Tate v. State, No. 2004-KA-00789-COA.
| Decision Date | 04 April 2006 |
| Docket Number | No. 2004-KA-00789-COA. |
| Citation | 946 So.2d 376 |
| Parties | Kirby TATE a/k/a Kirby Glenn Tate, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
J. Niles McNeel, Louisville, attorney for appellant.
Office of The Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
Before LEE, P.J., IRVING and CHANDLER, JJ.
CHANDLER, J., for the Court.
¶ 1. Kirby Tate was convicted of Count I, possession of more than one ounce but less than one kilogram of marijuana with intent to sell, barter, transfer, distribute or dispense and of Count II, possession of three dosage units of Oxycodone, a schedule II controlled substance. Both counts were with enhanced sentencing because of Tate's habitual offender status and the fact of his prior convictions under the Mississippi Uniform Controlled Substances Act. On Count I, Tate received a sixty year sentence and a $5,000 fine. On Count II, he received a sixteen year sentence and a $5,000 fine. The sentences were to run concurrently with each other and with Tate's prior sixty-year sentence for his conviction of possession and delivery of marijuana in the Lauderdale County Circuit Court. See Tate v. State, 912 So.2d 919 (Miss.2005). Both sentences were without the possibility of parole or early release.
¶ 2. On appeal, Tate raises the following issues:
I. THE COURT ERRED IN OVER-RULING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.
II. THE COURT ERRED IN ALLOWING INTO EVIDENCE PRIOR FELONY CONVICTIONS OF THE DEFENDANT.
III. THE PROSECUTOR COMMITTED ERROR IN MAKING THE "SEND THE MESSAGE" ARGUMENT.
IV. THE SENTENCE OF SIXTY YEARS WITHOUT PAROLE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT VIOLATIVE OF THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF MISSISSIPPI.
¶ 3. We find no error and affirm the judgment of the circuit court.
FACTS
¶ 4. At approximately 2:14 p.m. on June 20, 2003, Officer James Ramsey, a City of Meridian police officer, used his radar gun to clock Tate driving forty-five miles per hour in a thirty mile per hour zone on 65th Avenue in Meridian. Tate was driving a small pickup truck with a built-in refrigeration unit on the back. Officer Ramsey began following Tate and signaled for him to pull over. Tate parked in a restaurant parking lot at the intersection of 65th Avenue and 8th Street. Officer Ramsey stopped his patrol car behind Tate's truck. Officer Ramsey noticed that the truck had a broken brake light and that Tate had not been wearing his seat belt. Officer Ramsey called dispatch, communicated that he was conducting a traffic stop, and gave them the truck's tag number.
¶ 5. Tate exited the truck and approached the driver's side of the patrol car. He was wearing shorts and an untucked T-shirt. Officer Ramsey exited the patrol car and informed Tate that he had been driving forty-five miles per hour in a thirty mile per hour zone and that he had a brake light out. He requested Tate's driver's license and proof of insurance. Tate returned to his truck and produced a proof of insurance card, which Officer Ramsey examined. Officer Ramsey discovered that the proof of insurance was expired. Tate explained that the truck was insured, but that the proof of insurance was in another vehicle. At approximately 2:19 p.m., Tate offered to look further in the truck for proof of insurance. Tate got back inside his truck and sat in the driver's seat. Officer Ramsey returned to the patrol car to await Tate's proof of insurance and to write the traffic citations.
¶ 6. The dispatcher requested that Officer Ramsey call in, and Officer Ramsey did so at approximately 2:21 p.m. The dispatcher told Officer Ramsey that Tate was a semi-pro boxer and to be careful because Tate was "bad about sucker punching." Officer Ramsey requested that Officer Ron Payton come to the scene for backup. At some point, the dispatcher stated that the East Mississippi Drug Task Force was on their way to the scene. At approximately 2:24 p.m., Officer Ramsey returned to Tate's truck and asked Tate for his vehicle registration. Then, Officer Payton arrived, followed by Officer Artis Johnson. Officer Ramsey stated,
¶ 7. At the suppression hearing, Officer Ramsey testified that "1055-other" means that a suspect is intoxicated with a substance other than alcohol. Officer Ramsey testified at the suppression hearing that he had not smelled alcohol on Tate, but Tate seemed very jumpy and nervous, spoke rapidly, and was sweating profusely. This led Ramsey to suspect that Tate was under the influence of some type of drug. Officer Ramsey testified at the suppression hearing that, from his experience, Tate exhibited an abnormally high level of nervousness for someone stopped for a traffic violation.
