State v. Woods

• Decision Date: 16 October 2003
• Docket Number: No. 2001-KA-1585-SCT.,2001-KA-1585-SCT.
• Citation: 866 So.2d 422
• Parties: STATE of Mississippi v. Steve WOODS.
• Court: Mississippi Supreme Court

866 So.2d 422

STATE of Mississippi v. Steve WOODS.

No. 2001-KA-1585-SCT.

Supreme Court of Mississippi.

October 16, 2003.

Rehearing Denied October 16, 2003.

Thomas L. Rosenblatt, Natchez, attorney for appellant.

David M. Read, Natchez, attorney for appellee.

EN BANC.

ON MOTION FOR REHEARING

WALLER, Justice, for the Court.

¶ 1. The motion for rehearing is denied. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. The State of Mississippi appeals from the dismissal of criminal charges against Steve Woods. The charges were dismissed after the circuit court granted Woods' motion to suppress because the search warrant issued during the investigation of the criminal charges contained insufficient indicia of the confidential informant's veracity and reliability. We affirm but modify the dismissal to be without prejudice.

FACTS

¶ 3. After Woods was indicted for possession of cocaine with intent to sell, he filed a motion to suppress, claiming that the confidential informant, upon whose information the affidavit for the search warrant was based, was "an individual previously unknown for her reliability." The information supplied by the confidential informant "was not corroborated by any independent, reliable source, and, accordingly, could not be used as the single source for the issuance of the" search warrant. Certain evidence was seized during the execution of the warrant and a confession was given. Woods therefore asked the circuit court to suppress all the evidence seized, to suppress the confession, and to quash the indictment.

¶ 4. David Lindsey, the agent who applied for the search warrant, attached his affidavit which set out the following underlying facts: the Natchez/Adams Metro Narcotics Unit received a telephone call from a person who was previously unknown to them, that is, a confidential informant who had never been used by the Unit before. The CI stated that she had seen a large Ziploc bag of crack cocaine in Woods' residence located at 14 O'Brien Street in Natchez. She advised that Woods kept the crack either behind his stereo or in his closet, and that Woods called it "butter" because of its yellowish color. Later the same day, the CI called again to report that she had again seen the crack at Woods' apartment. Lindsey concluded, "Though the CI has never made a case for the Metro Narcotics Unit the information she has given concerning Steve Woods, the vehicles, and the address at 14 O'Brien St. seem to be true and correct."

¶ 5. A hearing was held on the motion to suppress. Lindsey testified that the CI was a "female" whose name was Keisha Flowers and that Flowers and Woods were dating at the time she called the Unit. Her motivation for calling the Unit was that Woods "was doing wrong and that she wanted [the Unit] to take care of it for her." Lindsey did a background check on Flowers and found no pending criminal charges against her or any prior arrests. Another agent drove by Woods' house to verify the street address. During the search, the agents found cocaine exactly where Flowers told them it would be.

¶ 6. The issuing judge testified at the hearing that he found that probable cause existed because the CI had personally observed the cocaine in Woods' apartment, and that this fact was the entire "totality of the circumstances" upon which his decision was made. He added that the CI seemed reliable because the fact that Woods' address matched the address given by the CI to the officer, and the fact that Woods' vehicles matched the description of the vehicles given by the CI to the officer. ¶ 7. The circuit court granted the motion to suppress, threw the confession out, and dismissed the indictment, finding as follows:

That a search warrant was issued for the purpose of searching the defendant[']s residence on November 21, 2000. That this search warrant was issued solely based upon two telephonic conversations a metro narcotics agent had with a confidential informant who had never previously supplied any information to any law enforcement agencies. That the agent failed to conduct an in person interview with the informant, or to otherwise make attempts to test her veracity or credibility other than conducting an NCC background check. Further, the agent failed to corroborate any of the information supplied by the informant through any independent investigatory means. For these reasons, the Court finds that, based upon the totality of the circumstances, the application for, and issuance of, the instant search warrant is constitutionally defective and that the warrant and the fruits thereof are suppressed and held for naught.

