King v. State, No. 2004-KA-00688-COA.

• Decision Date: 22 July 2008
• Docket Number: No. 2004-KA-00688-COA.
• Citation: 987 So.2d 490
• Parties: Alston KING, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

987 So.2d 490

Alston KING, Appellant v. STATE of Mississippi, Appellee.

No. 2004-KA-00688-COA.

Court of Appeals of Mississippi.

July 22, 2008.

Whitman D. Mounger, Greenwood, attorney for appellant.

Office of the Attorney General by Laura H. Tedder, attorney for appellee.

Before LEE, P.J., IRVING and ROBERTS, JJ.

IRVING, J., for the Court.

¶ 1. Alston King was convicted by a jury of one count of possession of cocaine with intent to distribute and one count of possession of marijuana with intent to distribute. The Sunflower County Circuit Court sentenced King to serve thirty years for the cocaine possession and ten years for the marijuana possession, with the ten-year sentence to run consecutively to the thirty-year sentence. The court also suspended the execution of the ten-year sentence. King was further ordered to serve five years of post-release supervision and was assessed a five-thousand-dollar fine. Aggrieved, King appeals and contends that the search leading to his arrest was unlawful, that the court erred in admitting several pieces of evidence, and that the weight and sufficiency of the evidence do not support his conviction.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On January 28, 2003, a house in Moorhead, Mississippi caught on fire. When firefighters arrived on the scene, a crowd of people were attempting to control the blaze with a hose. As the house burned, explosions could be heard inside, indicating that ammunition was exploding in the fire. After the fire appeared to be extinguished, firefighters entered the house to look for "hot spots," which were described as areas that have the potential to reignite. There was uncontradicted evidence that the firefighters had to move furniture and other debris in order to adequately search for hot spots. Before the firefighters entered the house, Officer Bobby Fuller, Assistant Chief of the Moorhead Police Department, warned them to be careful due to the explosions that had been heard during the fire. Testimony indicated that Officer Fuller requested that the firefighters bring him anything "that he needed to know about...."

¶ 4. Joe Johnson, a volunteer fireman with the Moorhead Fire Department, testified about what he found as he went through the house looking for hot spots. In a bedroom, he moved a chest of drawers and discovered "two small weight scales" underneath. The scales were battery-powered, but no batteries were attached to them when they were introduced at trial. Johnson testified that he thought that the scales were suspicious because he had not "seen very many scales of that nature in house fires" and that he knew they could be used to weigh drugs. Accordingly, he gave the scales to his superior, and they were eventually turned over to police. Johnson also found a locked box in the corner of a closet as he was moving piles of clothing located on the floor to check for hot spots. Johnson testified that items of value must be removed from a burned home unless there is a way to secure them. The house in this case was burned too badly to be secured, and the lockbox was accordingly turned over to the police. An inoperable shotgun was also found under a couch in another room and was given to the police.

¶ 5. Various law enforcement officers knew or believed that King owned and lived in the residence, which had previously belonged to his parents. As a result, Officer Fuller instructed Officer Willie McGuire to ask King to come to the police department if Officer McGuire saw him during his patrol. The next day, Officer McGuire saw King, pulled him over, and told him that the police wanted to talk to him. King was not placed under arrest, and he went to the police department of his own volition.

¶ 6. At the police department, King was questioned about the contents of the locked metal box, of which he continually denied ownership. King eventually told the officers that he did not care what they did with the box and that they would "hang [him], anyway," once they opened it. The officers retrieved bolt cutters and removed the lock from the box. Inside they discovered what appeared to be large quantities of cocaine and marijuana. King was placed under arrest and later charged with possession of cocaine with intent to distribute in the presence of a firearm and possession of marijuana with intent to distribute in the presence of a firearm. Testimony at trial indicated that there was over fifty thousand dollars' worth of illegal drugs in the box.

¶ 7. King sought to have his statement suppressed, as he was not read his Miranda warnings prior to being questioned. King also sought to have the scales, the box, and the box's contents suppressed prior to trial. All of his requests were denied. The jury found King guilty of both counts of possession, although it found that he did not possess the drugs in the presence of a firearm. Thereafter, King was sentenced by the court.

