IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA. STATE OF ALABAMA, ) ) ) ) v. ) CASE NO. CC ) ) ) FELIX BARRY MOORE, ) ) Defendant.

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1 IN THE CIRCUIT COURT OF LEE COUNTY, ALABAMA ELECTRONICALLY FILED 7/31/2014 3:16 PM 43-CC CIRCUIT COURT OF LEE COUNTY, ALABAMA MARY B. ROBERSON, CLERK STATE OF ALABAMA, v. CASE NO. CC FELIX BARRY MOORE, Defendant. STATE S RESPONSE TO DEFENDANT S MOTION TO SUPPRESS The State of Alabama hereby submits its Response to defendant Felix Barry Moore s ( Moore Motion to Suppress the recordings and transcripts of the two telephone calls between Moore and Josh Pipkin ( Pipkin. For the reasons stated below, Moore s Motion to Suppress is due to be denied Moore seeks to suppress the recordings and transcripts of two telephone conversations he had with Pipkin. Moore s only argument in support of his motion is that Moore was in Florida at the time of the phone calls and therefore did not consent under Florida law to Pipkin s recording of their conversations. (See Motion, at Contemporaneous with its Response, the State has filed a Rule 15.6(b, Ala. R. Crim. P., Motion for Pre-Trial Determination of the Admissibility of this evidence, as well as the transcript of Moore s grand jury testimony. 1

2 2. As an initial matter, the relief Moore seeks is simply not available to him. Courts in Alabama have repeatedly held that recorded conversations are not inadmissible simply because they were illegally recorded: Furthermore, 13A and 13A contain no exclusionary rule providing for the per se prohibition against use of evidence obtained in violation of the statutes. As the attorney general correctly points out in his brief to this court, the Fourth Amendment exclusionary rule does not require exclusion of illegally obtained evidence, but only that evidence that is found as a result of a violation of the Fourth Amendment. Consequently, even if the interception in this case constituted criminal eavesdropping, and we do not hold that it does, the conversation intercepted would not be rendered inadmissible by that fact. Chandler v. State, 680 So.2d 1018, 1026 (Ala. Crim. App (emphasis added; Johnson v. State, 823 So.2d 1, 34 (Ala. Crim. App As such, whether or not Pipkin illegally recorded the phone calls has absolutely no bearing on the admissibility of the recordings. 3. In any event, the phone calls between Pipkin and Moore were legally obtained. It is irrelevant under Alabama law where Moore was physically located at the time of the phone calls because Pipkin recorded the conversations in Alabama. (See id., at 2. Since the law in Alabama is that only one party s consent is required to record a conversation, then the recordings at issue here were unquestionably legal. See 13A 11 31, Ala. Code (1975 (providing that [a] person commits the crime of criminal eavesdropping if he intentionally uses any device to eavesdrop, whether or not he is present at the time. and 13A 11 2

3 30(1, Ala. Code (defining eavesdrop as [t]o overhear, record, amplify or transmit any part of the private communication of others without the consent of at least one of the persons engaged in the communication, except as otherwise provided by law. (emphasis added. Thus, Moore s Motion to Suppress is due to be denied. In accordance with the foregoing, the State of Alabama respectfully requests that this Court enter an Order denying defendant Felix Barry Moore s Motion to Suppress the recordings and transcripts of the two telephone calls between Moore and Pipkin. Respectfully submitted this 31 st day of July W. VAN DAVIS ACTING ATTORNEY GENERAL /s/ Michael B. Duffy Michael B. Duffy Deputy Attorney General mduffy@ago.state.al.us OF COUNSEL: W. Van Davis Acting Attorney General rd St. North Pell City, AL vandclaw@centurylink.net 3

4 Miles M. Hart Chief, Special Prosecutions Division OFFICE OF THE ATTORNEY GENERAL STATE OF ALABAMA 501 Washington Avenue P.O. Box Montgomery, AL ( ( FAX 4

5 CERTIFICATE OF SERVICE I hereby certify that I have, this the 31 st day of July 2014, electronically filed the foregoing using the AlaFile system which will send notification of such filing to the following registered persons, and that those persons not registered with the AlaFile system were served a copy of the foregoing by U. S. mail: Gregory B. McCain, Esq. P.O. Box 1331 Dothan, Alabama ( Office ( Fax gmccain@graceba.net Derek E. Yarbrough, Esq. Motley Motley & Yarbrough, LLC 117 East Main Street Dothan, Alabama ( Office ( Fax motley@graceba.net William J. Baxley, Esq. Joel E. Dillard, Esq. Baxley, Dillard, Mcknight & James 2008 Third Avenue South Birmingham, AL Telephone: Telecopier: BBaxley@BaxleyDillard.com JDillard@BaxleyDillard.com /s/ Michael B. Duffy Deputy Attorney General 5