Johnson v. State

• Decision Date: 19 April 2011
• Docket Number: No. 2009-KA-00552-COA.,2009-KA-00552-COA.
• Citation: 49 So.3d 130
• Parties: Arvin Phillip JOHNSON, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

49 So.3d 130 Arvin Phillip JOHNSON, Appellant v. STATE of Mississippi, Appellee. No. 2009-KA-00552-COA. Court of Appeals of Mississippi. Nov. 30, 2010. Rehearing Denied April 19, 2011.

Charles E. Lawrence Jr., attorney for appellant.

Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appellee.

Before KING, C.J., BARNES and CARLTON, JJ.

BARNES, J., for the Court:

¶ 1. On February 27, 2009, Arvin Phillip Johnson was convicted of possession of cocaine by a jury in the Marion County Circuit Court and sentenced to sixteen years in the custody of the Mississippi Department of Corrections (MDOC), with nine years suspended, five years of post-release supervision, and to pay a $3,000 fine. He now appeals claiming that: the evidence of cocaine should have been excluded as it was the result of an illegal search, and the court erred in denying his motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, for a new trial. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On December 5, 2006, agents from the Mississippi Bureau of Narcotics (MBN) were in Marion County, Mississippi, conducting a drug buy-bust operation. The target of the operation was an individual named "Teddy," who was allegedly selling drugs out of a small, locally-owned convenience store located on Highway 13 South. The MBN agents used a wired, confidential informant to make contact with Teddy and buy some marijuana using marked "buy" money. There were two sets of MBN teams: one located north of the store, and one located south of the store. However, the store was not under visual surveillance. When the informant arrived at the store to purchase the drugs, Teddy came outside and got into the informant's vehicle. Teddy then placed a call to a man named Walter, who arrived a short time later with the marijuana. Teddy sold the drugs to the informant and gave half of the marked money to Walter, who got into his car and drove away. One of the MBN teams was alerted to stop Walter and arrest him.

¶ 3. In the meantime, the informant had returned to the other MBN team with the purchased marijuana. The remaining agents immediately went to the store to arrest Teddy. In the few minutes between the time that the informant had leftand the agents had arrived, another car drove up to the store and parked under the store's awning, by the gas pumps. Teddy and another individual were standing in between the car and the front door talking. The individual with Teddy was Johnson. The agents put both men in handcuffs and had them lie on the ground, although Johnson was not considered to be under arrest at that point. The agents conducted a pat-down search of both men, but they found no weapons, drugs, or marked "buy" money. The agents then conducted a search of the nearby vehicle. When the sun visor of the car was pulled down, a plastic white grocery bag fell out. Inside the bag was a rock-like substance, later confirmed to be 0.7 gram of cocaine. A gun was also found just inside the front door of the store.

¶ 4. Johnson was indicted for possession of a controlled substance (cocaine) in violation of Mississippi Code Annotated section 41-29-139(c) (Rev.2005). As Johnson previously had been convicted and sentenced to eight years in the custody of the MDOC for possession of a controlled substance, he was charged as a second and subsequent offender under Mississippi Code Annotated section 41-29-147 (Supp.2006). On the day of the trial, February 27, 2009, Johnson filed a motion to suppress the evidence of the cocaine, claiming it was the result of an illegal search. He also filed a motion in limine to exclude all references to his previous conviction. The circuit judge denied the motion to suppress, but sustained the motion in limine.

¶ 5. Johnson was convicted and subsequently sentenced to sixteen years in the custody of the MDOC, with nine years suspended upon successful completion of the conditions of his sentence, five years of post-release supervision, and to pay a $3,000 fine.¹ Johnson filed a motion for a JNOV or, in the alternative, a new trial, which was denied by the circuit court. Johnson now appeals the denial of his motion to suppress and his motion for a JNOV or, alternatively, a new trial. Finding no error, we affirm the judgment of the circuit court.

