Garvis v. State

• Decision Date: 08 January 1986
• Docket Number: No. 56303,56303
• Parties: Richard A. GARVIS and Darvon Parker, a/k/a Daron Parker v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 312

483 So.2d 312

Richard A. GARVIS and Darvon Parker, a/k/a Daron Parker v. STATE of Mississippi.

No. 56303.

Supreme Court of Mississippi.

Jan. 8, 1986.

William B. Sullivan, Laurel, for appellants.

Edwin Lloyd Pittman, Atty. Gen. by Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J. and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal presents an all too familiar scenario. Acting on a tip supplied by a confidential informant, Laurel police officers nabbed two young men and found in their possession illegal controlled substances. Following trial and conviction, we are now tendered the usual assignments of error--there was no probable cause for the search warrant, the State should have been required to disclose the identity of its confidential informant, etc.

Having carefully considered all issues tendered, we are of the opinion that each of these two Defendants has been convicted and sentenced for the crime of possession of cocaine wholly consistent with the laws of this state and his rights under the constitutions enforceable therein. We affirm.

II.

A.

On the 23rd of January, 1984, Lieutenant Harold Buckhaults of the Laurel Police Department received a telephone call from a "cooperating individual who had provided information in past drug cases in the Laurel-Jones County area and whose information had always been reliable." Buckhaults was informed of two young men who were making regular trips to Laurel from the Mississippi Gulf Coast to sell marijuana and cocaine. The informant advised that the last name of one of the men was Parker. Over the course of four conversations that spanned the day, additional information was phoned in--the color of the car; the fact that the car was either a Dodge or Plymouth; the tag number on the vehicle; physical descriptions of the occupants and their clothes; their location within the city and plans for the evening; and the fact that they had approximately eight pounds of marijuana with them.

Pursuant to this information Lieutenant Buckhaults, Captain Landrum and Deputy Jerry Hutcheson left the office in one vehicle, went to the area named by the informant, and set up to await the suspects. Upon spotting the vehicle they fell in behind it. They verified the tag as the same tag number given to them by the confidential informant and eventually stopped the vehicle.

Lieutenant Buckhaults approached on foot on the driver's side and the other two officers approached on the passenger side. Richard A. Garvis, one of the Defendants/Appellants, was driving and was asked to step out and produce identification. Garvis had a social security card in his coat pocket and admitted that his name was Richard Garvis. Lieutenant Buckhaults explained to Garvis that he was being stopped because of information that he was carrying a quantity of marijuana and cocaine for the purpose of resale. Lieutenant Buckhaults advised Garvis of his rights and asked him for permission to consent to search the vehicle. Garvis verbally consented to the search. When asked to sign a search form, however, Garvis changed his mind and said, "No, I don't want you searching my car," at which time he was formally advised that he was under arrest.

Darvon Parker, the passenger in the car, was also arrested for possession with intent to transfer based on the information received from the informant. According to Lieutenant Buckhaults, Parker's arrest took place at the same time Garvis' did--before the two were separated. According to Officer Hutcheson this was immediately after a "frisk" done for protection of the officers. The "frisk" revealed a substance believed to be marijuana and a rolled up paper containing cocaine removed from Parker's right back pocket.

Leaving two officers with the vehicle, Lieutenant Buckhaults went to the police department where he prepared an affidavit for search warrant. Shortly thereafter Buckhaults appeared before Laurel City Judge Billy Doggette, who found probable cause and issued the search warrant.

A search of the car revealed a playing card box containing several pieces of notebook paper folded up, containing a substance later identified as cocaine. This box was found in the console between the seats in the front of the car. In the glove compartment papers evidencing that Garvis was the owner of the car were found.

B.

This criminal prosecution was formally commenced on May 15, 1984, when the Jones County Grand Jury returned an indictment which charged Garvis and Parker with possession of cocaine with intent to transfer. The case was called for trial on October 3, 1984.

At the close of the State's case, each Defendant moved for a directed verdict of acquittal, which motion was overruled. In due course thereafter, the jury returned a verdict that each Defendant was guilty of possession of cocaine with intent to transfer. A motion for a new trial was overruled.

