Jones v. State, 55843

• Decision Date: 04 December 1985
• Docket Number: No. 55843,55843
• Parties: Gregory Tyrone JONES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 798

481 So.2d 798

Gregory Tyrone JONES v. STATE of Mississippi.

No. 55843.

Supreme Court of Mississippi.

Dec. 4, 1985.

Richard H. Young, Jackson, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by John H. Emfinger, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.

DAN M. LEE, Justice, for the Court:

Gregory Tyrone Jones was tried and convicted in the First Judicial District of Hinds County, Mississippi, on May 10, 1984, of possession of more than one ounce of marijuana. He was sentenced to serve a term of three years in the custody of the Mississippi Department of Corrections and pay a fine of $3,000.00.

From his conviction and sentence, Jones appeals and assigns five errors:

1. That the lower court erred when it denied his motion to suppress a search warrant;

2. That the lower court erred when it allowed the state to introduce into evidence five envelopes of marijuana obtained by a search of his vehicle;

3. That the lower court erred when it permitted the state to introduce evidence regarding those five envelopes of marijuana from W.E. Patterson, criminologist with the Jackson Police Department, because the defendant, pursuant to a motion for discovery, had been furnished a copy of a lab report showing that only eighteen envelopes had been tested and defendant was prepared to defend only on the eighteen envelopes;

4. That the lower court erred when it allowed appellant's probation officer, Cindy Berry, to testify that appellant made an oral confession without first being advised by Officer Berry that the confession could be used against him; and,

5. That the verdict of the jury was against the overwhelming weight of the evidence.

On November 7, 1983, Officers Charles Foreman and Daniel Norton of the Jackson Police Department, secured a warrant authorizing the search of a residence at 2431 Eleanor Street, Jackson, Mississippi. The warrant was issued by Municipal Court Judge P. Hancock and was based on information received from a confidential informant. Information obtained from that informant and verified by a utility bill indicated that the residence to be searched was that of Gregory Tyrone Jones. Pursuant to the warrant, the residence was searched and a quantity of marijuana discovered. This information was radioed to Officers Seavey and Pitts who had Jones under surveillance at a local night spot. Jones was arrested for possession of marijuana. His vehicle was searched and additional marijuana discovered. Subsequent to his arrest, Jones confessed to Officers Foreman and Norton and, sometime later, to his probation officer, Cindy Berry.

I.

DID THE LOWER COURT ERR WHEN IT DENIED APPELLANT'S MOTION TO

SUPPRESS SEARCH WARRANT BECAUSE THE AFFIDAVIT TO THE SEARCH

WARRANT WAS HEARSAY INFORMATION THAT WAS NOT CORROBORATED BY

PERSONAL OBSERVATION OR INDEPENDENT POLICE WORK?

At the hearing on a Motion to Suppress Search Warrant, Officer Charles Foreman testified to the following: that he had communicated with a confidential informant whom he had known for seven or eight months; that the informant had previously proven to be reliable and had provided information which had led to other arrests and convictions; that the informant had seen an unknown amount of marijuana at 2431 Eleanor Avenue on the afternoon prior to Jones's arrest; that, based only on the information provided by the informer, Officers Norton and Foreman asked for a search warrant from Municipal Court Judge Hancock; and, that the judge issued the warrant based solely on the officers' affidavit and their oral statements. Foreman admitted that no additional police work had been done in order to determine the truth of the informant's statements. Officer Norton testified to virtually the same set of events.

The standard for issuing a search warrant was announced in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), where the Court stated:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit ..., including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud(ing)' that probable cause existed.... We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aquilar and Spinelli. (citations omitted)

Id. at 238-239, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. This standard was adopted in Mississippi in Lee v. State, 435 So.2d 674 (Miss.1983) and has been reiterated in Walker v. State, 473 So.2d 435 (Miss.1985); Breckenridge v. State, 472 So.2d 373 (Miss.1985); McCommon v. State, 467 So.2d 940 (Miss.1985). Jones asserts that it was necessary for the police officers to determine through independant corroboration the accuracy of the informant's information. Based on Gates, Lee and their progeny, that assertion is erroneous. Under the totality of the circumstances, there was probable cause for the issuance of the search warrant. This assignment is without merit.

II.

