Guerrero v. State, 97-KA-00387 COA.

• Decision Date: 09 March 1999
• Docket Number: No. 97-KA-00387 COA.,97-KA-00387 COA.
• Citation: 746 So.2d 940
• Parties: Jose A. GUERRERO, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

746 So.2d 940

Jose A. GUERRERO, Appellant, v. STATE of Mississippi, Appellee.

No. 97-KA-00387 COA.

Court of Appeals of Mississippi.

March 9, 1999.

Rehearing Denied June 29, 1999.

Certiorari Denied October 14, 1999.

William B. Sullivan, Laurel, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.

BEFORE THOMAS, P.J., DIAZ, AND SOUTHWICK, JJ.

THOMAS, P.J., for the Court:

¶ 1. Jose Guerrero was convicted of possession of more than a kilogram of marijuana and sentenced to twenty years with five years suspended and was ordered to pay a fine of $30,000 with $20,000 suspended. On appeal, Guerrero assigns the following issues, listed verbatim, as error:

I. IS DRIVING AFTER MIDNIGHT WHILE MEXICAN PROBABLE CAUSE TO STOP A VEHICLE?

II. IF THE ABOVE IS AFFIRMATIVE, DOES FAILURE TO HAVE A VALID DRIVERS LICENSE JUSTIFY CALLING AHEAD TO ANOTHER JURISDICTION TO BE ON THE LOOK OUT FOR THE VEHICLE?

III. IS OUR STATUTE ON CARELESS DRIVING TOO VAGUE?

IV. DOES STOPPING THE SUBJECT VEHICLE IN THE ALERTED JURISDICTION JUSTIFY DETAINING THE DRIVER UNTIL A CANINE UNIT ARRIVES?

V. IF NO CONTROLLED SUBSTANCE IS NOT FOUND NEAR THE RIGHT FRONT TIRE OF THE SUBJECT VEHICLE WHERE THE "DOPE DOG" WAS SAID TO HAVE "ALERTED", JUSTIFY TAKING THE VEHICLE APART?

VI. IS A CONTROLLED SUBSTANCE LOCATED IN ONE OF THE GAS TANKS OF THE SUBJECT VEHICLE TO BE IMPUTED TO GUERRERO WHO DID NOT OWN THE VEHICLE?

VII. HOW MUCH PERSONAL FREEDOM ARE WE WILLING TO LOSE TO THE MILITARY ARM OF OUR CITIES IN QUEST OF PROTECTION?

VIII. THE LOWER COURT ERRED IN FAILING TO SUPPRESS THE EVIDENCE OBTAINED BY SEARCH OF THE SUBJECT VEHICLE.

IX. THE LOWER COURT ERRED IN FAILING TO DIRECT A VERDICT OF ACQUITTAL.

Finding no error, we affirm.

FACTS

¶ 2. During the early morning hours of June 18, 1995, Jose Guerrero was pulled over for a traffic violation. Acting on a tip received from the Smith County Sheriff's Department via radio dispatch, Officers Doug Hill and Kevin Flynn of the Laurel Police Department set up surveillance near the Laurel city limits. The dispatch advised Hill and Flynn that a white Ford pickup truck with Florida license plates was headed south on Highway 15 to Jones County and that the vehicle had been previously stopped by a Smith County deputy sheriff. The dispatch also advised that the vehicle appeared suspicious and was possibly carrying contraband.

¶ 3. As Guerrero entered the Laurel city limits, Officers Hill and Flynn pulled in behind Guerrero and followed him for approximately two miles, during which time Guerrero broke the center line two to three times. Officers Hill and Flynn stopped the vehicle and asked the driver, Guerrero, for his driver's license. Guerrero stated that he did not have a driver's license and produced a Texas identification card which indicated Guerrero was seventeen years of age. Guerrero was then placed under arrest for driving without a driver's license. When asked his point of origin and destination, Guerrero responded that he was traveling from Houston, Texas to Florida. Guerrero also stated that the vehicle belonged to his brother and that he had borrowed the truck for the weekend, but that his brother did not know where he was going in the vehicle.

¶ 4. Officer Hill testified that given the fact that Guerrero was traveling the "back roads" instead of the interstate and that Guerrero had few items of clothing with him, a K-Nine unit was called to the scene to conduct a scan of the vehicle for drugs. K-Nine Officer Ken Williams arrived a short time later with his K-Nine partner Bycal, a five-year-old German Shepard. As Officer Williams and Bycal were conducting their scan of the vehicle, Bycal indicated the presence of drugs near the right front wheel area of the vehicle. However, a preliminary search of the vehicle failed to produce any drugs.