From this ruling, the State appeals.

DISCUSSION

I. DID PROBABLE CAUSE EXIST FOR THE ISSUANCE OF THE SEARCH WARRANT?

¶ 8. Neither Woods' motion nor the circuit court's order specifically referenced the search and seizure clause of the Fourth Amendment to the United States Constitution or its Mississippi counterpart, Miss. Const. art. 3, § 23. However, it is apparent that Woods sought to enforce his rights under those two constitutional provisions. Accordingly, we analyze the motion and the circuit court's order under those two provisions. See Longstreet v. State, 592 So.2d 16, 18-19 (Miss.1991)

.

¶ 9. Article 3, § 23 of the Mississippi Constitution provides that "[t]he people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized." Section 23 provides greater protections to citizens than does the United States Constitution. Simmons v. State, 805 So.2d 452, 481-82 (Miss.2001). Furthermore, the protection afforded by § 23 should be liberally construed in favor of individual citizens and strictly construed against the State. Graves v. State, 708 So.2d 858, 861 (Miss. 1997).

¶ 10. To make an arrest for a felony, either with or without a warrant, a police officer must have (1) reasonable cause to believe that a felony has been committed; and (2) reasonable cause to believe that the person proposed to be arrested is the one who committed it. Conerly v. State, 760 So.2d 737, 740 (Miss. 2000); Henry v. State, 486 So.2d 1209, 1212 (Miss.1986). "Arrest warrants or search warrants shall be issued only by the judge after a judicial determination that probable cause exists based upon the affidavit or other evidence before the court." Miss. Unif. R.P.J.C. 3.03. The United States Supreme Court has established a "totality of the circumstances" standard for determining the existence of probable cause: The task of the issuing magistrate is simply to make a practical, common-sense decision based on all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). We adopted the Gates "totality of the circumstances" test in Lee v. State, 435 So.2d 674, 676 (Miss.1983).

¶ 11. Probable cause is:

a practical, non-technical concept, based upon the conventional considerations of every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it.

Strode v. State, 231 So.2d 779, 782 (Miss. 1970). Perhaps more simply put, "probable cause means more than a bare suspicion but less than evidence that would justify condemnation." Wagner v. State, 624 So.2d 60, 66 (Miss.1993).

¶ 12. In reviewing the issuance of a search warrant and whether it was based on probable cause, we look "both to the facts and circumstances set forth in the affidavit for the search warrant as well, the sworn oral testimony presented to the issuing magistrate." Petti v. State, 666 So.2d 754, 758 (Miss.1995) (quoting Williams v. State, 583 So.2d 620, 622 (Miss.1991)). The duty of the issuing judge is:

to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supply hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... concluding" that probable cause existed....

Gates, 103 S.Ct. at 2332.

¶ 13. The CI's statements in this case provided evidence to the Unit that cocaine was in Woods' apartment. The CI obtained her information in a reliable way because she personally observed the cocaine in Woods' apartment. See Spinelli v. United States, 393 U.S. 410, 425, 89 S.Ct. 584, 593, 21 L.Ed.2d 637 (1969) (White, J., concurring)

("[If an informant's] report ... purports to be first-hand observation, remaining doubt centers on the honesty of the information, and that worry is dissipated by the officer's previous experience with the informant."). Therefore, the CI's basis of knowledge, i.e., personal observation, supports a finding that the issuance of the search warrant was based on probable cause.

¶ 14. However, the affidavit, standing alone, lacks indicia of veracity and reliability. Lindsey averred in the affidavit that this particular CI had never provided evidence to the Unit before and was unknown to any of the Unit officers. The affidavit is entirely devoid of any corroborating evidence which would have shown that the CI was truthful or reliable. Usually this corroborating evidence consists of a statement that the officer had successfully used the CI in the past, see United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992)

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