Cook v. Rankin Cnty., 2012–KM–01553–COA.

• Decision Date: 03 December 2013
• Docket Number: No. 2012–KM–01553–COA.,2012–KM–01553–COA.
• Citation: 168 So.3d 1089
• Parties: Carl Richard COOK a/k/a Carl R. Cook a/k/a Carl Cook, Appellant v. RANKIN COUNTY, Mississippi, Appellee.
• Court: Mississippi Court of Appeals

168 So.3d 1089

Carl Richard COOK a/k/a Carl R. Cook a/k/a Carl Cook, Appellant

v.RANKIN COUNTY, Mississippi, Appellee.

No. 2012–KM–01553–COA.

Court of Appeals of Mississippi.

Dec. 3, 2013.

Rehearing Denied March 25, 2014.

Clarence Terrell Guthrie III, Ridgeland, attorney for appellant.

Michael A. Boland, Brandon, Richard H. Wilson, attorneys for appellee.

Before GRIFFIS, P.J., BARNES and JAMES, JJ.

Opinion

GRIFFIS, P.J., for the Court:

¶ 1. Carl Richard Cook appeals his conviction of misdemeanor driving under the influence (DUI), first offense. Cook argues that the court applied an erroneous Fourth Amendment standard on uncorroborated anonymous tips and erred when it considered constitutional issues to be waived at trial. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. The facts of this case are not in dispute. On March 12, 2011, Reservoir Patrol Officer Timothy Ware of the Pearl River Valley Water Supply District was on duty in the area of Northshore Parkway and Timber Lake Campground in Rankin County, Mississippi. Officer Ware received a call from the Reservoir patrol dispatch to “be on the lookout” (BOLO) for a vehicle that was driving erratically and the driver of the vehicle possibly flashing a badge of some sort.

¶ 3. Officer Ware did not know who made the initial call to law enforcement. To his knowledge, the “tip” was from an anonymous caller and was uncorroborated. The call described a gray Chevrolet Avalanche, and gave the license-plate number. Officer Ware saw a vehicle that matched the description he received. He turned his patrol vehicle around and proceeded behind the suspect Avalanche. Officer Ware observed the Avalanche for a short period of time, though he did not observe the vehicle driving erratically at that time, nor did he observe the driver flashing a badge or committing any crimes.

¶ 4. Deputy Fred Lovett of the Rankin County Sheriff's Office was also in the area when the BOLO came over both the Reservoir patrol dispatch and the Rankin County Sheriff's dispatch. Deputy Lovett met the Avalanche head on. He then turned around and got within “a couple” of car lengths behind Officer Ware and the Avalanche.

¶ 5. Officer Ware initiated a stop on the Avalanche on Church Street in the Reservoir area. Based on subsequent interactions between Officer Ware, Deputy Lovett, and Cook, Cook was arrested for DUI, first offense.

¶ 6. Cook was convicted of misdemeanor DUI, first offense, in violation of Mississippi Code Annotated section 63–11–30(1)(a) (Supp.2012), in the Rankin County Justice Court. Cook appealed and received a trial de novo before the Rankin County County Court. In a non-jury trial before the county judge, Cook's counsel moved to dismiss the case at the conclusion of the State's case-in-chief. Cook argued that the BOLO that led to the investigatory stop violated his Fourth Amendment rights against illegal search and seizure, as it was based on an anonymous tip that lacked sufficient indicia of reliability. The county judge denied the motion and entered a detailed order overruling the motion to dismiss. The county judge also entered a judgment of conviction.

¶ 7. Cook then appealed his conviction to the Rankin County Circuit Court. As error, Cook argued that the county judge erred in the application of the Fourth Amendment standards regarding uncorroborated anonymous tips. The circuit court entered an opinion and order that affirmed the county court's conviction. It is from this conviction that Cook now appeals.

ANALYSIS

1. Whether the constitutional issues were waived at trial.

¶ 8. On appeal, the circuit judge made a sua sponte finding that the Fourth Amendment issue was procedurally barred from review on appeal. In the opinion and order, the circuit judge ruled that “[Cook] first raised the issue of constitutionality of the traffic stop of [Cook] after the State had rested its case-in-chief in the form of a motion to dismiss. The evidence sought to be suppressed had been introduced, without objection, and the issue was thereby waived.” Cook takes issue with this finding. He argues that the issue was presented to and decided by the county court; therefore, it was neither waived nor procedurally-barred.

