847 F.Supp. 711 (1993)
Martin H. TONN, Plaintiff,
v.
UNITED STATES of America, Jack Forsberg, Donald G. Russell, Judith Screaton, and Joseph D. Wyssmann, Defendants.
Civ. No. 3-93-385.
United States District Court, D. Minnesota, Third Division.
November 30, 1993.
*712 Martin H. Tonn, pro se.
Tamera Fine-Trail, U.S. Dept. of Justice, for defendants.

MEMORANDUM OPINION AND ORDER
KYLE, District Judge.

Introduction
Plaintiff Martin H. Tonn commenced this action against the individual defendants Jack Forsberg, Donald G. Russell, Judith Screaton, and Joseph D. Wyssmann; Tonn alleges that the defendants, all of whom are or were employees of the Internal Revenue Service ("IRS"), committed various common law torts and violated his right to due process under the Fifth Amendment to the United States Constitution in connection with a tax dispute. Before the Court is Defendants' Motion to Dismiss under Fed.R.Civ.P. 12(b)(1) and (6).

Background
The following "facts" are assumed to be true for the purposes of the instant motion.

The Parties
Tonn is an individual who resides in the State of Minnesota.
The individual defendants were, at all times relevant to this action, employees of the IRS. Defendant Jack Forsberg was District Counsel for the IRS; defendant Donald G. Russell was an IRS Appraiser; defendant Judith Screaton was an IRS Appeals Officer; and defendant Donald G. Russell was an IRS Revenue Agent.

The Origins of the Dispute
During the 1970's and early 1980's, Tonn and other individuals designed, developed, and manufactured prototype alternative energy equipment ("Equipment") designed to act as an alternative energy source to fossil fuels. Between 1981 and 1983, Tonn sold all of his interests in the Equipment to the Laurington Corporation ("Laurington"), of which he was the sole owner.
During 1981, 1982, and 1983, certain pieces of the Equipment were sold to three limited partnerships Tonn created (the "Partnerships");[1] the Partnerships were formed to demonstrate, market, and operate the Equipment, as well as manufacture similar alternative energy devices. Tonn also organized Independent Energy Systems, Inc. ("IES") to serve as the general partner of the Partnerships.[2] In 1983, Tonn, through Interstate Energy Enterprises, Inc. ("IEEI") leased, and eventually purchased, a manufacturing facility in Wisconsin for purposes of manufacturing the Equipment for sale and lease.

The Partnerships' Tax Dispute
In early 1985 the IRS began an audit of the Partnerships and the limited partners. When the audit was commenced, the limited partners' payments to the Partnerships were halted until the IRS investigation could be resolved. Due to the Partnerships' inability to collect funds from the partners, IEEI was forced to file for Chapter 11 bankruptcy protection in March of 1986. In March of 1987, IEEI's bankruptcy petition was dismissed on motion by the IRS for unpaid withholding taxes. After the dismissal of the bankruptcy petition, the IRS levied against and seized IEEI's assets and records; eventually, IEEI shut down.
At the end of its audit and investigation, the IRS determined that the value of the Partnerships' depreciable property had been overstated. The IRS also disallowed certain *713 tax credits taken by the Partnerships and the partners.
The Partnerships appealed the findings of the IRS audit to the regional IRS Appeals office.[3] During a July 20, 1989 Appeals Conference between representatives of the Partnerships and Screaton, Screaton raised a new issue: the "not for profit intent" of the Partnerships. At a November 15, 1989 Appeals Conference, the Partnerships were prepared to defend the "not for profit intent" character of the enterprise; however, Screaton stated that she would not change her mind about that issue. The Partnership did not have an opportunity to present or discuss their position in detail.
On December 20, 1988 Henry A. Wall and Lavina Wall (the "Walls"), limited partners in one of the Partnerships, petitioned the United States Tax Court for a redetermination of the IRS's calculation of the permissible deductions.[4] On February 28, 1990 Forsberg informed the Walls that their case was scheduled for the April 30, 1990 docket. On March 15, 1990 Henry Wall informed Tonn[5] that the University of Minnesota Law School Clinic had reconsidered its earlier decision to assist the Walls in their Tax Court case; Wall stated that Forsberg allegedly had told the Clinic supervisor that the case was too complicated for students.
On March 23, and 28, 1990, Tonn, Wall and other persons met with Forsberg to inquire about the positions the IRS intended to take before the Tax Court in Wall. Although they requested that Forsberg state the reasons in writing, Forsberg did not comply with that request until April 6, 1990. Then during an April 9, 1990 meeting between Forsberg, Tonn, and certain investors, Forsberg told the investors that "Tonn was no better as a tax advisor than he was a securities advisor."
In Wall, Forsberg submitted a Respondents Brief in Answer. In that Brief, Forsberg (1) incorrectly relied on inapposite precedent, (2) based his arguments on the improper sections of the Internal Revenue Code, and (3) misquoted and took out of context certain court opinions. Forsberg also argued, for the first time, that certain deductions and allowances should not be available for the year 1982 because the Equipment was not "placed in service" during the taxable year.
On December 10, 1991 the Tax Court[6] ruled in favor of the IRS on the availability of tax credits for the year 1982, concluding that the equipment had not been placed "in service" in 1982. On February 25, 1992 the Walls filed a Motion for Reconsideration; on June 8, 1992 the Tax Court issued a Supplementary Memorandum Opinion[7] reaffirming its determination regarding the 1982 taxable year. However, the Tax Court now concluded that the Equipment was not "in service" in 1982 because a trade or business did not exist during the taxable year  a new and different rationale raised sua sponte by the Tax Court. Wall filed a Motion for Reconsideration of the Supplementary Memorandum and Opinion on July 10, 1992; on December 13, 1992, Tonn learned that the Tax Court had denied the Motion on July 14, 1992. Because the appeal period had closed by December of 1992, the Walls could not appeal the Tax Court's decision. Thereafter, *714 the Partnerships settled the dispute on the terms proposed by the IRS.

Tonn's Tax Dispute
During the investigation, certain penalties were assessed against Tonn, pursuant to 26 U.S.C. § 6703, for promoting an "abusive tax shelter" and submitting overvalued gross valuation statements. Tonn's claim for an adjustment to those penalties was disallowed on April 30, 1990. At the end of 1992, Tonn filed an action with the United States Court of Claims regarding those penalties. On the United States' Motion to dismiss the appeal on the ground that the Court of Claims lacked jurisdiction, Tonn's action was dismissed for want of jurisdiction.
Thereafter, Tonn asked United States Senator Paul Wellstone (MN) to review certain allegedly conflicting IRS documents. Following an inquiry by Senator Wellstone's office, the IRS reconsidered its position and met with Tonn on December 3, 1992 to discuss the penalties. On March 29, 1993 the IRS informed Tonn that it was abating all section 6703 penalties against him for taxable years 1982 and 1983.
Tonn filed this action on June 14, 1993. The Complaint alleges four causes of action: Count I  Fraud;[8] Count II  Misrepresentation of Fact;[9] Count III  Defamation;[10] and Count IV  Deprivation of Fifth Amendment Constitutional Rights of Due Process.[11] On September 20, 1993, defendant United States of America filed a Motion, pursuant to 28 U.S.C. §§ 2679(b) and (d)(1), for an order substituting it as the party defendant to *715 Counts I, II, and III.[12] Although Tonn opposed that Motion, the court[13] ordered the United States substituted as the defendant to Counts I-III;[14] however, the court held that the individual defendants would remain in the action as defendants to Tonn's due process claim in Count IV. This Motion followed.[15]

Discussion

I. Counts I, II, and III
As discussed above, Counts I, II, and III of the Complaint allege common law tort claims; however, in his responsive memorandum, (see Mem. Opp'n Mot. to Dismiss, at 1-2), and at the hearing on the instant motion, Tonn contended that his Complaint asserts only a due process claim. Thus, it is not clear whether Tonn has alleged four separate causes of action, or only one (in which case the claims in Counts I through III merely support his due process claim in Count IV).
Assuming that Tonn has alleged independent causes of action for fraud, misrepresentation, and defamation, those claims are not within this Court's subject matter jurisdiction. As noted above, Tonn's claims against the United States, although originally brought against individual employees of the IRS, are, as a result of the order of substitution,[16] now deemed to have arisen under the FTCA. As such, Tonn's claims are subject to all of the limitations provided in the FTCA. See 28 U.S.C. § 2679(d)(4). One of those limitations requires that a plaintiff exhaust his administrative remedies by first presenting his claim[17] to the appropriate federal agency.[18] 28 U.S.C. § 2675(a). This presentment requirement is jurisdictional; it must be satisfied before this Court may exercise its jurisdiction over the claim. Bellecourt v. United States, 994 F.2d 427, 430 (8th Cir.1993) (citing Melo v. United States, 505 F.2d 1026, 1028-29 (8th Cir.1974)).
A review of the record in this case demonstrates that Tonn has failed to satisfy the FTCA's administrative claim requirement. There is no indication that Tonn has submitted a satisfactory claim to the IRS or any other agency in connection with the tort claims alleged in Counts I through III. Accordingly, if Counts I-III allege separate claims, this Court is without subject matter jurisdiction over them and they must be dismissed without prejudice.[19]

*716 II. Count IV
Count IV of the Complaint is a Bivens[20] action alleging that the individual defendants violated Tonn's due process rights under the Fifth Amendment. The Government contends that Tonn's Bivens claim must be dismissed because (1) it fails to meet the heightened pleading requirement for a Bivens claim; (2) Congress has provided him with an alternative, exclusive remedy; and (3) the individual defendants are immune from liability.

