Holloway v. State

• Decision Date: 25 June 2019
• Docket Number: NO. 2018-KA-00148-COA,2018-KA-00148-COA
• Citation: 282 So.3d 537
• Parties: DeCarlos Neshunn HOLLOWAY a/k/a DeCarlos Holloway, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

282 So.3d 537

DeCarlos Neshunn HOLLOWAY a/k/a DeCarlos Holloway, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-KA-00148-COA

Court of Appeals of Mississippi.

June 25, 2019

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, JACKSON

BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. Following a jury trial, DeCarlos Holloway was convicted of trafficking in a controlled substance and sentenced as a nonviolent habitual offender to serve forty years in the custody of the Department of Corrections. Holloway claims that the trial judge erred by denying his motion to suppress the cocaine found in the automobile in which he was a passenger and in the house in which he was staying. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. The Gulfport Police Department received an anonymous tip that Holloway was cooking crack cocaine and selling marijuana and cocaine from a specific house on South Carolina Avenue. The caller stated that he knew that Holloway was cooking cocaine and selling drugs out of the house "right now."¹ Based on the tip, several officers immediately began surveillance of the house.

¶3. Detective McCook was in an unmarked car within visual range of the house while the other officers were in unmarked cars nearby. A white Jaguar known to be Holloway's car was parked at the house. After about thirty or forty minutes, Jermaine Ratcliff arrived at the house in a Tahoe, and Holloway exited the house and got in the Tahoe with Ratcliff. McCook remained in place while the Tahoe left the house traveling south on South Carolina Avenue and then turned left onto Polk Street.

¶4. Detectives King and Brennan were parked on Polk Street facing east and began driving toward the Tahoe. As their car approached the Tahoe, King noticed that the driver was not wearing a seatbelt and that the window tint on the Tahoe appeared to exceed the legal limit. The officers made a U-turn and followed the Tahoe as it continued west on Polk Street. A few blocks later, they turned on their blue lights and initiated a traffic stop. The Tahoe came to a stop near the intersection of Polk Street and Ohio Avenue, and King and Brennan exited their car and approached the Tahoe. The Tahoe then suddenly accelerated away from the officers and turned south on Ohio Avenue. King and Brennan returned to their car and followed the Tahoe, and the Tahoe eventually came to a stop again on Ohio Avenue. The officers again exited their car and walked up to the Tahoe.

¶5. When King and Brennan approached the Tahoe, both of them could clearly smell marijuana, and Brennan saw that Holloway "was chewing and pouring a green leafy substance that [Brennan] immediately recognized as marijuana into his mouth." While King was talking to the driver (Ratcliff), Brennan removed Holloway from the car and ordered him to put his hands up and stop eating the marijuana. Holloway did not comply, and Brennan placed him under arrest. Detective Olds and Detective Fore arrived on the scene and began to search the Tahoe. They found a plastic bag with marijuana residue in the area where Holloway had been sitting. They also found a tub with residue in the center console and a handgun in the glove compartment on the passenger side.

¶6. A "hostile" crowd of a "dozen or more" onlookers soon formed around the Tahoe. They were "shouting aggressively" at the officers and refused to disperse. Fore decided that it would be unsafe to continue the search at the scene of the stop, and he told Brennan to drive the Tahoe back to the house on South Carolina Avenue to finish the search. Holloway and Ratcliff were taken to the police station, and King went to apply for a search warrant for the house. The other officers returned to the house on South Carolina Avenue, entered the house using a key they found on Holloway, and performed a protective sweep.

¶7. The officers then resumed their search of the Tahoe. Fore eventually found a plastic bag that contained five "cookies" of crack cocaine with a total weight of 44.15 grams. The bag was hidden in a space behind the glove compartment on the passenger side. Fore testified that the area behind the glove box is a common place to hide drugs, and he had "found drugs hidden behind glove boxes on numerous occasions." Fore could tell that the cookies were "fresh" and had "just [been] cooked" because "they were still ... hot," and "the heat from the cookies caused condensation inside the bag." Fore testified that the amount of crack cocaine found in the Tahoe was worth several thousand dollars and "way more than [someone would have for] personal use."