¶ 9. This case was appealed from justice court to the county court for a trial de novo. Under Uniform Rule of Circuit and County Court 12.02(C), Cook was not entitled to a jury trial. As such, the case was tried anew before the county judge without a jury. During the trial, the facts about the stop based on the anonymous tip were elicited, without objection. At the close of the State's case, and before the trial concluded, Cook moved to dismiss the charge based on the alleged constitutional violation. The county judge recognized the issue and ordered briefs on the issue. After receiving those briefs, the county judge wrote a detailed ten-page opinion specifically on this issue.

¶ 10. The supreme court “has consistently held that failure to make a contemporaneous objection constitutes waiver of an issue on appeal.” Redmond v. State, 66 So.3d 107, 110–11 (¶ 11) (Miss.2011). The problem with the State's argument is that the county judge clearly saw this issue as properly presented and considered the issue in the opinion and order that decided the case. If we were to accept the circuit judge's conclusion, we would also have to apply the waiver to the State. Clearly, the State waived the issue when the State did not present it to the circuit judge on appeal.

¶ 11. The circuit court erred when it determined that this issue was waived. This issue was clearly presented to the county court, and the county judge had no issue with the timing of Cook's objection. The issue was properly preserved for review on appeal. Because this issue does not resolve the appeal, we consider the issue that will decide the case.

2. Whether the county judge erred in the application of Fourth Amendment standards regarding uncorroborated anonymous tips.

¶ 12. Cook argues that Officer Ware initiated the stop without probable cause or reasonable suspicion. Therefore, all evidence from the seizure was inadmissible as “the fruit of the poisonous tree.”¹

¶ 13. In Brown v. State, 19 So.3d 85, 89 (¶ 9) (Miss.Ct.App.2008), this Court articulated the proper standard of review:

The analysis of whether there has been an unlawful seizure is subject to a mixed standard of review. Dies v. State, 926 So.2d 910, 917 (¶ 20) (Miss.2006). The determination of the existence of probable cause is reviewed de novo. Id. (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ). However, that de novo review is limited to the “trial judge's decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.” Id. (citing Floyd v. City of Crystal Springs, 749 So.2d 110, 113 (¶ 11) (Miss.1999) ). The basic elements of “a determination of probable cause will be the events which occurred leading up to the search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.”Ornelas, 517 U.S. at 696, 116 S.Ct. 1657. “In determining whether evidence should be suppressed, a trial court's findings of fact are not disturbed on appeal absent a finding that the ‘trial judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.’ ” Clair v. State, 845 So.2d 733, 734–35 (¶ 4) (Miss.Ct.App.2003) (quoting Taylor v. State, 733 So.2d 251, 255 (¶ 18) (Miss.1999) ).

¶ 14. Although our review of the existence of probable cause is de novo, we must look to the trial judge's findings of fact. Dies, 926 So.2d at 917 (¶ 20). The county judge made the following factual findings:

On the afternoon of March 12, 2011, Officer Timothy Ware ... and Deputy Fred Lovett ... heard a BOLO ... for a vehicle alleged to be driving erratically and/or recklessly, flashing its headlights at other motorists, and “flashing” what was purported to be a badge of some type in an apparent attempt to pull over other motorist(s). That BOLO, which came to both officers via official police radio channels, contained very specific information, including the make, model, color, and license tag number of a particular vehicle which was allegedly engaged in the potentially illegal conduct. The operator of the vehicle was also described in general terms in the BOLO. Finally, the area where the strange driving conduct was occurring was described with specificity [,] ... an area within the jurisdiction of both [officers].

Almost simultaneously, both officers spotted a vehicle matching the precise description given in the BOLO, down to the exact license number. Contact with that vehicle was made in the [officer's jurisdiction], the license number was verified by Officer Ware, and a traffic stop was immediately initiated by him, followed closely by back-up from Deputy Lovett. It is undisputed that Officer Ware did not personally observe any traffic violations by the subject vehicle and its operator prior to initiating the traffic stop. Upon the officers' approach to the vehicle, many indicia of [DUI] were immediately observed by them, including: smell of an intoxicating beverage, slurred speech, and disorientation of the operator. Further, within the first few moments of the encounter, [Cook] admitted to having consumed alcoholic beverage and to having “flashed” a business card, not a badge, at other motorist(s). [Cook] also had “watery” eyes, swayed in a circular motion upon exit, and held on to the vehicle for support after exiting. A[p]ortable [b]reath [t]est (PBT) was administered to [Cook], and it registered positive for the presence of alcohol. Finally, Officer Ware reported that [Cook] was extremely nervous and disoriented throughout the original encounter and declined to take the Intoxilyzer 8000 test back at the station, stating that he “ ‘probably would not pass' ” that

...