Sanders v. State
| Decision Date | 06 June 1996 |
| Docket Number | No. 91-KA-01243-SCT,91-KA-01243-SCT |
| Citation | 678 So.2d 663 |
| Parties | Mervin SANDERS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
John P. Price, McComb, for Appellant.
Michael C. Moore, Attorney General, Jackson, Deirdre McCrory, Sp. Ass't Attorney General, Jackson, for Appellee.
En Banc.
On January 21, 1990, appellant Mervin Sanders was arrested for the crime of unlawful possession of cocaine with intent to deliver. He was indicted for this crime on October 17, 1991, and pled not guilty six days later. Sanders was then tried and found guilty on October 31, 1991, and on November 6, 1991, was sentenced to pay a $30,000 fine and serve thirty years without parole, probation, good time, or early release. We affirm.
In January 1990, the Mississippi Bureau of Narcotics (MBN) began a sting operation focused on Sanders which used informant Johnny Morris as their contact. Sanders was targeted by the bureau partially because he had sold Morris cocaine on many previous occasions. As a part of this operation, Morris recorded several telephone calls with Sanders in which Sanders agreed to travel from Brookhaven, Mississippi, to New Orleans and get Morris an ounce of cocaine for $1,120. The two of them also agreed that Morris would supply Sanders with a car for the journey. Morris ultimately decided to lend Sanders his beige 1982 Mazda 626 four-door which was missing its left taillight.
On January 20, MBN agents attached a "birddog" transmitting device to the Mazda designed to make following the car easier. Morris delivered the car to Sanders, who left Brookhaven that same day at about 5:30 p.m. The birddog tracked Sanders south on Interstate 55 until near Hammond, Louisiana. After they lost contact with the car, the agents met at the weight station at the Mississippi/Louisiana border and set up stationary surveillance points along Interstate 55. At about 2:20 a.m., Agents Ronnie Frazier and Craig Oster spotted the beige Mazda traveling northward on the interstate with Sanders behind the wheel. Sanders was stopped just north of Osyka in Pike County by a highway patrol officer working with the narcotics team. At trial Frazier testified as to why he felt they had sufficient probable cause to stop Sanders and search the car for cocaine:
The conversations that were held between Mr. Sanders and Mr. Morris were recorded conversations. The meeting times were recorded. There was visual surveillance made when Mr. Sanders met with Mr. Morris, Mr. Morris gave Mr. Sanders the car, and there was a constant surveillance on the vehicle, tag number, description on the vehicle, when it left the State of Mississippi it was under constant surveillance. It was also pre-determined that there was an ounce of cocaine to be picked up for $1120.00.
After the vehicle was stopped, Sanders was asked to get out of the car. Agent Oster then went to the Mazda's right passenger's door and opened it and the glove box. Inside the glove box he found a package containing one ounce of cocaine. 1 The officers did not have a search warrant nor had they attempted to obtain one. Sanders was arrested for the crime of possession of more than one ounce of cocaine with intent.
Although the arrest took place on January 21, 1990, Sanders was not indicted until October 17, 1991. Sanders was free during the interim. Agent Frazier explained at the trial why the accused was not kept in prison:
Yes, sir,--he was released on--I think Agent Oster released him without bond because he showed intention that he wanted to cooperate maybe later on down the road. You lock a man up in jail, it goes in the newspaper, and it goes around the community, and in that situation he can't help himself. Its not unusual to do that.
Sanders pled not guilty at his October 23, 1991, arraignment and was tried on October 31.
Judge Pigott, prosecuting attorney Dunn Lampton, and defense attorney John Price discussed the admission of evidence of prior drug transactions between Mervin Sanders and Johnny Morris at some length in the trial below. This exchange was held after Morris testified outside the presence of the jury that he had bought cocaine from Sanders on many previous occasions:
Sanders did not testify at trial and the defense introduced no further evidence of entrapment. The defense did however request and receive an entrapment jury instruction.
The jury found Sanders guilty of the crime of unlawful possession of cocaine with intent to deliver. A sentencing hearing was held on November 6, 1991, at which evidence of two prior drug offense convictions was introduced and at which Sanders was sentenced as a habitual offender to pay a $30,000 fine and to serve 30 years without parole, probation, good time, or early release. A Motion for New Trial was filed by Sanders on November 14 and was overruled on December 5, 1991. He appealed to this Court the next day.
Sanders first claims on appeal that the lower court erred when it refused to suppress evidence found during the warrantless search of the Mazda. The Fourth Amendment to the United States Constitution guarantees that:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The meaning of the Fourth Amendment has been greatly refined and expanded upon in the two centuries since its passage. One of the more notable examples of this jurisprudence concerns the automobile exception to the warrant requirement. This rule is well summarized in Barry v. State, 406 So.2d 45, (Miss.1981): Id. at 47 (citations omitted). The practical effect of this exception is that evidence seized without a warrant from an automobile is admissible if there is probable cause and an exigency.
Frazier testified at length as to why he and his fellow agents thought they had probable cause to search Sanders' car. Their informant, Johnny Morris, had recorded conversations with Sanders in which Sanders agreed to go to New Orleans and get Morris an ounce of cocaine for $1120, the agents knew the appearance of the car, its licence plate number and its distinctive missing taillight, and the agents had been told by Morris that he and Sanders had made several similar transactions in the past. The agents had probable cause to believe that the promised illegal drugs would be somewhere in the car. The first part of the automobile exception was therefore satisfied.
The exigency prong is addressed in the Mississippi Federal case of Henry v. Williams, 299 F.Supp. 36 (N.D.Miss.1969):
[T]he exceptional circumstances excusing the issuance of a warrant are: 1) when the vehicle searched is in motion; 2) when the officers have probable cause to believe the vehicle contains contraband subject to search; and 3) when it is impracticable to secure a warrant because the vehicle can and may be removed from the jurisdiction.
Applying these criteria, the vehicle was in motion when the agents stopped it, the agents had probable cause to believe that the vehicle contained contraband, and finally, because the vehicle was apprehended close to the Mississippi/Louisiana border it could easily have been removed from Mississippi. The exigency requirement excusing the issuance of a warrant was satisfied by the facts of the case three times.
Sanders has further complained on appeal that the narcotics agents should have gotten a search warrant in the several hours that passed between Morris giving Sanders his car and Sanders' arrest. The application of the third Henry criteria to the facts of the case shows why this contention is also without merit. Even if it had been possible for one or more agents to have been taken off a surveillance which involved examining every northbound car on Interstate 55 over a period of several hours at night, the nearness of the state line and the ease with which Sanders could have fled the agent's jurisdiction made getting a search warrant impracticable. The record demonstrates both that the agents had probable cause to believe that the car driven by Mervin Sanders contained cocaine and that an exigency existed which would allow a warrantless search. The admission of the fruits...
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