State v. Mims
| Decision Date | 29 March 1976 |
| Docket Number | No. 57073,57073 |
| Citation | 330 So.2d 905 |
| Parties | STATE of Louisiana v. Tye Phillips MIMS. |
| Court | Louisiana Supreme Court |
Lloyd F. Love, Ferriday, E. H. Fitzpatrick, Jr., Natchez, for defendant-appellant.
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen.; W. C. Falkenheiner, Dist. Atty., John Sturgeon, Asst. Dist. Atty., for plaintiff-appellee.
Tye Phillips Mims was charged by bill of information with possession of a controlled dangerous substance, to-wit: marijuana, in violation of La.R.S. 40:966C and D(1). After trial by judge on February 26, 1975, he was found guilty as chared and sentenced to pay a fine of five hunred dollars plus costs and to be imprisoned in the parish jail for ten days. An appeal was taken to this court. A case is appealable to this court if the defendant has been convicted of a felony or a fine Exceeding five hundred dollars or imprisonment Exceeding six months actually has been imposed. 1 Defendant was not convicted of a felony, 2 nor did the fine or term of imprisonment actually imposed Exceed five hundred dollars or imprisonment for six months. Hence, the case is not appealable to this court. However, we will consider the appeal as an application for a writ of review under our supervisory jurisdiction. 3 Relator asserts four assignments of error for the granting of this writ and reversal of his conviction and sentence.
Defendant filed a motion to suppress the evidence seized from his car on the ground that it was recovered as a result of an illegal search and seizure. After a hearing, the motion was denied. Defendant contends that the trial court erred in this ruling.
A bulletin was broadcast over the police radio regarding a complaint that occupants of a particularly described vehicle had purchased cigarette papers from a local store in Ferriday, and one of the occupants had 'a strong smell of marijuana' on his person. This bulletin was logged at 5:00 p.m. on August 3, 1974. Shortly thereafter, Trooper James W. Farris of the Louisiana State Police observed a vehicle meeting this description traveling 'pretty fast.' He followed the vehicle to where it stopped at the Spokane grocery. The occupants alighted from the car and started walking toward the store. Officer Farris got out of his vehicle and, as he walked past their vehicle in the direction of the store, he observed what appeared to be numerous marijuana seeds on the seats and floorboard of their vehicle. Upon inquiry, relator, Tye Mims, admitted his ownership of the vehicle and identified himself by exhibiting his driver's license to the police officer. Trooper Farris then radioed Trooper Blunschi, who was in the vicinity, for assistance. Trooper Blunschi arrived at the scene in about five to ten minutes. Relator was presented with a 'permission to search' form which he read, acknowledged that he understood, and thereafter signed. This form was executed at 5:25 p.m. A thorough search of the vehicle was then conducted by the police officers who recovered marijuana seeds and gleanings from the front and back seats, under the seats, the floorboard, and the glove compartment of this car. They likewise found a 'roach' holder, cigarette papers and a cardboard tube from a coat hanger, that latter of which smelled of marijuana and was burned on one end. Relator was then placed under arrest and advised of his Miranda rights.
Relator admitted stopping at the store in Ferriday but denied purchasing any cigarette papers. He admitted signing the 'permission to search' form, stating that he had nothing to hide in his car. However, he explained that he consented to the search and signed the permission form because of representations by the police officers that a search warrant could be obtained if he refused to do so. The testimony of several of the occupants of the vehicle generally corroborated relator's testimony except that they admitted that an inquiry had been made at the store in Ferriday about the purchase of cigarette papers but they denied purchasing any as there was none available.
After hearing the evidence, the trial judge concluded that relator's consent had been validly obtained.
In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the United States Supreme Court stated:
In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' (citation omitted) The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. (citation omitted) A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. (citations omitted)
See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Rogers, 324 So.2d 403 (La.1975); State v. Jefferson, 284 So.2d 882 (La.1973); La.Code Crim.P. art. 215.1(A).
