Howell v. State

• Decision Date: 25 March 1974
• Docket Number: No. 47752,47752
• Citation: 300 So.2d 774
• Parties: Harvey R. HOWELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 774

300 So.2d 774

Harvey R. HOWELL v. STATE of Mississippi.

No. 47752.

Supreme Court of Mississippi.

March 25, 1974.

Rehearing Denied Sept. 30, 1974.

Alfred Lee Felder, Pascagoula, for appellant.

A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.

ROBERTSON, Justice:

Harvey Ray Howell was indicted, tried and convicted in the Circuit Court of Jackson County for the unlawful possession of amphetamines. He was sentenced to serve a term of two years in the Mississippi State Penitentiary.

The only assignment of error was that the trial court erred in overruling defendant's motion to suppress the evidence.

Deputy Sheriff Alexander was on patrol at 2:25 A.M. on August 7, 1972, when he noticed a white van parked in front of Sherman's Grocery in Escatawpa. Alexander noticed that the driver was slumped over the steering wheel. He investigated and roused the driver sufficiently to get him out of the van. Howell appeared to be drunk or under the influence of drugs, so Alexander assisted him to his patrol car and put him on the back seat.

In getting Howell out of the van, Alexander noticed a pistol in a holster on the right front floorboard of the van. He went back to pick up the pistol and, when he opened the front door on the passenger's side, he noticed in a shallow offset in the dashboard two cellophane bags containing white tablets. Alexander turned these over to the narcotics officer, who, on analysis, found these small white pills to be amphetamines.

Howell contends that inasmuch as deputy sheriff Alexander did not have an arrest warrant or a search warrant he had no right to retrieve the pistol and take the two cellophane bags into his possession, and have the contents analyzed.

We are of the opinion that the trial court was correct in overruling appellant's motion to suppress, and that Alexander's action, under the circumstances of this case, did not amount to an unreasonable search and seizure. Finding Howell slumped over the steering wheel of the van at 2:25 A.M. was enough to require an investigation to determine the cause. Howell could have been sick or injured, could have suffered a heart attack; he could have been drunk or under the influence of drugs; or he could have been engaged in criminal activity. It was the sheriff's duty to keep an incapacitated person from driving a car on a public road and endangering the lives of others. So it was reasonable for Alexander to place him in the patrol car where he could not hurt himself or others.

Having noticed the pistol on the right front floorboard, it was reasonable for Alexander to retrieve the pistol if for no other reason than to keep it from being stolen while the van was unattended. When Alexander noticed the two cellophane bags in the open recess next to the glove compartment, he acted reasonably in taking these bags together with their contents into his possession.

This Court has consistently held that the 'eye cannot trespass'. Wilson v. State, 186 So.2d 208 (1966); Powell v. State, 184 So.2d 866 (Miss.1966); Corn v. State, 250 Miss. 157, 164 So.2d 777 (1964); Bone v. State, 207 Miss. 868, 43 So.2d 571 (1949).

The United States Supreme Court stated the 'plain view' doctrine in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968):

'It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.' 390 U.S. at 236, 88 S.Ct. at 993.

Having reached the conclusion that deputy sheriff Alexander had a 'right to be in the position to have that view' when he noticed the two cellophane bags, the two The conviction, therefore, is affirmed.

bags with their contents were subject to seizure, and could be introduced into evidence when found to contain amphetamines.

We do think that the two-year sentence is excessive in view of Mississippi Code 1972 Annotated, Section 41-29-139(d)(3) (1973 Supp.), which provides:

'A controlled substance classified in Schedules III, IV or V as set out in sections 41-29-117 to 41-29-121, upon conviction may be confined for not more than one (1) year, or fined not more than one thousand dollars ($1000.00), or both.' (Emphasis added).

Even though the conviction is affirmed, we must set aside the sentence, and remand for resentencing in accord with the statute.

Conviction affirmed, but sentence set aside, and case remanded for resentencing.

GILLESPIE, C.J., and SUGG, WALKER and BROOM, JJ., concur.

ON PETITIONS FOR REHEARING

On a former day we affirmed Howell's conviction for possession of amphetamines, but remanded the case for resentencing because the two year sentence imposed was in excess of that permitted by statute.