¶ 8. Agent Greg Lea with the East Mississippi Drug Task Force testified at the suppression hearing that he and Agent Anthony Ball heard over the radio dispatch that Tate had been stopped for traffic violations. Agent Lea stated that the Task Force decided to respond to the stop to investigate because Lea had intelligence from confidential informants that Tate was presently using the truck to deliver marijuana. Agent Lea had a pending case against Tate for possession and delivery of a large amount of marijuana that had been hidden in the truck. And, Agent Lea knew that Tate recently had been caught with marijuana hidden on his person. Agent Ball radioed dispatch to advise the officer to look for signs of narcotics.
¶ 9. Task Force Agents Lea and Ball arrived at 2:27 p.m. At that time, Officer Ramsey was filling out Tate's tickets for the traffic violations while Tate sat inside his truck. Officer Ramsey informed the agents that he thought Tate was 1055-other, that something was not right, and that he had called Officer Payton since Tate appeared to be jumpy and nervous. The agents told Ramsey that Tate was known to traffic in drugs hidden inside compartments in the truck. At approximately 2:31 p.m., the police officers and Task Force agents approached the driver's side of the truck where Tate was sitting. Tate was positioned with his legs open, and Agent Lea observed an unusually large bulge in Tate's crotch area. Agent Lea noticed that Tate appeared nervous and that his hands were shaky.
¶ 10. Tate exited the truck. The officers asked if they could search the truck, but Tate did not consent to a search. The officers noticed Tate had a pocket knife on his belt and requested that he hand it over. Tate complied. Agent Lea asked Tate to turn around so that Officer Ramsey could search him for other weapons. Officer Ramsey told Tate that he was "not under arrest right now, I just want to make sure you don't have any weapons on you." Tate turned around with his back to Officer Ramsey.
¶ 11. Officer Ramsey was about to conduct a pat down search when Tate turned back around and "squared off at him" in a defensive manner as if he was not going to submit to the search. Then, Tate turned around again. Officer Ramsey placed Tate in a thumb-lock and began patting down Tate for weapons. Agent Lea watched the pat down. During the patdown, Officer Ramsey raised Tate's T-shirt above his waistband and felt around his waist. Officer Ramsey was in the midst of this when Agent Lea, standing in front of Tate, again observed the unusually large bulge in the area of Tate's crotch. Agent Lea stated, "what's that right there." Agent Lea testified that, due to Tate's nervous behavior and Tate's defensive stance before the search, he was afraid that the bulge was a weapon. Lea asked Ramsey to handcuff Tate, stating that they had experienced problems with Tate in the past. Lea testified that he had wanted Tate handcuffed out of concern for the officers' safety.
¶ 12. With Tate handcuffed, Lea touched the bulge. Lea stated that, from palpating the bulge, he could feel stems and seeds and concluded from his experience that the bulge was a bag of marijuana. Tate stated that the bulge was his genitals. Lea stated, Then, Lea reached into Tate's shorts and extracted a bag containing a substance that was determined to be 133.7 grams of marijuana.
¶ 13. The officers arrested Tate, searched him, and towed his truck to the Lauderdale County Detention Facility. At the facility, Tate was taken to be booked on the drug charge and given citations for speeding, no seat belt, and no liability insurance. The agents had a drug-sniffing dog walk around the outside of Tate's truck. The dog strongly alerted to the truck's cab, and the agents opened the cab. The agents found more marijuana under the seat of the truck and three Oxycodone tablets in the glove compartment.
¶ 14. Alleging an illegal search, Tate moved to suppress the evidence of the marijuana taken from his person and to suppress the drugs taken from his truck as the "fruit of the poisonous tree." Tate argued that his detention by Officer Ramsey exceeded the scope allowed under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Essentially, Tate contended that, at the time of the search, Officer Ramsey had improperly detained him beyond the scope of the original traffic stop in order to allow the Task Force agents to arrive. At the suppression hearing, the court heard testimony from Officer Ramsey and Agent Lea, and viewed a videotape from Officer Ramsey's patrol car showing the events before, during, and after Tate's arrest.
¶ 15. After the hearing, the trial court overruled the motion, finding that the detention of Tate was lawful. The court found that Tate...
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