Canning v. State, 45479

• Citation: 226 So.2d 747
• Decision Date: 29 September 1969
• Docket Number: No. 45479,45479
• Parties: Sherry Louise CANNING v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 747

226 So.2d 747

Sherry Louise CANNING v. STATE of Mississippi.

No. 45479.

Supreme Court of Mississippi.

Sept. 29, 1969.

Rex K. Jones, Elliott E. Schlottman, Hattiesburg, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Justice:

This is an appeal from a judgment and sentence of the Circuit Court of Forrest County, Mississippi, in which the appellant, Sherry Louise Canning, was sentenced to serve a term of three years in the state penitentiary and to pay a fine of $1,000 for the unlawful possession of 'Cannabis Sativa,' commonly called marijuana.

The appellant was indicted, tried and convicted on the foregoing charge as the result of the following facts and circumstances. On April 25, 1968, at about 9 p.m., James Breland, a member of the security department at the University of Southern Mississippi, had under surveillance the apartment of Charles Murphy. He observed a woman running down the street on Thirty-first Avenue toward the apartment he had under surveillance. She ran up to the door of 116 North 31 st Avenue, and found the door locked. She looked all around the door, under a loose brick, and then turned and started toward the north side of the apartment, where she met James Breland. The officer said she 'used a little dirty word' and she 'slid up against the wall and just sat down.' The officer, Breland, then communicated with 'other police authorities.' The defendant did not leave until the city police arrived, although she was not under arrest. This officer testified that he had seen the defendant go in this apartment at late hours at night a half dozen or more times.

The city police officers testified that when they arrived they entered the apartment through the front door by using a key they 'obtained from Murphy, the apartment leaseholder.' The appellant objected to the introduction of further evidence with reference to the entrance of the apartment. The court overruled this objection. The officers then described packages of marijuana, marijuana seed, water pipes and cigarette pipes useful in smoking marijuana. They also described female clothing and a check made payable to the defendant, Sherry Louise Canning, which they said they found in the apartment. The defendant was then arrested, and incarcerated in the city jail. Her clothing was exchanged for other clothing furnished by the police. The various packages of marijuana and the defendant's clothing were delivered to the Mississippi Crime Laboratory. The clothes were examined by a toxicologist, and it was determined that the packages did indeed contain marijuana and that part of the defendant's clothing (a brassiere) had microscopic particles of marijuana clinging to the fabric.

The appellant contends that she was illegally arrested by the security officer before the city policemen entered the apartment, and that the arrest was made without probable cause or reasonable grounds, and made without a warrant, and contends that any search of the premises (Apt. 116, N. 31st Avenue) was, therefore, illegal. In support of this contention, the appellant cites Contreras v. United States, 291 F.2d 63 (9th Cir. 1961), as authority on the question of arrest. We would point out that although this authority is interesting, it is not binding on this Court. There are many Mississippi cases cited under the statutory law of this state, and it would be more helpful to this Court if Mississippi authorities were cited on issues which have been settled by this Court, particularly where there is statutory law involved which is binding on this Court. §§ 2467-2469, Miss.Code 1942 Ann. (1956); § 2470, Miss.Code 1942 Ann. (Supp.1968).

Assuming that the testimony is sufficient to show consent of the tenant for the officers to search, and assuming that the defendant was not arrested until after the search was made, we would nevertheless be confronted with the issue as to whether or not the officers had 'probable cause to arrest the defendant' before a search of the person of the defendant would be admissible in evidence. It appears, therefore, that the issue in this case resolves itself into two questions: (1) Did the appellant have 'standing to object' to the search of the apartment, and if so, was the search illegal; (2) If the search were a legal search, was the evidence obtained by the search of sufficient nature to give the officers 'reasonable grounds to suspect and believe the person proposed to be arrested to have committed' the crime? § 2470, Miss.Code 1942 Ann. (Supp.1968).

