Henderson v. State, 52679

• Decision Date: 22 July 1981
• Docket Number: No. 52679,52679
• Citation: 402 So.2d 325
• Parties: Michael HENDERSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 325

402 So.2d 325

Michael HENDERSON v. STATE of Mississippi.

No. 52679.

Supreme Court of Mississippi.

July 22, 1981.

Rehearing Denied Sept. 2, 1980.

W. E. McLellan, III, Jackson, for appellant.

Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, LEE and HAWKINS, JJ.

LEE, Justice, for the Court:

Michael Henderson and two (2) other individuals were indicted in the Circuit Court of Madison County for armed robbery. A severance was granted, Henderson was tried and convicted and sentenced to forty-one (41) years with the Mississippi Department of Corrections. He has appealed and assigns two (2) errors in the trial below.

Evidence for the State reflects that the Safe Chief No. 6, a Texaco station located in Madison County, was robbed about 12:15 a. m. on January 13, 1980. The attendant of the station at the time was Billy Walker and the robbery occurred a short time after his co-employee Louis Coleman had gone for the night. Prior thereto, about 10:00 p. m., Henderson and a companion came to the station and asked Billy Walker for a gasoline can, stating that they had run out of gas down the road. Walker had no can to loan them, they left and returned about 10:45, asking for a pair of jumper cables, which the station attendant did not provide.

Henderson and his companion were still at the station when Louis Coleman left, and shortly thereafter, Henderson came inside the station brandishing a revolver. He fired a shot, missing Walker by about two feet. Walker began trying to open the safe by working the combination. Henderson fired another shot into the cooler and then struck Walker on the head with the revolver. Walker finally opened the safe and the robbers fled, taking approximately twenty-five hundred dollars ($2,500), jumped into a waiting automobile, and sped away.

While the robbery was in progress, off-duty Deputy Sheriff Jay Ledbetter of Madison County passed the station and noticed lights on and activity inside. He knew that the station closed at midnight. Ledbetter drove through the station for a closer look, heard what sounded to be a gun shot, then drove across the street from which vantage point he observed the scene. He dispatched a female companion to a nearby restaurant with instructions to call the local police. When the robbers ran out of the station, he pursued them in his vehicle and after a short while, placed blue lights on the dashboard and activated them. The fleeing car came to a stop and as Ledbetter emerged from his vehicle, a person in the other automobile jumped out and fired twice at him. He returned the fire, striking the vehicle several times, before it sped away. Ledbetter followed but was unable to overtake the car. Shortly afterward, Deputy Sheriff Eddie Clark of Madison County discovered the car, a 4-door two-tone Buick 225, stuck in the front yard of a Rev. Tarpley. Later, Deputy Sheriff Ledbetter and Officer Tim Hutson arrived, made a visual search of the automobile, and moved it to a storage garage.

The next day, appellant appeared at the Jackson City police station, and reported that his automobile, the vehicle found by the officers abandoned in Rev. Tarpley's yard, had been stolen a short while prior to the robbery the night before. He was arrested, but denied any connection with the robbery, claiming an alibi. Appellant was positively identified by Billy Walker and another attendant as having been in the station prior to the robbery and as one of the participants in the robbery. Appellant does not contradict the facts of the robbery.

I.

Did the lower court err in admitting at trial articles seized after a warrantless search of appellant's automobile?

At trial, the State called as witnesses Deputy Sheriff Eddie Clark and Frank McCann, a technician with the Mississippi Crime Laboratory, who testified outside the presence of the jury that on the morning after the robbery, they went to the storage garage where appellant's automobile was located and searched same. The search showed a lady's blue wallet on the front seat, several Miller beer cans, paper sacks, money wrappers and loose coins scattered about the floorboard, and a license tag and a .38 revolver under the seat on the passenger's side. McCann observed four (4) bullet holes in the rear of appellant's automobile and removed one bullet from the rubber guard around the rear bumper. Counsel for appellant objected to the introduction of this evidence on the ground that the search without a warrant was unlawful.

The court sustained the objection and thereupon the State called Officer Tim Hutson to the stand. Hutson testified that when he arrived upon the scene of the abandoned vehicle the night of the robbery, the front door was open, and in plain view, he saw a lady's blue wallet on the front seat, two (2) Miller beer cans on the left rear floorboard, some paper sacks, money wrappers and loose coins on the floorboard on the right side. ¹ He looked inside the vehicle and saw underneath the seat on the passenger's side a license tag and a .38 pistol. According to Hutson, the handle of the .38 pistol was sticking out from under the seat and he looked under the seat and saw the tag. Upon this testimony, the trial judge admitted the articles found upon the search by Clark and McCann the next morning at the storage garage, apparently under the "plain view doctrine."

Under the facts, at the time the automobile was discovered, and when the three officers looked into the vehicle, there was probable cause to search it. The vehicle having been abandoned, the officers had the responsibility and duty, knowing that a robbery felony had been committed and that the vehicle was involved in the crime, to remove it from that point and protect and preserve it and its contents for evidence. In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), discussing a similar question, the United States Supreme Court said:

"On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car's immobilization until a warrant is obtained. The same consequences may not follow where there is unforeseeable cause to search a house. Compare Vale v. Louisiana, ante (399 U.S.) p. 30 (90 S.Ct. 1969, 26 L.Ed.2d 409). But as Carroll, supra (Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543), held, for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars." 399 U.S. at 52, 90 S.Ct. at 1981-1982, 26 L.Ed.2d at 428-29.

After Chambers, the Court decided Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), and relying on Chambers, said:

"In Chambers v. Maroney we held that police officers with probable cause to search an automobile at the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. There, as here, '(t)he probable-cause factor' that developed at the scene 'still obtained at the station house.' 399 U.S., at 52, 90 S.Ct., at 1981. The Court of Criminal Appeals erroneously excluded the evidence seized from the search at the station house in light of the trial judge's finding, undisturbed by the appellate court, that there was probable cause to search respondent's car." 423 U.S. at 68, 96 S.Ct. at 305, 46 L.Ed.2d at 211-12.

Prior to Chambers, our Court decided Nobles v. State, 241 So.2d 826 (Miss.1970), and wrote the following:

"Assuming that the defendant had standing to object to the search of the automobile under the ruling of the Supreme Court in United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951), Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960),...