Petition — Moore v. Alabama

Bon £025 "PILED | ;

No. Le

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In The

SUPREME COURT OF THE UNITED STATES

October Term, 1983

TIMOTHY DANE MOORE, PETITIONER

Ve

STATE OF ALABAMA, RESPONDENT

Petition for a Writ of Certiorari

To The Supreme Court of

The State or Alabama

TIMOTHY DANE MOORE

Attorney for himself

Route 1, Box 251-A

340-B Buford Street

Montgomery, Alabama, 36107

205 / 264-1863

QUESTIONS PRESENTED FOR REVIEW

l. If the affidavit supporting a search

warrant (a) effectively fails to establish a

nexus between the crime charged and the residence

of the defendant, and (b) contain: material false

statements made by the affiant; can the resulting

tainted evidence be used to convict the

defendant?

2. In light of the protections afforded by

the Fifth Amendment due process clause, can the

defendant charged under state iaw, be forced to

suffer conviction, fine and imprisonment, when no

factual showing of mens rea was made?

3. When no mens rea was shown by the facts

in evidence before the trial court; and the

defendant was denied relief on that error by

means of appeal; can he be further aeprived of

his right to raise that error, seeking relief by

petition for writ of remand?

4. Did the actions of the Alabama Courts,

denying remand for disposition of the mens rea

question deprive the defendant of equal

protection rights as guaranteed by the Fourteenth

Amendment?

-ii-

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ....-eeeei

TABLE OF Jive 8 ti 3 PPP ers |

REPORT OF OPINION Ts 6606-0065 46000 6sE

JURISDICTIONAL STATEMENT... .cccccceeceeed

CONSTITUTIONAL PROVISIONS AND STATUTES..4

STATEMENT OF THE CARB cicoccecescesocesess

REASONS FOR GRANTING THE WRIT........+.14

AFFIDAVIT OF BEV Meccccesececscoccesseda

APPENDIX

A. OPINION,

Alabama Court of Criminal Appeals..34

B. OPINION ON REHEARING,

Alabama Court ot Criminal Appeals..46

C. Affidavit in support of warrant....48

D. Trial Court Stipulation of Facts...52

-iii-

TABLE OF AUTHORITIES CITED

UNITED STATES CONSTITUTION

Fourth Amendment.......seeeeeeeeee4,passim

Pifth Amendment......seeecceeeeeee4,passim

Fourteenth Amendment.......+.++++4,passim

CASE AUTHORITIES

Brinegar v U.S. 338 US 160 (1949)...16,17

Doe v U.S. 253 F 903 (CA8, 1918).......+27

Franks v Delaware, 438 US 154 (1978)...20

Illinois v Gates, 51 LW 4709 (1983) .15,20

Jones v U.S., 362 US 257 (1960).....16,17

State v Garcia, 19 NM 414 (1914).......27

State v Hadd, 619 P2d 1047 (1980)......17

State v McManus, 243 NW 2d 575,

(Iowa ROPE) ad cco cawewsesceedeoédecsceéacns bene

State v Mena 399 So2d 149 (La.1981)....19

State v Muffeo, 642 P2d 404,

(Wash.App. BOGR) oc coer rere. 6nd oe cc ctusene

State v Urritia, 539 P2d 913,

(Ariz.App. BITS) co caddvtdeccsesronecsaveocene

State v Watson, 550 P2d 89,

(Ariz. RGTG hice césbe 6b bbs ude s bhhesee een

-iv-

State v Witwer, 642 P2d 828,

(Alaska App. LOGE o.dkb cs co wds ct comaesesest

State v Yaritz, 287 NW2d 13,

(Minn, App.1982) ...cececccccccscceceseeslS

Sykes v U.S., 204 F 909 (CA8,1913).....27

Talbot v State, 23 Ala.App. 559........23

Temple v State, 366 So2d 740 (A1.1979) .23

U.S. v Chester, 537 F2d 173 (CA5,1976) .18

U.S. v Kunkler, 679 F2d 187 (CA9,1982) .18

U.S. v Valenzuela, 596 F2d (CA9,1979),

cert. den. 441 U.S. Dinet cecteset cance

U.S. v Ventresca, 380 U.S 102 (1965)...17

Wiborg v U.S., 163 U.S. 632 (1895).....27

STATUTE LAW

28 CelleGe BAGs CS co ceves hebbse cen tsenesbla

1975 Code of Alabama, §20-2-70(a).....4,5

OTHER AUTHORITY

"Search and Seizure in the Supreme Court"

University of Chicago Law Review,

28:664, at OOF 0.0kd eb h606b0066¢ een tos cnn

-Vve-

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1983

TIMOTHY DANE MOORE, PETITIONER

Ve

STATE OF ALABAMA, RESPONDENT

Petition for a Writ of Certiorari

To The Supreme Court of

The State of Alabama

Petitioner requests that a writ of

certiorari issue, in this case, to review

the judgment of the Alabama Supreme

Court, and the Opinions of the Alabama

Court of Criminal Appeals.

REPORT OF OPINIONS BELOW

The Supreme Court of the State of

Alabama denied certiorari in this cause

without opinion, or formal written order.

The Petitioner herein received clerical

notice of the denial under date of December

16, 1983.

The cause was numbered 82-1164, and

styled "EX PARTE: TIMOTHY DANE MOORE".

The Alabama Court ot Criminal Appeals

first denied relief by OPINION, as yet

unreported, dated 5 July, 1983, the text of

which is attached as APPENDIX "A".

On 16 August, 1983, the Alabama Court or

Criminal Appeals denied rehearing, by its

order ON REHEARING, which is as yet

unreported. The text is attached hereto, as

APPENDIX "B".

JURISDICTIONAL STATEMENT

1. The date of the order issued by the

Alabama Supreme Court denying certiorari was

December 16, 1983.

The Rules of the United States

Supreme Court, Rule 20.1 provides:

"a petition for writ of certiorari ...

shall be deemed in time when it is filed

with the Clerk within-sixty days after the

entry of ... judgment.”

