Holt v. State

• Decision Date: 27 July 1977
• Docket Number: No. 49602,49602
• Citation: 348 So.2d 434
• Parties: Darrell Dean HOLT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 434

348 So.2d 434

Darrell Dean HOLT v. STATE of Mississippi.

No. 49602.

Supreme Court of Mississippi.

July 27, 1977.

Thomas R. Trout, New Albany, for appellant.

A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before GILLESPIE, SMITH and WALKER, JJ.

GILLESPIE, Chief Justice, for the Court:

This is an appeal by Darrell Dean Holt from a conviction in the Circuit Court of Washington County of the crime of armed robbery and a sentence of fifteen years.

The Kentucky Fried Chicken establishment located on Alexander Street in Greenville, Mississippi, was robbed by two black males in the late afternoon. One of the robbers had an unusual hair style in that it was parted in the middle and was very puffy. He wore a beard and a mustache. This individual was dressed in black or dark blue pants, a white T-shirt, and a dark jacket. The other was wearing a maroon jacket and maroon pants. No customers were in the store, the two cooks were in the rear, and Lois Boyd, the cashier, was in the front of the establishment. One of the robbers got a Pepsi-Cola out of the box and paid for it with a dollar bill, and when Lois Boyd opened the cash register to make change, the robber pointed a chrome-plated gun at her and said, "This is a hold-up." The robbers took between $60 and $70 in cash from the register and fled down Cately Street. A witness who observed the robbers entering the Kentucky Fried Chicken establishment also saw them flee, one of them holding his pocket and the other carrying a Pepsi-Cola or Coca-Cola bottle. They ran north on Cately Street toward O'Hea Street. A short distance from the street a third black male who had been waiting in the area joined them. Mrs. Camel, who lived at 237 Cately Street, heard someone running and looked out the window, and saw a young black male wearing a maroon colored two-piece suit enter the back door of Jo Jo Simpson's residence. The Simpson house is located at 623 O'Hea Street, and the rear door where the man entered was about ten feet from Mrs. Camel's house.

The robbery occurred at approximately 4:30 P.M., and the police were immediately notified. Lt. Vick of the Greenville Police Department was a short distance from the Kentucky Fried Chicken establishment when he got the radio message of the robbery. He undertook to make an immediate investigation by talking to the people working in the victimized establishment and then proceeded up Cately Street, where he talked to two people, including Mrs. Camel. Lt. Vick then verified that the house where the maroon-clad man had entered was the house of Jo Jo Simpson, and when he was talking to Mrs. Camel he saw a dollar bill lying on the back steps where entrance was made into the rear door of 623 O'Hea Street. Lt. Vick kept in radio contact with Chief Skinner and involved Chief Skinner as the investigation progressed while other officers were proceeding to obtain a search warrant on the information furnished by Lt. Vick.

A search warrant was obtained for a three-room house numbered 623 O'Hea Street and when the officers went to this residence with a search warrant they found the defendant hiding in a closet and a person named Henry Parker sitting on the bed in the middle room. Underneath the bed was a pair of maroon pants and a maroon jacket was hanging in the bathroom. A chrome pistol was found above the closet where defendant Holt was hiding and his hair was "messed up" but the remains of the center part were visible. The police recovered $65 in currency from a bag hidden behind the bathtub. A black jacket and a Pepsi-Cola bottle were also found.

WAS THE SEARCH LAWFUL?

It is appropriate to state at the outset of the discussion that counsel for defendant conceded in oral argument that the police had probable cause in fact to justify searching the residence in question, but contend that the affidavit is insufficient under the test laid down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States,393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

