Millsap v. State, No. 1999-KA-00540-COA.

• Decision Date: 12 September 2000
• Docket Number: No. 1999-KA-00540-COA.
• Citation: 767 So.2d 286
• Parties: James B. MILLSAP a/k/a James Bryan Milsap, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

767 So.2d 286

James B. MILLSAP a/k/a James Bryan Milsap, Appellant, v. STATE of Mississippi, Appellee.

No. 1999-KA-00540-COA.

Court of Appeals of Mississippi.

September 12, 2000.

Anthony J. Buckley, Laurel, Attorney for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

BEFORE McMILLIN, C.J., LEE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. James B. Millsap appeals his conviction of possession of more than a kilogram of marijuana, assigning the following issues as error

I. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE DEFENDANT'S STATEMENTS AT THE SCENE JUST BEFORE THE DRUGS WERE FOUND, AS OBVIOUSLY THE POLICE OFFICER HAD PROBABLE CAUSE A CRIME WAS BEING COMMITTED, AND NO MIRANDA WARNINGS WERE GIVEN.

II. THE COURT COMMITTED AN AGEE VIOLATION BY NOT REQUIRING ALL POLICE OFFICERS PRESENT DURING THE DEFENDANT'S INTERROGATION,

TO TESTIFY AT THE SUPPRESSION HEARING, AFTER THE DEFENDANT TESTIFIED HE DEMANDED A LAWYER.

III. THE COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION TO SUPPRESS THE ILLEGAL CONTRABAND AS IT WAS DISCOVERED FROM THE RESULT OF AN ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF ARTICLE 3. SECTION 23 OF THE MISSISSIPPI CONSTITUTION AND THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

IV. THE COURT ERRED IN DENYING THE DEFENDANT'S REQUESTED CONSTRUCTIVE POSSESSION JURY INSTRUCTIONS WHEN THE CONTRABAND WAS FOUND NOT ON THE DEFENDANT'S PERSON BUT IN THE TRUNK OF A RENTAL CAR.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On August 21, 1997, Officer Alex Hodge pulled over a red Ford Taurus traveling at the rate of 75 mph in a 70 mph zone in Jones County. The driver of the vehicle was the appellant, James B. Millsap, and forty-six kilograms of marijuana were found in the trunk of his car. A trial was held on February 23, 1999, and Millsap was found guilty and sentenced to twenty years in the custody of the Mississippi Department of Corrections with eight years suspended and twelve years to serve.

¶ 4. The State's first witness was Officer Alex Hodge, a trooper for the Mississippi Highway Patrol. Lieutenant Tony Sarrow, a lieutenant with the Harrison County Sheriff's Department, was riding along with Officer Hodge on the day in question. Officer Hodge testified that he pulled Millsap over and asked him for his license and registration. Officer Hodge testified that he became suspicious when he noticed that the vehicle was a Hertz rental and Millsap's name did not appear on the rental contract. He asked Millsap if he had any handguns, contraband or dead bodies in the vehicle. Officer Hodge testified that Millsap's response was "Of course not. My father would kill me if I was involved in anything like that." Then Officer Hodge testified that he asked Millsap, "What are you talking about when you refer to that?" and stated that Millsap's response was "You know, drugs and stuff." Then Officer Hodge asked if he could search the vehicle, and Millsap stated that he did not want the vehicle searched because the last time it was searched the police had damaged his vehicle. Officer Hodge testified that he took this statement as an indicator that Millsap did not want him searching his trunk. This caused him to get his patrol dog to do an exterior walk around the vehicle, which resulted in the dog making an aggressive alert to the back of the car by scratching on the trunk. The officer explained that at this point he asked Mr. Millsap if there would be any reason the dog would have indicated on the vehicle or if there were any illegal narcotics in the vehicle. He testified that Millsap's response was "Yes" and after asking how much Millsap responded with "A lot." Officer Hodge then asked what he meant by a lot, and Millsap responded with "Well, it should be between 104 and 106 pounds."

