable standard of review, the Alabama Supreme Court stated, in pertinent part, as follows:
" ' "Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme 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." Stiles v. Brown, 380 So.2d 792, 794 (Ala. 1980) (citations omitted). The trial judge's ruling in this case was based upon his interpretation of the term "reasonable suspicion" as applied to an undisputed set of facts; the proper interpretation is a question of law.'

" State v. Hill, 690 So.2d at 1203-04." State v. Landrum, 18 So.3d at 426. Here, Deputy McGahee was the sole witness to testify at the suppression hearing, and his testimony was undisputed. Therefore, the only issue before this Court is whether the circuit court correctly applied the law to the facts set forth in Deputy McGahee's testimony, and we afford no presumption in favor of the circuit court's ruling.

" ' "Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), law enforcement officers may conduct investigatory stops of persons or vehicles if they have a 'reasonable suspicion that criminal activity has occurred, is occurring, or is about to occur...' " ' [State v.]Davis, 7 So.3d [468] at 470 [ (Ala. Crim. App. 2008) ], quoting Wilsher v. State, 611 So.2d 1175, 1179-80 (Ala. Crim. App. 1992) (internal citations omitted). When an officer stops a suspect pursuant to Terry, the officer ' " ' "is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." [Terry,] 392 U.S. at 30, 88 S.Ct. 1868.' " ' Smith v. State, 884 So.2d 3, 9 (Ala. Crim. App. 2003), quoting Riddlesprigger v. State, 803 So.2d 579, 582 (Ala. Crim. App. 2001). In State v. Hails, 814 So.2d 980 (Ala. Crim. App. 2000), this Court explained the standards by which any Terry search would be judged:
" ' "Police may conduct a patdown search without a warrant if, under the totality of the circumstances, the officer has an articulable, reasonable suspicion that a person is involved in criminal activity and that he is armed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of the search is measured objectively. If a reasonably prudent person would believe that his safety, or the safety of others, is endangered, he may conduct a limited search of outer clothing to discover any weapons. Id. at 27, 88 S.Ct. 1868."
" ' United States v. Raymond, 152 F.3d 309, 312 (4th Cir. 1998). "And in determining whether the officer acted reasonably in such circumstances, due weight must be given ... to the specific reasonable inference which he is entitled to draw from the facts in light of his experience." Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).'
" 814 So.2d at 986."

B.A.H. v. State, 28 So.3d 29, 31-32 (Ala. Crim. App. 2009).

Here, Deputy McGahee articulated a reasonable suspicion of criminal activity that warranted a Terry frisk. Even before he first encountered Cheatwood, Deputy McGahee knew that Cheatwood's condition necessitated a welfare check. Upon arriving at the Dollar General store, Deputy McGahee confirmed Cheatwood's condition when he found him passed out in his vehicle. Deputy McGahee's subsequent observations bolstered a reasonable suspicion that criminal activity was afoot. He smelled alcohol emanating from Cheatwood's vehicle and observed an open container of alcohol in the center console of Cheatwood's car. When Deputy McGahee approached Cheatwood, Cheatwood admitted that he had consumed alcohol. See Hall v. State, 897 So.2d 410, 413 (Ala. Crim. App. 2003) (holding that a Terry frisk was supported by reasonable suspicion where the suspect was driving without headlights and had consumed beer). These factors prompted Deputy McGahee to order Cheatwood out of his vehicle and to conduct a patdown search for weapons before investigating his behavior. See Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) ("[I]nvestigative detentions involving suspects in vehicles are especially fraught with danger to police officers."). Although Officer McGahee never "artfully stated his reasons for performing the patdown," he made it clear that he acted with the purpose of officer safety. State v. Bailey, 49 So.3d 1245, 1250 (Ala. Crim. App. 2010) ; see Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) ("The State's proffered justification-the safety of the officer-is both legitimate and weighty."); Terry v. Ohio, 392 U.S. at 23, 88 S.Ct. 1868 ("Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties."). These facts, in conjunction with Deputy McGahee's 18 years of experience in law enforcement, gave rise to a reasonable suspicion that criminal activity had occurred, was occurring, or was about to occur. See B.A.H. v. State, supra. Indeed, it would have been unreasonable to require Deputy McGahee to take unnecessary risks associated with an intoxicated individual passed out in a public parking lot. Because Deputy McGahee articulated a particularized basis for a reasonable suspicion justifying the patdown search, the circuit court's ruling on Cheatwood's motion to suppress is due to be reversed.