A. The Standard of Decision
When passing on a motion to dismiss for failure to state a claim under Fed. R.Civ.P. 12(b)(6), the court accepts as true the material facts alleged in the Complaint and considers the allegations therein in the light most favorable to the non-movant. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The court may dismiss a complaint "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."[21]Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

B. Sufficiency of the Allegations in Count IV
To satisfy applicable pleading requirements, a plaintiff alleging that his civil rights were violated must "at least set forth minimal facts, not subjective characterizations, as to who did what to whom and why." Kaylor v. Fields, 661 F.2d 1177, 1183 (8th Cir.1981); see also Dewey v. University of New Hampshire, 694 F.2d 1, 3 (1st Cir.1982) (citing, inter alia, Anderson v. Sixth Judicial District Court, 521 F.2d 420 (8th Cir.1975)), cert. denied, 461 U.S. 944, 103 S.Ct. 2121, 77 L.Ed.2d 1301 (1983). However, a complaint need not state each and every fact relevant to the claimed violation in order to satisfactorily plead a constitutional violation.
When measured against the standard set forth above, Tonn's Complaint satisfies all relevant pleading requirements. Contrary to the Government's view, Tonn's Complaint is not a "rambling, circuitous, largely incoherent diatribe," (see Mem.Supp.Mot. Dismiss, at 2); rather, it identifies specific acts which were allegedly taken by each named defendant and which allegedly violated Tonn's rights to due process. In other words, the Complaint is more than a series of conclusory allegations devoid of any factual basis.[22]

C. Extending Bivens Action to Violations by IRS Employees
The United States also seeks dismissal on a more fundamental ground: Bivens actions against IRS employees are not appropriate. The Government contends that the Code provides taxpayers with meaningful safeguards from or remedies for wrongful conduct of IRS agents. As a result, it continues, even though Congress has not specifically provided taxpayers with a statutory right to recover money damages for constitutional violations by IRS employees, this Court should not extend a Bivens claim to Tonn. The Court agrees.
In Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988), the Supreme Court, in reviewing the propriety of a *717 Bivens action for constitutional violations by social security system employees, counseled that because "special factors counsel[] hesitation," there are circumstances under which a court-created damages remedy may not be appropriate, even where there is no statutory relief for a constitutional violation. Id. at 421, 108 S.Ct. at 2467. The Court reasoned that
"special factors counseling hesitation in the absence of affirmative action by Congress" has proved to be an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a governmental program suggests that Congress has provided what it considers to be adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.
Id. at 423, 108 S.Ct. at 2468.[23] Applying this reasoning, the Schweiker Court proceeded to hold that, even though Congress had failed to provide a remedy in damages for constitutional violations by social security employees, a Bivens action was inappropriate since (1) the social security system contains elaborate mechanisms for the resolution of claims, and (2) Congress had given frequent attention to problems arising under the system. Id. at 425, 108 S.Ct. at 2468-69 (discussing Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (Bivens action not appropriate in civil service system), and Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (Bivens action not appropriate in military justice system)).
The Court agrees with decisions (both pre-and post-dating Schweiker) holding that because the remedial scheme of the Code provides taxpayers with sufficient alternative means of challenging and correcting inappropriate conduct by IRS employees, it would be improper to recognize a Bivens action in situations where, as here, the alleged violations of the Fifth Amendment occurred in connection with IRS activities (whether they concern the determination or collection of taxes). See Wages v. I.R.S., 915 F.2d 1230, 1235 (9th Cir.1990) (post-Schweiker, plaintiff alleged that "fraudulent" acts of individual defendants violated Fifth Amendment due process rights), cert. denied, 498 U.S. 1096, 111 S.Ct. 986, 112 L.Ed.2d 1071 (1991); National Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240, 1247-48 (10th Cir.1989) (post-Schweiker); Hefti v. McGrath, 784 F.Supp. 1426, 1431 (W.D.Mo.1992) (post-Schweiker), amended (Mar. 31, 1992); Felak v. United States, 677 F.Supp. 606, 607-08 (D.Minn. 1988) (pre-Schweiker); see also McMillen v. United States Dept. of Treasury, 960 F.2d 187, 190 (1st Cir.1991) (dicta); Cameron v. Commissioner, 773 F.2d 126, 129 (7th Cir. 1985).[24] The Code provides taxpayers with the ability to fully litigate any liability or penalty determined by the IRS.[25] This statutory scheme adequately protects a taxpayer's right to due process. Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982); see Gonsalves v. IRS, 986 F.2d 1407 (table), text reported at 1993 WL 48808 (1st Cir.), cert. denied, ___ U.S. ___, 114 S.Ct. 151, 126 L.Ed.2d 112 (1993). In this case, Tonn and the partners of the *718 Partnerships filed administrative appeals of various assessments and penalties, certain of the partners unsuccessfully sought to have the Tax Court redetermine the IRS's disallowance of their tax credits, and Tonn sought and was able to have the IRS abate his section 6700 penalties (albeit with the help a United States Senator).
In addition, the Code provides taxpayers with remedies, judicial and otherwise, for correcting and redressing wrongful acts taken by IRS employees in connection with any collection activities. See e.g., 26 U.S.C. § 7433 (creating civil action for wrongs committed after December 31, 1988). Although these provisions do not provide taxpayers with an all-encompassing remedy for wrongful acts of IRS personnel, the rights established under the Code illustrate that it provides
all sorts of rights against the overzealous officialdom, including, most fundamentally, the right to sue the government for a refund if forced to overpay taxes, and it would make the collection of taxes chaotic if a taxpayer could bypass the remedies provided by Congress simply by bringing a damage action against [IRS employees].
Cameron, 773 F.2d at 129; see Schweiker, 487 U.S. at 423, 108 S.Ct. at 2468. With such a panoply of rights already available, Congress, and not this Court, should be the body charged with creating additional liabilities for IRS employees who violate a taxpayer's constitutional rights.[26] For all these reasons, therefore, it would be inappropriate to recognize a Bivens remedy with respect to Tonn's claim that the individual defendants violated his Fifth Amendment due process rights.
In summary, the substance of the Complaint reveals that Tonn believes the defendants acted improperly during the course of the IRS's investigation into the Partnerships and related entities. If the allegations contained in the Complaint are true (as they are assumed to be for purposes of this motion), the individual defendants failed to afford Tonn the respect he deserved as a taxpayer and representative of the Partnerships. That being said, however, improper treatment by IRS employees is not, in light of the Code's detailed and comprehensive remedial scheme, a sufficient basis upon which to extend a Bivens cause of action to Tonn's due process claims in Count IV. Accordingly, Tonn's claims against the individual defendants in Count IV of the Complaint will be dismissed.

D. Qualified Immunity
Even if it was appropriate to recognize a Bivens action in this case, all of the individual defendants would be immune from liability for any violations of Tonn's procedural or substantive due process rights under the doctrine of qualified immunity. A public official is entitled to immunity when his or her conduct is objectively reasonable as measured by reference to law clearly established at the time of the incident in question. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Initially, a plaintiff must show that a law is "clearly established," i.e., a plaintiff must make a particularized showing that a "reasonable official" would understand that what he is doing violated one of plaintiff's constitutional rights. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) ("The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right"). A government official cannot be held liable for a violation of "extremely abstract rights." Id. at 639, 107 S.Ct. at 3039. The cases cited in the Court's discussion of Tonn's Bivens claim demonstrate, at the very least, that the actions alleged in Count IV, see supra, note 11, did not violate a right to due process (procedural or substantive) that is clearly established. See Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir.1992); Yalkut v. Gemignani, *719 873 F.2d 31, 35-36 (2d Cir.1989); see also Wages, 915 F.2d at 1235; Gonsalves v. I.R.S., 791 F.Supp. 19, 23 (D.Me.1992), aff'd, 986 F.2d 1407 (1st Cir.1993) (table) (same). Accordingly, Tonn would be precluded from asserting his claims in Count IV against any of the individual defendants.[27]