¶ 5. Officer Hodge stated that he handcuffed Millsap and the passenger in the car, Alicia Stone, in order to safely search the car. When he opened the trunk he found two duffel bags filled with a "green leafy substance, compressed and wrapped in clear plastic wrap," later determined to be marijuana with a weight of forty-six kilograms or approximately 101 pounds. Officer Hodge arrested Millsap and brought him to the Highway Patrol Office in Hattiesburg. At the station, Officer Don Sumrall advised Millsap of his Miranda rights and gave him his rights advisement form. Millsap signed the waiver and explained to the officers that he traveled from Severeville, Tennessee to Houston, Texas to pick up the marijuana.

¶ 6. Millsap testified that he was not speeding on the day in question and that he gave a phone number to the officer to verify that he was driving the rental car with his friend's permission. He stated that he did not want the officer to search the car because he had some personal items in the car and that he never stated anything about the trunk or any drugs. He further testified that he was not allowed to observe the dog sniff the vehicle. He also stated that Officer Hodge never asked him if he had any drugs, guns or weapons in the car. Millsap also testified that during the questioning he asked for a lawyer and the officer replied, "Everybody in jail has a lawyer," but did not provide him with one.

ANALYSIS

I. THE TRIAL COURT ERRED IN NOT SUPPRESSING THE DEFENDANT'S STATEMENTS AT THE SCENE JUST BEFORE THE DRUGS WERE FOUND, AS OBVIOUSLY THE POLICE OFFICER HAD PROBABLE CAUSE A CRIME WAS BEING COMMITTED, AND NO MIRANDA WARNINGS WERE GIVEN.

¶ 7. Millsap contends that once Officer Hodge had probable cause that a crime was occurring, when the dog indicated there were drugs in the car, then Hodge should have given the appropriate Miranda warning to Millsap. Millsap attempts to argue that any questioning after Hodge had probable cause to believe that Millsap was involved with criminal activity should be suppressed because the statements were obtained illegally since Millsap had not been read his Miranda warnings. Essentially, Millsap argues that the police are required to deliver the Miranda warnings at such time as they have probable cause for arrest.

¶ 8. The United States Supreme Court has indicated that a traffic stop is more similar to a "Terry stop" than to a formal arrest. Berkemer v. McCarty, 468 U.S. 420, 438, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); see also Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Supreme Court has answered the question as to whether a roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered "custodial interrogation." Berkemer, 468 U.S. at 438, 104 S.Ct. 3138. In Berkemer, the routine stop led to a conviction of operating a vehicle while under the influence of alcohol and/or drugs. Id. at 438, 104 S.Ct. 3138. The Supreme Court held that the prearrest statements were admissible because routine traffic stops did not constitute custodial interrogation for purposes of Miranda. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court explained:

Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to "investigate the circumstances that provoke suspicion." United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). "[T]he stop and inquiry must be `reasonably related in scope to the justification for their initiation.'" Id[.] at 881 (quoting Terry v. Ohio, supra, 392 U.S. at 29, 88 S.Ct., at 1884). Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not "in custody" for the purposes of Miranda.

Berkemer, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

¶ 9. In the case at bar, we find nothing in the record to indicate that Millsap should have been given Miranda warnings at any point prior to the time Officer Hodge placed him under arrest. Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Officer Hodges legally pulled Millsap over for speeding. Once Hodge had legally detained Millsap, several facts immediately caused him to become suspicious, provoking his further investigation: (1) Millsap was driving a rented vehicle and his name was not on the contract; (2) the person whose name was on the contract was not in the vehicle; (3) a piece of paper lying on the dashboard with instructions to call a friend's father, who was a deputy sheriff, in case of emergency; and (4) Millsap appeared to be very nervous, hesitated before answering questions and did not look at Officer Hodge when answering the questions. Once Officer Hodge began to investigate further, several other facts indicated to him that something suspicious was going on: (5) the passenger's statement and Millsap's statements had several inconsistencies; (6) when Officer Hodge asked Millsap whether he had any dead bodies, drugs, contraband, or hand grenades in the vehicle Millsap's response focused on drugs.

¶ 10. Officer Hodge was justified and reasonable in his continued investigation, and the situation did not escalate to a custodial setting. Millsap failed to demonstrate that he was subjected to restraints analogous to those associated...