Delker v. McCarty

Decision Date11 February 2015
Docket NumberCIVIL ACTION NO.: 3:13CV950-CWR-LRA
CourtU.S. District Court — Southern District of Mississippi
PartiesJAMES ROBERT DELKER PETITIONER v. RICK MCCARTY, Interim Commissioner, Mississippi Department of Corrections, and JIM HOOD, Attorney General of the State of Mississippi RESPONDENTS

James Robert Delker has filed a Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. For the reasons more fully set out below, the Court finds that the Petition should be dismissed.

Delker was convicted in the Circuit Court of Lauderdale County of felony driving under the influence (DUI), and he was sentenced as a habitual offender to five years in the custody of the Mississippi Department of Corrections. His conviction and sentence were affirmed by the Mississippi Court of Appeals. Delker v. State, 50 So. 3d 309 (Miss. Ct. App. 2009). Delker appealed to the Mississippi Supreme Court, which also affirmed the conviction and sentence, albeit on different grounds than the Court of Appeals. Delker v. State, 50 So. 3d 300 (Miss. 2010). When Delker filed his Petition for a Writ of Habeas Corpus, he was still in custody pursuant to that sentence, although he has since been released.


The incident giving rise to Delker's conviction occurred on Christmas Eve night, 2005. At about 11:00 p.m., Ben Langston, the Chief of Police of Marion, Mississippi, was in his patrol car at an apartment complex on the south side of Old Country Club Road. Chief Langston observed acar go past him on that road, at a speed that he believed exceeded the posted limit. At that time, Chief Langston believed that Old Country Club Road was within the city limits of Marion, but he learned shortly before trial that it was not.

Chief Langston pulled onto Country Club Road behind the speeding car, intending to stop it and give the driver a warning; however, despite Langston's turning on his flashing lights, the car did not stop. At one point, it made a left turn around another vehicle that was stopped at a stop sign. Langston estimated that both cars got up to sixty to sixty-five miles an hour during this time. Langston called the sheriff's department to let them know that he was in a car chase and to request back up. Ultimately, the car stopped in a driveway, and Langston realized that Delker was the driver. Langston approached Delker and asked him why he had not stopped earlier; Delker replied that he knew that he was going to jail, and he wanted to get his car home, rather than leaving it on the side of the road.

While talking to Delker, Langston smelled alcohol, so he asked Delker to get out of the vehicle to talk to him. According to Langston, Delker had trouble getting out of the vehicle, he smelled like alcohol, his speech was slurred, and he had problems standing. Langston handcuffed Delker, because he knew that his driver's license was suspended, and placed him in the backseat of his vehicle. Looking into Delker's vehicle, Langston saw a beer can thrown onto the passenger seat. Later, Langston found a nearly-empty whiskey bottle in the floorboard of the back seat. Langston also found some groceries in the car, which he left on Delker's doorstep. He called his dispatcher to check the status of Delker's driver's license, and he was told that Delker did not have a valid license. After about five minutes, several deputies arrived in response to his earlier call. Langstontestified that he turned the case over to the deputies, so that they would get credit for the DUI arrest, even though Langston was certified to give a breathalyzer test.1

Karey Williams was the deputy who took over Delker's case from Chief Langston. Williams also testified that Delker had a strong odor of alcohol, slurred his speech, and had red eyes. Delker also had trouble with his balance, and he staggered when he walked. Williams said that he saw an empty beer can and a whiskey bottle in the car. Williams's car was equipped with a camera, which was running when he arrived at the scene, and which recorded both video and audio of the arrest.2 Like Langston, Williams determined from calling his dispatcher that Delker's driver's license was suspended. He put Delker in his car, and turned off his camera for the trip to the Lauderdale County Sheriff's Department. When Delker started talking to him, however, he turned the camera back on to record the conversation. Delker asked Williams whether he could take the field sobriety test, which he thought he could pass, but Williams told him he would have a chance to take a blood alcohol test on the Intoxilyzer 8000 machine.

