McLendon v. State

Decision Date12 October 2006
Docket NumberNo. 2005-KM-01480-SCT.,2005-KM-01480-SCT.
Citation945 So.2d 372
PartiesMilton L. McLENDON v. STATE of Mississippi.
CourtMississippi Supreme Court

V.W. Carmody, Jr., Jackson, Daniel P. Self, Jr., Meridian, attorneys for appellant.

Office of the Attorney General by John R. Henry, attorney for appellee.

Before WALLER, P.J., EASLEY and CARLSON, JJ.

CARLSON, Justice, for the Court.

¶ 1. The defendant in today's case appeals from a judgment of conviction entered by the Wayne County Circuit Court after a trial de novo conducted pursuant to the defendant's appeal to circuit court from the justice court DUI conviction. Finding no error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On the night of January 15, 2005, the Waynesboro Police Department (WPD) conducted a routine roadblock during which Milton L. McLendon was stopped and ultimately charged with driving under the influence, first offense (DUI). McLendon was tried before the Justice Court of Wayne County and convicted of DUI on February 24, 2005. McLendon appealed to the Circuit Court of Wayne County and received a trial de novo beginning on May 12, 2005, Judge Robert W. Bailey, presiding. McLendon had filed a Motion to Suppress Evidence or in the Alternative to Dismiss the Charge. Within this motion, McLendon contested the constitutionality of the roadblock, as well as lack of probable cause for his arrest. Inasmuch as the circuit court was sitting without a jury to hear McLendon's case, counsel for both the prosecution and the defendant agreed that the hearing on the motion and on the merits of the case could be conducted simultaneously. Since McLendon's appeal is extremely fact-intensive, all relevant facts as developed at the circuit court trial will be discussed.

¶ 3. On January 15, 2005, the Assistant Chief of Police of the WPD, Leonard Frost, was the acting chief of police. As acting Chief of Police, Chief Frost issued verbal orders for roadblocks within the city limits of Waynesboro for the month of January. Since there were no written policies concerning roadblocks conducted by the WPD, Chief Frost put oral policies in place. The oral policies regarding roadblocks included:

1. The roadblock should be in a well lit area;

2. The location of the roadblock should be inside the city limits;

3. It should be where people can see law enforcement officers;

4. Law enforcement vehicles should have the blue lights on;

5. Law enforcement officials should wear vests 6. There should be room for people to pull their vehicles off the road safely;

7. The time of the roadblock should be between 8:00 p.m. and 12:00 a.m.

¶ 4. The WPD often worked in conjunction with the Mississippi Highway Patrol (MHP) and the Wayne County Sheriff's Office (SO). All three law enforcement agencies were to work in concert in conducting these roadblocks. There were several common areas in the City of Waynesboro in which the WPD conducted roadblocks. One common area was on Highway 184 in front of the Western Sizzlin restaurant.1

¶ 5. According to the testimony of the various officers, on January 15, 2005, the WPD ordered a roadblock along one of the highways which traversed Waynesboro. The WPD officers, along with the MHP, decided to conduct the roadblock on Highway 184 in front of the Western Sizzlin. Chief Frost did not explicitly tell his officers at what point or what time to conduct this specific roadblock because such time and place was within the officers' discretion. There were no logbooks kept, but the officers were required to indiscriminately stop every vehicle coming through the roadblock and check both the driver's license and insurance card. Additionally, officers were instructed to pull over a vehicle if the smell of alcohol was detected or if the driver had an outstanding warrant. Generally, if everything checked out with a vehicle, and its driver, the stop was designed to take approximately one minute.

¶ 6. During the particular roadblock at issue in today's case, several police vehicles2 were on both sides of the highway. The police vehicles had their flashing blue lights on and some of the officers were wearing reflective vests which had "police" on it. Every single vehicle which passed through the roadblock that night was stopped and if there were no violations, the drivers were sent on their way. On the other hand, if a violation were found or suspected, the driver was requested to pull his/her vehicle over into the Western Sizzlin parking lot. Since the Western Sizzlin restaurant was closed during the operation of the roadblock, there was more than adequate space for vehicles to be pulled over for further investigation.