Conclusion
Based upon the foregoing, and the records, files, and proceedings herein, including the briefs and arguments of counsel, IT IS ORDERED that the Defendants' Motion to Dismiss (Doc. No. 11) is GRANTED. Plaintiff's claims against the United States in Counts I, II, and III are DISMISSED WITHOUT PREJUDICE and plaintiffs' claims against defendants Forsberg, Russell, Screaton and Wyssmann in Count IV are DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
NOTES
[1]  The three partnerships were (1) Laurington Energy Properties, (2) Independent Energy Properties I, and (3) Independent Energy Properties II.
[2]  Tonn owned 49% of IES.
[3]  The Complaint states that Tonn first received access to IRS appraisal and Defendant Russell's reports in May of 1987. Tonn claims that those reports contained false information and relied upon a flawed methodology. Tonn addressed the purported problems during a July 20, 1989 Appeals Conference with defendant Screaton. Tonn alleges that in an October 2, 1989 internal memorandum to Screaton, Russell attempted to cover the errors in his reports by blaming the Partnerships' certified public accountant for any erroneous calculations. Tonn further alleges that in an April 21, 1989 letter to the limited partners, Screaton suggested that the limited partners take legal action against Tonn.
[4]  Wall v. Commissioner of Internal Revenue, Docket No. 32788-88S [hereinafter Wall].
[5]  Although Tonn was not a party in Wall, he was involved in the dispute before the Tax Court.
[6]  62 T.C.M. (CCH) 1425 (T.C. Dec. 10, 1991), on reconsideration, 63 T.C.M. 3102 (T.C. June 8, 1992), motion for reconsideration denied.
[7]  63 T.C.M. 3102 (T.C. June 8, 1992).
[8]  In Count I, Tonn claims that (1) in June of 1988, Wyssmann made fraudulent representations to certain partners and investors that Tonn had misappropriated funds of the Partnerships' for personal use; (2) in 1985, Wyssmann made representations to partners and investors that credits relating to the Equipment, which the partners had taken as deductions on their income tax, would not be allowed; (3) from 1986 through 1990 (a) Russell, in his original Appraisal, (b) Screaton, by refusing to acknowledge certain statements, and (c) Forsberg, by his submission of Respondent's Expert Witness Report, fraudulently misrepresented their comparable example of Fair Market Valuation comparison, understated at a ratio of 20:1; (4) Russell fraudulently attempted to deceive Tonn by placing blame for his own errors on the Partnerships' accountant; and (5) Forsberg's Respondent's Brief in Answer, submitted to the Tax Court in Wall fraudulently took out of context and misrepresented certain judicial opinions.
[9]  In Count II, Tonn alleges that (1) Russell attempted to hide his erroneous tax valuation methodology by blaming his shoddy work on the Partnerships' accountant; (2) Screaton stated that even if there were problems with the IRS' audit/appraisal, alternative issues would be raised at trial; (3) Russell improperly calculated the interest rate of certain investments held by the Partnerships; (4) Russell and another IRS Appraiser misrepresented their erroneous appraisal of certain equipment as fact, which Screaton relied upon and which Forsberg put before the Tax Court in his "Respondent's Expert Witness Report."
[10]  In Count III, Tonn alleges that (1) during his 1985 audit investigation, Wyssmann made false statements to partners and investors that Tonn was using partnership funds for his own use; (2) during an April 9, 1990 meeting with Forsberg concerning the trial in Wall, Forsberg (a) told Tonn, in the presence of other investors, (i) "you don't know what you are talking about," and (ii) "you are not qualified to speak on these issues"; and (b) told the other investors that they should get someone else to advise them because Tonn didn't know any more about tax law than he did about securities law; and (3) in an April 21, 1989 letter, Screaton suggested that the partners commence legal action against Tonn.
[11]  In Count IV, Tonn alleges that the following acts have deprived him of due process:

(a) false and erroneous statements made to investors asserting fraudulent actions by Tonn with respect to allocation of funds within the Partnerships;
(b) failing to provide a timely notice to Tonn of false and erroneous allegations being made to the investors by the defendants, depriving Tonn of the right to protect and defend himself, his property, and his business;
(c) failing to provide a neutral decision-maker to rule on the veracity of the allegations before these actions were taken;
(d) denying Tonn's request for an opportunity to make a detailed oral presentation to the defendants during either the fact-finding portion of the investigation or the Appeals Conferences;
(e) denying Tonn an opportunity, during the audit, appeals process, and/or litigation process, to present evidence regarding the issues or witnesses to the investigative personnel or decision making agents regarding the allegations made against him; and
(f) failing to inform Tonn of the allegations being made against him, thereby denying him the opportunity to be represented by an attorney in defending false IRS allegations prior to the IRS levying and seizing his property.
[12]  On September 27, 1993 the United States filed an Amended Motion for Substitution (Doc. No. 13).
[13]  See October 15, 1993 Order (Boline, M.J.) (Doc. No. 21).
[14]  The Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679(d)(1) provides that where an individual federal employee is a made a party defendant, the United States should be substituted as a defendant in place of that employee where the Attorney General certifies that the employee was acting within the scope of that employee's employment at the time that the incident giving rise to the claim occurred. Upon substitution, the action or proceeding is deemed to be one under the Federal Tort Claims Act ("FTCA"). Id. § 1346(b).
[15]  The United States filed a Motion to Dismiss on September 21, 1993 and an Amended Motion to Dismiss on September 30, 1993.
[16]  At page 6 of his responsive memorandum, Tonn takes issue with the propriety of the substitution as well as the certification that the individual defendants were acting within the scope of their employment during the incidents in question. To the extent that Tonn is contesting the propriety of the substitution order, his opposition is not supported by existing law or the record in this case.
[17]  A qualifying claim must include written notification of an incident and a claim for money damages, in a sum certain, for injury alleged to have occurred by reason of the incident. 28 C.F.R. § 14.2(a); see Pan Tech Mgmt. v. HUD, 788 F.Supp. 152, 154 (E.D.N.Y.1992).
[18]  28 U.S.C. § 2675(a) provides in pertinent part:

[a]n action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
[19]  The United States has made several arguments in support of dismissal on the merits. The Court has not assessed the reasonableness, if any, of those arguments.
[20]  Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Supreme Court held that damages may be awarded where federal officers knowingly violate an individual's Fourth Amendment rights, if (1) the individual has no other remedy, and (2) there is no explicit Congressional declaration that persons injured by a federal officer's violation of the constitution may not recover money damages. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Supreme Court recognized a Bivens action arising under the Due Process Clause of the Fifth Amendment.
[21]  In this case, certain of the parties have submitted materials outside of the pleadings and attachments thereto. Under Rule 12(b)(6), where matters outside the pleadings are not excluded by a court when passing on a motion to dismiss, the motion is deemed to be one for summary judgment under Rule 56. The Court has excluded all submissions which would convert this motion to one for summary judgment.
[22]  Of course, that the Complaint satisfies Rule 8(a) does not mean that it will withstand the Government's remaining arguments in favor of dismissal.
[23]  In a decision issued six months prior to Schweiker, the court in Felak v. United States, 677 F.Supp. 606 (D.Minn.1988), set forth three factors which make courts reluctant to expand the availability of Bivens actions: (1) the lack of an underlying constitutional claim; (2) the existence of explicit statutory remedies; and (3) a risk that court-created remedies would interfere with the effective functioning of government. Id. at 607 (citations omitted).
[24]  In addition, certain of the acts allegedly done in violation of Tonn's Fifth Amendment rights are similar to the alleged violations at issue in Schweiker. Cf. Complaint, ¶¶ 45(c)-(e) and 487 U.S. at 420 n. 2, 108 S.Ct. at 2466 n. 2.
[25]  The Code requires that the IRS provide a taxpayer with (1) notice before it takes his property, and (2) a choice whether to be heard before or after the deprivation. 26 U.S.C. § 6213(a). Once the IRS determines that a taxpayer owes money, it must issue a notice of the deficiency, then wait 90 days before attempting to collect the taxes due. Id. § 6213(a). If the taxpayer wants a pre-deprivation hearing, he can, during those 90 days, file a petition with the Tax Court asking it to redetermine the deficiency; any collection efforts are stayed during the pendency of the petition. Id. Alternatively, the taxpayer can pay the deficiency, i.e., suffer the deprivation, and then seek a refund in a post-deprivation action in federal district court. Id. § 7422.
[26]  Moreover, the existence of a Bivens remedy against employees of the IRS would interfere with the functioning of government. Felak, 677 F.Supp. at 608. "To open up an entirely new avenue of relief resulting in the personal liability of [IRS] employees would serve to hamper the ability of such employees to perform a function that is a difficult one and one that is vital to our nation." Baddour, Inc. v. United States, 802 F.2d 801, 806 (5th Cir.1986), quoted in, Felak, 677 F.Supp. at 608.
[27]  Viewing Tonn's allegations against defendant Forsberg under the proper Rule 12(b)(6) standard, Forsberg would also be entitled to absolute prosecutorial immunity for any actions relating to the litigation in Wall. Butz v. Economou, 438 U.S. 478, 516-17, 98 S.Ct. 2894, 2916, 57 L.Ed.2d 895 (1978); Fry v. Melaragno, 939 F.2d 832, 836-37 (discussing Butz).


380 So.2d 548 (1980)
Charles E. HOLDEN and T.C. Green, Appellants,
v.
STATE of Florida, Appellee.
No. 79-1869.
District Court of Appeal of Florida, Second District.
February 27, 1980.
*549 Jack O. Johnson, Public Defender, and Charles L. Stutts, Asst. Public Defender, Bartow, for appellants.
Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
HOBSON, Acting Chief Judge.
The trial judge found Green and Holden guilty of direct criminal contempt for refusal to testify and sentenced each to six months in jail. The refusal to testify occurred when Green and Holden were called as State's witnesses in a four-count prosecution against a third person for receiving and concealing stolen property. Since the defense counsel had no prior opportunity to question Green or Holden, the court allowed counsel to interview them out of the jury's hearing "in the nature of discovery." The court assured both witnesses not to be concerned with possible retribution by the defendant.
Pursuant to questioning by defense counsel and the court, Green and Holden each stated he could not recall selling any property to the defendant. Holden stated that he remembered making a statement two years before. After reading a copy of the statement, he stated that he did not remember saying that he sold property to defendant. Green, at first, stated that he did not recall making a statement nor did he recall selling property to the defendant. After listening to a tape of the prior statement, Green said that he may have made the statement to get out of trouble, but he did not remember to whom he had sold any stolen property.
Immediately after appellants testified the judge found each guilty of contempt and sentenced each to six months in jail.
Appellants contend that the judgments and sentences should be reversed because the judge did not follow the procedures required by Florida Rule of Criminal Procedure 3.830:
A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the Court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.
The law in Florida is clear; compliance with the procedural safeguards contained in Florida Rule of Criminal Procedure 3.830 is mandatory. Keezel v. State, 358 So.2d 247 (Fla. 4th DCA 1978); Ray v. State, 352 So.2d 110 (Fla. 1st DCA 1977); *550 Duncan v. State, 349 So.2d 723 (Fla. 4th DCA 1977); Ledlow v. State, 346 So.2d 609 (Fla. 1st DCA 1977).
Based on the court's failure to comply with these procedures, we reverse the judgments and sentences and remand to allow Green and Holden a hearing so as to conform with Rule 3.830.
BOARDMAN and DANAHY, JJ., concur.