Both Howell and the State filed petitions for rehearing in this case. Howell contends that this Court erroneously applied the 'plain-view' doctrine by holding that certain police action did not amount to an unreasonable search and seizure. The State's petition for rehearing alleges that the remand for resentencing was erroneous because the State Board of Health, pursuant to statutory authorization, transferred all amphetamines from Schedule III to Schedule II of the Uniform Controlled Substances Law ¹ on October 13, 1971. The State argues that since the maximum penalty for Schedule II substances is confinement for not more than three years, the lower court's sentence was not excessive.

After the petitions for rehearing were filed, we requested additional briefs on the following questions:

Miss.Code Ann. § 41-29-111 (1972) authorizes the State Board of Health to add substances to, delete, or reschedule any substances set forth in § 41-29-113 to 41-29-121. In this delegation of legislative authority constitutional when the State Board of Health, by rescheduling substances, increases or diminishes the punishment with reference to such substances?

Assuming that the statute is constitutional, would the notice given by the State Board of Health constitute due process?

Mississippi Code Annotated section 41-29-111 (1972) provides, in part, as follows:

The board shall work in conjunction and cooperation with the state board of pharmacy, the district and county attorneys, the office of the attorney general and the Mississippi Highway Safety Patrol. The board shall administer this article and may add substances to or delete or reschedule any or all substances enumerated in the listed schedules as set out in sections 41-29-1113 to 41-29-121.

(d) If any substance is designated, rescheduled, or deleted as a controlled substance under federal law and notice thereof is given to the board, the state board of pharmacy shall control the substance under this article after the expiration of thirty days from publication in the Federal Register of a final order designating a substance as a controlled substance or rescheduling or deleting a substance, unless within that thirty-day period, the Mississippi Bureau of Drug Enforcement or the state board of pharmacy or the state board of health object to inclusion, rescheduling, or deletion. In that case, the objecting agency shall publish the reasons for objection and afford all interested parties an opportunity to be heard. At the conclusion of the hearing, the board shall publish its decision, which shall be final unless altered by statute. All such controlled substances designated, rescheduled, or deleted under federal law and which become final as herein provided shall be published and immediately distributed to all persons and agencies entitled under the law of this state to be provided with a copy of the Mississippi Code and to all licensed attorneys in this state and to such other persons, firms and corporations as the board may deem appropriate.

This section of Mississippi Uniform Controlled Substances Law is similar to title 21 section 811, U.S.C. (1970), one of the differences being that the authority to reschedule substances in the federal statute is vested in the Attorney General of the United States, whereas the Mississippi act vests this authority in the State Board of Health.

In United States v. Jones, 480 F.2d 954 (5th Cir. 1973), the statute was attacked as being unconstitutionally vague. The Court stated:

The short answer to this contention is that Congress itself put marijuana in its current classification and thus the substance has never been administratively reclassified. . . . (480 F.2d at 960).

In United States v. Westlake, 480 F.2d 1225 (5th Cir. 1973), the statute was attacked on the ground that it represented an impermissible delegation of legislative power. With reference to this contention, the Court stated:

We decline to reach this point at the present time. Congress initially classified cocaine as a Schedule II Controlled Substance, and the Attorney General has neither rescheduled nor deleted cocaine from the list of controlled substances since the effective date of the statute. Appellant therefore has not been affected by whatever delegation of authority may be embodied in the statute. (480 F.2d at 1226).

Unlike Jones and Westlake, the question is squarely before this Court because Howell's sentence was increased as a result of the action of the State Board of Health in transferring amphetamines from Schedule III to Schedule II. Since the validity of Section 41-29-111 has been questioned, we must determine if this act of the legislature is authorized by the Mississippi Constitution of 1890 because if it is not authorized by the Constitution, it will be void.

Article 1, Section 1, divides the powers of the government of the State of Mississippi into three distinct departments, each of which is confided to a separate magistry. Section 2 of the Article prohibits any person or collection of persons of one of the departments from exercising any power belonging to the other departments. Section 5 of Article 3 declares that all government of...