from Montgomery Circuit Court (CC-18-932)
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.
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
"[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
"[Det. Curley]: Yes."
(R. 6.) Later during direct examination, Det. Curley
"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."
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, 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
"[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
(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.)
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. 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
"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 ...