If the appellant had standing to object to the search of the apartment here involved, and the search was an illegal search, or if the evidence obtained by the search were not of sufficient gravity to give the officers reasonable grounds to believe that she was guilty of possessing marijuana, the arrest was illegal, and the officers had no authority to take her clothing for microscopic examination.

During the trial of this case the defendant made a motion for a change of venue, based upon the ground that the defendant could not 'secure fair and impartial trial by a jury in Forrest County,' because of publicity in local newspapers and television. The defendant offered in evidence pictures and large headlines shown in the local paper. The newspaper set forth in detail the arrest of Michael Charles Murphy, who was arrested in connection with an alleged burglary. It was said he 'was allowed to make a telephone call from the police station and was overheard telling someone to go to his apartment and get the stuff out of the closet and dump it.' The officers, acting on this information, secured a search warrant and, while police at the apartment were awaiting the arrival of the officers with a search warant, Miss Canning arrived and was arrested as she attempted to enter the building.

No evidence was offered to show that the news media reports were so prejudicial as to prevent the defendant from obtaining a fair trial. If the officers obtained a search warrant for the apartment, it was not introduced in evidence.

On the day when the case was set for trial (August 20, 1968), a motion was made by the defendant to suppress the evidence obtained by the search prior to the trial, and this motion was overruled by the trial judge without a hearing. This Court has adopted a rule requiring a hearing, in advance of trial, of a motion to quash testimony illegally obtained in the case of Henry v. State, 253 Miss. 263, 154 So.2d 289, 174 So.2d 348 (1965). The rule in this state on this issue is essentially the same as the federal rule, and the burden of proof is upon the state to produce and establish by evidence the challenged testimony. The trial court should have followed the rule established in Henry, supra.

Did the prisoner have standing to object to the introduction of evidence obtained in the apartment of another upon the trial charging her with the possession of contraband found in the apartment?

It has been the law in this state for many years that one who did not claim an interest in the place searched or the thing seized had no right to complain that his constitutional rights had been violated by the trespassing officers. McBride v. State, 221 Miss. 508, 73 So.2d 154 (1954); Rose v. State, 222 Miss. 699, 76 So.2d 835 (1955); Lee v. City of Oxford, 134 Miss. 647, 99 So. 509 (1924); Ross v. State, 140 Miss. 367, 105 So. 846 (1925); Pickett v. State, 155 Miss. 386, 124 So. 364 (1929); McLemore v. State, 178 Miss. 525, 172 So. 139 (1937); Brown v. State, 192 Miss. 314, 5 So.2d 426 (1942); Slyter v. State, 246 Miss. 402, 149 So.2d 489, 150 So.2d 528 (1963).

We expressly held in Barton v. State, 165 Miss. 355, 143 So. 861 (1932), that visitors are not within the protection of the constitutional provision against unlawful search and seizure.

We followed the time-honored rule above stated in the case of Ball v. State, 194 So.2d 502 (Miss.1967), in which we pointed out the many cases heretofore decided by this Court; however, we noted at that time the trend being established in the federal courts. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951).

In the case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960), the Supreme Court of the United States held that a defendant found in the apartment of another, who had permission to be in the apartment, had standing to contend that the entry of officers and subsequent seizure of narcotics found in the apartment were unlawful notwithstanding that defendant testified that the contraband was not his and that the place of arrest was not his home. The Court said:

'* * * To establish 'standing,' Courts of Appeals have generally required that the movant claim either to have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched. Since narcotics charges like those in the present indictment may be established through proof solely of possession of narcotics, a defendant seeking to comply with what has been the conventional standing requirement has been forced to allege facts the proof of which would tend, if indeed not be sufficient, to convict him. * * *

'* * * Petitioner's conviction flows from his possession of the narcotics at the time of the search. Yet the fruits of that search, upon which the conviction depends, were admitted into evidence on the ground that petitioner did not have possession of the narcotics at that time. The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with the amenities, to put it mildly, of the administration of criminal justice to sanction such squarely contradictory assertions of power by the Government. The possession on the basis of which petitioner is to be and was convicted suffices to give him...