Busick v. State

• Decision Date: 11 January 2005
• Docket Number: No. 2003-KA-00037-COA.,2003-KA-00037-COA.
• Citation: 906 So.2d 846
• Parties: William T. BUSICK, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

906 So.2d 846

William T. BUSICK, Appellant v. STATE of Mississippi, Appellee.

No. 2003-KA-00037-COA.

Court of Appeals of Mississippi.

January 11, 2005.

Rehearing Denied March 29, 2005.

Certiorari Denied June 23, 2005.

William T. Busick, appellant, pro se.

Walter E. Wood, Ridgeland, attorney for appellant.

Office of the Attorney General by Scott Stuart, attorney for appellee.

EN BANC.

CHANDLER, J., for the Court.

¶ 1. A Madison County jury convicted William T. Busick of burglary of a dwelling. The Circuit Court of Madison County sentenced Busick as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections. Busick appeals, arguing that the trial court erroneously admitted his videotaped statement and other evidence because it was obtained pursuant to his arrest without probable cause and in violation of his Miranda rights, and that the verdict was against the overwhelming weight of the evidence. Busick asserts additional issues in a pro se supplemental brief which he obtained permission to file. We affirm.

FACTS

¶ 2. Scott Dufour testified that, on January 17, 2002 at approximately 6:45 p.m., he was reading in the bedroom of his home in Summertree subdivision in Madison, Mississippi. Dufour was an agent with the Federal Bureau of Investigation, but was off-duty at the time. Dufour heard blinds rattling and, looking up, saw a strange man take his wife's purse from the kitchen and run out of the house. Dufour arose, grabbed a gun, and chased the man through the neighborhood. During the chase, Dufour slipped and fell, causing him to accidentally fire the gun. The man escaped with the purse and drove away in a white Jeep Cherokee vehicle with a broken taillight. Dufour returned home and called 911. When the police arrived, Dufour told them that the man had been wearing a camouflage hat and jacket. Dufour identified Busick at trial as the person he saw take the purse.

¶ 3. Investigator Mike Brown obtained an arrest warrant for Busick and, with Palmer, arrested Busick in a hotel room in Jackson. A white Jeep Cherokee with a missing taillight was parked outside. Upon entering Busick's room, Brown and Palmer noticed a purse on the floor matching the description of Kay Dufour's purse. The purse contained a prescription made out to Kay Dufour. Brown asked Busick if he would provide him with the rest of the contents of the purse. Busick agreed and led Brown and Palmer to a trash container where he had deposited the contents, including credit cards belonging to the Dufours. Brown and Palmer also found a camouflage hat and jacket in Busick's room that was identified by Dufour as the ones worn by the suspect.

¶ 4. Busick was transported to the police department and gave a statement to Palmer that included his version of the events. In the portion of statement played for the jury, Busick maintained that, while traveling through Madison County, he noticed that his car was low on gasoline. He pulled into Dufour's subdivision. He parked the car and walked down the street intending to locate some gasoline. He entered the Dufour's garage and noticed a purse inside a white SUV. He opened the car door, removed the purse, and left the garage. When Busick reached the street, Dufour ran out of the house, ordered Busick to freeze, and then raised a gun and shot at him. Busick clutched the purse in fear and ran back to his car.

¶ 5. Kay Dufour testified that her purse had been located on an island in the kitchen, not in her car. She stated that her car had been locked. The jury found Busick guilty of burglary of a dwelling.

LAW AND ANALYSIS

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO SUPPRESS THE DEFENDANT'S VIDEOTAPED STATEMENT AND THE STATEMENTS MADE AND THE PHYSICAL EVIDENCE GATHERED DURING THE DEFENDANT'S ARREST WITHOUT PROBABLE CAUSE.

¶ 6. Busick moved to suppress his videotaped statement and other evidence resulting from his arrest because the arrest warrant was issued without probable cause. After a suppression hearing, the trial court denied the motion. Probable cause is

a practical, nontechnical concept, based upon the conventional considerations of every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Conerly v. State, 760 So.2d 737, 740 (¶ 8) (Miss.2000) (quoting Strode v. State, 231 So.2d 779, 782 (Miss.1970)). Thus, for a felony arrest warrant, a police officer must have (1) reasonable cause to believe that a felony has been committed, and (2) reasonable cause to believe that the person proposed to be arrested is the one who committed it. Id. at (¶ 7).

