Smith v. State, 51878

• Decision Date: 13 August 1980
• Docket Number: No. 51878,51878
• Citation: 386 So.2d 1117
• Parties: Turner Paul SMITH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1117

386 So.2d 1117

Turner Paul SMITH v. STATE of Mississippi.

No. 51878.

Supreme Court of Mississippi.

Aug. 13, 1980.

John M. Deakle, Hattiesburg, for appellant.

Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C. J., and BROOM and LEE, JJ.

PATTERSON, Chief Justice, for the Court.

This appeal is from the Circuit Court of Forrest County wherein Turner Paul Smith, in a two-stage proceeding, was convicted of burglary and as an habitual offender was sentenced to life imprisonment.

The appeal was perfected as to the guilty verdict. The sentence as an habitual offender is not questioned. Smith contends the court erred (1) in admitting into evidence the physical evidence and the confession because they were the fruits of an unlawful search and seizure resulting from an arrest without probable cause; (2) in not allowing the defendant to make a timely opening statement to the jury and in permitting it to go unsupervised into the jury room after hearing the opening statements of the state, with no instructions as to discussion among themselves not to form opinions, bias, or prejudice; and (3) in allowing the confession of the defendant to be introduced into evidence because it was not freely and voluntarily given.

The record reveals that Smith was indicted as an habitual offender on December 1, 1978, for the April 3, 1978, burglary of Builders Supply Company in Hattiesburg. In this burglary a rifle, shotgun and a number of checks were stolen. No particular individual was arrested or suspected of the burglary prior to the following events.

On June 13, 1978, about ten weeks after the burglary of Builders Supply, Hattiesburg police officer Ezell was patrolling a high crime area in a plainly marked police car when at about 1:30 a. m. he received a radio communication from Lt. Dubose, his superior, informing Ezell that he was at the Martin Oldsmobile Paint Shop and had heard breaking glass at Courtesy Ford, evidently an automobile business. Ezell was instructed to investigate, and after doing so, reported to Dubose that he found no one in the vicinity of Courtesy Ford. Whereupon Dubose directed Ezell to leave the area and return later. Ezell complied and testified to the following:

(A)pproximately thirty or forty-five minutes later (2:45 a. m.) I came back and had my headlights off as I started checking Gibson's Discount, (and) as I rounded the rear of Gibson's I saw an individual in the back of Gibson's and when he saw me he turned and ran.

He explained that when first observed, the individual held a bag in his hand. Ezell flicked on his headlights and pursued the man into a dead-end alley behind Gibson's and a food store where he was overtaken at a garbage dump in the rear of the store. Ezell observed his quarry no longer had the bag, was perspiring heavily and appeared nervous. Upon request, the individual identified himself as Turner Paul Smith, handing an Alabama driver's license to Ezell, and when asked what he was doing in the area, replied, ". . . he was looking for some boxes to sleep on." After consulting with Lt. Dubose via radio, Ezell, on Dubose's "advice," arrested Smith for "attempted burglary" and took him to the police station. During the suppression hearing Smith explained his flight from the police car thusly: "To be honest, I always run from the law."

At this juncture the determination of whether there was probable cause is imperative because the "fruits" flowing from an arrest without probable cause cannot be used to strengthen the initial arrest. In McNeely v. State, 277 So.2d 435 (Miss.1973), we stated:

The probable cause factor must be evaluated by the officer making the arrest by the facts and circumstances existing at the time of the arrest and it may not be later strengthened by what the search revealed.

(277 So.2d at 438)

Additionally, an arrest must be considered in conjunction with Mississippi Code Annotated section 99-3-7 (1972) which provides:

An officer or private person may arrest any person without warrant, for an indictable offense committed, or a breach of the peace threatened or attempted in his presence; or when a person has committed a felony, though not in his presence; or when a felony has been committed, and he has reasonable ground to suspect and believe the person proposed to be arrested to have committed it; or on a charge, made upon reasonable cause, of the commission of a felony by the party proposed to be arrested. And in all cases of arrests without warrant, the person making such arrest must inform the accused of the object and cause of the arrest, except when he is in the actual commission of the offense, or is arrested on pursuit.

"Probable cause" is indeed difficult to define or determine, but in McCollum v. State, 197 So.2d 252 (Miss.1967), this Court said, citing Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959):

"The existence of 'probable cause' or 'reasonable grounds' justifying an arrest without a warrant is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The determination depends upon the particular evidence and circumstances of the individual case. The facts necessary to uphold an arrest without a warrant must be sufficiently strong to support the issuance of a warrant for arrest. Standards which may be reasonable for the apprehension of bank robbers may not be reasonable for the arrest of narcotic peddlers.

" 'Probable cause' or 'reasonable grounds' justifying an arrest without warrant exist where the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a narcotics offense has been or is being committed. It is not required that probable cause be established solely by facts within the personal knowledge of the arresting officer. A combination of information and personal knowledge may raise the inference beyond opinion, suspicion, and conjecture to reasonable probability. All information in the agents possession, fair inferences therefrom, and observations made by him are pertinent."

(197 So.2d at 254-55)

In applying these standards to the facts before us, we encounter much perplexity. There is...