Miller v. State

• Decision Date: 14 March 1979
• Docket Number: No. 51020,51020
• Citation: 373 So.2d 1004
• Parties: Jimmy R. MILLER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1004

373 So.2d 1004

Jimmy R. MILLER v. STATE of Mississippi.

No. 51020.

Supreme Court of Mississippi.

March 14, 1979.

Rehearing Denied Aug. 22, 1979.

Eaves & Eaves, G. Jyles Eaves, Henry L. Rodgers, Louisville, for appellant.

A. F. Summer, Atty. Gen., by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.

EN BANC.

LEE, Justice, for the Court:

ON PETITION FOR REHEARING

The conviction of Jimmy Ronald Miller in the Circuit Court of Newton County for possession of over one (1) ounce of marijuana with intent to deliver same and sentence to five (5) years in the Mississippi State Penitentiary was affirmed per curiam by this Court on March 14, 1979. On petition for rehearing, as on the original hearing, the principal question is whether or not the officers had probable cause to search an automobile driven by appellant and also occupied by his wife and minor children, and whether or not the search of a purse or bag containing marijuana and held by appellant's wife was an illegal seizure due to lack of probable cause. We think that on the petition for rehearing, the Court should address itself to those questions.

On October 1, 1977, Horace Watts and Kenneth Ray Henley, officers of the Newton Police Department, were checking drivers' licenses on Highway 80 Bypass in the City of Newton. They had received information that employees of two nearby factories were driving without licenses, and they set up a roadblock for the purpose of stopping all individuals traveling the highway at that point and checking their drivers' licenses. When the automobile of appellant was stopped, Officer Watts smelled the odor of marijuana in the vehicle and summoned Captain Henley and Officer Parks. Captain Henley was head of the narcotics division in the City of Newton Police Department. When he went to the driver's side of the automobile, where appellant was seated, he also smelled the odor of marijuana and asked appellant to get out of the automobile. Captain Henley then sat down on the edge of the seat vacated by appellant and he observed a purse or bag in the lap of Mrs. Miller, appellant's wife, with the corner of a plastic bag protruding therefrom in which he saw a green leafy substance. He took the purse containing the plastic bag, and he inspected therein a quantity of greenish leafy material which he suspected to be marijuana. Thereupon, he arrested appellant and Mrs. Miller. At the time appellant got out of the vehicle, Officer Watts "patted him down" to determine whether or not he was armed.

I.

Did the officers violate appellant's Fourth and Fourteenth Amendment rights in stopping appellant's automobile and detaining the occupants?

The appellant contends that the action of the police officers in stopping his automobile and detaining him, his wife and children was in violation of his Fourth and Fourteenth Amendment rights. He cites and relies upon State of Delaware, Petitioner v. William J. Prouse, III, on Writ of Certiorari to the Supreme Court of Delaware, 1979, --- U.S. ----, 99 S.Ct. 1391, 59 L.Ed.2d 660. In that case, on motion to suppress marijuana which was seized as a result of the detention, the patrolman involved testified that prior to stopping the vehicle he had not observed traffic or equipment violations or any suspicious activity, and that he made the stop only in order to check the driver's license and registration. The patrolman was not acting pursuant to any standards, guidelines or procedures pertaining to document spot checks promulgated by either his department or the state's attorney general. He said that he saw the car in the area and he was not answering any complaint, so he decided to pull them off. The Court said:

"Accordingly, we hold that except in those situations in which there is at least articulate and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. The judgment below is affirmed." (Emphasis added) --- U.S. at ----, 99 S.Ct. at 1401.

We distinguish the case at bar from Prouse in that the Newton officers were not making a random or spot check of drivers, but had set up a roadblock and were checking all drivers (it is assumed that shifts changed at about 1:00 a.m.) from the two factories in the vicinity, after having received complaints that employees at those facilities were not licensed to drive automobiles. As the Court stated in Prouse, supra, "Questioning of all oncoming traffic at roadblock-type stops is one possible alternative" (or that do not involve the unbridled exercise of discretion). We hold that the officers did not violate appellant's Fourth and Fourteenth Amendment rights in stopping his automobile and detaining the occupants of same.