884 S.W.2d 654 (1994)
COMMONWEALTH of Kentucky, Appellant,
v.
Phillip J. POTTS, Appellee.
No. 93-SC-582-DG.
Supreme Court of Kentucky.
September 29, 1994.
*655 J. David Niehaus, Deputy Appellate Defender of the Jefferson District Public Defender (Daniel T. Goyette, Jefferson Dist. Public Defender, of counsel), Louisville, for appellant.
Chris Gorman, Atty. Gen., Vickie L. Wise, Asst. Atty. Gen., Criminal Appellate Div., Frankfort, for appellee.
SPAIN, Justice.
Appellee, Phillip J. Potts, was sentenced to imprisonment for five years following his conviction by a Jefferson County jury for second-degree assault. Upon appeal, the Court of Appeals reversed and remanded in a 2-1 decision, based upon the trial court's refusal to instruct the jury on the lesser-included offense of fourth-degree assault, pursuant to the instruction tendered by Potts. Finding no error on the part of the trial court, we reverse the Court of Appeals and reinstate the judgment and sentence.
On June 13, 1991,[1] Phillip Potts went to his girlfriend's residence in Louisville and found her naked and in bed with another man. After the other man left, Potts assaulted the woman by hitting her in the face repeatedly with his fist, kicking her in the side while he was wearing steel-toed work shoes, hitting her over the head with a clock-radio and a lamp, beating her on the legs with a stick, and stabbing her in the thigh and pelvic/vaginal area with a pair of scissors. At his trial, Potts admitted all these acts, offering as his excuse only that he simply "lost it."
Upon examination at a hospital emergency room, the victim was found to have suffered two black eyes, a swollen and fractured cheek, lacerations to her scalp, bruises on her neck and abdomen, and puncture wounds to the left thigh and in the pelvic/vaginal area.
The appellee's trial in the Jefferson Circuit Court was held on February 12-14, 1992, at which time the jury was instructed on the offenses of second-degree assault and assault in the second degree under extreme emotional disturbance. The trial judge declined to give the appellee's tendered additional instructions on fourth-degree assault and assault in the fourth degree under extreme emotional disturbance. The appellee argued that the instructions on the said lesser-included offenses were warranted because the jury could find that the instruments used by the appellee to inflict injuries on the victim were not "dangerous instruments" as defined by statute. Trial Judge Edmund P. Karem responded in effect that classification of such items as "dangerous instruments" depended upon the circumstances under which the items were used.
The instruction on second-degree assault followed KRS 508.020 and was as follows:
You will find the defendant, PHILLIP JEROME POTTS, guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt, all of the following:
(a) That in Jefferson County, Kentucky, on or about the 13th day of June, 1991, he inflicted physical injury upon Joyce Purvis by means of a dangerous instrument;
(b) That he did so intentionally;
AND
(c) That the clock radio, the lamp, the steel toed shoes and/or the pair or scissors were dangerous instruments.
The trial court also defined "dangerous instrument" and "physical injury" as per KRS 500.080(3) and (13), to wit:
"Dangerous Instrument"  means any instrument, article or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be *656 used, is readily capable of causing death or serious physical injury.
* * * * * *
"Physical Injury"  means substantial physical pain or any impairment of physical condition.
Although the very terse opinion of the Court of Appeals contains virtually no discussion of the applicability of a fourth-degree assault instruction under the particular circumstances of this case, the brief in that court by Potts emphasizes that the victim did not in fact sustain serious physical injuries. Furthermore, the said opinion does mention that the victim's stab wounds required no sutures, implying that such a fact mitigated against guilt by Potts of second-degree assault and in favor of the lesser offense of fourth-degree assault.
We would observe in that connection, that nothing in the above-cited statute defining second-degree assault requires infliction of a serious physical injury when one intentionally injures another by means of a deadly weapon, or as in this case, by means of a dangerous instrument. The requirements of the statute under these circumstances are met when any injury results, as the words "impairment of physical condition" used in the KRS 500.080(13) definition, simply mean "injury." Meredith v. Commonwealth, Ky. App., 628 S.W.2d 887 (1982).
It is true that ordinarily the question of whether an instrument or object is a "dangerous instrument" is a question of fact for the jury to determine, depending upon the manner and circumstances in which it is used. As reflected by the statutory definition set out above, in order to be so classified, it must have been used, attempted to be used, or threatened to be used in a manner wherein it ". . . is readily capable of causing death or serious physical injury." If, however, it is undisputed from the evidence that the instrument employed on the occasion in question is one so capable and that it was in fact used or attempted or threatened to be used in such a manner, then the question becomes one of law for the court to determine. In such a situation, the "dangerous instrument" could be equated with a "deadly weapon," a partial list of which the General Assembly has set out in KRS 500.080, including firearms and knives other than an ordinary pocketknife or hunting knife. If a weapon is one of those so designated, then there is no need to define "deadly weapon" for the jury. The issue should be determined by the court as a matter of law. Hicks v. Commonwealth, Ky., 550 S.W.2d 480 (1977). Hence, a sawed-off double-barreled shotgun is a deadly weapon as a matter of law and does not present a jury issue in this regard. Little v. Commonwealth, Ky., 550 S.W.2d 492 (1977). It has even been held by this Court that an unloaded pistol with a broken firing pin is a "deadly weapon." Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1976). Furthermore, the Kennedy opinion cites provisions of the commentary which accompanied the November 1971 final draft of the Kentucky Penal Code, which explained the scope of various sections of the code, and found that such commentary endorsed the pre-code case of Merritt v. Commonwealth, Ky., 386 S.W.2d 727 (1965). Thus, the Merritt case was said to be ". . . as viable now as it was prior to the adoption of the code." Kennedy, supra, at p. 221. In the said Merritt case, the defendant was convicted of armed robbery despite the fact that the "weapon" he used may have been a toy pistol.
Along this same vein, this Court held in Jones v. Commonwealth, Ky., 256 S.W.2d 520 (1953), that it was not error for a jury to determine that shoes constituted a "deadly weapon" when worn by a defendant and used to stomp and kick the victim, "in such a manner as may be reasonably calculated to produce great bodily injury or death."
In an even more bizarre case, an ordinary carrot was properly found by a jury to constitute a "dangerous instrument" when forcibly inserted by a defendant into his wife's rectum and vagina, causing physical injury. In Smith v. Commonwealth, Ky., 610 S.W.2d 602 (1980), this Court unanimously affirmed the defendant's conviction for two counts of second-degree assault[2] based upon such acts.
*657 This Court affirmed determinations by the juries in the Jones and Smith cases, supra, that ordinary shoes and something as seemingly innocuous as a carrot can indeed constitute "dangerous instruments." Can it be seriously contended that the trial judge erred in his determination in the present case that steel-toed work shoes and scissors were such dangerous instruments as a matter of law under the circumstances in which they were here used? We think not. In Bowman v. Commonwealth, Ky., 290 S.W.2d 814 (1956), the defendant's conviction for murder and his sentence of death were affirmed by this Court. The lethal weapon was a pair of scissors which the defendant stabbed into the victim's throat.
The decision of the Court of Appeals is reversed and the judgment and sentence of the Jefferson Circuit Court are affirmed.
STEPHENS, C.J., and LAMBERT, LEIBSON, REYNOLDS, and WINTERSHEIMER, JJ., concur.
STUMBO, J., dissents without opinion.
NOTES
[1]  The opinion of the Court of Appeals and both briefs filed in this Court mistakenly recite "January 13, 1991."
[2]  The defendant's further conviction of murder of a different victim was also affirmed.