The Court is of the opinion that Lt. Vick had sufficient information that the robbers had entered 623 O'Hea Street, which was only about 175 feet from the Kentucky Fried Chicken establishment. The employees of the victimized establishment told Lt. Vick how the robbers were dressed and the direction which they ran up Cately Street after the robbery. Mrs. Crumbly gave additional information and Mrs. Camel, whose house was only about ten feet from the back door of 623 O'Hea Street, heard the commotion of people running, looked out and saw a black male enter the rear of the O'Hea Street address. Lt. Vick also had been told that one of the robbers was holding his pocket and another was carrying a Pepsi-Cola bottle. This was only fifteen or twenty-five minutes after the robbery and at that time and at the time the search was made Lt. Vick knew that a felony had been committed, and had probable cause to believe that the perpetrators of this crime as well as evidence of the crime were in the residence at 623 O'Hea Street. Under Mississippi Code Annotated section 99-3-7 (1972), the officers had a right to enter the residence to arrest the robbers and make an appropriate search of the residence. Cf. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

The underlying circumstances prepared by the officers only fifteen to twenty-five minutes after the robbery occurred are in the following words:

This date two black males went into the Kentucky Fried Chicken and robbed an employee, using a small caliber pistol. Taken was about $250.00. These two persons ran back north toward O'Hea Street, according to witnesses. Investigating officers located a Davanna Camel, 237 Cately, who stated about this time she heard someone running, looked out, and saw a negro male, wearing maroon pants and jacket, enter the back door of 623 Ohea Street. This fit the description of one of the robbers. Lt. D. Vick checked around this area and saw a one dollar bill in the back yard. The person living in this house Joe Earl Simpson, has a criminal background with this department, and it is believed he might be involved. Based on the above information it is believed whoever robbed the above location ran into this house.

We are also of the opinion that the affidavit for the search warrant under these circumstances was sufficient. The affidavit was made by Officer Cochran who joined Lt. Vick in the investigation a few minutes after the robbery. We are not dealing with probable cause based upon information furnished by an anonymous tip or a police informant. Eyewitnesses furnished the basis of the information. Under the emergency surrounding the circumstances of securing the search warrant, the officers apparently did not get the names of the people who worked in the victimized establishment, nor did they state in the affidavit the witnesses who told the officers of the persons running north on O'Hea Street that fitted the description of the robbers. This could only have been information furnished by eyewitnesses. Thus they were identifiable if not identified. This was a reasonable inference that the magistrate could draw from the affidavit. Also the details given in the affidavit are self-verifying and, of course, Mrs. Camel was identified in the affidavit as having seen the maroon-clad individual enter 623 O'Hea Street.

In Cundiff v. United States, 501 F.2d 188 (8th Cir. 1974), it is stated:

Defendant contends here that these facts, disclosed in the affidavit for search warrant executed by Detective Hatfield, failed to meet the requirements set out in Spinelli. More particularly he protests the "failure" to set forth underlying information so that the magistrate could determine the credibility of the "hearsay" information given by the informers. Defendant fails to note the important distinction between an informant who divulges evidence of a crime obtained from sources unknown to the affiant or magistrate and an individual who is an "eyewitness" and only relates matters gathered from his own observation. As we stated in McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969):

The essence of "reliability" may be found in an informant's statement of facts rather than an allegation of mere conclusory suspicion. An informant who alleges he is an "eyewitness" to an actual crime perpetrated demonstrates sufficient reliability of the person.

501 F.2d at 189-190.

And in United States v. Bell, 457 F.2d 1231 (5th Cir. 1972), it was said:

The rationale behind requiring a showing of credibility and reliability is to prevent searches based upon an unknown informant's tip that may not reflect anything more than idle rumor or irresponsible conjecture. Thus, without the establishment of the probability of reliability, a "neutral and detached magistrate" could not adequately assess the probative value of the tip in exercising his judgment as to the existence of probable cause. Many informants are intimately involved with the persons informed upon and with the illegal conduct at hand, and this circumstance could also affect their credibility. None of these considerations is present in the eyewitness situation such as was present here. Such observers are seldom involved with the miscreants or the crime. Eyewitnesses by definition are not passing along idle rumor, for they either have been the victims of the crime or have otherwise seen some portion of it. A "neutral and detached magistrate" could adequately assess the probative value of an eyewitness's information because, if it is reasonable and accepted as true, the magistrate must believe that it is based upon firsthand knowledge. Thus we conclude that Aguilar and Spinelli requirements are limited to the informant situation only. 457 F.2d at 1238-1239.

This case presents an example of the difficulty police have in...