Applying the standards set forth in Adams and Terry, we conclude that Trooper Farris clearly had reasonable cause to approach and briefly detain relator for investigatory purposes. Trooper Farris had just received a police bulletin describing the vehicle in question as being occupied by persons suspected of possessing marijuana and had personally observed marijuana seeds on the seats and floorboard of said vehicle.
A consent search is one of the specifically established exceptions to the warrant requirement of the fourth amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Hence, a valid search or seizure may be made without a warrant where the accused consents to such a search or seizure. State v. Rogers, supra; State v. Sears, 298 So.2d 814 (La.1974); State v. Comeaux, 252 La. 481, 211 So.2d 640 (1968). Voluntariness of consent is a question of fact to be determined from all the circumstances. Schneckloth v. Bustamonte, supra; State v. Rogers, supra.
After reviewing the evidence adduced at the hearing on the motion to suppress, we find no abuse of discretion in the trial judge's conclusion that relator's consent to search the vehicle was freely and voluntarily given. Therefore, the trial judge correctly denied defendant's motion to suppress the evidence seized from his car. Assignment of Error No. 1 is without merit.
Defendant's motion to suppress his written statement was denied by the trial judge. In brief, defendant asserts that the arresting officers failed to give him his Miranda warnings prior to questioning and therefore any information obtained cannot be used at trial.
There is no merit to this contention. As indicated in the facts under the previous assignment of error, immediately after the seizure of the marijuana seeds and gleanings and drug paraphernalia from relator's car, relator was placed under arrest and orally advised of his Miranda rights by Trooper Farris, who testified that Mims affirmatively acknowledged his understanding of his rights and agreed to cooperate with them. Mims was then taken to the Concordia Parish sheriff's office in Vidalia where he was again advised of his rights and signed a 'waiver of rights' form. This form was executed at 6:55 p.m. Relator then made a statement which was written and signed by him. In the printed portion above the written statement, there is an acknowledgment of his rights and waiver of same. Mims admitted that Officer Farris read the printed portion to him prior to his writing the statement. The statement was started at 6:57 p.m. and completed at 7:12 p.m. While relator denied receiving his rights at the Spokane grocery, he admitted that his rights were read to him and that he signed the waiver of rights form at the courthouse. However, he denies understanding them. At the time of trial (some six months after the date of the alleged crime), relator was seventeen years old and senior in high school. Under the facts of this case, we find that relator was fully advised of his Miranda rights and that he knowingly and intelligently waived same.
Furthermore, we do not find under the facts of this case that relator was under custodial interrogation until after the marijuana seeds and gleanings and drug paraphernalia were seized from his car and he was placed under arrest. At this point, Miranda warnings must and did follow. Prior to this time, questioning by police amounted to only 'general on-the-scene questioning as to facts surrounding the crime' during which to Miranda warnings are required. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Roach, 322 So.2d 222 (La.1975).
Hence, the trial judge properly denied defendant's motion to suppress his written statement. Assignment of Error No. 2 is without substance.
Defendant contends that the trial judge erred in denying his motion for a new trial on the ground that there was 'no evidence elicited to prove the essential elements of the offense for which defendant was tried.'
Article 858 of the Louisiana Code of Criminal Procedure provides:
Neither the appellate nor supervisory jurisdiction of the supreme court may be invoked to review the granting or the refusal to grant a new trial, except for error of law.
Where a motion for a new trial is grounded on the assertion that there was no evidence at all on which the verdict of conviction can be supported, a question of law is presented for our review. However, it is well settled that where there is some evidence to sustain the conviction,...
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State v. Jones
...Ultimately, connexity of physical evidence is a factual matter for determination by the jury. (citations omitted) See also State v. Mims, 330 So.2d 905 (La.1976); State v. Roach, 322 So.2d 222 (La.1975); State v. Freeman, 306 So.2d 703 (La.1975); State v. Flood, 301 So.2d 637 (La.1974); Sta......
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