¶ 7. A police officer desiring an arrest warrant must obtain a judicial determination that probable cause exists based upon affidavits or other evidence before the court. Id. The issuing judge's determination of the existence of probable cause is to be a practical, common-sense decision rendered from the totality of the circumstances, including the veracity and basis of knowledge of persons supplying hearsay information. Id. (citing Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). On review of a judge's issuance of an arrest warrant, this Court determines whether the facts and circumstances before the judge provided a "`substantial basis . . . for conclud[ing] that probable cause existed.'" Byrom v. State, 863 So.2d 836, 860 (¶ 65) (Miss.2003) (quoting Gates, 462 U.S. at 238-39,103 S.Ct. 2317),

¶ 8. At the suppression hearing in the case sub judice, Investigator Brown stated that, before the Dufour burglary occurred, he had already gathered information to obtain a warrant for Busick's arrest for an earlier burglary, at the Moore residence. On the night of the Dufour burglary, a municipal judge issued an arrest warrant for Busick based upon Brown's affidavit implicating Busick in the Moore burglary. Busick was arrested pursuant to that warrant and given Miranda warnings.

¶ 9. The affidavit stated that an unknown white male had entered the Moores' home and taken Mrs. Moore's purse, including credit cards. Later that day, the Moores' credit cards were used at Home Depot, Target, and Wal-Mart. Brown obtained a surveillance video tape of the suspect making a credit card purchase at Target. Detective Jeff Robertson of the Brandon Police Department phoned Brown and stated that Ruby Busick, Busick's mother, had brought him credit card receipts from Home Depot and Wal-Mart that she found in Busick's room. The receipts matched copies Brown had obtained from Home Depot and Wal-Mart. Also, two bicycles stolen from the Moore residence and neighboring Cartlidge residence about the time of the Moore burglary had been pawned by Busick.

¶ 10. At the suppression hearing, Busick did not contend that probable cause could not have arisen from the facts as alleged in Brown's affidavit. Instead, he attempted to show that much of the information in the affidavit was the product of false swearing by Brown. Busick argued that prior to the issuance of the warrant, Brown knew or should have known that Busick was not the person in the Target surveillance videotape because Brown admitted he had known Busick for ten years. Busick contended that the bicycles pawned by Busick were not identified as those stolen during the Moore burglary until after the warrant was issued. He asserted that Brown lied about the credit card receipts having been found in Busick's room because Robertson's written report said Busick's mother found the receipts in a desk and did not mention Busick's room. Finally, he argued that Brown could not have known the suspect was a white male because Mrs. Moore said she saw a "quick flash of clothing" that she thought was her son, not a white male. Busick renews these arguments on appeal.

¶ 11. When a defendant

makes a substantial preliminary showing that a false statement knowingly and intentionally or with reckless disregard for the truth was included by the Affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the fourth amendment requires that a hearing be held at the Defendant's request.

McNeal v. State, 617 So.2d 999, 1004 (Miss.1993) (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). If, at the hearing, "`the allegation of perjury or reckless disregard is established by the Defendant by a preponderance of the evidence,'" the court must determine if, with the false material set aside, "the affidavit's remaining content . . . is sufficient to establish probable cause." Petti v. State, 666 So.2d 754, 758 (Miss.1995) (quoting Franks, 438 U.S. at 155-56,98 S.Ct. 2674). If the remaining content provides insufficient support for a finding of probable cause, the arrest warrant "`must be voided and the fruits of the [arrest] excluded to the same extent as if probable cause was lacking on the face of the affidavit.'" Id.

¶ 12. The trial court held a hearing though it never found that Busick made the substantial preliminary showing required by Franks. At the hearing, Brown admitted that after Busick's arrest he concluded that Busick was not the individual in the Target surveillance videotape. Brown stated that, when he obtained the warrant, he thought Busick was the person appearing in the tape based upon Busick's general description and his surmise that Busick was the person who had used the Moores' credit cards at Target, as evinced by the receipts for purchases made with the Moores' cards turned in by Busick's mother. Brown testified that, before obtaining the arrest warrant, Robertson had told him that two bicycles matching the descriptions of the stolen...