Moreover, we are not persuaded to affirm the circuit court's ruling on the basis that seizure of the pill bottle exceeded the scope of a Terry frisk, as Cheatwood suggests on appeal. Although we note that "a Terry patdown must be strictly 'limited to that which is necessary for the discovery of weapons,' " an officer can lawfully seize other incriminating evidence observed in plain-view in the course of such a patdown. Allen v. State, 689 So.2d 212, 213 (Ala. Crim. App. 1995) (quoting Terry v. Ohio, 392 U.S. at 26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908 ); see Bragg v. State, 536 So.2d 965, 969 (Ala. Crim. App. 1988). In Poole v. State, 596 So.2d 632, 636 (Ala. Crim. App. 1992), this Court set forth the elements of the plain-view exception:

"[F]our conditions must be satisfied before an object may be seized without a warrant under the plain view exception to the warrant requirement: (1) the object must be in plain view; (2) the viewing officer can not have violated the Fourth Amendment in arriving at the place from which the evidence is observed (the observation is from a place where the officer had a right to be); (3) the incriminating character of the evidence must be immediately apparent; and (4) the officer must have a lawful right of access to the object itself."

Poole v. State, 596 So.2d at 636. In this case, the first, second, and fourth conditions were clearly established. As discussed above, Deputy McGahee saw the pill bottle protruding from Cheatwood's back pocket during a lawful Terry frisk, and therefore he did not "violate[ ] the Fourth Amendment in arriving at the place from which the evidence [was] observed." Id., at 636. Deputy McGahee likewise had a lawful right of access to the pill bottle because the events of this case transpired in a parking lot open to the public. The only remaining question is whether the incriminating character of the pill bottle was immediately apparent to Deputy McGahee. In Nix v. State, 136 So.3d 1101 (Ala. Crim. App. 2013), this Court stated:

"'[T]he requirement for a warrantless search that the officer immediately recognize the object as evidence of wrongdoing requires that the officer's judgment be grounded in probable cause. However, the officer need not be convinced beyond a reasonable doubt as to the incriminating nature of the evidence discovered, and it is sufficient if the evidence raises the probability that criminal activity is afoot.' Wedgeworth v. State, 610 So.2d 1244, 1248 (Ala. Crim. App. 1992)."

Nix v. State, 136 So.3d at 1105. See also McElroy v. State, 469 So.2d 1337, 1340 (Ala. Crim. App. 1985) ("[T]he Supreme] Court declared the ... phrase 'immediately apparent' an 'unhappy choice of words,' for it 'can be taken to imply that an unduly high degree of certainty as to the incriminatory character of the evidence is necessary for an application of the "plain view" doctrine.' " (quoting Texas v. Brown, 460 U.S. 730, 741, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983) ) ). In Poole v. State, supra, this Court discussed probable cause in determining whether evidence was "immediately apparent" under the plain-view doctrine:

"Probable cause 'merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief" that certain items may be contraband ... or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required.' Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (citations omitted)."

Poole v. State, 596 So.2d at 639. See also King v. State, 521 So.2d 1042, 1047 (Ala. Crim. App. 1987) (quoting W. LaFave, Search and Seizure § 6.7(a) (2d ed. 1987) (" 'The plain view exception would be worthless if officers had to be "absolutely certain" that what they saw was seizable.' ") ); Allen v. State, 689 So.2d 212, 216 (Ala. Crim. App. 1995) ("The facts giving rise to probable cause must be viewed in the light of the officer's own experience and training.").