When they arrived at the sheriff's office, Williams gave Delker three field sobriety tests. The first was the "HGN," where Williams moved a pen and watched Delker's eyes as they followed it. Based on the results of that test, Williams believed that he should offer Delker the chance to use the Intoxilyzer; however, he also administered the "walk and turn" test. According to Williams, "The walk-and-turn test, you are required to walk heel to toe, touching heel to toe each step for nine steps in a straight line while keeping your hands down by your side and counting your steps." The testrequires the officer to determine whether the subject is standing heel to toe during the instructions, whether he steps off the line, misses heel to toe, uses his arm for balance, makes an improper turn, or takes the wrong number of steps. According to Williams, Delker never actually touched heel to toe, made an improper turn, and was off balance. The last test Williams administered was the one-legged stand, where the subject picks one foot up six inches from the ground, looks at the tip of his foot, and counts thirty seconds. Delker was able to hold his foot up for only twelve seconds. After that, Williams again offered to test Delker on the Intoxilyzer, but he refused. Williams charged him with DUI, third offense.


Delker was tried in the Circuit Court of Lauderdale County on September 17, 2007. A few weeks prior to trial, the court held a hearing on Delker's motion to suppress, in which Delker's attorney argued that the traffic stop conducted by Chief Langston was ultra vires and without factual or legal basis. He further argued that, as Langston's initial pursuit did not result from an incident occurring within the Town of Marion's municipal boundaries, there was no basis for it, and Delker was justified in failing to stop. Because Langston did not have probable cause to arrest Delker at the time of the initial pursuit, Delker argued, proof of subsequent illegal acts should be excluded as fruits of the poisonous tree.

The trial judge denied the motion to suppress, finding that Langston had the authority, as a private citizen, to arrest Delker for speeding, even if he was outside the city limits. Since he had the authority to arrest Delker, the court reasoned, Langston also had authority to stop his vehicle. When Delker refused to stop, Langston had the right to follow him to effect the arrest. It was while following Delker that Langston observed the other traffic offenses for which he could arrest him.When he approached Delker after he stopped, as he had the right to do, Langston saw evidence that Delker had committed the felony of driving under the influence, and he called in for backup from the sheriff's department.

Immediately before trial, defense counsel again moved to suppress evidence, on grounds that Chief Langston did not have authority under law, as a private citizen, to request a breath test. The State argued that it was Deputy Williams, not Chief Langston, who asked Delker to take a breath test. The trial judge denied the motion, noting that Langston arrested Delker only on the misdemeanor traffic offenses, not DUI. Delker was ultimately found guilty of felony DUI, and, as a third-time offender, he was sentenced to five years without eligibility for parole or probation.

Delker timely filed an appeal in the Mississippi Court of Appeals, which disagreed with the trial judge's finding that Chief Langston was authorized, as a private citizen, to arrest Delker outside the town's boundaries. 50 So. 3d at 316. According to the Court of Appeals, that authority only extended to offenses constituting a breach of the peace. Id. The court affirmed the conviction, however, on grounds that Langston's error in believing that his pursuit of Delker began within the town's boundaries was neither unreasonable nor bad-intentioned. Id. at 317. For that reason, the court held that, even if the arrest was unlawful, Langston's conduct was not sufficiently egregious to trigger the exclusionary rule. Id. at 319-20 (citing Herring v. United States, 555 U.S. 135 (2009)).

Delker then appealed to the Mississippi Supreme Court, which likewise denied relief. 50 So. 3d at 300. That court declined to rule on the legality of the arrest, assuming that it violated the Fourth Amendment, and moved directly to the issue of whether the exclusionary rule should have been applied. Id. at 303. In conducting that analysis, the Mississippi Supreme Court, like the Court of Appeals, also applied Herring, noting that federal law requires the court to conduct a balancingtest to determine whether the purposes of the exclusionary rule would be served by keeping the evidence at issue from the jury. Id. (citing Kansas v. Ventris, 556 U.S. 586, 590 (2009); United States v. Leon, 468 U.S. 897, 918 (1984)). Finding Chief Langston's error on the town's boundaries to be, at most "an innocent mistake," the court held that his conduct did not rise to the level necessary to invoke the exclusionary rule. 50 So. 3d at 304. Additionally, the court held that the conduct of Deputy Williams was also part of the analysis, and his response to Langston's call for backup was "proper and reasonable." Any deterrent effect created by excluding the evidence in ...

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