Sixty calendar days from December 16th,

1983 would fall on February 14th, 1984, for

timely filing. The Petitioner has met that

jurisdictional deadline.

2. The jurisdiction or this Court is

duly invoked, pursuant to Article III,

Section 2, of the Constitution of the United

States.

3. Jurisdiction is specifically set out

by statute in this cause by 28 U.S.C.

1257(3), respecting a right, privilege or

immunity claimed under the Constitution.

-

ye SSG

CONSTITUTION OF THE UNITED STATES

Amendment Four states in pertinent part:

"... nO warrant shall issue, but upon

probable cause, supported by Oath or

affirmation, and particulariy describing the

place to be searched, and the persons or

things to be seized.”

Amendment Five states in pertinent part:

" ..+. No person shall ... be deprived of

life, liberty, or property without due

process of law."

Amendment Fourteen states in pertinent part:

"No state shall make or enforce any law

which shall abridge the privileges or

- immunities of citizens of the United States;

nor shall any state deprive any person of

life, liberty or property, without due

process of law; nor deny to any person

within its jurisdiction the —_ protection

of the laws."

ALABAMA STATE STATUTES

Title 20, 1975 Code of Alabama, Section

2-70 (Code 20-2-70), states in pertinent

part:

« any person who possesses ... controlled

substances enumerated in Schedule I, II,

III, IV, and V is guilty of a felony ..."

STATEMENT OF THE CASE

1. Timothy Dane Moore was originally

indicted in Montgomery County, State of

Alabama, on July 26, 1982. Each of the

three Counts charged possession of a

controlled substance, in violation of Title

20, Section 2-70(a), 1975 Code of Alabama.

The Indictment followed the execution or a

search warrant which Petitioner is

attacking.

2. The affidavit (A:)1 in support of the

search warrant, essentially alleged:

2.1 The Police hav identified a seller

of cocaine, Bob Robinson, Jr.

2.2 The seller, Robinson, while under

surveillance in an apartment in Montgomery,

sold a smail quantity of cocaine to an

undercover policewoman, who was posing as a

"buyer". Robinson then left the apartment,

1 Appendix hereto, Exhibit "C".

+

and traveled directly to a piece of rural

property owned by the Petitioner. The

police affidavit (A:C) claimed they did not

lose “visual contact" with the subject,

Robinson.

The precise language used, was:

Sgt. Bodine: "... the subject was observed

going straight to the previously described

residence of Timothy D. Moore without

stopping. After the subject arrived at the

residence, constant visual surveillance was

maintained. ose”

"At no time was visual contact lost on

this subject (Robinson) ."

2.3 The Seller Robinson later returned

to the Montgomery apartment, and gave an

additional quantity of cocaine to the

“buyer” (i.e. the undercover policewoman).

‘When, in due time the affidavit was

challenged, by Motion to suppress, the

Petitioner was able to establish:

2.4 That there was nothing in the

affidavit directly connecting the Petitioner

Timothy Dane Moore with the drug seller;

2.5 That there was nothing to indicate

Robinson's purpose in leaving Montgomery for

Moore's property, or that he got any drugs

there.

2.6 That Robinson, in fact, was never

sighted either entering Moore's home, or

contacting him, and the affidavit shows as

much by its own omissions.

2.7 That there was no casue to believe

Robinson had received anything from the

Petitioner, much less any “controlled

substance".

36 The only “facts” in the affidavit

which actually called Moore's name are:

"... the subject was observed going

straight to the previously described

residence of Timothy D. Moore without

stopping. ... After approximately thirty

minutes said subject departed from the

residence of Timothy D. Moore and drove

non-stop straight back to the location where

the undercover officer was waiting." ...

"The foregoing is based upon personal

knowledge of the affiant and on facts

obtained by the Vice and Narcotics Unit,

Montgomery Police Department ..."

No oral testimony had been taken at the

court hearing to show “probable cause" to

issue the search warrant, so the "facts" in

Sgt. Bodine's affidavit were the sole

foundation for the warrant.

4. The day after the Indictment, the

Petitioner filed his Motion to Suppress the

fruits of the illegal search, to wit: 950

tranquilizers, 7 grams of cocaine, and

approximately 1 pound of marijuana.

Petitioner contended the search warrant was

invalid for lack of probable cause.

A suppression hearing was begun on July

27, 1982, and continued until August 16,

1982. The testimony in the suppression

hearing, exposed a false representation in

Bodine's earlier affidavit (A:C).

Oral testimony by Sgt. Bodine at the

suppression hearing:

"Q. (By defense counsel) Now you said that

constant visual surveillance was maintained

on the residence of Tim and Jayne Moore down

there in Sellers, Alabama.

A. No, sir, I believe I said the property.

Q. Oh, the property? Seventy Six acres?

Ya'll could see part of the 76 acres?

A. Yes, sir, you can see quite a bit from

2,000 feet up.

Q. Yes, sir, you can see quite a bit of the

Moore residence, Mr. Bodine? You have been

down there, haven't you?

A. yes, sir, I have.

(

Q. You can't see quite a bit of it, can

you?

A. Of the residence, no."

In spite of Bodine's false statements,

the Trial Court denied the Motion to

Suppress on August 19, 1982.

5. On Monday, September 13, 1982, the date

set for trial of the cause, Moore elected to

waive his right to trial by jury, and

entered into a stipulation of facts (A:D)

for the purpose of allowing a trial by the

court.

The proceedings commenced in open court;

no case was made by the state or the

defense; and the court proceeded to a guilty

verdict in the cause. (R:104):

"Okay, basea upon the stipulation of

facts and the evidence I have heard,2 it is

my opinion, and I conclude that the

defendant is found guilty beyond a

reasonable doubt and to a moral certainty by

the evidence in the case. I therefore find

him guilty."

