Delker v. State, 2008-CT-00114-SCT.

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtRANDOLPH
Citation50 So.3d 300
PartiesJames Robert DELKER v. STATE of Mississippi.
Docket NumberNo. 2008-CT-00114-SCT.,2008-CT-00114-SCT.
Decision Date13 January 2011

Robert H. Compton, John G. Compton, Meridian, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.



RANDOLPH, Justice, for the Court:

¶ 1. James Robert Delker was convicted in the Circuit Court of Lauderdale County, Mississippi, of felony driving under the influence ("DUI") and was sentenced, as a habitual offender, to serve the maximum term of five years in the custody of the Mississippi Department of Corrections ("MDOC"). Delker appealed his conviction and sentence and the case was assigned to the Mississippi Court of Appeals for disposition. See Miss. R.App. P. 16(d). Delker contended that the circuit court had erred in denying his motion to suppress all evidence obtained from an allegedly illegal search and seizure. See Delker v. State, 50 So.3d 309, 312-14 (Miss.Ct.App.2009). The Court of Appeals affirmed Delker's conviction and sentence, concluding, in pertinent part, that "[e]ven if we were to find [the] ... arrest of Delker was unlawful, based on the United States Supreme Court's holding in Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009), we would still find that Delker's driving under the influence should not be suppressed." Delker, 50 So.3d at 319.

¶ 2. This Court granted Delker's petition for writ of certiorari. See Delker v. State, 31 So.3d 1217 (Miss.2010). We granted Delker's petition to determine if the Court of Appeals failed to consider a "controlling constitutional provision[,]" i.e., the Fourth Amendment to the United States Constitution and Article 3, Section 23, of the Mississippi Constitution, and address whether the circuit court erred in denying Delker's motion to suppress. Miss. R.App. P. 17(a); Miss. R.App. P. 17(h) ("[t]he Supreme Court may limit the question on review").

¶ 3. A Fourth Amendment violation does not automatically precipitate the exclusion of evidence. Rather, it sets into motion a separate inquiry, i.e., whether application of the exclusionary rule outweighs the costs to society in allowing the criminal to be set free. See Herring, 129 S.Ct. at 700 (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006)) ("exclusion 'has always been our last resort, not our first impulse' "). Each case must be considered based upon the facts presented in that case. We find the exclusionary rule inapplicable in Delker's case and affirm the result reached by the circuit court and affirmed by the Court of Appeals.


¶ 4. In the late hours of Christmas Eve 2005, the Chief of Police of the Town of Marion, Mississippi, Ben Langston, was onduty in his police cruiser at the entrance of Valley Ridge Apartments, within the Marion city limits. He observed a car drive by at approximately ten miles over the speed limit, traveling east on Old Country Club Road, just outside the town limits. Langston mistakenly believed the road was within the Town of Marion.

¶ 5. Langston commenced pursuit with the intention of giving the driver (later determined to be Delker) a warning. But the driver did not respond to the officer's blue lights. Instead, he sped up to approximately sixty to sixty-five miles per hour, overtook and passed a car stopped at a stop sign, then drove through the stop sign. Eventually, he stopped in the driveway of his home. While following the speeding vehicle, Langston radioed for assistance from the Lauderdale County Sheriff's Department.

¶ 6. When Langston approached the stopped car, he observed that Delker had trouble getting out of his car, had difficulty standing, and had slurred speech. Langston also noticed the smell of alcohol emanating from Delker's car and saw an empty beer can on the front seat. Langston testified that when he asked why Delker had not stopped, Delker responded, "that he knew he was going to jail, and he didn't want to leave his car along side the roadway."

¶ 7. When Deputy Karey Williams of the Lauderdale County Sheriff's Department arrived, Delker was handcuffed. Williams offered to let Delker take a portable breathalyzer test, which Delker refused. Williams then transported Delker to the Lauderdale County Sheriff's Department, where he administered field sobriety tests to Delker. According to Williams, Delker failed some aspects of these tests and refused to blow into the Intoxilyzer 8000 machine.