¶ 7. On the night in question, McLendon pulled up to the roadblock, and during the check of McLendon's driver's license, officers smelled what they suspected to be an intoxicating beverage on his breath; therefore, McLendon was requested to pull his vehicle into the Western Sizzlin parking lot. Once his vehicle had been safely driven off the highway and into the parking lot, the officers asked McLendon if his vehicle could be searched, and McLendon consented. McLendon then exited his vehicle.

¶ 8. After McLendon stepped out of his vehicle, state trooper Holt Ross approached McLendon and asked him if he had been drinking. McLendon told trooper Ross that he had been at the club earlier, where he had "a couple [of] drinks." Thus, trooper Ross informed McLendon that he would like to perform a couple of field sobriety tests. Trooper Ross ran the HGN test3 and the one-leg stand test.4 Trooper Ross concluded that on the HGN test McLendon's eyes showed distinct nystagmus.5 Additionally, trooper Ross observed that during the one-leg stand McLendon put his foot down twice while he was counting and instead of being able to keep his arms down by his side, McLendon kept them out from his side in order to keep his balance. Furthermore, trooper Ross gave McLendon a breathalyzer test to establish a breath-alcohol content. According to trooper Ross, the breathalyzer showed McLendon had a breath-alcohol content; therefore, trooper Ross took McLendon to the SO to run McLendon on the Intoxilyzer 5000 machine.

¶ 9. At the SO, trooper Ross informed McLendon that he had a right to refuse the intoxilyzer test. McLendon agreed to take the intoxilyzer test, but he failed to give a proper breath sample. Trooper Ross then informed McLendon that he had three minutes to satisfy the machine. If the machine was not satisfied within three minutes, McLendon's results would be logged as test refusal.6

¶ 10. Trooper Ross proceeded to show McLendon how easy it was to satisfy the machine, and McLendon stated he wanted to take the test again. Trooper Ross testified that McLendon provided a proper breath sample upon the second testing, and the results revealed a breath-alcohol content of 0.13%.7 Trooper Ross then arrested McLendon for DUI, first offense. However, having already noted in the logbook that McLendon had refused to take the test, trooper Ross never corrected the logbook to reflect the testing and test results. Therefore, it was never recorded in the logbook that McLendon actually had a breath-alcohol content of 0.13%. The only notation of the 0.13% breath-alcohol content appeared on the uniform traffic ticket issued to McLendon.

¶ 11. McLendon did not offer any evidence contrary to that offered by the prosecution, nor did McLendon otherwise attempt to rebut any of the officers' testimony. At the conclusion of the trial on May 12, 2005, Judge Bailey took this case under advisement for a subsequent ruling, and on May 18, 2005, Judge Bailey entered a 13-page order, which included detailed findings of fact and conclusions of law. In the end, Judge Bailey found that the law enforcement officials had conducted a constitutional roadblock and that the officers had probable cause to arrest McLendon. Finally, Judge Bailey found McLendon guilty of DUI, First Offense and assessed a fine of $500 and court costs in the amount of $190.50.

¶ 12. On May 25, 2005, McLendon filed a motion for a judgment notwithstanding the verdict, or in the alternative a motion for a new trial. After a hearing on June 21, 2005, Judge Bailey denied these post-trial motions by an order entered on June 28, 2005. McLendon thereafter timely perfected his appeal to this Court.

DISCUSSION

¶ 13. Although McLendon and the State present various issues to us for discussion, we will re-state the issues here for clarity in discussion.

I. WHETHER THE ROADBLOCK WAS AN UNCONSTITUTIONAL SEIZURE OF McLENDON

¶ 14. We first consider whether the trial court erred in denying McLendon's motion to suppress evidence, or in the alternative to dismiss the DUI charge against McLendon. Our standard of review concerning a trial judge's ruling on a motion to suppress evidence is clear. In Culp v. State, 933 So.2d 264 (Miss.2005), we stated:

When reviewing a trial court's ruling on the admission or suppression of evidence, this Court must assess whether there was substantial credible evidence to support the trial court's findings. The admission of evidence lies within the discretion of the trial court and will be reversed only if that discretion is abused.

Id. at 274 (citing Crawford v. State, 754 So.2d 1211, 1215 (Miss.2000); Magee v. State, 542 So.2d 228, 231 (Miss.1989)).

¶ 15. It is well-settled law that the 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." Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979) (quoting Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969)); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Additionally, the Fourth Amendment requires that such seizure be "reasonable." Brown, 443 U.S. at...

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