870 S.W.2d 2 (1994)
ALUMINUM COMPANY OF AMERICA, Petitioner,
v.
Winnie BULLOCK, Gwendolyn Bullock, Tamra Bullock Flores, and Deborah Bullock Moreland, Respondents.
No. D-3404.
Supreme Court of Texas.
January 12, 1994.
Rehearing Denied March 9, 1994.
*3 Robert M. Roach, Jr., Michael Connelly, Earnest Wotring, and Stephen R. Sulentic, Houston, for petitioner.
Rex Easley, Jr., Victoria, Rob Ramsey, San Antonio, Thomas M. Stanley, Houston, Robert B. Whitaker, Victoria, Larkin Thedford, W.T. McNeil, Glynn McDonald, Edna, Gary Olson, Ganado, James W. Cole, Robert E. Bell, Victoria, for respondents.
GAMMAGE, Justice, delivered the opinion of the Court, in which all Justices join.
Once again this Court faces the question of whether good cause under Rule 215(5) exists to allow the testimony of expert witnesses who were not previously designated by the party calling them. Because the determination of good cause is within the discretion of the trial judge, we review this case under an abuse of discretion standard and hold that no such abuse occurred here. For that reason, we reverse the judgment of the court of appeals and affirm the trial court judgment.
This case arose when a forklift driven by John Bullock overturned, fatally pinning him to the ground. Bullock's survivors brought this action against Aluminum Company of America ("Alcoa") and Eaton Corporation, alleging that Bullock's death resulted from gross negligence in failing to provide seatbelts on the forklift and failing to adequately warn and train Alcoa employees to handle a forklift accident. Eaton Corporation settled with the Bullocks before trial.
In discovery responses, the Bullocks designated a human factors expert, Dr. Lila Laux, whom they eventually called to testify at trial. In her deposition, Laux testified that she did not believe Alcoa to be consciously indifferent to its employees' safety. At trial, however, Laux stated that she had made a post-deposition review of Alcoa's training materials and, as a result, concluded that Alcoa was grossly negligent.
Faced with this material and unanticipated change in the expert's opinion, Alcoa sought to cross-examine Laux by referencing the opinions of experts upon whom Laux had relied and who had previously been designated by the Bullocks. The trial court permitted Alcoa to do so over the Bullocks' objections. The Bullocks waived those objections on appeal.
Later, Alcoa requested the trial court to allow it to introduce in its case-in-chief the testimony of Dr. Kirby and Dr. Entwisle, two other experts designated prior to trial by the Bullocks as well as the co-defendant, Eaton. Both experts had been deposed, giving all parties the opportunity to adequately examine and develop the experts' opinion testimony. The trial court held that good cause was shown and admitted the experts' testimony. The parties then had six days, including a weekend, to prepare before the experts were allowed to testify. On appeal, the court held that the admission of the expert testimony was error and remanded for a new trial. 843 S.W.2d 640.
A party is obligated to designate any expert it expects to call and to disclose the substance of his testimony as soon as practical, but not less than thirty days before trial. Tex.R.Civ.P. 166b(6)(b); Sharp v. Broadway National Bank, 784 S.W.2d 669, 671 (Tex.1990). If a party fails to designate an expert pursuant to Rule 166b(6)(b), the expert may not testify "unless the trial court finds that good cause sufficient to require admission exists." Tex.R.Civ.P. 215(5). The trial court has the discretion to determine whether the offering party met its burden of showing good cause. Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex.1992); Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex.1986), citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 442 (Tex.1984). The question, then, is whether the trial court finding that Alcoa met its burden was an arbitrary and unreasonable one, made without reference to any guiding rules or principles. Morrow, 714 S.W.2d at 298, citing *4 Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).
The Bullocks contend that Alcoa's failure to designate the experts should foreclose introduction of their testimony at trial, ignoring the fact that the experts became necessary only when Alcoa was faced with the unanticipated change in the testimony proffered by the Bullocks' expert, Laux. Rule 166b(2)(e) provides for discovery of not only the identity, but also the expected substance of the testimony of expert witnesses who will testify at trial. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); Tex. R.Civ.P. 166b(2)(e), (6)(b). The rule applies equally to each side in this case. When Laux's opinion concerning Alcoa's negligence changed due to the review of additional facts, the Bullocks then had a duty to supplement their discovery responses to disclose the material change. See Tex.R.Civ.P. 166b(6)(a)(2); Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299 (Tex.1993).
A party's failure to supplement discovery to disclose a material change in an expert's opinion may provide good cause for an adverse party's failure to designate rebuttal experts who become necessary only to counter the unanticipated testimony. See AmSav Group, Inc. v. American Sav. & Loan Ass'n, 796 S.W.2d 482, 486 (Tex.App.-Houston [14th Dist.] 1990, writ denied). Rule 166(h), for example, allows a court to set a pretrial order requiring parties to exchange a list of witnesses expected to be called at trial, but specifically excepts "rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before the time of trial." (emphasis added). Likewise, Rule 166b(6)(b) requires the parties to supplement only those experts "the party expects to call." (emphasis added).
In Alvarado v. Farah Mfg. Co., 830 S.W.2d 911 (Tex.1992), we held that the mere tactical decision on the part of the plaintiff to bring a witness on rebuttal rather than the case in chief does not establish good cause for failing to supplement discovery. We recognized, though, that "there may be circumstances [in] which good cause can be shown for admitting testimony of an undisclosed witness on rebuttal, as for example, when the need for the testimony could not reasonably have been anticipated." Alvarado, 830 S.W.2d at 916 n. 6. In that case, unlike the one before us today, no such circumstances existed.
Although the trial court considered the fact that the experts had been designated by both the Bullocks and Eaton prior to trial, Alcoa's showing of good cause did not rest on that fact alone. Accordingly, we do not pass on the question whether sufficient good cause can exist based solely on an opposing party's designation. We hold, based on all of the facts before us, that the trial court acted within its discretion when finding that Alcoa met its burden of showing good cause for allowing the experts' testimony in rebuttal of a material and unanticipated change in testimony. We reverse the judgment of the court of appeals and affirm the trial court's judgment in favor of Alcoa.


                                                                           NUECES COUNTY COURTHOUSE
CHIEF JUSTICE
                                                                           901 LEOPARD, 10TH FLOOR
  ROGELIO VALDEZ
                                                                           CORPUS CHRISTI, TEXAS 78401
                                                                           361-888-0416 (TEL)
JUSTICES
                                                                           361-888-0794 (FAX)
  NELDA V. RODRIGUEZ
  DORI CONTRERAS GARZA
                                                                           HIDALGO COUNTY
  GINA M. BENAVIDES
                                                                           ADMINISTRATION BLDG.
  GREGORY T. PERKES
  NORA L. LONGORIA                 Court of Appeals                        100 E. CANO, 5TH FLOOR
                                                                           EDINBURG, TEXAS 78539
                                                                           956-318-2405 (TEL)
CLERK
  CECILE FOY GSANGER            Thirteenth District of Texas               956-318-2403 (FAX)

                                                                           www.txcourts.gov/13thcoa

                                          June 18, 2015

      Hon. Michael T. Morgan                      Mr. Alan Molnoskey
      Freeman Mills, PC                           2011 St. Matthew St.
      400 W. Illinois, Ste. 120                   Gonzales, TX 78629
      Midland, TX 79701
      * DELIVERED VIA E-MAIL *

      Re:       Cause No. 13-15-00027-CV
      Tr.Ct.No. 25,543
      Style:    Alan Molnoskey v. XOG Operating, LLC

             Enclosed please find the opinion and judgment issued by the Court on this date.

                                              Very truly yours,

                                              Cecile Foy Gsanger, Clerk

      CFG:ch
      Enc.
      cc: 25th District Court (DELIVERED VIA E-MAIL)
           Hon. Sandra Baker, Gonzales County District Clerk (DELIVERED VIA E-MAIL)
           Hon. Billy Ray Stubblefield, Presiding Judge, Third Administrative Judicial
           Region (DELIVERED VIA E-MAIL)


