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Gardner v. State

Alabama Court of Criminal Appeals

September 20, 2019

Beverlee Gardner
State of Alabama

          Appeal from Montgomery Circuit Court (CC-18-932)

          KELLUM, JUDGE.

         Beverlee Gardner pleaded guilty to the unlawful possession of a controlled substance, specifically methamphetamine. See § 13A-12-212, Ala. Code 1975. The trial court sentenced her to 13 months' imprisonment but suspended the sentence and placed her on 18 months' probation. Gardner expressly reserved the right to appeal the trial court's denial of her motion to suppress the 0.2 grams of methamphetamine found in the pocket of her pants.

         At the suppression hearing, the State presented testimony from a single witness, T.C. Curley, a detective with the narcotics division of the Montgomery Police Department. Det. Curley testified that he and other officers had been investigating a residence on Eaton Road in Montgomery where Amanda Millwood, Constance Millwood, and Gardner lived. Using a confidential informant ("CI"), officers had completed "[c]ontrolled drug buys for heroin" at the residence and, during each, three people were present. (R. 7.) On May 9, 2017, Det. Curley said, he and several other officers executed a search warrant at the residence. When they first arrived, only Constance was present at the residence; Gardner arrived later, while officers were searching the premises. Det. Curley said that, "[f]rom [his] knowledge," Gardner tried to approach the residence, telling officers that she lived there and asking what was happening. (R. 6.) The State questioned Det. Curley about what happened next:

"[Prosecutor]: And at that point was she patted down for officer safety?
"[Det. Curley]: That's correct, due to her coming from inside of her vehicle.
"[Prosecutor]: All right. And when she was patted down, was anything found?
"[Det. Curley]: Yes. A bag of methamphetamine in her left jeans pocket.
"[Prosecutor]: Okay. And when that was found, was she arrested?
"[Det. Curley]: Yes."

(R. 6.) Later during direct examination, Det. Curley testified:

"Once she got out of the car, you could tell that she had some kind of a nervous look on her face as to why we were there. Once she approached us asking why we were there, we asked her to put her hands, I believe it was, on the car and at which time she kind of got nervous and didn't want to put her hands on the car for the pat-down search. And then once we did pat her down, like I said, we felt a bulge in her left pocket that was consistent -- once we grabbed hold of it, was crunchy, which is consistent with methamphetamine. It's kind of like salt. You know when you grab hold of it. And that's when we went into the pockets."

(R. 7-8.)

         On cross-examination, Det. Curley stated that, before the search warrant was executed, officers knew only that a third person was living with Amanda and Constance and did not know that the person was Gardner. He testified that the CI did not know Gardner personally and did not know her name. Rather, the CI had indicated that, during one of the controlled buys of heroin from Amanda and Constance, there was a third person at the back of the residence, although the CI did not know who it was. The CI had also indicated that, during another of the controlled buys, a third woman was present with Amanda and Constance. Because Gardner's name was unknown to police before the search, she was not named in the search warrant. However, during the search, Det. Curley said, officers found mail and other items indicating that Gardner lived in the residence. Det. Curley admitted on cross-examination that, although he observed it, he did not conduct the patdown of Gardner's person -- Det. Dailey, a female officer,[1] conducted the patdown. According to Det. Curley, the patdown was conducted for officer safety because Gardner had gotten out of her vehicle and approached the officers at the scene. Det. Curley stated that he was inside the residence when Gardner arrived and that he did not see what she had done at that time; he came out of the residence right before the patdown was conducted. The following exchange then occurred on cross-examination:

"[Gardner's counsel]: Do you know if there was a bulge in her jeans indicating that there might have been the presence of a weapon?
"[Det. Curley]: According to Detective Daily, when she patted her down, she felt a bulge in her left pocket.
"[Gardner's counsel]: Not a bulge -- not that kind of bulge, but a bulge that indicates that a weapon is present?
"[Det. Curley]: No, not to my knowledge.
"[Gardner's counsel]: And you mentioned that the drugs were found in her front-left pocket; correct?
"[Det. Curley]: Correct.
"[Gardner's counsel]: And Detective Daily --you said that you observed the search, and you also mentioned, I believe, that she had to, I guess, feel or feel the bag to know that it was a bag of methamphetamine?
"[Det. Curley]: Correct, from outside the pocket, yes.
"[Gardner's counsel]: So she had to alter the bags to kind of know what it was?
"[Det. Curley]: I mean, I don't -- like I said, she just grabbed the pocket, and she said she felt it smush."

(R. 22-23.) When asked if he "believe[d] that altering clothing in any way would exceed the cursory patdown for weapons," Det. Curley responded: "I mean, if you want to say grabbing your pants is altering your clothing to see what it is, then sure." (R. 25-26.) When asked if Det. Dailey "knew what the bulge was in [Gardner's] pocket," Det. Curley said that he "can't testify to what she thought it was or knew what it was." (R. 28.) Det. Curley also testified that, based on his training and experience, he would not "confuse[]" 0.2 grams of methamphetamine with a weapon. (R. 30.)

         Gardner contends that the patdown of her person exceeded the scope of Terry v. Ohio, 392 U.S. 1');">392 U.S. 1 (1968), because, she says, Det. Dailey had to manipulate the bulge in her pants pockets to determine whether it was contraband.[2] Gardner maintains that the State presented no evidence at the suppression hearing indicating that it was immediately apparent to Det. Dailey that the bulge in her pocket was contraband or that Det. Dailey believed the bulge might be a weapon so as to warrant manipulation of the bulge beyond the initial patdown. According to Gardner, the testimony at the suppression hearing indicated Det. Dailey initially felt the bulge in her pants pocket during the patdown but it was not until Det. Dailey "grabbed" the bulge after initially feeling it that it became apparent that the bulge was methamphetamine. Thus, Gardner concludes, the plain-feel doctrine does not apply in this case. The State argues, on the other hand, that this case falls squarely within the plain-feel doctrine.

"Generally, a Terry patdown must be strictly 'limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.' Terry [v. Ohio], 392 U.S. [1,] 26, 88 S.Ct. at 1882, 20 L.Ed.2d at 908 [(1968)]. In Minnesota v. Dickerson[, 508 U.S. 366 (1993),] the United States Supreme Court recognized a 'plain feel' exception to the Fourth Amendment protection analogous to the 'plain view' exception. The court stated:
"'If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be ...

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