Delker v. State

CourtCourt of Appeals of Mississippi
Citation50 So.3d 309
Docket NumberNo. 2008-KA-00114.,2008-KA-00114.
PartiesJames Robert DELKER, Appellant, v. STATE of Mississippi, Appellee.
Decision Date05 January 2010
50 So.3d 309

James Robert DELKER, Appellant,
STATE of Mississippi, Appellee.

No. 2008-KA-00114.

Court of Appeals of Mississippi.

Sept. 11, 2009.
Rehearing Denied Jan. 5, 2010.

50 So.3d 311

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

Office of The Attorney General By Jeffrey A. Klingfuss, attorney for appellee.


IRVING, J., for the Court.

¶ 1. A Lauderdale County jury convicted James Robert Delker of felony DUI as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007).1 The Lauderdale County Circuit Court sentenced him to five years in the custody of the Mississippi Department of

50 So.3d 312
Corrections (MDOC). Aggrieved, Delker appeals and presents five issues, which, for the sake of organizational structure and continuity of discussion, we recast as follows: (1) whether the circuit court erred in failing to grant Delker's pretrial motion to suppress evidence, and (2) whether Delker was denied due process during his trial proceedings.

¶ 2. After careful consideration and review of the record, we find no reversible error. Therefore, we affirm Delker's conviction and sentence.


¶ 3. The underlying facts of this case are undisputed. Ben Langston, the Chief of Police for the town of Marion, Mississippi, was on duty the night of Christmas Eve 2005. At approximately 11:00 p.m., Chief Langston was in his patrol car at the entrance of the Valley Ridge Apartments, which are located on the south side of Old Country Club Road. Old Country Club Road runs east to west and was, therefore, perpendicular to Chief Langston's position at the time. Although the Valley Ridge Apartments are within the corporate limits of the town of Marion, Old Country Club Road is not. However, Chief Langston mistakenly believed that it was.2

¶ 4. As Chief Langston was exiting the driveway entrance to the Valley Ridge Apartments, Delker was driving his car east down Old Country Club Road. Chief Langston's patrol car was not equipped with radar, but based on his training, Chief Langston believed that Delker was driving approximately forty-five miles per hour. The posted speed limit on Old Country Club Road was thirty-five miles per hour. Chief Langston pulled onto Old Country Club Road and attempted to stop Delker to give him a speeding warning. Although Chief Langston turned on his flashing lights, Delker did not stop; instead, he continued to drive until he reached his home, where he pulled into his driveway. While driving home, Delker reached speeds as high as approximately sixty-five miles per hour and failed to stop at a posted stop sign. Chief Langston followed Delker until he pulled into his driveway.

¶ 5. Chief Langston approached Delker's car and asked Delker why he did not stop for him. Delker replied that he "knew he was going to go to jail, and he didn't want to leave his car along side the roadway." At that point, Chief Langston smelled intoxicating beverage emanating from Delker's car. Chief Langston asked Delker to get out of the car so he could talk to him. Although Delker got out of the car, he had trouble doing so. Chief Langston smelled intoxicating beverage coming from Delker's person and noticed that Delker had difficulty standing. According to Chief Langston, Delker's "speech was a little slurred," and "[h]e was kind of swaying, holding, kind of supporting himself on his vehicle." At that point, Chief Langston handcuffed Delker because he knew, from an earlier encounter, that his driver's license was suspended. He then placed Delker in the back seat of his patrol car.3

¶ 6. While pursuing Delker, Chief Langston radioed for assistance from the Lauderdale County Sheriff's Department. Approximately five minutes after Chief Langston arrived at Delker's home, several Lauderdale County deputies also arrived.

50 So.3d 313
Deputy Karey Williams was among them. Deputy Williams transported Delker to the Lauderdale County Jail and administered field sobriety tests, parts of which Delker failed. Deputy Williams asked Delker to blow into the Intoxilyzer 8000 machine, but Delker declined to do so.

¶ 7. On January 3, 2006, Deputy Williams formally charged Delker for felony driving under the influence of alcohol and driving with a suspended driver's license. That same day, Chief Langston charged Delker with reckless driving. Delker was subsequently indicted for felony DUI as a habitual offender. He waived arraignment and pleaded not guilty to the charge. The case was initially set for trial on October 11, 2006. However, it was continued several times, and the trial ultimately occurred on September 17, 2007.

¶ 8. Prior to trial, Delker filed a motion in which he sought to suppress the following evidence:

(a) Any and all intangible items acquired by the State of Mississippi as a result of a search of the defendant and/or his property subject to his control.
(b) Any and all tangible items and/or purported admissions acquired from the defendant or his personal possessions at the time of or subsequent to any search made as a result of an arrest of the defendant and/or interrogatories of the defendant or statements made by others.
(c) Any and all statements made by or taken from the defendant.
(d) Any and all statements made by any person or persons, law enforcement or otherwise, at the time of or subsequent to the search and/or arrest of the defendant.
(e) Any and all other information, items or evidence of all kinds and character, wherever situated, taken or acquired, either directly or indirectly from the defendant or as a result of the search and/or arrest of the defendant, if any.

