Jones v. State ex rel. Mississippi Dept. of Public Safety

• Decision Date: 18 December 1991
• Docket Number: No. 90-CA-0730,90-CA-0730
• Parties: Daniel Paul JONES v. STATE of Mississippi, ex rel., MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY.
• Court: Mississippi Supreme Court

Page 23

607 So.2d 23

Daniel Paul JONES v. STATE of Mississippi, ex rel., MISSISSIPPI DEPARTMENT OF

PUBLIC SAFETY.

No. 90-CA-0730.

Supreme Court of Mississippi.

Dec. 18, 1991.

Rehearing Denied Nov. 19, 1992.

Ben F. Galloway, Owen Galloway & Clark, Gulfport, for appellant.

Mike C. Moore, Atty. Gen., Eric L. Johnson, William H. Magnusen, Jr., Mark C. Carroll, Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

Following the arrest of Daniel Paul Jones for possession of marijuana and a search of his automobile, the State of Mississippi filed this civil action, a Petition for Forfeiture pursuant to Miss.Code Ann. Sec. 41-29-101 et seq. (1972, as amended). ¹ The State sought forfeiture of property found in Jones' automobile, namely $149,700.00 in U.S. Currency, on the grounds that these funds had been used or were intended for use in drug trafficking in violation of this state's controlled substances statutes. The petition was granted. The questions before us are (1) whether the seizure of Jones, search of Jones' vehicle, and subsequent seizure of property violated the fourth amendment to the U.S. Constitution as well as Mississippi law; and (2) whether the state met its burden of proof. We affirm the forfeiture ordered by the trial court.

II.

Mississippi Highway Safety Patrol Trooper Darryl Deschamp was on patrol on Interstate 10 in Harrison County just outside of Gulfport on February 6, 1990, when he stopped Daniel Paul Jones for speeding, 74 m.p.h. in a 65 m.p.h. zone. After stopping Jones' 1989 blue Mazda, Deschamp asked Jones to step out and stand at the rear of the vehicle. Jones complied, and Deschamp began writing a citation for speeding.

While drafting the citation, Deschamp engaged in a conversation with Jones. Jones explained to Deschamp that he was from Wichita Falls, Texas, and that he had been on trip to Miami, Florida, for three days for a meeting related to his father's agricultural business. Jones was not under arrest at this time. Deschamp asked Jones whether or not he had been arrested before, and Jones said that he had not ever been arrested. Deschamp at this time received a call over his radio from Gulfport dispatch. Gulfport dispatch informed Deschamp that Jones had been previously arrested and convicted in Texas on two counts of possession of a controlled substance. After Deschamp completed the citation, he gave it to Jones and asked to search the vehicle. Deschamp did not tell Jones why he wanted to search his vehicle, but he asked Jones to sign a consent form. Jones stated that he had nothing to hide and that Deschamp could search the vehicle. Deschamp testified that the basis for requesting the consent to search was that Jones was acting "nervous." Jones was still not under arrest. It is not clear from the record, but sometime between the call from Gulfport dispatch about Jones' prior conviction and Deschamp's request to search the vehicle, two other troopers, Trooper Boyd and Trooper Keel, arrived to assist Deschamp even though Deschamp had not called them. Boyd and Keel heard Jones give Deschamp verbal permission to search the vehicle. Deschamp then read the consent to search form to Jones and asked him if he understood it. Jones then read the consent to search form himself and signed it. Jones never asked for counsel and never refused to sign the form even though Deschamp advised him that he had a right to refuse. Keel signed the form as a witness. Upon cross examination, Deschamp stated that the search was not incident to arrest, not incident to a border stop, not part of a hot pursuit, not due to contraband within plain view, and not due to a smell emanating from the vehicle. Deschamp was looking for "just anything that would constitute a violation of the law."

Deschamp found a marijuana cigarette "just sitting" on the right front seat, marijuana residue "on the carpet, all over" in the trunk under the hatchback, and a large amount of cash in a piece of red luggage with marijuana residue "all over" it. During cross examination, Deschamp stated that Jones was not free to go at the time of the search. When asked, Jones admitted that the cigarette belonged to him. Deschamp discontinued the search at this point, secured the vehicle, arrested Jones for simple possession of marijuana, and Mirandized Jones for the first time by reading his rights off of a card. When asked who the money belonged to, Jones stated twice that he did not know.