¶ 8. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Suppression

¶ 9. "The admissibility of evidence rests within the discretion of the trial court, and reversal is appropriate only when a trial court commits an abuse of discretion resulting in prejudice to the accused." Ross v. State, 954 So.2d 968, 992(¶ 44) (Miss 2007) (citing Irby v. State, 893 So.2d 1042, 1047(¶ 20) (Miss.2004)). For the sake of clarity, we will separately address each piece of evidence that King claims should have been suppressed.

a. Admission of the Locked Box and Its Contents

¶ 10. King contends that the court erred in finding that he lacked standing to object to the search of the box because of his denial of ownership of the box. At the outset, we note that King provides no legal authority for his contention. "When a party on appeal assigns an error without any citation to authority, this Court will deem this failure to cite any authority as a procedural bar." Givens v. State, 967 So.2d 1, 8(¶ 20) (Miss.2007) (citing Turner v. State, 721 So.2d 642, 649(¶ 27) (Miss.1998)).

¶ 11. Even if there were no procedural bar, we would find this issue to be without merit. When King denied ownership of the box, he relinquished the ability to object to its search and seizure. "It has long been the law in this state that if a person denies ownership or possession of property, he later has no standing to complain that the search of it was unlawful." Waldrop v. State, 544 So.2d 834, 837 (Miss. 1989) (citing Watkins v. State, 262 So.2d 422, 423-24 (Miss.1972); Ball v. State, 194 So.2d 502, 503 (Miss.1967)). Furthermore, even if King had not denied ownership, it is uncontested that he told the officers that they could do whatever they wanted with it, thus giving them implicit permission to open the box.

¶ 12. The search and seizure of the box was lawful, and the court did not err in admitting its contents into evidence.

b. Search of the House

¶ 13. King appears to complain generally about the search of his house by firefighters, quoting extensively from the Mississippi Supreme Court's opinion in Rose v. State, 586 So.2d 746 (Miss.1991), which involved firefighters' search of a residence. The opinion established that firefighters, specifically volunteer firefighters, are subject to the restrictions and limitations of the Fourth Amendment to the United States Constitution. Rose, 586 So.2d at 755. The court also noted, however, that firefighters who are entering a residence to investigate and extinguish a fire are serving "a compelling public interest," and that "the warrant requirement does not apply in such cases." Id. at 753.

¶ 14. Since the firefighters in the present case were responding to an emergency situation, they did not require a warrant to enter King's home. Furthermore, testimony by Johnson established that the movement of furniture and other debris was required to properly search for hot spots. If firefighters miss a hot spot, there is a danger that the house could reignite, creating yet another emergency. There is no evidence that the firefighters in this case went on a fishing expedition to satisfy their curiosity or otherwise did more than necessary to search for hot spots. "In searching solely to ascertain the cause [of a fire], firemen customarily must remove rubble or search other areas where the cause of fires is likely to be found. An object that comes into view during such a search may be preserved without a warrant." Michigan v. Clifford, 464 U.S. 287, 295 n. 6, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984).

¶ 15. King claims that "the criminal activity that firefighters were looking for was evidence of the possession of illegal drugs" and that "Johnson's own testimony indicated that he was indeed looking for evidence of other criminal activity (drugs) not related to the fire...." However, Johnson testified that firefighters are trained "to recognize certain objects that may be used for illegal activities for our safety and anybody elses [sic] safety that enters that structure." Nowhere in Johnson's testimony did he indicate that he entered King's home to look for evidence of drugs. It is logical that firefighters would seize any drugs or other objects that might be a danger to the public. Furthermore, it is clear that if an object's criminal nature is readily apparent, it may be seized in such situations if the object is in plain view. Anderson v. State, 864 So.2d 948, 950(¶ 8) (Miss.Ct.App.2003); United States v. Green, 474 F.2d 1385, 1389 (5th Cir.1973); United States v. Loos, 165 F.3d 504, 506 (7th Cir.1998); United States v. Finnigin, 113 F.3d 1182, 1186 (10th Cir.1997). Quite simply, any criminal items that Johnson found in plain view were admissible without a warrant.

c. Admission of the Scales

¶ 16. Although King makes little separate argument about the admission of the scales found in the bedroom, we briefly address the propriety of their admission. It is indisputable that an...