32 A.3d 269 (2011)
COM.
v.
BAKER.
No. 1339 WDA 2010.
Superior Court of Pennsylvania.
July 14, 2011.
Affirmed.


386 S.W.2d 618 (1965)
Hazel Pauline PORTER, a feme sole, Appellant,
v.
Willie Ann GARNER et vir, Appellees.
No. 5673.
Court of Civil Appeals of Texas, El Paso.
January 20, 1965.
Rehearing Denied February 10, 1965.
Lawrence L. Fuller, Turpin, Kerr, Smith & Dyer, Midland, for appellant.
Buehler & Buehler, San Antonio, for appellees.
PRESLAR, Justice.
Inter-pleader suit by Sam Houston Life Insurance Company to determine the proceeds of a life insurance policy. The insured, Eric D. Porter, sought to change beneficiary under the policy from his sister, Willie Ann Garner, to his former wife, Hazel Pauline Porter. Following his death, both claimed the proceeds of the policy, and the insurer brought this suit against both, paid the proceeds of the policy into the registry of the court, and sought its discharge from liability. From a judgment of the court, sitting without a jury, in favor of the original named beneficiary, Willie Ann Garner, this appeal is taken by Hazel Pauline Porter. The insurer, Sam Houston Life Insurance Company, was discharged and is not a party to this appeal.
We hold that the change of beneficiary was effective and judgment should have been rendered for Hazel Pauline Porter.
The policy of insurance provided:
"CHANGE OF BENEFICIARY  Any beneficiary may be changed by sending to the Company, at its Home *619 Office, a written notice in due form signed by the Insured and accompanied by this policy. Such change will take effect only when endorsed on this policy by the Company and shall then relate back to and take effect as of the date of said written notice whether the Insured be living at the time of said endorsement or not, * * *"
The insured, Eric D. Porter, while a patient in the hospital for surgery on a leg, caused the following letter to be written over his signature on August 15 and mailed to the insurer:
"I hereby request that as of this date August 15, 1962 at 11:30 a. m. the beneficiary of my insurance policy #19451 be changed from Willie Ann Garner, Sister, to Hazel Porter, Ex-wife."
Upon receipt of the letter, the insurer sent the insured its Form F106, for change of beneficiary, and requested that it be completed and returned to them with the policy of insurance. The surgery was performed on August 16, and on August 21 Form F106 was completed by Eric Porter and handed to one W. L. Schneider for mailing, which was done the same day. Schneider testified that he neglected to mail the policy with the form, and his testimony is in conflict as to whether the policy was handed to him by the insured with Form F106 or whether he was to get it from the desk drawer of the insured, to which he had access. Death came to the insured on August 23rd from a heart attack while he was still confined to the hospital. Form F106 reached the insurance company's home office on August 24th, and on September 11th the policy reached such office, it having been mailed to them by the ex-wife, Hazel Porter.
W. L. Schneider was employed as an agent for the Sam Houston Life Insurance Company and had sold the policy in question to Eric D. Porter. He also was employed by Eric D. Porter as a bookkeeper and he testified that during the time of Mr. Porter's confinement he attended to Porter's business affairs and brought his mail to the hospital. The parties attach much importance to whether Schneider was the agent of the insurer or the insured, and the trial court found that he was the agent of the insured; that he was negligent in failing to mail the policy, and that such negligence was imputed to his principal. We find it unnecessary to pass on the question, for it has no bearing on the case if we are correct in our disposition of it.
We sustain appellant's point of error number Nine, which attacks the court's finding and conclusion that the insured did not substantially comply with the requirements of the policy relative to a change of beneficiary. Contractual provisions for change of beneficiary both identical and similar to the one in this policy have been before the courts many times, and the rule is well established that the test is not strict compliance, but rather whether there was substantial compliance with the provisions. Price v. Supreme Home of Ancient Order of Pilgrims, 285 S.W. 310 (Tex.Com.App.); Garabrant v. Burns, 130 Tex. 518, 111 S.W.2d 1100; Kelley v. McDonald, Tex.Civ.App., 83 S.W. 2d 414 (wr. dism.); Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520; Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101; Fidelity Union Life Ins. Co. v. Methven, 162 Tex. 323, 346 S.W.2d 797. We are of the opinion that what was done here was substantial compliance, if not in fact actual compliance, with the terms of the policy. The parties to the policy of insurance contracted that to effect a change of beneficiaries two things must be done  the insured should give written notice in due form, and he should send in the policy for endorsement. Both were done, although the policy was eighteen days behind the notice. But the fact is that both did reach the home office. There is no requirement in the contract of insurance as to the time when these requirements are to be complied with. There is the provision that the *620 endorsement shall relate back and be effective as of the date of the written notice, "whether the Insured be living at the time of said endorsement or not." This provision distinguishes this case from those in which the entire transaction had to be completed in the insured's lifetime, and it also makes the eighteen-day lag in time of little consequence. Some significance should be attached to the fact that the insuring party to the contract was satisfied that the requirements were met, for the change of beneficiary was endorsed on the policy. It should also be noted that the insurer pleaded such endorsement, attached the endorsed policy and the written notice (Form F106) to its pleadings as exhibits, and the parties stipulated that such petition, together with all of the exhibits and attachments thereto, were true and correct statements of all of the facts and matters stated therein and to which the same alluded and pertained.
In determining the question of substantial compliance there can be no hard and fast rule, but each case must be decided on the basis of what was done. Prior decisions offer guidance, and these are well summarized by the Supreme Court in Fidelity Union Life Insurance Company v. Methven, 162 Tex. 323, 346 S.W.2d 797 (1961). Discussing Garabrant v. Burns, 130 Tex. 518, 111 S.W.2d 1100; Kotch v. Kotch, 151 Tex. 471, 251 S.W.2d 520; Creighton v. Barnes, 152 Tex. 309, 257 S.W.2d 101; and Scherer v. Wahlstrom, Tex.Civ.App., 318 S.W.2d 456 (writ refused), Chief Justice Calvert said:
"In Garabrant v. Burns the insured wrote a letter in which he stated that he wished certain named relatives to be the beneficiaries of his policy. He died before any action was taken by the insurer. Decision of the case went off entirely on our holding that the letter did not meet policy requirements as an application for change of beneficiary. In Kotch v. Kotch the insured mailed an application for change of beneficiary to his employer but there was no evidence that the application had been forwarded to the insurer. The insured died before any action was had on the application. We held that the mere mailing of the application, with no attempt to obtain and send in the policy as required by the policy, did not constitute substantial compliance with the requirements to effect a change of beneficiary. In Creighton v. Barnes we held that a statement in a will that the testator-insured was making certain life insurance policies payable solely to his wife did not effect a change of beneficiaries in the policies because it did not constitute substantial compliance with the policy requirements. In Scherer v. Wahlstrom we approved the holding of the Court of Civil Appeals that a mere indication of an intention to change the beneficiary and receipt of proper forms for making application therefor, which forms remained unexecuted at the time of the insured's death, did not constitute substantial compliance with policy requirements for effecting a change of beneficiary."
These are the leading cases most nearly like the one before us, in which it was held there was not substantial compliance, and a comparison of them with this case strengthens our conclusion that what was done in this case amounted to substantial compliance.
This disposition of the case makes it unnecessary to consider the other points of error of the appellant.
The judgment of the trial court is reversed, and judgment is here rendered for appellant, Hazel Pauline Porter.


210 F.2d 58
HARMAN,v.UNITED STATES.
No. 6707.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 15, 1954.Decided Jan. 27, 1954.

J. Raymond Gordon, Charleston, W. Va., for appellant.
Duncan W. Daugherty, U.S. Atty., Huntington, W. Va.  (A. Garnett Thompson, U.S. Atty., Charleston, W. Va., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.

1
Roy Harman was convicted in the District Court of removing 15 gallons of distilled spirits, on which the internal revenue tax had not been paid, to place other than a bonded warehouse, and also of possessing the same without having affixed an internal revenue stamp, denoting the quantity of distilled spirits contained therein, to the immediate container thereof, in violation of 26 U.S.C. § 2803 and 2913.  He was sentenced to a term of three years in prison and has appealed on the ground that the liquor was taken in the course of an unlawful search and seizure in violation of the Fourth Amendment to the Federal Constitution, and that the evidence procured by the seizure was therefore wrongfully admitted at the trial.  He also contends that certain instructions of the court to the jury were erroneous.

2
On April 2, 1953 three West Virginia state enforcement officers, having had a number of reports that illicit liquor was being 'run' out of Slate Creek Hollow near Raysal, McDowell County, West Virginia, drove an automobile into the mouth of the Hollow and remained on watch in the car without lights on the edge of a rough road through the woods.  They remained on watch from 8 p.m. until 4 o'clock the next morning.  They saw a truck coming down the Hollow on the road and when it reached a point 50 to 100 feet from them they put on the lights of their car and drove into the road facing the approaching truck.  Thereupon the driver of the truck stopped the vehicle and backed it toward the side of the road in order to turn around and go back, but the motor stalled and the driver leaped from the truck and ran off into the woods and escaped.

3
As soon as the truck started to go back two of the officers leaped from their car and ran toward the truck.  Their way was lighted by the lights of their car and by flashlights which they carried.  They got close enough to the truck and to the driver to recognize him as a man they had known for a number of years and to identify him as the defendant at the time of the trial.  The truck was also identified at the trial by a number of witnesses as having been driven regularly by the defendant.

4
After the driver of the truck ran away the officers examined it and found that it contained a number of gallon glass jugs full of moonshine liquor.  Some of the jugs were exposed to view and their contents were plainly visible to the officers when they reached the truck.  The officers removed the caps on some of the jugs and ascertained from the smell that they contained whisky.

5
In view of these facts we find no ground for the contention that the search and seizure of the truck was in violation of the constitutional rights of the defendant.  In Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 69 L.Ed. 543, the Supreme Court pointed out that Congress made a distinction between the necessity for a search warrant in the searching of a dwelling and in that of an automobile or other road vehicle, and the court held that such a distinction was consistent with the Fourth Amendment because it does not denounce all searches and seizures but only such as are unreasonable.  When the officers of the law have probable cause for believing that the law is being violated in their presence and it is impracticable to obtain a search warrant they may proceed with the search without it.  In the pending case the officers had information which led them to investigate the suspected neighborhood, the preceived the truck coming out of the Hollow on the woods road at an unusual hour and their suspicions were confirmed when the driver upon seeing them took to his heels and left the truck in their hands.  The reasonableness of the search and the impracticability of obtaining a search warrant under these circumstances are obvious.  Cannon v. United States, 5 Cir., 158 F.2d 952; Mabee v. United States, 3 Cir., 60 F.2d 209.  Cf. Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, overruled in part by United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.

6
Likewise there is no substance in the additional contention that the judge erroneously declined to give certain instructions offered by the defendant relating to the unanimity required in the verdict of a jury, and to the doctrine of reasonable doubt.  The defendant requested an instruction on the first matter in the form sometimes used in the state courts of Virginia and West Virginia, but the judge refused the request and merely told the jury on this point that their verdict must be unanimous and all of them must agree.  There was no error in this action.  It was for the judge and not the defendant to determine the form of the charge to the jury and the language used by the judge was clear and unmistakable with respect to the requirement of a unanimous verdict.  This requirement is so well understood by the jurymen in attendance upon the courts of this country that in many instances the judge's charge makes no reference to it.

7
The specific instruction as to reasonable doubt requested by the defendant was to the effect that when two or three witnesses for the government, as in the case at bar, have an equal opportunity to observe an important occurrence which forms the basis of the government's case, and they differ in their testimony as to the existence of the fact, that of itself creates a reasonable doubt as to the defendant's guilt and requires a verdict for the defendant.  This request was intended to direct attention to the testimony of the driver of the state officers' car who remained in the car when his colleagues jumped out to apprehend the defendant, and who was unable to identify the defendant as the driver of the truck containing the liquor.  The judge correctly rejected this request.  He told the jury in substance that the crucial question in the case was one of identity of the driver of the truck; that there was no conflict in the evidence on this point since the defendant had offered the testimony of the three officers, two of whom trained their flashlight on the defendant and recognized him as a man they had known for years while the third officer did not see the defendant at the time and did not attempt to identify him at the trial; and that if all the witnesses had an equal opportunity to see the defendant and one of them could not identify him at the trial, that would justify the jury in entertaining a reasonable doubt of the defendant's guilt; but in order to apply the rule each of the three witnesses must have had the same opportunity to see the occurence.  The judge then called attention to the fact that the two officers who identified the defendant were the ones who got out of their car and ran toward him as he left his truck and fled, while the third officer remained in the officers' car.  The judge cautioned the jury that it was for them to say from all the circumstances whether they were satisfied beyond a reasonable doubt as to the identity of the defendant with the driver of the truck.  Obviously this instruction was entirely fair and the defendant has no just cause of complaint.  If anything, the instruction may have been too favorable to him in the suggestion that a reasonable doubt of the identity of a person will arise when one of three persons with an equal opportunity to see, fails to identify him.