6. On November 19, 1982, Moore was

sentenced to 15 years in the state

penitentiary, with a fine of Fifteen

Thousand dollars.

7. Moore appealed the illegal search and

seizure to the Alabama Court of Criminal

Appeals. The conviction was affirmed, with

OPINION (A:A).

8. Moore submitted his application for

rehearing, and additionally petitioned the

appeals court for remand of the case to the

trial court. Moore sought retrial, based on

a fatal error of the state, which made no

2 In the suppression hearing.

-10-

prima facie showing of mens rea. The error

had not been raised by Moore's counsel on

appeal.

The court summarily denied the remand,

and denied rehearing by opinion ON REHEARING

(A:B).

9. Moore duly petitioned the Alabama

Supreme Court on certiorari, but his

petition was denied, with nothing but a

Clerical notice issuing to that effect. The

denial of certiorari was dated December 16,

1984.

10. The federal questions sought to be

reviewed by this Court were raised in the

following manner, and at the following

times:

10.1 Montgomery County Circuit Court is

a court of general jurisdiction, competent

to try criminal cases and determine

constitutional questions, federal and state.

The defendant Moore, acting by and through

alle

counsel, moved the very day after the

indictment to suppress the evidence of the

illegal search, invoking the protections of

the Forth Amendment, thereby raising a

federal question.

The motion to suppress (R:126) stated:

"... the affidavit in question is wholly

insufficient to establish probable cause in

the mind of the issuing magistrate."

10.2 The Alabama Court of Criminal

Appeals is a tribunal constitutionally

competent to try issues on appeal, and grant

extraordinary writs in the interests of

justice. While that court still had

jurisdiction, and while the Petitioner's

application for rehearing was still pending,

petitioner, by necessity, had relieved

counsel, and proceeded on his own behalf.

In reading his own record on appeal, he

observed the fatal variance in pleading and

proof in the trial court, based on lack of

mens rea. Moore determined that he had no

= y

chance available to raise that issue on

appeal, for failure of trial counsel to

raise it timely. Moore proceeded by

petition for remand.

The petition for remand fully set out

his right to due process under the Fifth and

Fourteenth Amendments, and the necessity of

a prima facie case on mens rea, which had

not been shown by the state in the court

below.

The federal question was properly raised

by the petition for remand. His procedural

approach was appropriate and timely. The

federal cases hold that he is entitled to

relief.

The Appeals Court erred in refusing to

remand with an order to set aside the void

judgment, and the Alabama Supreme Court

erred in denying certiorari.

-13-

REASONS FOR GRANTING WRIT

The Alabama Supreme Court, and the

Alabama Court of Criminal Appeals have

decided a federal question in a way in

conflict with applicable decisions of

the Supreme Court.

The Alabama Supreme Court, being a

court of last resort , has decided a

federal question in a way in conflict

with a decision of another state court

of last resort or of a federal court of

appeals, in that it denied certiorari,

upholding erroneous determinations of

the Alabama Court of Criminal Appeals.

I.

If the affidavit supporting a search

warrant (a) effectively fails to

establish a nexus between the crime

charged and the residence of the

defendant, and (b) contains material

false statements made by the affiant;

can the resulting tainted evidence be

used to convict the defendant?

NO NEXUS

The decision of the Alabama Court of

Criminal Appeals respecting the affidavit in

question misapprehends the law, clearly

falls below the minimum constitutional

standards set by this court, and sets a

dangerous precedent utterly destructive of

the Fourth Amendment.

-l14-

In the OPINION (A:A) of the Alabama

Court, nothing is necessary for a search

warrant affidavit but the name of a seller,

and the description of a piece of property

the seller visited. There is no case on

record to match this Alabama case.

The affidavit in question here totally

failed to meet the standards laid out by

this court in their recent decision Illinois

y Gates, 51 LW 4709, 6/7/83:

"...- We reaffirm the totality of

circumstances analysis that traditionally

has informed probable cause determinations.

See Jones v United States, supra, United

States v Vertresca, supra, Brinegar v United

The Alabama Court of Criminal Appeals

cited Gates, and concluded that the issuing

Magistrate had a "substantial basis" for

issuing the Warrant. The Court failed,

however, to cite a single fact to establish

any such sdbstantial basis. There was

therefore, no factual foundation for the

"totality" test.

A rather concise statement concerning

the conditions which must exist, before the

police can breach the Fourth Amendment

protections, is set out in the article

Search and Seizure in the Supreme Court,

University of Chicago Law Review 28:664 at

687 (1961):

"Two conclusions necessary to the issuance

of the warrant must be supported by

substantial evidence; that the items sought

are in fact seizable by virtue of being

connected with criminal activity, and that

the items will be found in the place to be

searched. (Footnoted as follows) See United

States v Old Dominion Warehouse, Inc, 10 F2d

736, 738 (CA2 1926) ."

Petitioner would point out a case very

similar to the instant case, determined by

the Iowa Supreme Court, State vy McManus, 243

NW 2d 575 (1976). The court ruled that a

visit similar to that of Bob Robinson, Jr.

at the Moore property was sufficiently

consistent with innocent behavior and that

more was needed for a search warrant.

The cases of Jones, Brinegar and

-~16-

Ventresca, cited in Illinois vy Gates, supra,

all clearly show that a multitude of

material facts are necessary to undergird a

search warrant.

Jones showed five material facts, Brinegar

showed six material facts, Ventresca showed

ten material facts.

Contrast that track record with the

showing in Moore, the instant case, wherein

only one material fact was shown - the drug

seller, Robinson, came to Petitioner Moore's

property, and remained there for

approximately thirty minutes.

The Alabama Court of Criminal Appeals

case authority was basically divided into

three categories:

(1) Those involving the pickup of drugs

from premises or property which was the

subject of a search warrant, including,

State vy Hadd, 619 P2d 1047 (Ariz. App.1980),

State vy Witwer, 642 P2d 828 (Alaska

of7=

App.1982), _State vy Yaritz, 287 NW2d 13

(Minn. App.1982), State vy Muffeo, 642 P2d

404 (Wash. App.1982), U.S. vy Kunkler, 679

F2d 187 (CA9 1982), U.S. vw Chester, 537 F2d

173 (CAS 1976).