II.

Did the police officers have probable cause to search appellant's vehicle?

Officer Watts testified that, after appellant's car stopped, he asked appellant for his drivers license. When appellant produced same, at that time, he smelled the odor of marijuana inside the car. His testimony was positive and unequivocal that he smelled the odor of (burning) marijuana emanating from the car, which was owned and driven by appellant. He testified:

"Q. When you say you could smell marijuana, do you mean you can smell where it has been smoked or whether you can smell in its naked form?

A. Where it has been smoked.

Q. You are not trying to tell this jury you can smell it just in the raw state, can you?

A. No, sir. Once you smoke it, it gives a very strong odor.

Q. So, what you are saying, that you had smelled some marijuana smoke, and not marijuana itself?

A. I smelled the odor of marijuana.

Q. But the odor from the burned marijuana, is what you are saying?

A. Yes, I smelled the odor of marijuana in the car."

When Captain Henley came to the car at the request of Officer Watts, he smelled burning marijuana and he smelled raw marijuana. At that juncture, he asked appellant to get out of the car, he sat down on the corner of the front seat and noticed that Mrs. Miller had a large brown purse in her lap with a plastic bag therein, the corner of which was sticking out, and he could see that there was a green leafy substance in it, which he believed to be marijuana. He took the purse and bag, he examined the contents of the bag and was satisfied it was marijuana. Henley was in charge of narcotics investigations, Newton Police Department, he had extensive experience in that field, and he could detect marijuana in the burned and raw states (unburned). He testified:

"Q. Well, a man in the police business, you have smelled it before, you say?

A. Yes, sir.

Q. Did you ever smell any marijuana that was not burning?

A. Yes, sir.

Q. And you can smell it?

A. Yes, sir.

Q. Can you smell this?

A. Yes, sir.

Q. You can take it out. It was in that bag when you were smelling it, wasn't it?

A. When I smelled the odor?

Q. Yes."

There is no testimony from appellant or any other person that there was not burning marijuana in appellant's automobile. Captain Henley testified that the large plastic bag taken from the purse of Mrs. Miller contained thirteen (13) smaller plastic bags of marijuana. The record does not indicate whether any of the bags were open or whether they had been opened prior to the search.

The sense of smell is no less important or reliable than the sense of sight. It is elementary that under the "plain view" doctrine, the eye can do no wrong, and if contraband or an illegal object is seen, then the same may authorize a search for, and seizure of, the contraband. An expert woodsman may be able to tell the difference in wood and trees by the odor of same; a pipe smoker may know the difference in various brands of tobacco by the smell of same; a bream fisherman may point out the location of a bream bed by the odor; smelling the air may unlock the secrets of the sea to the mariner; a farmer may know whether to expect rain or dry weather by sniffing the summer wind. Captain Henley had training and experience in illegal drugs, he was able to detect the presence of marijuana, either burning or in an unburned state, and he so testified. The evidence is uncontradicted that two (2) officers smelled marijuana in appellant's vehicle, Watts that he smelled burning marijuana and Captain Henley that he smelled marijuana (although not specific, the indication is that he smelled both burning and unburned).

In Joyce v. State, 327 So.2d 255 (Miss.1976), which involved probable cause on a charge of possession of marijuana, Justice Rodgers said in a concurring opinion:

"Moreover, such facts may be communicated to an officer not only by a reliable source stating that the automobile contains contraband, but such probable cause may be determined by any of the officer's five senses, for example, the smell of marijuana, (Fernandez v. United States, 321 F.2d 283, 286 (C.A. 9th 1963)) or the smell of intoxicating liquor (Eady v. State, (153 Miss. 691, 121 So. 293) supra)." 327 So.2d at 262.

The Court said in Hall v. State, 288 So.2d 850 (Miss.1974):

"An automobile may be searched, given the proper circumstances, without a warrant either as an incident to a valid arrest or because there is probable cause that the...