Holland v. State, 46850

• Decision Date: 12 June 1972
• Docket Number: No. 46850,46850
• Citation: 263 So.2d 566
• Parties: Michael HOLLAND v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 566

263 So.2d 566

Michael HOLLAND v. STATE of Mississippi.

No. 46850.

Supreme Court of Mississippi.

June 12, 1972.

Rehearing Denied July 3, 1972.

Carter & Carter, Columbus, W. S. Moore, Jackson, for appellant.

A. F. Summer, Atty. Gen., by James W. Haddock, Special Asst. Atty. Gen., Jackson, for appellee.

PATTERSON, Justice:

This is an appeal from the Circuit Court of Lowndes County wherein the appellant was convicted of possession of marijuana and sentenced to serve three years in the state penitentiary at hard labor and to pay a fine of $1000 plus all court costs. We affirm the verdict and remand for resentencing.

The record indicates that a reliable informer notified George Graves, officer in charge of the regional narcotics unit in Columbus, that he had observed narcotics in an apartment (formerly Billie and Willie's Old Steak House) and on one occasion had purchased narcotics from someone in the house.

Subsequent to receiving the above information, the house was placed under surveillance for two weeks. During this time heavy traffic was observed going to and from the house, and individuals leaving the dwelling were often witnessed in what appeared to be intoxicated conditions.

Based upon the informer's testimony and the result of the surveillance, an affidavit was presented to a magistrate which read as follows:

Information furnished by confidential informer who has furnished reliable information in the past. This house has been under surveillance by narcotic agent for the past two weeks and there has been an unusual amount of traffic both day and night. Agent has observed people leaving the house under intoxicated conditions that could have been caused by the use of marihuana. The confidential informer has purchased marihuana from this house for narcotic agent on past occasions.

A search warrant was granted and a search was conducted at 6:00 a.m. on September 27, 1971.

Upon approaching the house a young woman was observed looking through a picture window. As the uniformed police emerged from their vehicle, she darted to the rear of the house and the police made a quick entry. The appellant, defendant, age 23, having been awakened from sleep, was found in the rear bedroom with the young woman.

In searching the home a bag of marijuana was found on the top ledge of a window in the room in which the defendant had been sleeping. The defendant and his companion both testified that while they were aware of the presence of the plastic bag on the windowsill, they were informed it was catnip for the cat of the individual who leased the home.

The house in question was rented by one John Myers, or John Miles (both names appear in the record), but defendant, a recent Vietnam veteran, had moved some furniture owned by his father into the dwelling and was spending an average of three days a week there.

The defendant was charged with possession of marijuana and the jury found him guilty. He has appealed from that judgment.

The appellant argues on appeal that the affidavit for the search warrant was insufficient to provide the magistrate with enough underlying facts and circumstances upon which to base a decision concerning probable cause.

Probable cause is present 'when the facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.' Strode v. State, 231 So.2d 779, 782 (Miss.1970).

Although appe...