Every one of those distinguished cases

reported at least two trips by the drug

runner to the residences which were the

subject of the search warrant. In Moore's

case there was but a "single trip” to the

rural premises, and no proof of entry into

Petitioner's residence, so the cases above

cannot apply.

(2) Those involving the principle of

reliability through a “controlled drug buy",

namely State vy Watson 550 P2d 89 (Ariz.

1976), and State vy Urritria, 539 P2d 913

(Ariz. App.1975).

There was no “controlled buy" in the

case of Moore, and there was no reliable

informant, according to the sworn affidavit

and later testimony.

(3) Those cases involving at least a

single trip, supplemented by a reliable

informant's statement, such as 0,8. v

Valenzuela, 596 F2d 824 (CA9 1979), cert.

denied, 441 US 965 (1979), and State v Mena,

399 So2d 140 (La. 1981).

No informant was used in the case of

Moore to "supplement" the trip to the

property, so Moore's case is distinguished.

All the three categories cited by the

state court, if properly applied, would

protect the Petitioner's rights guaranteed

by the Fourth Amendment; but the Alabama

Court directly departed from the factual

burden recognized and quoted in the subject

cases, finding “probable cause", based on

nothing but speculation and conjecture.

If the Alabama Courts found no facts

from which to bring the Petitioner's case

within the ambit of these cases, how then

-19-

could there have been a "substantial basis”

for the search warrant, as described in

Gates?

MATERIAL FALSE STATEMENTS

The Petitioner has previously shown

directly from the Record that Sgt. Bodine

Claimed in the false affidavit that

"constant visual surveillance was

maintained"; yet his testimony later was

diametrically opposite, that he did not see

the Moore residence, at that time.

If he did not see the residence, and he

did not see Robinson enter or leave the

residence, how could he swear an affidavit

on personal knowledge, causing a "legal"

search of such a residence?

See Pranks v Delaware, 438 US 154, 155

(1978) :

"If, after a hearing, defendant

establishes by a preponderance of the

evidence that the false statement was

included by the affiant knowingly and

intentionally, and with reckless disregard

for the truth, and the false statement was

-20-

necessary to the finding of probable cause,

then the search warrant must be voided and

the fruits of the search excluded from the

trial to the same extent as if probable

cause was lacking on the face of the

affidavit."

The Sergeant's sworn testimony that he

did not see the house amounts to a

preponderance of evidence that his earlier

Sworn statement was false. The false

statement made was absolutely necessary for

the warrant to issue. Bodine knew, or

should have known that the warrant would not

issue without his false statement about the

"constant visual surveillance", so

deliberately phrased as to falsely induce

the Magistrate to think that Bodine saw

Robinson go into the Moore's residence, when

he in fact did not see any such thing.

-2]-

The facts in the Record are strictly

limited to those heard by the trial court

Judge in the suppression hearing of July

27th, as continued, and the written

STIPULATION OF FACTS (A:D). The defendant

gave no testimony at the suppression

hearing, and he stipulated to nothing in the

way of facts going to establish “mens rea”

in his STIPULATION.

How, then, can facts be shown from the

Record, allowing an objective judge to make

a determination of guilt as to that

indispensable element of proof? The

Petitioner has meticulously searched the

Record, and finds none. This Court, upon

examining the Record by Writ of Certiorari

-22-

to the Alabama Court will also find none.

The sole "fact" connecting the

Petitioner in any way was contained in the

STIPULATION OF FACTS (A:D), executed by

Petitioner's trial counsel, that:

"That the charges arose from the execution

of a search warrant at the home of Tim and

Jayne Moore..."

Given nothing but that "factual" basis

for application of the law, Petitioner shows

that the Fifth Amendment due process

guarantee will not allow conviction, and

judgment without something more, to

constitute a prima facie showing on

Criminal intent. According to the authority

shown in the case ot Temple vy State 366 So2d

740 (Ala. 1979), even admission of ownership

of property where the drugs are found does

not establish mens rea. An additional

showing of “guilty knowledge" is demanded.

The Temple Court quoted Talbot yv State,

23 Ala. App. 559, 129 So 323 (1930), etc.

-23-

(other cites omitted):

"To permit a conviction of this character to

stand upon such testimony would be

unconscionable. It would be an exceedingly

dangerous precedent to hold that the mere

finding of prohibited liquor in the home of

a citizen, with nothing to connect the

accused therewith, and nothing to impute

any knowledge of the fact to him is

sufficient to deprive him of his liberty

and brand him a criminal before the world.

If such were the law, every citizen would be

at the mercy oft an enemy who by merely

Surreptitiously placing the inhibited

article in the home of his enemy could wreak

his vengeance through the aid of the law in

this dastardly manner. The law contemplates

no such condition, nor will the courts

countenance such.a thing. The law in its

wisdom provides that every person charged

with crime is presumed to be innocent, and

this presumption is not an empty or

meaningless provision; to the contrary, it

is regarded as evidence in behalf of the

accused, and attends him as such throughout

the trial, or until the presumption is

overcome by legal evidence which shows his

guilt beyond all reasonable doubt and to a

moral certainty. Conjectures, suspicions,

hatred, prejudices, conclusions and

guesswork have no place in the proper

administration of the law; and to willfully

hold otherwise would do violence to the

conscience and integrity of the person so

doing, be he judge, juror, officer, or

witness."

According to the Fifth and Pourteenth

Amendments, our citizens unassailably enjoy

-24-

the due process right to the presumption of

innocence, until the corpus delecti has been

proven.

The trial court's failure to acquit, and

the appeals court's failure to reverse

constitute grave error, due to be dealt

with.

III.

