Keys v. State

• Decision Date: 15 October 1973
• Docket Number: No. 47419,47419
• Parties: Robert KEYS, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 919

283 So.2d 919

Robert KEYS, Jr. v. STATE of Mississippi.

No. 47419.

Supreme Court of Mississippi.

Oct. 15, 1973.

Fielding L. Wright, Jr., Pascagoula, for appellant.

A. F. Summer, Atty. Gen., by T. E. Childs, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Presiding Justice.

This appeal came to this Court from the Circuit Court of Jackson County, Mississippi. Appellant Robert Keys, Jr. has appealed from a judgment convicting him of the crime of possession of marijuana. He was sentenced to serve a term of six (6) months in the Jackson County jail and to pay a fine of five hundred dollars ($500.00).

Appellant assigned only one point of error alleged to have occurred in the trial court. He charges that the trial court erred in admitting into evidence six (6) matchboxes of marijuana obtained by the officers during an illegal search, and in the failure of the court to grant defendant's motion to direct a verdict in favor of the defendant.

The record shows that on October 15, 1971, state's witness, Officer Wayne Howard, received a telephone call from an anonymous informer concerning possession of marijuana by the defendant. On the basis of the information receive from this anonymous informer, Mr. Howard obtained a search warrant allowing a search of defendant's apartment. The officer proceeded to the defendant's house and, as he approached the house, Mr. Howard saw the defendant and two other people driving away in defendant's car. Officer Howard then followed defendant's car until he caught up with it and pulled defendant over about one mile from defendant's house. Officer Howard testified that he had followed the defendant in order to stop him and serve the search warrant. Officer Howard also testified that at the time he stopped the defendant, the defendant was breaking no laws, and he stopped the defendant merely to serve the warrant. After the defendant had stopped his car, Officer Howard ordered the occupants out of the car. During a 'patdown' of the defendant, Officer Howard found three matchboxes containing a substance which was subsequently determined to be marijuana. Upon searching the interior of the defendant's automobile, three additional boxes of marijuana were found. The defendant was arrested and taken to the police station where he was charged with possession of marijuana. Defendant was not served with the search warrant until he reched the police station, and he was not arrested until after the officer had discovered the boxes of marijuana in his possession.

The appellant objected to the testimony of Officer Wayne Howard with reference to the search of the person of the defendant. The objection was overruled, and the testimony of the officers as to a 'stop and frisk' situation was fully developed by the prosecution. At the end of the testimony offered by the state, the defendant Keys made a motion for a directed verdict. This motion was overruled. The defendant then took the witness stand in his own defense and testified that one E. J. Thomas wanted to catch a ride with him from Moss Point 'back to home', and that after they reached his house, Thomas wanted to go to the bus station. The defendant said he noticed that Thomas had some matchboxes wrapped with a rubber band after they came out of the house to carry Thomas to the bus station. Ernestine, his female companion, noticed the matchboxes on the front seat, and defendant put two of them in his pocket. He testified that the officers drove up behind him, and when he stopped the car, the officers made him get out of the automobile and put his hands on the top of the automobile; thereupon, the officers searched him and discovered the matchboxes. Defendant was then arrested, and taken to the police headquarters. The search warrant was later served upon the defendant.

It seems that it is an unending task of this Court to repeatedly remind law enforcement officers that they have no authority to search the person of an individual because they may suspect that he is violating the law, or because they are desirous of physically searching the person of an individual to see if he has in his possession contraband so that he may be arrested and prosecuted. A physical search of a person is not only a violation of the freedom of a citizen, but it has sometimes been used as a method of actually violating the body of a person. See Robinson v. State, 143 Miss. 247, 108 So. 903 (1926).

In Smith v. State, 240 Miss. 738, 128 So.2d 857 (1961), we pointed out that the purpose of a search of a prisoner after he has been arrested is to take charge of weapons, evidence of crime, and tools that may be used as a means of escape. In Smith, we said:

'Our Court has made it very clear in the case of Lewis v. State, 198 Miss. 767, 23 So.2d 401, that, where a sheriff has no warrant for arrest of a defendant and the defendant had not committed any crime in the sheriff's presence, the arrest of the defendant was illegal, and evidence obtained by a search of her person as an incident ot the arrest was inadmissible. See also Pettis v. State, 209 Miss. 726, 48 So.2d 355. A search in violation of the rule of 'probable cause for arrest' is a violation of a citizen's fundamental rights. Myers v. State, 158 Miss. 554, 130 So. 741.' 240 Miss. at 744-745, 128 So.2d at 860.