I. Whether the circuit court erred in denying Johnson's motion to suppress.

¶ 6. Johnson contends that the circuit court erred in denying his motion to suppress the evidence as the search of the vehicle was illegal, and the evidence obtained from the search should have been excluded. In reviewing a circuit court's denial of a motion to suppress, we look to see "whether substantial and credible evidence existed to support the ruling." Baker v. State, 991 So.2d 185, 187 (¶ 6) (Miss.Ct.App.2008) (citing Qualls v. State, 947 So.2d 365, 372 (¶ 18) (Miss.Ct.App.2007)). "[A]bsent a finding that the '[circuit court] applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence[,]' " we will not disturb the court's findings on appeal. Simmons v. State, 805 So.2d 452, 482 (¶ 64) (Miss.2001) (citing Taylor v. State, 733 So.2d 251, 255 (Miss.1999)). The standard of review of a circuit court's admission or exclusion of evidence is abuse of discretion. Id. (citation omitted).

¶ 7. Individuals are protected from unreasonable searches and seizures by the Fourth Amendment to the United States Constitution. Tate v. State, 946 So.2d 376, 382 (¶ 17) (Miss.Ct.App.2006) (citingUnited States v. Grant, 349 F.3d 192, 196 (5th Cir.2003)). However, warrantless searches may be conducted in certain instances, such as "a consensual search, a search incident to arrest, an inventory search, a search under exigent circumstances if probable cause exists, and a search of a vehicle when making a lawful contemporaneous arrest." Bradley v. State, 934 So.2d 1018, 1022 (¶ 7) (Miss.Ct.App.2005) (citing Graves v. State, 708 So.2d 858, 862-63 (¶ 2) (Miss.1997)).

¶ 8. Johnson correctly asserts that, at the time the vehicle was searched, he was not under arrest. Agent John Harless affirmed this when questioned by defense counsel, as follows:

Q. All right. Now at the time that my client, Arvin Johnson, was placed on the ground and cuffed, was he under arrest?

A. No, sir. Not at that time.

Q. All right. And he was not under arrest because there was—he was not the focus of this buy-bust; is that correct?

A. That's correct.

Q. Had no information that he had done anything improper or violated the law whatsoever?

A. No, sir.

"[T]he Fourth Amendment of the United States Constitution 'applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.' " McLendon v. State, 945 So.2d 372, 379 (¶ 15) (Miss.2006) (citing Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)). Further, "an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest." Baker, 991 So.2d at 187 (¶ 8) (quoting Linson v. State, 799 So.2d 890, 893 (¶ 8) (Miss.Ct.App.2001)). In the case before us, Johnson arrived at the store immediately after the drug sale to the MBN informant, and Agent Harless testified that Johnson was detained mainly to make sure that evidence was not being taken from the scene.

¶ 9. We find that the search was reasonable to ensure the safety of law enforcement in the context of Teddy's arrest. "It is a fundamental concept of police work that officers, in the course of conducting an investigation that involves close contact with persons suspected of criminal activity, are entitled to take reasonable precautions to ensure their safety." Dees v. State, 758 So.2d 492, 495 (¶ 9) (Miss.Ct.App.2000). The purpose of a pat-down search is to ensure the safety of law enforcement. Anderson v. State, 16 So.3d 756, 760 (¶ 10) (Miss.Ct.App.2009) (citing Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Agent Harless testified that the MBN agents conducted a pat-down search of Teddy and Johnson for weapons and then performed a "wing-span search, which would be areas around them that[,] had a struggle ensued[,] they could easily ... obtain a weapon[.]" This included "the areas around the store, around the front of the store on the ground and the front ... compartment of the car where Mr. Johnson would have access to."

¶ 10. Johnson argues that, as he was already handcuffed and on the ground, it was unnecessary to search the car for weapons. "If the protective search goes beyond what is necessary to determine if the suspect is armed, it is not longer valid under Terry[,] and its fruits will be suppressed." Id. (quoting Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). To support his argument, Johnson cites to Ferrell v. State, 649 So.2d 831 (Miss.1995). In Ferrell, the Mississippi Supreme Court foundthat the search of Ray Anthony Ferrell's car was not a search incident to arrest as Ferrell had already been "frisked, handcuffed, and placed in the back-seat" of the patrol car. Id. at 833. Therefore, the officer "could have had no reasonable fear that Ferrell might have a weapon." Id. Similarly, in a recent case, Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 1723-24, 173 L.Ed.2d 485 (2009), the United States Supreme Court held that:

Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

(Emphasis added). As in Ferrell, the suspect in Gant had been handcuffed and put into the police car before...