When no mens rea was shown by the facts

in evidence before the trial court; and

the defendant was denied relief on that

error by means of appeal; can he be

further deprived of his right to raise

that error, seeking relief by petition

for writ of remand?

The Petitioner proceeded with counsel

in all stages of the proceeding throughout

trial, and most of the appeal process. He

had to take over his own case at a late

date, and at that time was struck with the

serious nature of the earlier failure to

appeal the issue of "mens rea" at the trial

court level, for consideration on appeal.

It is the position of the Petitioner

-25-

that the trial court conviction is a void

judgment under the law, inasmuch as the

trial court, in its general verdict, not

only made no finding on the element of mens

rea, but had available no basis in fact or

facts, upon which a finding or verdict of

guilt on that element could be based.

The denial of remand was a denial of

justice, considering that actions of prior

counsel had effectively deprived Moore ot

any chance to attack the error by means of

"appeal".

The concept of allowing and upholding a

void judgment, such as this, is entirely

foreign to American justice. Our standards

of jurisprudence especially favor the

granting of justice, even by unusual means,

and especially so, when a defendant has been

deprived, through no fault of his own, and

also when he is proceeding pro se.

Petitioner shows this Court not only the

-26-

difficulty of proceeding pro se, but the

tendency of some courts and counsellors to

discount the positions advanced by pro se

litigants, regardless of merit. Since this

Court has recognized the right of criminal

defendants to proceed without licensed

counsel, surely the Court will protect the

right to have meritorious arguments decently

faced.

The Alabama Court summarily denied

remand to set aside the void judgment,

making no determination on the substance.

Such a ruling, if allowed to stand, would

directly controvert the position advanced by

this Court previously, that remand is a

proper avenue of redress in such cases.

Such errors are normally redressable

through the avenues shown in State v Garcia,

19 NM 414, Miborg vy 0.8., 163 US 632 (1895),

Sykes vy 0.5., 204 F 909 (CA8 1913), Doe vy

0.8. 253 F 903, 905 (CA8 1918). The

-2T<-

Petitioner duly raised that authority,

seeking remand, but relief was denied him.

IV.

Did the actions of the Alabama Courts,

denying remand for disposition of the

mens rea question deprive the defendant

of equal protection rights as

guaranteed by the Fourteenth Amendment?

Petitioner has shown the extensive

citation of authority quoted by the Alabama

Court of Criminal Appeals. Said authority

can be followed, and has been, without

violating Fourth and Fifth Amendment

protections, if the facts and circumstances

are identical to those in the cases

employed.

When and where the Alabama Court depart

from the factual parameters of their own

cases, making application of those cases

against the Petitioner, without the

requisite factual foundation, they are

impermissably exceeding their authority.

The actions of the Appeals Court deprive the

=-28-

Petitioner of protections afforded to other

litigants in similar circumstances, and

hence violates his Fourteenth amendment

equal protection rights.

When the search warrant cases demand

"two trips” for probable cause with other

defendants, but only one with Moore, the

result is unequal application of the law.

When other search warrant cases demand

either an informant, or a “controlled buy”

as grounds for search warrants, and Moore's

case demands none, that is unequal

application ot the law.

When all the other Alabama and national

cases demand evidence of guilty knowledge

and Moore's case demands none, that is

unequal application.

When all other cases demands the corpus

delecti es proved, and Moore's case does

not, then Moore has been unequally treated.

The Fourteenth Amendment specifically

-29—

prohibits the kind of abuse that the

Petitioner Moore has suffered here.

CONCLUSION

WHEREFORE Petitioner Timothy Dane Moore

submits that the Writ of Certiorari is due

to be granted, ana upon final determination

of the cause, the Petitioner's conviction in

the Circuit Court of Montgomery County,

Alabama should be reversed in that:

(a) The affidavit in support of the

search warrant was sadly lacking in facts to

support a reasonable conclusion that drugs

were actually present in the residence of

the Petitioner. If thisCourt allowed the

warrant to stand, it would constitute a

license for unscrupulous persons to wreak

their vengeance on innocent enemies. Temple,

supra. It would grant and allow the police

dangerous new powers to follow whomever they

like, to premises where they may have left

dangerous drugs, and thereby obtain a search

-30-

warrant for the conviction of innocent

persons.

(b) This Court should move swiftly to

condemn material false statements,

accomplished directly or indirectly, by

commission or omission, to discourage the

kind of behavior here on the part of

overzealous police officers, such as

Sergeant Bodine, who was determined to get a

search warrant, facts or no facts.

(c) When the Petitioner suffered

conviction in violation of the presumption

of innocence, based on nothing but

speculation and conjecture, and when the

courts refuse to permit or allow any hearing

On remand to consider the issue, the due

process deprivation rises to such a level

that denial of a hearing on the merits

amounts to a patent denial of justice.

The Alabama Courts have totally failed

to render justice. This Court must not

fail. The hallmark of a civilized,

law-abiding society is the right of gvery

citizen to enjoy a meaningful avenue of

access to a decent forum for redress or his

grievances. That forum is duty bound, NOT

ONLY TO HEAR HIS COMPLAINT, BUT TAKE JUST

ACTION TO RESOLVE IT.

The Alabama Courts have done neither.

The Petitioner is entitled to relief by

certiorari.

Respectfully submitted,

TIMOTHY DANE MUORE, Attorney for himself

340- B Buford Street

Montgomery, Alabama 36107

205 / 264-1863

AFFIDAVIT OF SERVICE

I, Timothy D. Moore, attorney for

myself, Petitioner herein, first being duly

sworn, hereby certify that on the th day

of February, 1984, I served a copy of the

foregoing PETITION FOR WRIT OF CERTIORARI on

the State of Alabama, Respondent herein, by

mailing a copy in a duly addressed envelope,

with First Class Postage prepaid, to Charles

Graddick, Esq., Attorney General for the

State of Alabama, at: Office of the Attorney

General, 250 Administrative Building, 64

North Union Street, Montgomery, Alabama

36130.