8
Affirmed.


49 So.3d 1245 (2010)
STATE of Alabama
v.
Elaine BAILEY.
CR-09-0115.
Court of Criminal Appeals of Alabama.
April 30, 2010.
*1246 Troy King, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellant.
Benjamin E. Schoettker, Montgomery, for appellee.
WISE, Presiding Judge.
The appellee, Elaine Bailey, was indicted for unlawful possession of a controlled substance, a violation of § 13A-12-212(a)(1), Ala.Code 1975. She filed a motion to suppress a crack rock law enforcement officers seized during a patdown search. After conducting a hearing, the trial court granted Bailey's motion to suppress. This appeal followed.
During the suppression hearing, Officer Shalinda Teresa McCoy of the Montgomery Police Department testified that, on May 23, 2009, she and her partner, Officer Caufield, were on the Mobile Highway; that she thought it was probably either 11:00 p.m. or 12:00 a.m.; that they saw a bicycle traveling down the middle of the road and into oncoming traffic; that they saw Bailey and a man on the bicycle; that the man was peddling the bicycle, and Bailey was holding on to him and standing on the back of the bicycle; that the two were not wearing helmets and did not have reflectors or any other type of safety gear; that not wearing helmets and not having reflectors was a safety hazard and a violation; that she and Caufield stopped Bailey and the man; and that they asked Bailey and the man for identification, but neither of them could produce any type of identification. Subsequently, the following occurred:
"[PROSECUTOR:] And when they weren't able to produce identification, what did you do?
"[WITNESS:] Asked both of them to step off the bike and put the bike down. My partner, Officer Caufield, he patted down the guy, the male subject, and I patted down the female. We patted them down for officer safety because they didn't have any identification and we didn't know who they were.
"[PROSECUTOR:] Now, is that a routine practice? When you don't have  when someone doesn't give you ID, do you pat people down? Is it checking for IDs? Is that what you're doing?
"[WITNESS:] No. We're doing it for officer safety to see if they could have weapons or anything because we don't know who they are. They could be exfelons or anything. We don't know who they are."
(R. 6.)
McCoy further testified that she patted down Bailey; that Bailey had bulky items in her pocket, and she asked Bailey what was in her pocket; that Bailey pulled everything out of her pocket; and that Bailey had lip gloss, condoms, and a crack rock in her pocket.
Finally, McCoy testified that the stop occurred in an area that was known for prostitution; that, when she and Caufield were talking to them, the man told her that he did not know Bailey and had just met her, but Bailey said the man was her boyfriend; that the two stories did not add up; and that she and Caufield thought it might be "a prostitution deal or something." (R. 8.)
*1247 The State argues that the trial court erroneously granted Bailey's motion to suppress the crack rock McCoy seized during the patdown search. Specifically, it contends that, based on the totality of the circumstances, a reasonably prudent person in McCoy's position would have been justified in believing that her safety and the safety of others was in danger. In State v. Hill, 690 So.2d 1201, 1203-04 (Ala. 1996), the supreme court stated the following with regard to standards of review to be applied when reviewing a trial court's ruling on a motion to suppress:
"`Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court's conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).'
"[Ex parte Agee,] 669 So.2d [102,] 104 [(Ala.1995)]."
In R.W. v. State, 913 So.2d 505, 512-13 (Ala.Crim.App.2005), this court addressed the issue of patdown searches as follows:
"`[I]n Terry v. Ohio, [392 U.S. 1 (1968)], the United States Supreme Court held that a limited search for weapons was partially justified by the need to protect the arresting officer from assault with a concealed weapon. "In determining whether a police officer had a basis for initiating a frisk, there are two matters to be considered: whether the officer had a sufficient degree of suspicion that the party frisked was armed and dangerous; and whether the officer was rightfully in the presence of the party frisked so as to be endangered if that person was armed." LaFave, Search & Seizure § 9.4(a) (2d ed.1987). By concluding that the officer had sufficient articulable suspicion to make the investigatory stop, we also conclude that the officer was rightfully in the presence of the appellant, being the party frisked. Moreover, the United States Supreme Court stated in Terry v. Ohio, supra:
"`"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 [85 S.Ct. 223, 224, 13 L.Ed.2d 142] (1964); Brinegar v. United States, 338 U.S. 160, 174-176 [69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879] (1949); Stacey v. Emery, 97 U.S. 642, 645 [24 L.Ed. 1035] (1878). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra."
"`392 U.S. at 27, 88 S.Ct. at 1883.
"`"We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . *1248 he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him."
"`Terry v. Ohio, 392 U.S. at 30, 88 S.Ct. at 1884.'
"State v. Richardson, 616 So.2d 400, 402-03 (Ala.Crim.App.1993).
"Here, Officer Drummer and other officers received a dispatch regarding an anonymous caller who reported that several young men were using illegal drugs on the porch of a residence in southwest Birmingham. The residence was in a high-crime area specifically known as an area where illegal drug activity took place; there had also been several recent burglaries in the area. When Officer Drummer and the other officers arrived, they saw several young men on the front porch of the residence as the anonymous caller described. All of the men, including R.W., were fidgeting and appeared nervous, and R.W., at one point, had his hands inside his shirt. While conducting interviews with the men, one officer discovered a `roach' in a flowerbed near the porch. Considering the totality of the circumstances, we conclude that there was reasonable suspicion that R.W. was involved in criminal activity and that R.W. may have been armed so as to justify the Terry stop and frisk. Although Officer Drummer testified that he did not believe, when he initiated the patdown, that R.W. was armed, Officer Drummer's subjective beliefs are irrelevant in determining reasonable suspicion. `Reasonable suspicion, like probable cause, is measured using an objective standard.' Williams [v. State], 716 So.2d [753,] 756 [(Ala.Crim.App.1998)]. Considering the circumstances, a reasonably prudent person in Officer Drummer's position would have been justified in believing that his safety as well as the safety of his fellow officers was in danger. See, e.g., Hall v. State, 897 So.2d 410 (Ala. Crim.App.2003), and Smith v. State, 884 So.2d 3 (Ala.Crim.App.2003). See also Hilliard v. Commonwealth, 17 Va.App. 23, 26, 434 S.E.2d 911, 913 (1993) (`Suspicion of illegal drug possession and distribution is a circumstance which gives rise to an inference of dangerousness.')."
This court has also held that
"`not all stops call for a frisk.' 3 LaFave § 9.4, p. 115. A police officer may conduct a reasonable search of a person for weapons `where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' Terry, 392 U.S. at 27, 88 S.Ct. at 1883.
"In determining whether a frisk is justified, two factors must be considered:
"`In determining whether a police officer had a basis for initiating a frisk, there are two matters to be considered. One concerns whether the officer had a sufficient degree of suspicion that the party frisked was armed and dangerous, and the other whether the officer was rightfully in the presence of the party frisked so as to be endangered if that person was armed.' 3 LaFave at § 9.4(a), p. 109."
Worthy v. State, 473 So.2d 634, 638 (Ala. Crim.App.1985).
*1249 First, we must determine whether McCoy and Caufield were properly in Bailey's presence. Initially, we note that Bailey did not contest that McCoy and Caufield were properly in her presence. Moreover, § 32-5A-261, Ala.Code 1975, provides that "[n]o bicycle shall be used to carry more persons at one time than the number for which it is designed and equipped." Additionally, § 32-5A-263(a), Ala.Code 1975, provides:
"Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction."
Further, § 32-5A-265(a), Ala.Code 1975, provides:
"Every bicycle when in use at nighttime shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least 500 feet to the front and with a red reflector on the rear of a type approved by the department which shall be visible from all distances from 100 feet to 600 feet to the rear when directly in front of lawful lower beams of head lamps on a motor vehicle. A lamp emitting a red light visible from a distance of 500 feet to the rear may be used in addition to the red reflector."
Finally, § 32-5A-266(a), Ala.Code 1975, provides:
"It is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this article."
In this case, McCoy testified that it was between 11:00 p.m. and 12:00 a.m.; that Bailey and the man were on a bicycle traveling down the middle of the road and into oncoming traffic; that the man was peddling the bicycle, and Bailey was holding on to him and standing on the back of the bicycle; that Bailey and the man were not wearing helmets and did not have any reflectors; and that the fact that Bailey and the man were not wearing helmets and did not have any reflectors was a safety hazard. Under these circumstances, the officers were rightfully in Bailey's presence.
Next, we must determine whether the officers had reason to believe that Bailey was armed and dangerous. The State presented evidence that the stop occurred between 11:00 p.m. and 12:00 a.m. in an area that was known for prostitution. Also, the stop involved two different individuals, neither of whom could produce identification. McCoy testified that she and Caufield patted down Bailey and the man because they could not produce any identification. She further testified that she did so for officer safety because she did not know who Bailey and the man were and because they could have been ex-felons. During cross-examination, defense counsel asked McCoy why the fact that Bailey did not have identification caused her to be concerned about officer safety, and McCoy explained:
"Well, I didn't know if she had any weapons or anything on her. I didn't know her past history or anything."
(R. 10.)
At the end of the suppression hearing, the trial court stated:
"And I was waiting, [prosecutor]. You know, I was hoping she'd say something like, you know, it was late at night, Judge. I mean, Mobile Highway, you know, I've been out there before at 11 o'clock at night. You know, it's a high crime area. You know, prostitution, drugs. I mean, these people are riding their bike the wrong way. You know, it's late at night. You know, I don't know if they've got weapons or not, you know, but in my experience as a police *1250 officer, I've been out there a million times, and, you know, I'm just not going to take a chance for my safety. I mean, something.
". . . .
". . . I mean, she didn't articulate anything about it. I articulated it for her. I mean, a good cop, that's what I'm going to say. Man, it's 11 o'clock at night. It's Mobile Highway, high prostitution, drug area. I've been out there numerous times. These yahoos are riding their bike in the middle of the road going the wrong way. Shoot, yeah, I'm patting them down. They don't have any identification on them. I don't know what they've got on them. I mean, yeah, I articulated it, but she didn't."