¶ 9. The circuit court overruled the motion to suppress, finding that although Chief Langston was outside of his territorial jurisdiction, he, as a private citizen, could effectuate Delker's arrest. The circuit court reasoned that Delker committed a misdemeanor offense in Chief Langston's presence and that since any private citizen could have effectuated the arrest, Chief Langston, as a private citizen, was also authorized to make the arrest. As stated, the jury found Delker guilty of felony DUI. During the bifurcated habitual offender portion of the trial, the circuit court found that Delker qualified for sentencing as a habitual offender pursuant to section 99-19-81. Accordingly, the circuit court sentenced Delker to five years in the custody of the MDOC.


¶ 10. In reviewing a circuit court's decision to deny a motion to suppress evidence, we must determine whether the circuit court's findings, "considering the totality of the circumstances, are supported by substantial credible evidence." Moore v. State, 933 So.2d 910, 914(¶ 9) (Miss.2006). "The standard of review in Mississippi for questions of law is de novo." Farris v. State, 764 So.2d 411, 428(¶ 57) (Miss.2000).

1. Suppression of the Evidence

¶ 11. Delker's core argument is that Chief Langston had no authority to stop or arrest him, because he never committed any offense in Chief Langston's jurisdiction. Relying upon Pollard v. State, 233 So.2d 792, 793 (Miss.1970), Delker further

50 So.3d 314
argues that his arrest occurred when the pursuit to make the arrest began and that he had not committed any felony at that time. However, we find at that time, Delker had committed an indictable offense because he had committed the offense of felony DUI, although that fact was not known to Chief Langston when he attempted to detain Delker to give him a speeding warning. While Delker focuses entirely on the illegality of his arrest, focus should also be directed to the fact that this appeal involves prosecution and conviction for felony DUI, an offense for which Chief Langston did not arrest Delker, although it is an offense that was discovered as a result of the stop made by Chief Langston.

¶ 12. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi Constitution provide that an individual has the right to be free from unreasonable searches and seizures. Dies v. State, 926 So.2d 910, 917-18(¶ 21) (Miss.2006). Evidence, however relevant and trustworthy, obtained from an illegal arrest or detention is inadmissible at trial. Davis v. Mississippi, 394 U.S. 721, 724, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). "The exclusionary rule was fashioned as a sanction to redress and deter overreaching governmental conduct prohibited by the Fourth Amendment." Id. "Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of this provision." Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted).

¶ 13. We begin our analysis and discussion with a look at two matters that we find very relevant: the time of Delker's arrest and the offense(s) that he had committed at that time. We noted at the outset that Delker was arrested after he arrived at his home and got out of his car. At that time, Delker had committed the crime of felony DUI, as well as the crime of driving with a suspended license. We make this finding fully aware that the Mississippi Supreme Court has held on several occasions that an arrest occurs when the pursuit to make the arrest begins.4 However, it is clear here that when Chief Langston began his pursuit of Delker, it was not a pursuit for the purpose of making an arrest. Rather, it was a pursuit to give a courtesy warning. The following exchange, which occurred between Delker's attorney and Chief Langston during the trial, provides the factual underpinning for this point:

Q. And when you first observed the vehicle that you later identified as being driven by the Defendant, which direction was it coming from?
A. It was coming from westbound; it was traveling east.
Q. Okay. And when you first observed the vehicle, what caught your attention, if anything?
A. It's [sic] speed.
Q. Do you know what the

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4 cases
  • Delker v. State, 2008-CT-00114-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • 13 Enero 2011
    ...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 ......
  • Delker v. McCarty, CIVIL ACTION NO.: 3:13CV950-CWR-LRA
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • 11 Febrero 2015
    ...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 ......
  • Patterson v. City of Greenville, 2011–CA–00708–COA.
    • United States
    • Court of Appeals of Mississippi
    • 16 Julio 2013
    ...SeeMiss.Code Ann. § 99–11–3 (Supp.2012); see generally Thornhill v. Wilson, 504 So.2d 1205, 1206–07 (Miss.1987); Delker v. State, 50 So.3d 309, 316 (¶ 16) (Miss.Ct.App.2009); Scott v. City of Goodman, 997 So.2d 270, 272 n. 1 (Miss.Ct.App.2008). ¶ 20. Again, crime prevention and the protecti......
  • Patterson v. City of Greenville, 2011-CA-00708-COA
    • United States
    • Court of Appeals of Mississippi
    • 19 Febrero 2013
    ...See Miss. Code Ann. § 99-11-3 (Supp. 2012); see generally Thornhill v. Wilson, 504 So. 2d 1205, 1206-07 (Miss. 1987); Delker v. State, 50 So. 3d 309, 316 (¶16) (Miss. Ct. App. 2009); Scott v. City of Goodman, 997 So. 2d 270, 272 n.1 (Miss. Ct. App. 2008).¶20. Again, crime prevention and the......

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