Here, Deputy McGahee found Cheatwood asleep in his car with an open container of alcohol in the center console. Deputy McGahee smelled alcohol, and Cheatwood admitted that he had been drinking alcohol. Under these circumstances and in light of Deputy McGahee's 18 years of law-enforcement experience, there was a reasonable probability that the pill bottle Deputy McGahee saw protruding from Cheatwood's pocket contained contraband. Indeed, Deputy McGahee testified that he often discovered illegal drugs being carried in such a manner. See Nix v. State, 136 So.3d at 1106 ("[P]robable cause existed to search defendant where arresting officer saw 'exposed portion of the plastic bag in her pocket; he knew from his experience as a narcotics investigator ... that narcotics are commonly packaged in plastic bags; and he knew that [the defendant's husband] had just been arrested.' " (quoting People v. Harris, 62 Cal. 2d 681, 683, 43 Cal.Rptr. 833, 401 P.2d 225 (1965) ) ). It is immaterial that Deputy McGahee was not absolutely certain that the pill bottle contained contraband. See King v. State, supra ; see also Herrin v. State, 349 So.2d 103, 109 (Ala. Crim. App. 1977) ("[T]he plain view doctrine justified the seizure of pill bottles containing capsules, found on the dash-board of an automobile ... even though[ ] it was not determined until after later tests that the pills contained ... illegal drugs."). The surrounding circumstances, namely, the fact that Cheatwood smelled of alcohol, that he admitted to drinking alcohol, and that he was passed out in a public place, gave rise to a "practical, nontechnical" probability that the unlabeled pill bottle he carried contained contraband. Poole v. State, 596 So.2d at 639. Therefore, the pill bottle was in plain view and was properly seized under the facts and circumstances of this case.

Based on the foregoing, we reverse the order of the circuit court and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.

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


text:
    FLORIDA BOARD OF BAR EXAMINERS, Petitioner(s)
    RE: M.B.L., Respondent(s)
    CASE NO.: SC19-431
    Supreme Court of Florida.
    MARCH 25, 2019
    Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board's recommendation is approved by the Court and M.B.L. shall be admitted to The Florida Bar subject to the following conditions:
    1. The applicant's license to practice law shall be placed on probation for a period of five years from December 25, 2014.
   2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc.;
(c) participate actively in the program offered by Florida Lawyers Assistance, Inc. during the entire probationary period by complying with the rehabilitation contract with that organization executed on February 8, 2019, and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by Florida Lawyers Assistance, Inc.; practice AA/NA principles in all of his affairs and carry the AA/NA message to other substance dependent individuals;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by Florida Lawyers Assistance;
(f) submit to and pay for a minimum of eight (8) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat or other substance screening tests determined to be appropriate by Florida Lawyers Assistance; and
(g) continue to consult with Katja Rego, LMHC, or other licensed mental health provider, at least, monthly or more frequently as his mental health provider deems necessary;
(h) follow promptly, diligently, and completely all instructions by his mental health provider, including the taking of any medication in the recommended manner as may be prescribed by his mental health provider;
(i) have his mental health provider submit monthly reports to The Florida Bar during the entire probationary period. These reports shall confirm the Applicant's consultations for the preceding month and shall advise The Florida Bar of the Applicant's continuing ability to engage in the active practice of law;
(j) obtain an agreement from his mental health provider stating that the mental health provider will immediately notify The Florida Bar if the Applicant misses a scheduled appointment without prior rescheduling; and,
(k) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the entire probationary period attesting to his compliance with the conditions set forth in 2 (a), (b), (c), (d), (e), (f), (g), (h), (i), and (j) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule 1-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant's practice of law.

6. If the applicant's license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court's order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. The applicant specifically consents to and authorizes the release of any and all materials in the applicant's file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.

A True Copy

Test:

John A. Tomasino

Clerk, Supreme Court