# Petition — Moore v. Alabama

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 466 U.S. 928

## Text

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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1401%3A1. Public record. Not legal advice.