Subscribed and affirmed to before me,

This day of February, 1984.

Notary Public, State at Large

My Commission expires:

APPENDIX "A" ([dated: 5 JUL 1983)

STATE OF ALABAMA JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1982-83

3 Div. 713

Timothy D. Moore

Vv

State

Appeal from Montgomery Circuit Court

BOWEN, PRESIDING JUDGE

The defendant was indicted for the

possession of cocaine, diazepam, and

marijuana. He waived his right to trial by

jury and was found guilty by the court upon

a stipulation ot facts. Sentence was

fifteen years' imprisonment and a $15,000

fine. The only issue raised on appeal is

the sufficiency of the affidavit to support

a finding of probable cause for the issuance

of the search warrant for the defendant's

residence.

-34-

In pertinent part, the affidavit of

Montgomery Police Officer Dennis Bodine

states:

"And the facts tending to establish the

foregoing for issuance of a daytime

search warrant are as follows: On two

previous occasions, 7/9/82 and 7/15/82,

a subject sold cocaine to an undercover

Montgomery police officer. On 7/20/82,

the undercover otficer ordered an

additional ounce of cocaine from same

subject. At approximately 10:02 A.M.

this date, 7/20/82, the subject met with

the undercover officer and sold one-haif

ounce of cocaine. At the time of this

sale he was unable to provide the full

ounce ordered, and he requested that the

undercover otficer aavance him the money

needed to make the additional one-half

ounce purchase which was done. At

approximately 10:06 A.M., the subject

left the company of the undercover

officer and began his journey to the

residence in Sellers, Alabama.

Utilizing helicopter surveillance as

well as ground surveillance, the subject

was observed going straight to the

previously described residence of

Timothy D. Moore without stopping.

After the subject arrived at this

residence constant visual surveillance

was maintained. After approximately

thirty minutes said subject departed

from the residence of Timothy D. Moore

and drove non-stop straight back to the

location where the undercover officer

was waiting. Upon meeting with the

undercover officer, said subject gave

him an additional quantity of cocaine.

-35-

At no time was visual contact lost on

the subject. The aforegoing is based

upon personal knowledge of the affiant

and on facts obtained by the Vice and

Narcotics Unit, Investigative Division,

Montgomery Police Department,

Montgomery, Alabama, and is made for the

purpose or securing a warrant for the

premises of Timothy D. Moore or Jayne

Moore, located in Montgomery County,

Montgomery County [sic], Alabama, in the

daytime only.”

It was stipulated that this was all the

information put before the district court to

justify the ;issuance of the search warrant.

"(A)n otherwise insufficient affidavit

cannot be rehabilitated by testimony

concerning information possessed by the

affiant when he sought the warrant but not

disclosed to the issuing magistrate."

Whitely v. Warden, 401 U.S. 560, 565, n. 8

(1971). Here, there is no contention that

the affidavit was supplemented by oral

statements to the magistrate. Thus, the

only issue is whether the affidavit is

faciaily sufficient. In other words, do the

facts contained in the affidavit constitute

-36-

probable cause?

In support ot his argument that there

was no probable cause for the issuance of

the search warrant, the defendant relies on

State v. McManus, 243 N.W.2d 575 (Iowa,

1976). In that case the drug dealer told

the undercover police officer that he was

unable to make his contact for the marijuana

and would try again in approximately

forty-five minutes and would return in two

hours. The dealer was kept under

Surveillance. After leaving the undercover

agent, the dealer went to the defendant's

farmhouse. He shortly returned to his

rendezvous with the undercover agent and

sold him twenty pounds of marijuana. The

court found that the dealer's stop at the

farmhouse, without more, was insufficient to

support a finding of probable cause that the

defendant had committed any offense.

"The sworn affidavit and abstract of

Oral testimony showed only that Goodrich

-37-

(dealer) stopped at the defendant's

farmhouse between the time he met with

Deputy Warner (undercover agent) and the

time he delivered the marijuana to the

deputy. We do not hesitate to say the

visit by Goodrich to the farmhouse,

along with his earlier mention of a

‘contact’, cast upon defendant a certain

aura of suspicion. Probable cause,

however, requires more than mere

suspicion. State v. Birkestrand, supra,

239 N.W.2d at 357; State v. Shea, 218

N.W.2d 610, 614 (Iowa 1974).

"Our problem with the facts of this case

is that there was nothing beyond the

mere coincidence of timing of the visit

of Goodrich to the McManus farmhouse to

connect defendant with any wrongdoing.

There was no indication from the

affidavit for the search warrant or the

abstract of the oral testimony that

Goodrich's auto did not already contain

the marijuana before his visit to the

farmhouse to his car while there or that

he even opened the trunk of the vehicle

at any time he was at the farm. There

was no indication of any independent

information linking defendant to

wrongdoing, of which the events or

November 1 might have been

corroborative. There was no indication

that Goodrich or anyone else provided

information tending to incriminate

defendant. Defendant himself was

apparently not observed on November 1;

the information for the search warrant

indicated the affiant did no know who

occupied the house near Lone Tree.

There was no indication or any other

suspicious visits to defendant's home.”

"In the instant case, Goodrich's stop at

the farmhouse, even with its hint of

suspicion due to the timing of the

visit, was insufficient, without more,

to support a finding of probable cause

that the defendant had committed or was

committing an offense. Such a visit was

sufficiently consistent with innocent

behavior and activity that more was

needed for the issuance of the warrant.

We have said that innocent-appearing

activity cannot be used to bolster an

otherwise inadequate warrant

application.” McManus, 243 N.W.2d at

578-79.