(R. 13-14.) Although McCoy may not have artfully stated her reasons for performing the patdown of Bailey, her testimony clearly established that she did so based on a concern for officer safety.
Further, in State v. Taylor, 46 So.3d 504, 508-509 (Ala.Crim.App.2010), we addressed a similar situation as follows:
"This Court has recognized that a traffic stop is `"`more analogous' to the brief investigative detention authorized by Terry"' than custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala.Crim.App. 1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala.Crim.App.1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala.Crim.App.1989), quoting Delaware v. Prouse, 440 U.S. 648, 653 (1979). So long as the police officer has properly seized the occupants of the car, the officer may order the driver, Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), or a passenger, State v. Hails, 814 So.2d 980 (Ala.Crim.App.2000)(recognizing Maryland v. Wilson, 519 U.S. 408, 415 (1997)), cert. denied, 814 So.2d 988 (Ala. 2001), out of the car without violating the Fourth Amendment. See, State v. Abner, 889 So.2d 52, 53-54 (Ala.Crim. App.2004) (recognizing the applicability of Mimms and Wilson in Alabama).
"When a police officer properly stops a vehicle for a traffic violation, the police officer may not only order the driver out of the vehicle, but may also pat down the driver for weapons if the officer reasonably believes that the driver is armed and dangerous. Mimms, 434 U.S. at 112. In Arizona v. Johnson, ___ U.S. ___, 129 S.Ct. 781 (2009), the United States Supreme Court explained:
"`[I]n a traffic-stop setting, the first Terry condition  a lawful investigatory stop  is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.'
"___ U.S. at ___, 129 S.Ct. at 784 (emphasis added). See also B.A.H. v. State, 28 So.3d 29 (Ala.Crim.App.2009) (recognizing the applicability of Arizona v. Johnson in Alabama).
"In the instant case, the officers observed Taylor's vehicle park in front of a house known for drug activity in a high-crime area and witnessed someone approach the house and return to the car *1251 at approximately 5:00 a.m. The officers then witnessed Taylor commit a traffic offense by driving without his headlights on and initiated a traffic stop. During the traffic stop, Taylor told Officer Butterbrodt that he did not have his driver's license or any form of identification on his person. Officer Butterbrodt testified that Taylor could not identify himself, and that he deemed it necessary to conduct a patdown search because it was his belief as a police officer that Taylor was consciously trying to hide his identity and possibly other evidence of criminal activity that might put the two officers in danger. See generally Tuohy v. State, 776 So.2d 896, 899-900 (Ala.Crim. App.1999), writ quashed, 776 So.2d 902 (Ala.2000). Furthermore, Officer Page testified that in situations where a motorist cannot produce a driver's license, proof of identification, or proof of insurance, he will write down the information given to him by the suspect and attempt to verify the information on his computer. If an officer cannot verify the information given to him by the suspect, Officer Page testified that it was police policy to place the suspect in protective custody `because, at the moment, we don't know who they are and what kind of warrants they have.' (R. 29.)
"Given the totality of the circumstances, Officer Butterbrodt was justified in conducting a patdown search for weapons and seizing the crack pipe found in Taylor's pocket. The officers observed Taylor in a high-crime area and witnessed someone get out of the car being driven by Taylor and walk up to a house known for its drug activity. This Court has previously held that these factors may give rise to a reasonable suspicion that criminal activity is afoot. See Landrum, 18 So.3d at 428 (witnessing the appellant repeatedly exit his car and approach a nearby house late at night in a high-crime area created sufficient reasonable suspicion for further investigation pursuant to Terry). Furthermore, Officer Butterbrodt testified that, based on his experience, suspects who say they have no identification may be trying to hide something like weapons, so he felt as if he needed to pat down Taylor in order to make sure he was not armed. Officer Butterbrodt's inference that Taylor could be armed was reasonable, and this Court must give due weight to `"the specific reasonable inference which [a police officer] is entitled to draw from the facts in light of his experience."' State v. Hails, 814 So.2d at 986, quoting Terry, 392 U.S. at 27. Accordingly, the circuit court abused its discretion when it found that the police lacked sufficient reasonable suspicion to pat down Taylor, and it erred in granting Taylor's motion to suppress."
Based on the totality of the circumstances in this case, a reasonably prudent person in McCoy's circumstances would have been warranted in the belief that her safety or that of others was in danger. In fact, this case highlights the precarious situation law enforcement officers are faced with when they stop unknown individuals in high crime areas, particularly at night. Therefore, we conclude that the trial court erroneously granted Bailey's motion to suppress. Accordingly, we reverse the trial court's judgment and remand this case for proceedings that are consistent with this opinion.
REVERSED AND REMANDED.
WINDOM, KELLUM, and MAIN, JJ., concur. WELCH, J., dissents, with opinion.
WELCH, Judge, dissenting.
I disagree with the majority's determination that the trial court erred when it *1252 granted Elaine Bailey's motion to suppress. The trial court correctly determined that the State did not establish that Officer McCoy had reasonable grounds to believe that Bailey was armed and dangerous and that it was necessary for the protection of the officers and others to conduct a patdown search.
The majority seems to imply that the trial court granted Bailey's motion to suppress, at least in part, because the court determined that Officer McCoy did not "artfully" state her reasons for conducting the patdown search; however, the majority found this ruling to be error because, according to the majority opinion, Officer McCoy sufficiently articulated that the search was based on her concern for her and her fellow officer's safety.
Officer McCoy's testimony establishes clearly that she conducted the patdown search because Bailey and her companion did not produce any identification, and the officers therefore did not know who they were. The only mention of "officer safety" was related to the lack of identification and Officer McCoy's speculation that "[t]hey could be ex-felons or anything." Even under a liberal application of the principles announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the facts before the trial judge would not have warranted a reasonably prudent person to believe that Bailey was armed and dangerous. Being presented with only the officer's "unparticularized suspicion or `hunch,'" 392 U.S. at 27, 88 S.Ct. 1868, the trial court correctly suppressed the evidence obtained in the search.
I note, moreover, that, although Officer McCoy testified that the patdown revealed "bulky items" in Bailey's pocket, she did not testify that she had any indication that the items might have been weapons.
"Q. All right. You also mentioned the word routine practice when people don't have ID. Is it your routine practice to pat somebody down when they don't have identification?
"A. Yes.
"Q. Okay. No matter  there's no other circumstances involving whatever? If somebody  if you ask for ID and they don't have an ID
"A. No, no, no, I'm not saying that. If they're in a vehicle or we come in contact with them, yes, that is correct."
(R. 9-10.)
Officer McCoy testified that she routinely performed a patdown when an individual could not produce any identification. She did not state any facts that indicate a reasonable belief that Bailey was armed.
The facts of this case are similar to Smith v. State, 19 So.3d 912 (Ala.Crim. App.2009), in which this court reversed a trial court's denial of a motion to suppress and stated:
"In this case, [Officer] Danley testified that he stopped Smith because he was walking in the middle of the street; that the area was dark; and that there was a lot of drug activity in that area. With regard to the patdown, Danley asserted that he patted Smith down for officer safety and that he usually checks subjects for weapons when he gets out of the vehicle and approaches them. However, Danley did not testify that he believed Smith was armed. Further, he did not testify as to any specific facts that would support a finding that he was justified in believing that Smith was armed and presently dangerous. Therefore, Danley was not justified in stopping Smith and performing a patdown search, and the trial court erred when it denied Smith's motion to suppress the *1253 evidence Danley seized from his person."
19 So.3d 912 at 919.
An officer may patdown an individual only when the officer has reason to believe that he is dealing with an individual who is armed and dangerous.
"Furthermore, there was nothing in the record concerning the officers' justification for the weapons frisk performed on the appellant. The right to frisk a suspect for weapons is separate from an officer's right to stop a suspect. Under Terry analysis, it is only `where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime,' that a weapons frisk comes into play. Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883. Moreover, the officer `must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.' Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917 (1968)."
Brannon v. State, 549 So.2d 532, 538 (Ala. Crim.App.1989).
The testimony presented to the trial court did not contain sufficient facts to support the Terry patdown search. The majority quoted the testimony of Officer McCoy as justification for the patdown. The facts presented by the majority were as follows:
"The State presented evidence indicating that the stop occurred between 11:00 p.m. and 12:00 a.m. in an area known for prostitution. Also, the stop involved two different individuals, neither of whom could produce identification. Officer McCoy testified that she and [Officer] Caufield patted down Bailey and the man because Bailey and the man could not produce any identification. She further testified that she did so for officer safety because she did not know who Bailey and the man were and because they could have been ex-felons. During cross-examination, defense counsel asked Officer McCoy why the fact that Bailey did not have identification caused her to be concerned about officer safety, and Officer McCoy explained:
"`Well, I didn't know if she had any weapons or anything on her. I didn't know her past history or anything.'"
(R. 10.)"
Bailey v. State, [Ms. CR-09-0115, April 30, 2010] 49 So.3d 1245, 1249 (Ala.Crim. App.2010).
Under that rationale, an officer is justified in searching anyone whose history he or she did not know. Officer McCoy did not articulate any facts that support the view that a reasonably prudent person in the officer's situation would have believed that Bailey was armed and dangerous.
The trial court's judgment suppressing the evidence was sound and should be affirmed. Therefore, I respectfully dissent.