¶ 5. A wrecker was called to remove the vehicle from the scene. Officer Roy Watson, the shift commander that night, arrived and examined the vehicle. Officer Watson observed that the vehicle had duel fuel tanks. Further examination by Officer Watson revealed discrepancies in the fuel gauge as the tow truck raised and lowered the vehicle, which indicated to Officer Watson the presence of an obstruction in the fuel tank which was interfering with the fuel gauge reading. The vehicle was towed and impounded in an enclosed building until the following morning. Since Guerrero was a juvenile, he was placed in detention until members of his family could arrive.

¶ 6. A subsequent inspection the following morning by Officer Randy Dearman and C.D. Farris, a City of Laurel mechanic, revealed that the bolts securing the bed of the truck showed signs of tampering. Further inspection revealed that an object or objects were in the fuel tanks. Farris and Officer Dearman removed the fuel tanks and discovered several sealed PVC pipes within the fuel tanks. Sealed within the PVC pipes was approximately 55 pounds of marijuana.

ANALYSIS

¶ 7. We must note from the outset that Guerrero has presented a barrage of issues, nine all totaled, in a shotgun brief to this Court for review. Of the nine assignments, previously listed verbatim, only two issues are properly before this Court. Guerrero has advanced convoluted arguments and cites no legal authority to support seven of his nine assignments. We have held "that it is the duty of an appellant to provide authority and support of an assignment." Hoops v. State, 681 So.2d 521, 526 (Miss.1996); see also Kelly v. State, 553 So.2d 517, 521 (Miss.1989); Brown v. State, 534 So.2d 1019, 1023 (Miss. 1988); Harris v. State, 386 So.2d 393 (Miss.1980). Further, "if a party does not provide this support this Court is under no duty to consider assignments of error when no authority is cited." Hoops, 681 So.2d at 526; see also Kelly, 553 So.2d at 521; Brown, 534 So.2d at 1023.

¶ 8. We will address only the issues properly presented before this Court; first, the issue of whether Guerrero was in constructive possession of the marijuana and second, the issue of whether Officers Hill and Flynn had probable cause to make the initial stop of Guerrero. We now turn to the issues properly presented to this Court.

I.

THE LOWER COURT ERRED IN FAILING TO SUPPRESS THE EVIDENCE OBTAINED BY SEARCH OF THE SUBJECT VEHICLE

¶ 9. Guerrero challenges the trial court's ruling admitting the evidence obtained by the search of the vehicle he was driving the night in question. Guerrero argues that he was stopped without probable cause and that the only reason he was stopped was due to a radio dispatch received from the Smith County Sheriff's Office advising the Laurel Police Department of Guerrero's presence and the possibility he was carrying contraband without any reasonable foundation to support the dispatch. Guerrero likewise, without expressly stating so, argues that the evidence seized as a result of the initial stop is inadmissible as fruit of the poisonous tree. Guerrero cites Boches v. State, 506 So.2d 254 (Miss.1987) in support of his argument.

¶ 10. The initial stop of Boches was prompted by Boches's attempted evasion of an investigatory roadblock. The question put forth in Boches was whether such an evasion warranted probable cause to pursue and stop the evading driver. The Boches court noted that "when a motorist evades a police roadblock ... [the] police may stop them and check the validity of their license, tag, and inspection sticker." Boches, 506 So.2d at 264. The court further discussed the issue of the resulting detention of Boches by citing to United States v. Sharpe, 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). In Sharpe, the United States Supreme Court held that in evaluating the reasonableness of investigatory stops, the appropriate inquiry is "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Sharpe, 470 U.S. at 682, 105 S.Ct. 1568 (quoting Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

¶ 11. A distinction is readily apparent between the case sub judice and the circumstances in Boches. Guerrero's initial stop was the result of a traffic violation and not that of an investigatory stop as was at issue in Boches. Therefore, we are not persuaded that Boches is the correct avenue with which to evaluate the issue of whether probable cause existed in the initial stop of Guerrero. However, as we will discuss in Guerrero's second assignment of error, Boches is applicable to the issue of whether Guerrero was in constructive possession of marijuana discovered within the vehicle's fuel tanks. We turn now to Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) to resolve this issue.

¶ 12. In Whren, plainclothes policemen, patrolling a "high crime area" in an unmarked police car, observed a Nissan Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign for an unusually long period of time. As the officers executed a u-turn to investigate the suspicious activity, the Pathfinder turned suddenly to the right without signaling, and sped off at an "unreasonable" rate of speed. The officers soon overtook the Pathfinder at a later traffic light. When the officers approached the vehicle they immediately observed two large plastic bags with what appeared to be crack cocaine.

¶ 13. Whren accepted that the officer had probable cause to believe that various provisions of the traffic code had been violated. However, Whren argued unsuccessfully that "in the unique context of civil traffic regulations" probable cause is not enough. Whren, 517 U.S. at 810, 116 S.Ct. 1769. Guerrero similarly argues that probable cause was nonexistent in his initial stop by the Laurel Police Department. Specifically, Guerrero states in his brief that Mississippi's careless driving statute, Miss.Code Ann. § 63-3-1213 (Rev.19...