¶8. King then called Fore to let him know that he had obtained a search warrant for the house, and the officers on scene began to search the house. They soon located 46.87 grams of powder cocaine along with a bag of baking soda, which is used to cook crack cocaine. The cocaine was in a Crown Royal bag inside a coffee can that was hidden in an open space behind an air vent. Fore stated that the open space behind an air vent is a common place for hiding drugs. Fore testified that the powder cocaine found in the house was worth several thousand dollars and was more than someone would keep for personal use.

¶9. Fore then returned to the police station. He advised Holloway of his Miranda² rights, and Holloway signed a Miranda waiver. Fore and King interviewed Holloway, and King recorded the interview. Fore then placed Holloway into a holding cell with Ratcliff. Fore left Holloway and Ratcliff alone in the cell for several minutes before returning to talk to them. A camera recorded video and audio of all conversations in the cell. At multiple points in the interviews, Holloway admitted that the crack cocaine in the car and the powder cocaine in the house belonged to him.

¶10. Holloway was indicted for trafficking in a controlled substance, Miss. Code Ann. § 41-29-139(f) (Rev. 2013), as a nonviolent habitual offender, Miss. Code Ann. § 99-19-81 (Supp. 2014), and as a second or subsequent drug offender, Miss. Code Ann. § 41-29-147 (Rev. 2013). Prior to trial, Holloway moved to suppress the evidence found during the search of the Tahoe and the search of the house, as well as any statements that were a product of those searches. The court held a pretrial hearing on Holloway's motion, and Fore, King, Brennan, McCook, and Justice Court Judge Diane Ladner, who issued the search warrant, all testified. Holloway declined to testify at the hearing.

¶11. The trial judge ruled from the bench at the conclusion of the suppression hearing. The judge ruled that "clearly the initial search of the Tahoe was based on probable cause,"³ but the judge also concluded that the officers "clearly had time" to obtain a search warrant after they moved the Tahoe and should have done so before resuming their search on South Carolina Avenue. However, the judge ruled that Holloway lacked "standing" to object to the search of Ratcliff's Tahoe. With respect to the house, the judge found that there was probable cause for the search warrant. In addition, the judge found that Holloway lacked standing to object to the search of the house because no evidence was presented during the suppression hearing that he stayed at the house on a regular basis or kept any personal belongings there. Accordingly, the judge denied Holloway's motion to suppress as to both the Tahoe and the house.

¶12. Holloway's case proceeded to trial. After the State rested its case in chief, Holloway testified in his own defense. Holloway denied that the crack cocaine found in the Tahoe was his, and he denied that he ever "specifically" admitted that it belonged to him. However, Holloway seemingly admitted that the powder cocaine found in the house, which weighed 46.87 grams, belonged to him. The jury found Holloway guilty of trafficking in a controlled substance, defined by statute and the jury instructions as the possession of thirty or more grams of cocaine with the intent to distribute. Miss. Code Ann. § 41-29-139(f)(2)(A). The court sentenced Holloway to forty years in the custody of the Department of Corrections as a nonviolent habitual offender.⁴ Holloway appealed.

ANALYSIS

¶13. We have a "mixed standard of review" with respect to the denial of a motion to suppress under the Fourth Amendment. Dies v. State , 926 So. 2d 910, 917 (¶20) (Miss 2006). "Determinations of ... probable cause should be reviewed de novo." Id. However, we are bound by the trial judge's findings as to the underlying "historical facts" unless those findings are "clearly erroneous." Id.⁵

¶14. On appeal, Holloway argues that the trial judge erred by ruling that he lacked standing to object to the search of the Tahoe and the search of the house and by finding that there was probable cause for the search warrant for the house. We affirm the denial of the motion to suppress on the grounds that Holloway lacked standing to object to the search of the Tahoe and that there was probable cause for the search warrant for the house. Because we agree with the trial judge that there was probable cause for the warrant, it is unnecessary for us to address Holloway's standing to object to the search of the house.

I. The Tahoe

¶15. The Fourth Amendment to the United States Constitution provides that "[t]he people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search." U.S. Const. amend. IV ; accord Miss. Const. art. 3, § 23. "Fourth Amendment rights are personal rights which ... may not be vicariously asserted." Rakas v. Illinois , 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Generally, "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Id. at 134, 99 S.Ct....