McManus was a five to four decision of

the Iowa Supreme Court. The four dissenting

justices found that "(t)he timing of

Goodrich's visit to the farmhouse, which the

court calls ‘mere coincidence', is highly

probative" of illegal activity in the

context in which it occurred. They found

that "a reasonably cautious person could

reasonably conclude from these facts and

circumstances that marijuana would be found

in the farmhouse, and that probable cause

therefore existed to issue the search

warrant.” McManus,

-39-

Some courts have been reluctant to find

a sufficient nexus or connection between the

criminal activity, the things to be seized

and the place to be searched is not the

defendant's own residence or under his

control. W. LaFave, 1 Search and Seizure

Section 3.7, n. 110 (1978). However, other

courts have not shown such hesitation.

United States v, Valenzuela, 596 F.2d 824

(9thCir. 1979). cert. denied, 441 U.S. 965

(narcotics sellers seen leaving his house

before going to where sale occurred); State

Vs. Witwer, 642 P.2d 828 (Alaska App. 1982)

(before sale, dealer told agent he had to

get drugs from his connection, went to

premises, returned with defendant and, after

arrest, told agent he had obtained drugs

from defendant); State v, Yaritz, 287 N.W.2d

13 (Minn. 1979) (two sales elsewhere, each

time defendant observed going straight from

his house to the place of the sae).

Judged by the standards set out in

United States v. Chester, 537 F.2d 173, 175

(Sth Cir. 1976), cert. denied, 429 U.S. 1099

(1977), the district court's finding of

probable cause should be sustained.

"A probable cause issue can rarely, if

ever, be resolved with the exact logic

of a Euclidean theorem. Each case must

turn on its facts. Some guideposts,

however, are available to a reviewing

court. Only the probability, and not a

prima facie showing, of criminal

activity is the standard of probable

cause. Spinelli v. United States, 393

U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d

637 (1969). The issuing magistrate is

not to be confined by niggardly

limitations or by restrictions on the

use ot his common sense. Id.

States v. Ventresca, 380 U.S. 102, 108,

85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

And the magistrate's determination of

probable cause should be paid great

deference on appeal.

States, supra, at 419, 89 S.Ct. 584;

Jones v. United States, 362 U.S. 257,

270-71, 80 S.Ct. 725, 4 L.Ed.2d 697

(1960) ."

Although the court in McManus found the

dealer's visit to the defendant's residence

only a "mere coincidence of timing", under

the facts of this case, we find the dealer's

visit [sic] to the defendant's home

extremely significant in tinding the

existence of probable cause. State v,. Hudd,

619 P.2d 1047, 1053 (Ariz.App. 1980) (Fact

that suspected marijuana dealer was observed

visiting defendant's home immediateiy after

he arranged to sell marijuana to undercover

agents, and fact that marijuana was found in

suspected marijuana dealer's vehicle

immediateiy after he left defendant's home,

supported conclusion of probable cause that

marijuana was located in defendant's home,

for purpose of issuing warrant to search the

home); State v. Watson, 550 P.2d 89 (Ariz.

1976) ("We find that the fact that the

seller left appellant's home immediately

prior to the controlled sale as strong

evidence to establish probable cause in this

context"). See also State v. Urrutia, 539

P.2d 913 (Ariz.App. 1975); State v. Muffeo,

642 P.2d 404 (Wash.App. 1982); United States

-42-

vs. Kunkler, 679 F.2d 187 (9th Cir. 1982).

Part of this significance lies in the fact

that in this case, unlike McManus, the

dealer went to the defendant's house

immediately after he had consummated one

drug sale and before he mace a second sale

to the same party. Since the dealer had

already "incriminated" himself, there is no

reason to suspect that he went to the

defendant's for any reason other than to

secure more cocaine.

The two-pronged probable test standard

of Aguilar v. Texas, 278 U.S. 108 (1964) and

Spinelli v. United States, 393 U.S. 410

(1969), does not apply in this case because

the facts establishing probable cause come

from the observations of law enforcement

officers and not from either a confidential

informant or a person connected with the

crime involved or known to associate with

Criminals. United States v. LaFond 482

-43-

F.Supp. 1379, 1384 (E.D.Wis. 1980). Since

the officers were acting in their "normal

capacity” as law enforcement officials,

their veracity may be assumed and need not

be independently demonstrated. LaFond;

Kunkler, 679 F.2d at 190.

As previously discussed, the facts and

circumstances related by Officer Bodine

indicate there was probable cause to believe

that cocaine was located in the defendant's

automobile or even on his person. However,

this possibility does not negate the

probability, as found by the district court,

that cocaine would be found at the

defendant's residence. Any “alternative

hypothesis . . . misconceives the nature ot

the probable cause inquiry.” Chester, 537

F.2d at 176.

This Court finds that, based upon a

common sense reading of the affidavit, the

district court could have reasonably

concluded that the cocaine was probably

located in the defendant's house. This

finding of probable cause is supported by

the affidavit. The judgment ot the circuit

court is affirmed.

AFFIRMED.

All Judges Concur.

Timothy D. Moore v. State

3 Div. 713

Montgomery Circuit Court

QN REHEARING

BOWEN, PRESIDING JUDGE

Our finding of probable cause to search

is strengthened by the application of the

totality of the circumstances test of

determining probable cause reaffirmed in

Illinois v. Gates, (Ms. 81-430, June 8,

1983) U.S. (1983), and the

abandonment of the two-pronged test

established in Aguilar v. Texas, 378 U.S.

108 (*1964), and Spinelli v,. United States,

393 U.S. 410 (1969).

"The task of the issuing magistrate is

simply to make a practical, common-sense

decision whether, given all the

circumstances set forth in the affidavit

before him, including the ‘veracity’ and

‘basis of knowledge' of persons

supplying hearsay information, there is

a fair probability that contraband or

evidence of a crime will be found in a

particular place. And the duty of a

Reviewing court is simply to ensure that

the magistrate had a ‘substantial basis

for . . »« conclud(ing) that probable

cause existed.”

Our review of the affidavit makes it

apparent that the judge issuing the warrant

had a substantial basis for concluding that

probable cause existed to search the

defendant's residence.

OPINION EXTENDED;

APPLICATION rOR REHEARING OVERRULED

All Judge Concur.