In the instant case, the arresting officers contended that 'patting down' the defendant was not a search of his person. Their theory seems to be that they merely 'frisked him', and they seem to believe that they had the right to do so without arresting him. We trust we will be understood when we say to 'pat down' is to search a person, and an officer has no authority to search a person unless he is under arrest by authority of a warrant or for probable cause. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Reed v. State, 199 So.2d 803 (Miss.1967) an officer testified that he could very distinctly see the imprint of a gun in the right hip pocket of the defendant. Indeed, a search of defendant's person revealed that the object in defendant's hip pocket was a pistol. On an appeal from a conviction for carrying a concealed weapon, this Court held that the officer had authority to arrest the defendant and said:

'Where through the senses of sight, or smell, or hearing, the officer receives knowledge that an offense is being committed in his presence, he may arrest the offender without a warrant.' 199 So.2d at 808.

In support of this proposition, we cited Daniels v. City of Gulfport, 146 Miss. 517, 112 So. 686 (1927). These cases, however, do not mean that the officers have authority to 'stop and frisk' without probable cause for arrest. The authority to search an individual is based upon the authority of the officer to arrest the defendant. If the officer does not have the authority to make an arrest, he has no right to search the individual. Moreover, if he had no authority to arrest the defendant, evidence obtained by an illegal search cannot be used against the person illegally searched. Canning v. State, 226 So.2d 747 (Miss.1969); Lewis v. State 198 Miss. 767, 23 So.2d 401 (1945).

The search of the apppellant was clearly an illegal search, and the contraband obtained as a result of the illegal search was inadmissible in evidence. The trial court should have granted a directed verdict at the close of the state's testimony since the only testimony offered was illegally obtained.

This brings us to the real problem in this case.

We have held for many years that one may waive his constitutional objection to illegally obtained evidence by admitting his guilt of the charge by his own testimony.

There is a tremendous body of law in this state which indicates that the error of introducing improper evidence is cured by the defendant's admission in substance, the truth of everything which could have been proved by the evidence if it were admissible. That is to say, if evidence derived from an unlawful search is improperly introduced into evidence, there is no error if the defendant freely and voluntarily admits to having possessed the contraband obtained as a result of the search.

In Goodman v. State, 158 Miss. 269, 130 So. 285 (1930), police officers conducted a warrantless search of defendant's person for intoxicating liquors. The search was supposedly incident to a lawful arrest, but the testimony presented tended to indicate that the officers lacked the probable cause to stop defendant's automobile and to conduct the search. In affirming the decision of the circuit court, Chief Justice Smith pointed out in his opinion that:

'It is not clear from the evidence whether the person of the appellant was searched before or after his arrest; in fact, it is not clear from the evidence that he was then arrested at all. If he was not then under arrest, the officers had no right to search his person, and, the evidence thereby obtained was inadmissible; but any error that may have been committed in the admission of this evidence cannot be here complained of by the appellant, for he testified in his own behalf and admitted that he had the bottle of whisky then in his possession. Blowe v. State, 130 Miss. 112, 93 So. 577, 24 A.L.R. 1429; State v. Watson, 133 Miss. 796, 98 So. 241; Bowman v. State, 152 Miss. 195, 119 So. 176.' 158 Miss. at 274, 130 So. at 286.

Similarly, in Bowman v. State, 152 Miss. 195, 119 So. 176 (1928), this Court held:

'A defendant is not injured by evidence procured against him by an unlawful search and seizure, where he goes upon the witness stand in his own behalf and admits the facts revealed by such evidence. He is not harmed by such evidence, and therefore has no right to complain. In so voluntarily testifying, he waives the illegality of the search and seizure. Blowe v. State, 130 Miss. 112, 93 So. 577, 24 A.L.R. 1429.' 152 Miss. at 200-201, 119 So. at 177.

The prevailing viewpoint of this Court is likewise represented by the following excerpts from...