DID THE LOWER COURT ERR WHEN IT ALLOWED THE STATE TO

INTRODUCE INTO EVIDENCE FIVE ENVELOPES OF

MARIJUANA WHICH WERE FOUND IN

APPELLANT'S VEHICLE DURING A

SEARCH SUBSEQUENT TO

HIS

A

Officer Ray Pitts testified that he and Officer Seavey "staked out" Cupid's Lounge in order to observe Gregory Jones. After about fifteen minutes, they received a call from Officers Foreman and Norton stating that marijuana had been found at Jones's residence and advising them to arrest him. When the officers approached Jones, he entered his car and attempted to leave. He was placed in custody and his car was searched. A quantity of marijuana was found under the front carpet on the driver's side. Jones asserts that the marijuana obtained during the search of his vehicle should not have been admitted as evidence because he had not been placed under valid arrest.

Officers Pitts and Seavey arrested Jones without benefit of an arrest warrant; therefore, the first question is whether the arresting officers had sufficient probable cause to make a valid warrantless arrest.

Rule 1.02 of the Mississippi Uniform Criminal Rules of Circuit Court Practice states, in part:

An officer may arrest any person without a warrant under the following circumstances:

* * *

(3) When the officer has reasonable grounds to believe a felony has been committed and the person proposed to be arrested committed it.

The case law supports this rule. See Riddles v. State, 471 So.2d 1234 (Miss.1985); Hanner v. State, 465 So.2d 306 (Miss.1985); Gandy v. State, 438 So.2d 279 (Miss.1983); Scruggs v. State, 412 So.2d 732 (Miss.1981); Powell v. State, 394 So.2d 326 (Miss.1981); Jones v. State, 358 So.2d 414 (Miss.1978). In Swanier v. State, 473 So.2d 180 (Miss.1985) this Court stated:

The existence of "probable cause" or "reasonable grounds" justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. The determination depends upon the particular evidence and circumstances of the individual case.

Id. at 186, quoting Smith v. State, 386 So.2d 1117, 1119 (Miss.1980).

In the instant case, the officers had ample grounds to believe that a felony had been committed. Prior to the arrest, Officer Pitts had received information from the confidential informant that drugs would be under the front floorboard of the vehicle. More important was the information provided Seavey and Pitts, via police radio, that more than one ounce of marijuana had been located at Jones's residence. This Court has held that official information received by radio may form the basis of probable cause to arrest. Covan v. State, 374 So.2d 833 (Miss.1979); Hamburg v. State, 248 So.2d 430 (Miss.1971); Fuqua v. State, 246 Miss. 191, 145 So.2d 152 (1962).

It was sufficiently established that Jones was the person who committed the felony. A power bill had been used to determine that the residence at 2431 Eleanor Street was that of Gregory Jones. Also, in addition to seeing the marijuana at Jones's house, the informant had seen Jones selling marijuana from his (Jones's) car and had so informed the police. Such was sufficient grounds for the officers to suspect and believe that Jones had committed the felony; therefore, the arrest was valid.

The law is clear that a police officer has the authority to search the person arrested incident to a lawful arrest. Sanders v. State, 403 So.2d 1288 (Miss.1981); Anderson v. State, 397 So.2d 81 (Miss.1981); Gregg v. State, 374 So.2d 1301 (Miss.1979); Murphy v. State, 239 So.2d 162 (Miss.1970); Butler v. State, 212 So.2d 573 (Miss.1968); Amis v. State, 204 So.2d 848 (Miss.1967). It is also apparent that an automobile passenger compartment may be subject to search incident to a lawful arrest. See Sanders, 403 So.2d 1288; Anderson, 397 So.2d 81. In Anderson, this Court noted:

The limited search of the automobile without a warrant was also lawful, being incident to the lawful arrest of the driver, Anderson. ... The officer was justified in looking under the seat for a weapon. Once there, he had the right to seize the open money pouch which was in plain view. (citations omitted)

Id. In the case at bar, Jones was sitting behind the wheel of his car attempting to start it at the time he was arrested. A search of the vehicle revealed a bulge under the carpet near the place where Jones had been sitting. That search was incident to a lawful arrest and, therefore, proper. This assignment is without merit.

III.

DID THE LOWER COURT ERR IN PERMITTING THE STATE TO INTRODUCE

INTO EVIDENCE...