Hall v. State, 54909

• Decision Date: 29 August 1984
• Docket Number: No. 54909,54909
• Citation: 455 So.2d 1303
• Parties: Gary L. HALL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1303

455 So.2d 1303

Gary L. HALL v. STATE of Mississippi.

No. 54909.

Supreme Court of Mississippi.

Aug. 29, 1984.

Rehearing Denied Oct. 3, 1984.

W. Robert Lotz, Covington, Ky., Donald J. Steighner, Columbus, for appellant.

Bill Allain, Atty. Gen., by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and DAN M. LEE and SULLIVAN, JJ.

WALKER, Presiding Justice, for the Court:

This is an appeal from the Circuit Court of Lowndes County, Mississippi wherein the appellant, Gary L. Hall, was convicted of possession of controlled substances with intent to deliver and was sentenced to a term of eighteen years in the custody of the Mississippi Department of Corrections and fined $40,000.00. Aggrieved with the lower court's holding, appellant has perfected his appeal to this Court contending it was error to overrule his motion to suppress evidence seized during a search of his safety deposit box at the National Bank of Commerce in Columbus, Mississippi.

On November 23, 1982 Officer Dowdle, Commander of the Columbus-Lowndes Narcotic Unit, received information through a reliable informant that a male person on November 16 was observed in the National Bank of Commerce acting very suspiciously. After renting a large safety deposit box this man secured a large black suitcase from his automobile, an Oldsmobile with Florida tags, returned to the Bank and presumably, while behind closed doors, emptied the contents of the suitcase into the deposit box. Dowdle contacted the bank president and learned that a box had been rented on November 16 by Raymond E. Eaves who listed his address as Post Office Box 1533 in Columbus, Mississippi. Officer Dowdle then went to the bank, and along with Bank officials approached the safety deposit box where he noticed a distinct acrid chemical type odor. It was later learned this address belonged to one Joseph Cook, owner of O.C. Electric Company. Mrs. Cook, who works for her husband's company, testified she did not know Raymond Eaves.

From an investigation of various local motels, the register at the Best Western Motel in Columbus, Mississippi showed R.G. Evans was registered November 17 and the tag number on the registration came off of a Pontiac registered in Florida. Through police communications, it was discovered that Evans was an alias for Robert Glenn Hobson who was known to have dealt in drugs and explosives and at one time had been a patient in a mental hospital.

With this information and concerned that the safety deposit box might possibly contain explosives, Dowdle obtained a search warrant on November 29 from Charles Younger, Justice Court Judge in District No. 5. Before the warrant was granted Dowdle was placed under oath and presented his affidavit of underlying facts and circumstances (see Appendix "A") as well as telling Younger orally of the reliability of his informant.

A locksmith was called in to aid the officer in opening the safety deposit box. Inside the box the men found over 12,000 quaaludes.

The appellant was arrested January 17, 1983 at the National Bank of Commerce carrying a large empty suitcase. On his person he had keys to a brown Oldsmobile and also a set of keys to a lock box located at another local bank.

I.

Appellant contends the attached affidavit did not establish probable cause for the issuance of a search warrant for his safety deposit box. We do not agree.

Probable cause exists when the facts and circumstances within an officer's knowledge, or of which he has reasonable trustworthy information, are sufficient in themselves to justify a man of average caution in belief that a crime has been committed and that a particular individual has committed it. Holland v. State, 263 So.2d 566 (Miss.1972).

It was not until Dowdle feared the safety deposit box contained explosives that he sought a search warrant. This suspicion was based on the information which was received from Florida concerning a man named Evans in conjunction with the odor of an acrid type chemical which Dowdle smelled near appellant's safety deposit box.

The United States Supreme Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) made it clear that probable cause may be established through the sense of smell stating:

At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain defendant's contention, erroneously made, on the strength of Taylor v. United States, 286 U.S. 1, 76 L Ed 951, 52 S Ct 466, that odors cannot be evidence sufficient to constitute probable grounds for any search. That decision held only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such basis insufficient to justify issuance of a search warrant. Indeed might very well be found to be evidence of most persuasive character.

92 L.Ed. 440.

The learned Circuit Judge, Harvey Buck, found that under the totality of the circumstances the Justice Court Judge did have probable cause for issuance of the search warrant and rendered the following scholarly opinion explaining his ruling:

The Court, after hearing evidence and argument of counsel on the Motions to Suppress filed in Cause Numbers 7917, 7918, 7919, 7823, 7920, 7921, and 7922, and consolidated for hearing by the parties, issues the following opinion:

Probable cause is an intangible concept. Undoubtably it is comprised of little building blocks of facts as characterized in the argument of the prosecution; yet there is none of the precision and concreteness that the use of the term "building blocks", suggests. In fact, the whole concept is somewhat vague by its very nature. It is defined in terms of what a "reasonable" man would believe; but we as individuals all have a different perception of what is "reasonable" in a given situation. This case presents us with an illustration of that fact.

It is now the duty of the Court to pass on the actions of the Law Enforcement Officers involved in this investigation and determine if there was probable cause, as a matter of law, for the searches conducted herein. What this Court must do, using the Prosecution's analogy, is step back and size up the pile of building blocks to see if it reaches that quantum referred to as probable cause.

Initially, the officer received a tip from an informant concerning the behavior of an individual at a local bank. The informant told the officer that a few days before, he had seen an individual acquire a lockbox in the bank. This man had carried a large suitcase up to the lockbox area and subsequently departed in a hurry. During the whole transaction, he appeared nervous and spoke abruptly. The vehicle in which he traveled was noted to have Florida tags, and there was some indication that they were from Dade County. There is no averrment in the affidavit that this informant was reliable nor was there any facts presented which would support such a characterization. This tip alone is certainly insufficient to form probable cause in the Court's opinion.

The officer then proceeded to verify with the President of the bank that a box had indeed been rented on that particular day. This verified, although only to a small degree, the informant's information.

Next, the officer obtained the name and address of the individual who had rented the box, a Raymond Eaves. Upon a check, the address proved to be that of a completely different individual who had no knowledge of Raymond Eaves. Once again, this alone is insufficient, in this Court's opinion, to form probable cause.

The investigator then checked all the hotel reservations in the area and found that an R.G. Evans with a Florida address had spent the night of November 17, 1982, in Columbus. He then contacted Dade County, Florida, and discussed the case with a deputy sheriff. He was informed that the name of "R.J. Evans" was an alias for a Robert Glenn Hobson. The information on Hobson was that he had been a mental patient with a history of various felonies, including crimes with explosives. This reputation and background evidence, once again was insufficient, standing alone, for probable cause.

The officer then went with a member of the Bank to the particular deposit box rented, a noticed a distinct acrid smell which the Bank official indicated was not normal. With this information it is the opinion of the Court that the Bank officials--in the absence of action by law enforcement officers--would have been derelict in their duties had they not requested a search warrant for the lockbox, not only for the protection of their property but for the safety of their employees and customers. There has been testimony that a number of innocuous items may have produced the odor so described, however, the testimony was that there was a number of explosives which could also emit such an odor. Once again, in and of itself, this does not provide probable cause.

However, the Court is not examining each of these factors separately. They must be viewed as a whole. Harris v. U.S., [403 U.S. 573], 91 Sct 2075 stands for the proposition that an informant's...