APPENDIX "Cc"

STATE Or ALABAMA F AFFIDAVIT IN SUPPORT

MONTGOMERY COUNTY , oF 8 ee SEARCH

CITY OF MONTGOMERY * WARRANT

Before me, the Honorable Craig Miller

District Judge, Montgomery County, Alabama,

personally appeared Sgt. Dennis Bodine, and

after first being duly sworn deposes and

says:

That he is a Police Officer with and for

the Vice and Narcotics Unit, Montgomery

Police Department, and that he has reason to

believe and does believe, that cocaine

and/or marijuana and/or hash and/or

methaqualone is being kept, stored,

conceaied, used and sold at a mobile home

trailer and outbuildings, and tractor

trailer, and any vehicle located on the

property described below occupied by Timothy

D. Moore or Jane Moore located 20 miles

south of Montgomery on Highway 331 going

until you get to Sellers, Alabama, then go l

mile north of Sellers, turn left on a dirt

road at the sign that says “Home of Bells

Citgo A's", then go 100 yards to Old Sellers

Road and turn right, then go 50 yards to the

gate on the left with a mailbox with the

name "MOORE", and then enter the property

occupied by Timothy D. Moore or Jane Moore

on which there is the house trailer. This

is in violation of the Alabama Controlled

Substances Act. And the facts tending to

establish the foregoing for issuance of a

daytime search warrant are as follows:

On two previous occasions, 7/9/82 and

7/15/82, a subject sold cocaine to an

undercover Montgomery Police Officer. On

7/20/82 the undercover officer ordered an

additional ounce of cocaine from the same

subject. At approximately 10:02 A. M. this

date, 7/20/82, this subject met with

undercover otficer and sold one-half (1/2)

ounce of cocaine. At the time of this sale,

he was unable to provide the full ounce

ordered and he requested that the undercover

officer advance him the money needed to make

the additional one-half (1/2) ounce purchase

which was done. At approximately 10:06 A.

M. this subject left the company of the

undercover orficer and began his journey to

the residence in Sellers, Alabama.

Utilizing helicopter surveillance as

well as ground surveillance, this subject

was observed going straight to the

previously described residence of Timothy D.

Moore without stopping. After the subject

arrived at this residence, constant visual

Surveillance was maintained. After

approximately 30 minutes, said subject

departed from the residence of Timothy D.

Moore and drove non-stop, straight back to

the location where the undercover officer

was waiting. Upon meeting with the

undercover otficer, said subject gave her an

additional quantity of cocaine. At no time

was visual contact lost on this subject.

The foregoing is based upon the personal

knowledge of the affiant, and on facts

obtained by the Vice and Narcotics Unit,

Investigative Division, Montgomery Police

Department, Montgomery, Alabama, and is made

for the purpose or securing a search warrant

for the premises of Timothy D. Moore or Jane

Moore, located in Montgomery County,

Alabama, in the daytime only.

SWORN TO AND SUBSCRIBED BEFORE ME THIS

THE 21st DAY OF JULY, 1982.

s/ Dennis Bodine s/ Craig Miller

SGT DENNIS BODINE DISTRICT JUDGE

VICE AND NARCOTICS UNIT 15TH JUDICIAL

DISTRICT

MONTGOMERY POLICE DEPT. MONTGOMERY COUNTY

MONTGOMERY, ALABAMA MONTGOMERY,

ALABAMA

APPENDIX "D"

STATE OF ALABAMA * IN THE CIRCUIT COURT OF

VS * MONTGOMERY COUNTY, ALA.

TIMOTHY MOORE * CRIMINAL CASE CV-82-1121

Defendant bis

STIPULATION OF FACTS

COMES now the State of Alabama, by and

through James H. Evans, District Attorney,

and the Defendant, Timothy Dane Moore, by

and through his Attorney of Record, Jimmy B.

Pool, and shows unto this Honorable Court

the following:

1. That the Defendant was indicted by

the Montgomery County Grand Jury in July of

1982, with the offense of possession of

cocaine, diazepam, marijuana.

2. That the Defendant waived

arraignment but pled not quilty to the

charges.

3. That the charges arose from the

execution of a search warrant at the home of

Tim and Jayne Moore by agents of the State

of Alabama, Montgomery County, and

Montgomery City Police Department, on July

21, 1982.

4. That seized by the agents executing

the search warrant was a quantity of

marijuana, a quantity of diazepam, and a

quantity of cocaine.

5. That a series of hearings have been

held in regards to motions to suppress filed

by Timothy Moore and Jayne Moore, said

motions questioning the legality and/or

constitutionality of the search.

6. That the Court has over-ruled the

motion to suppress, and ruled that the

evidence seized is admissable, with the

exception ot $21,000.00 which was found by

the agents in a suit case in a vehicle

outside of the home.

7. That the cocaine, diazepam, and

marijuana seized, are all controlled

substances, the possession of which are

proscribed by the Alabama Uniform Controlled

Substances Act.

8. That testimony has already been

received by this Honorable Court during the

various motions to suppress and hearings,

wherein testimony was taken concerning the

facts of the case.

9. That if a trial was held on the

above styled case, all of the testimony

elicited during the motions to suppress

would be the same.

10. That the defendant pleads not guilty

to the indictment, but consents to trial

before this Court on this set of stipulated

facts.

ll. That the home ot Tim and Jayne Moore

is in Montgomery County, Alabama.

12. That the Court, in deciding this

case, will consider all of the testimony

taken in the motions to suppress and that

all of that testimony will, combined with

all of the other pre-trial motions and

briefs, be made part of the records of this

set of stipulated facts.

DONE this 13th day of September, 1982.

s/ Timothy D. Moore

TIMOTHY DANE MOORE- Defendant

s/ [illegible] B. Pool

JIMMY B. POOL

Attorney for the Defendant

s/ Frank H. Hawthorne, Jr.

FRANK H. HAWTHORNE, JR.

Deputy District Attorney