Jones and his vehicle were taken to the Gulfport substation. At the substation, a more thorough search of the car was done by Deschamp and Lt. Sibley, and marijuana flakes were found under the left back seat. They also took photographs of the vehicle.

After the station search of the vehicle was complete, Jones was taken to Lt. Sibley's office. Deschamp read Jones his Miranda rights again from a card, and Jones signed the form with Lt. Sibley as a witness. Jones told the officers that the money was not his, he did not know whose it was, and he would prefer to have an attorney before he said anything else. He and his vehicle were then released to continue his trip to Wichita Falls, Texas.

The facts of the search and arrest differ somewhat according to Jones' testimony. Jones testified that he was speeding up to 69 m.p.h. to set his cruise control when he was pulled over. Jones also testified that another vehicle was pulled over along with him, but Deschamp let the other vehicle go on. Jones claimed that the only reason he signed the consent form was because Deschamp told him that if he didn't sign "that piece of paper" he would be on the side of the road all day. Jones also explained that he did not fully comprehend what he was reading when he read the form because he "was on the side of the road", "didn't have any shoes on," "had been awake for about five minutes," "was shaking because it was cold," and because "it's hard to read that thing in the wind on the side of the road with semi trucks flying by." According to Jones, he then asked for an attorney but was told he had to sign the form first. Jones signed. When Deschamp asked who the money belonged to, Jones told Deschamp that he wanted to see an attorney.

Jones gave testimony that he was surrounded by seven or eight officers at the substation who were all "just continuously in a harassing state and I continuously begged for an attorney." Jones testified that he was never permitted to call an attorney and was not read his rights until Deschamp called him into an office and then "showed me out the door." On the way to his vehicle afterwards, Jones related on direct examination that Deschamp walked with him and "laughed at me and told me to come back and see him any time."

Mrs. C. Wyman Jones, a widow, gave testimony on her son's behalf. Mrs. Jones testified that the funds which were the subject of the forfeiture hearing were given by her to her son.

Mrs. Jones related that the family owned three dry cleaning plants in Wichita Falls, Texas, and further had interest in farmland in Abilene, Texas, and in Costa Rica. Mr. C. Wyman Jones' financial statement from 1987 which was produced in discovery indicated a net worth of $1,794,475.00. In 1987, Mr. C. Wyman Jones borrowed $120,000.00 from LAAD De Centroamerica S.A., an entity set up to make developmental loans in Central America. Approximately one-half of the loan was still outstanding.

Mr. C. Wyman Jones collapsed on May 31, 1989, and passed away on October 23, 1989. Mrs. Jones explained how after his death, sometime in January 1990, she sifted through two safety deposit boxes in a local bank and two different file cabinets and found $150,000.00 in cash. Mrs. Jones said that she and her son "Danny" had discussed his plans to go to south Florida to look for greenhouses and get started in the horticulture business by importing massangeana cane and distributing it himself like a broker.

Jones said he got the cash from his mother on January 31, 1990, in brown paper bags and left for Miami on February 1, 1990, to see about starting a business. Returning to Texas, Jones said he spent the night of February 5 in Gulfport, Mississippi. He was stopped by Deschamp the next morning leaving Gulfport.

III.

Jones argues on appeal that the trial court erred in its order for forfeiture because the seizure of Jones, search of his vehicle, and subsequent seizure of property violated the Fourth Amendment to the U.S. Constitution as well as section 23 of the Mississippi Constitution.

The Fourth Amendment to the United States Constitution and section 23 of the Mississippi Constitution are the foundation of Mississippi search and seizure law. The federal amendment wording is substantially the same as the State Constitution's wording.

There is a constitutional preference for searches pursuant to a warrant. The issue for consideration is whether there was valid consent so that the warrantless search was valid.

A voluntary consent to a search eliminates an officer's need to obtain a search warrant. Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946); Waldrop v. State, 544 So.2d 834 (Miss.1989); Whittington v. State, 523 So.2d 966 (Miss.1988); Hudson v. State, 475 So.2d 156 (Miss.1985).

In 1973, the United States Supreme Court comprehensively addressed consent with the landmark case of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In Schneckloth, the Court upheld a consent to search a car given during a street encounter in which no Fourth Amendment warnings were given. The Court held that voluntariness is the pivotal determination and not whether the party knew or was informed of a constitutional right which he/she then intentionally relinquished or abandoned. Holding that voluntariness was the threshold consideration in a valid consent, the Court observed that in the...