The sentence imposed was within the language of the statute that provides a penalty for possession without intent to transfer. The sentence was a term of three (3) years in the Mississippi State Penitentiary and a fine of Three Thousand Dollars ($3,000) plus court costs. See Miss.Code Ann. Secs. 41-29-115(A)(a)(4) and 41-29-139(c)(1) (Supp.1985).

III.

Garvis and Parker first assign as error the alleged lack of probable cause for issuance of the search warrant. We consider this question under the now familiar totality of the circumstances test accepted and enforced in so many of our recent cases. Jones v. State, 481 So.2d 798, 800 (Miss.1985); Breckenridge v. State, 472 So.2d 373, 376 (Miss.1985); McCommon v. State, 467 So.2d 940, 941 (Miss.1985); Stringer v. State, (Miss. No. 54,805, dec. February 27, 1985) (not yet reported); Hall v. State, 455 So.2d 1303, 1308-09 (Miss.1984); Lee v. State, 435 So.2d 674 (Miss.1983). This test has been accepted into our jurisprudence from Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) wherein the United States Supreme Court prescribed the task of the issuing magistrate as:

simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

103 S.Ct. at 2332. See also, Gandy v. State, 438 So.2d 279, 283 (Miss.1983).

The affidavit of Officer Buckholts presents to Judge Doggette several salient features. ¹ First, it relates to the detailed information regarding the activities of Garvis and Parker had been provided "by a cooperating individual ..., being credible and reliable, having given information in the past that has led to the arrest and conviction of drug violators in Laurel and Jones County". Of significance is the fact that the information, received from the "cooperating individual" and relayed to the magistrate via the affidavit, is quite specific. It included the color of the car; the fact that the car was either a Dodge or Plymouth; the tag number of the vehicle; physical descriptions of the occupants and their clothes; their location within the city and plans for the evening; and the fact that they had with them approximately ten pounds of marijuana and approximately one gram of cocaine. Affidavits containing specific, facially credible details regarding a suspect and alleged contraband are entitled to greater weight in probable cause determinations than those employing, vague, generally or merely conclusory language.

The information received from the informant was substantially corroborated. As explained above, in the presence of Officer Buckhaults, Deputy Hutcheson executed a pat down search of Defendant Parker. In the course of this search Hutcheson discovered a substance believed to be marijuana and a folded piece of paper containing a white powder believed to be cocaine.

In this state of the matter, no resort to extrinsic or oral evidence is necessary. Compare Lee v. State, 435 So.2d 674, 677 (Miss.1983); Wilborn v. State, 394 So.2d 1355, 1357 (Miss.1981). The affidavit itself states sufficient facts and circumstances so that, under the totality of the circumstances test, we may not disturb Judge Doggette's conclusion that there was probable cause for the issuance of the search warrant. The assignment of error is denied.

IV.

Garvis and Parker next charge as error the refusal of the trial judge to require the State to disclose the identity of the confidential informant. Defendants contend on appeal that the informant should have been named at trial, that had the informant been made available to the defense counsel a possible defense of entrapment would have been available as the progress of the telephone calls indicates that the informant was part of or participating in the operation on which he was reporting.

The confidential informant in question allegedly called Officer Buckhaults four times on the day of the arrest. The first call informed Officer Buckhaults that two men would be bringing a quantity of marijuana and cocaine into Laurel from the Coast. The second call at about 4:00 p.m. advised Officer Buckhaults that the informant had seen the subjects in a vehicle on Queensberg Avenue, described the car and stated that approximately ten pounds of marijuana and approximately one gram of cocaine were in the car. The third call came approximately five minutes later and advised the officer of the tag number. At 6:00 p.m. the informant called a final time and named the occupants of the car, described the clothes they would be wearing, said that they were in the north end of town and on the way to the projects, and stated that the subjects had in their possession approximately eight pounds of marijuana for resale.

There exists in our case law an "informer's privilege" which enables the prosecution to withhold the informant's...