¶ 8. Delker subsequently was indicted for felony DUI,2 and the indictment later was amended to charge Delker as a habitual offender. Thereafter, Delker filed a motion to suppress all evidence obtained as a result of his search and arrest. This evidence included: (1) an empty beer can and a near-empty whiskey bottle found in Delker's car; (2) the odor of alcohol; (3) Langston's and Williams's observations of Delker's behavior; (4) Delker's refusal of the portable breathalyzer test; (5) Delker's failure in the field sobriety test; and (6) Delker's refusal to blow into the Intoxilyzer 8000 machine. In support of the motion to suppress, Delker argued that Langston had lacked authority to stop and arrest him because Delker had not committed any offense in Langston's jurisdiction. As such, Delker contended that the search and seizure was illegal under the Fourth and Fourteenth Amendments to the United States Constitution and Article 3, Section 23, of the Mississippi Constitution, and all evidence obtained was inadmissible under the exclusionary rule as "fruit of the poisonous tree."

¶ 9. The circuit court denied Delker's motion to suppress, concluding that Langston had acted as a private citizen and had possessed the authority to effectuate a citizen's arrest under the circumstances.According to the circuit court, a private citizen is authorized by Mississippi Code Section 99-3-7 to make an arrest if a misdemeanor is committed in his presence. See Miss.Code Ann. § 99-3-7 (Rev.2007). Therefore, the circuit court held that the traffic stop was legal and the evidence obtained was not subject to the exclusionary rule.

¶ 10. The Court of Appeals affirmed the circuit court's result, but for different reasons. See Delker, 50 So.3d at 316-17. That court determined that the circuit court had erred in finding that a private person could arrest another for the misdemeanor offense of speeding "because, under section 99-3-7(1), the only non-felony or non-indictable offense committed in the citizen's presence that gives rise to his authority to arrest the perpetrator is an offense constituting a breach of the peace threatened or attempted." Id. at 316. But the Court of Appeals further held that Langston's citizen's arrest was permissible because (1) it was not effectuated until after Langston had stopped Delker and observed his probable guilt of an indictable offense (felony DUI), and (2) Langston had authority to initiate pursuit as a private citizen since Delker had committed an indictable offense (felony DUI), although Langston lacked any knowledge of it. See id. at 316-19. Alternatively, the Court of Appeals held that even if Delker's arrest was illegal, the evidence obtained should not be suppressed under the exclusionary rule because Langston's mistake about the boundaries of his jurisdiction did not rise to the Herring standard of "deliberate, reckless, or grossly negligent conduct...." Id. at 319 (citing Herring, 129 S.Ct. at 702).


¶ 11. "In reviewing the denial of a motion to suppress, we must determine whether the trial court's findings, considering the totality of the circumstances, are supported by substantial credible evidence." Moore v. State, 933 So.2d 910, 914 (Miss.2006). But this Court will also reverse the admission of the evidence if an incorrect legal standard was applied. See id. at 918. The standard of review for questions of law is de novo. See Hood v. State, 17 So.3d 548, 551 (Miss.2009).

¶ 12. This Court declines to delve into the legality, vel non, of the arrest. For purposes of deciding this case, we indulge Delker's contention "that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied." Herring, 129 S.Ct. at 699. Even in the event of a Fourth Amendment violation, the supreme law of the land requires a case-by-case "balancing test" to be performed, and suppression ordered "only in those unusual cases in which exclusion will further the purpose of the exclusionary rule." Kansas v. Ventris, --- U.S. ----, 129 S.Ct. 1841, 1845, 173 L.Ed.2d 801 (2009) (requiring "balancing test"); United States v. Leon, 468 U.S. 897, 918, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Specifically:

[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.

Herring, 129 S.Ct. at 702 (emphasis added).

¶ 13. Without question, Langston mistakenly believed the road to be within the Town of Marion, indeed the record supports no other finding. A "mistake" is defined as "1. An error: fault. 2. A misconception:misunderstanding." Webster's II New College Dictionary 702 (1995). In pursuing Delker, Langston was merely going to warn him to slow down, in the interest of protecting the citizens (including Delker) from harm, rather than seeking to effectuate an arrest and seizure. Langston's error of not knowing the exact jurisdictional boundaries of the Town of Marion was, at worst, an innocent mistake. The record provides not one iota of evidence to the contrary.

¶ 14. An "innocent mistake" is "far removed from the core concerns that led [the United States Supreme Court] to adopt the [exclusionary] rule in the...

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