Townsend v. State

• Decision Date: 01 August 1996
• Docket Number: No. 92-KA-01010-SCT,92-KA-01010-SCT
• Citation: 681 So.2d 497
• Parties: William B. TOWNSEND, Jr., v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 497

681 So.2d 497

William B. TOWNSEND, Jr., v. STATE of Mississippi.

No. 92-KA-01010-SCT.

Supreme Court of Mississippi.

Aug. 1, 1996.

Robert N. Brooks, Barnett & Brooks, Carthage, for Appellant.

Michael C. Moore, Attorney General, Jean Smith Vaughan, Sp. Asst. Attorney General, Jackson, for Appellee.

Before SULLIVAN, P.J., and SMITH and MILLS, JJ.

SMITH, Justice, for the Court:

INTRODUCTION

On September 9, 1992, appellant William Townsend was convicted in the Circuit Court of Leake County for possession of a Schedule II controlled substance, namely methamphetamine, and as a second offender, he was sentenced to a term of six years with the Department of Corrections and ordered to pay a fine of $5,000.00. Upon payment of the $5,000.00 fine, one year of the sentence would be suspended, and Townsend would be placed on probation for a period of five years. Aggrieved, Townsend brings this appeal contending:

I. The trial court erred in allowing the State to elicit evidence of the search of Townsend's automobile and the fruits thereof.

II. The trial court erred in allowing the state to elicit evidence of the presence of marijuana and paraphernalia.

III. The trial court erred in overruling the motion for a directed verdict, and erred in granting State's instruction S-2, and in refusing Townsend's instruction D-9.

STATEMENT OF THE FACTS

On March 20, 1992, around 10:44 p.m., Officer Cornelius Turner, while driving east on Highway 16, observed a white vehicle running a traffic light as it was headed west where it crosses Van Buren Street. Officer Turner pulled Townsend over. While Turner was examining his driver's license, Officer Forrest Adcock had pulled up to the scene upon seeing Turner's flashing blue lights. Turner, after conferring with Officer Forrest Adcock, arrested Townsend for failure to appear for three other traffic violations. Officer Turner then put Townsend under arrest and placed him into his patrol car. After Townsend was placed into the patrol car, Officer Turner testified:

[h]e [referring to Townsend] advised me that he had a black vinyl bag that was [on] the passenger side, front seat of his vehicle. Advised me that it had some money in it, and advised me if he could get it. I advised him that he could not get it, but I would go get it for him.

Officer Turner went to Townsend's car to retrieve this bag of money for him, as Townsend watched unprotestingly. Upon opening the car door, Turner noticed a distinct odor of marijuana smoke inside Townsend's car. The record reveals that Forrest Adcock was with Turner at this time. Officer Turner did not search the car at that point, but took the black bag with the money to his patrol car, and summoned Assistant Chief Ken Adcock, the senior officer on duty, to come to the scene to assist Officer Forrest Adcock. Officer Forrest Adcock was asked by Officer Turner to remain with Townsend's car while he transported Townsend to the Leake County Jail.

Approximately six or seven minutes after the initial stop and after Officer Turner had left the scene with Townsend, Assistant Chief Ken Adcock arrived. Both he and Officer Forrest Adcock, at that time, initiated a search of the interior of the vehicle, including under the seats. This search was conducted before Gaylon Griffin of Strong's Wrecker service arrived to tow away Townsend's vehicle. Assistant Chief Ken Adcock checked the right side of the vehicle and Officer Forrest Adcock checked the left side. Upon searching Townsend's car, Assistant Chief Ken Adcock testified he discovered:

[o]n the passenger side in the floorboard of the vehicle, there was a black vinyl bag, and in one of the side pockets of the bag, there was a small set of scales, three syringes. On the inside of the bag, in the big zippered compartment, there was a box of plastic sandwich type bags, and there was a notebook and a small address book. Then in the end of the bag in the other zippered compartment, there was a small plastic bag containing a green leafy substance, which was later identified as marijuana.

* * * * * *

... Inside the address book, there was a small cellophane, piece of cellophane, that Additionally, the officers found a green cup with some burnt cigarettes and roaches.

was like the corner of some type of cellophane, and it had been sealed by burning the side opposite the corner, and there was a powder substance.

Assistant Chief Ken Adcock took the cellophane, containing the white powdery substance, the syringes, and green leafy material into his possession and packaged it and sent the white powdery substance and the green leafy evidence to the Mississippi Crime Laboratory, where it was identified by Charles Terry, a forensic scientist. Upon running a series of examinations, Mr. Terry found the white powdery substance to be methamphetamine and the green leafy substance to be marijuana. Pursuant to this revelation, he weighed the methamphetamine and found its weight to be 0.1 grams. Mr. Terry also weighed the marijuana and found it to have a weight of 10.2 grams.

At the September 1992 Term of the Circuit Court of Leake County, Townsend was indicted for the crime of possession of a schedule II controlled substance, namely methamphetamine, and tried as a second offender on September 9, 1992.

At trial, the State put on evidence of marijuana, syringes, and methamphetamine. The State elicited testimony of all of the aforementioned events concerning the stop, the arrest, and the subsequent search of the vehicle. Additionally, the State's forensic scientist, Mr. Terry, testified that in his opinion and as a result of his tests, one of the seized items was methamphetamine, weighing 0.1 grams. He further testified, against the objections, the request for instruction, and the motions for mistrial by Townsend, that the green leafy substance tested was marijuana, weighing 10.2 grams. The judge allowed the testimony about the 10.2 grams of marijuana found, while cautioning the jury not to treat the marijuana as evidence of guilt of possession of methamphetamine.

At the end of the State's case, Townsend moved the court to exclude the evidence offered on behalf of the state and to direct a verdict of not guilty. Townsend's reasons were one, that for reasons already raised the evidence in this case was the fruit of an illegal search and two, that the State failed to prove that the contents of the bag were under the knowing dominion and control of Townsend. The court overruled these motions on the grounds of a warrantless search, citing Miller v. State, 373 So.2d 1004 (Miss.1979) (evidence obtained through the use of senses was not a trespass, authorizing a search of the vehicle). The Court also referred to State v. Thrash, 257 So.2d 523 (Miss.1972) (noting the eye could not trespass). With respect to the second reason the trial judge noted that

... the motion that this was under the Defendant's conscious control. The evidence this court has heard, as well as the jury, is that this Defendant was the sole occupant of the vehicle, which was titled to his name. The Officers having run a check on the vehicle, and it was titled in his name. It was in a bag [the contraband] on the floorboard on the passenger side in plain view.

So, I think the evidence with all inferences flowing from the evidence would sustain a verdict of guilty.

After deliberations, the jury returned a verdict of guilty as charged and Townsend was sentenced as a second offender on the methamphetamine possession charge. Thereafter, on the same day, Townsend made a motion for a new trial which was overruled. Aggrieved, Townsend appealed to this Court.

DISCUSSION OF LAW

I. Whether the court erred in allowing the State to elicit evidence of the search of Townsend's automobile and the fruits thereof.

The following facts must be kept in mind when determining whether the marijuana bag came from an illegal search and is therefore inadmissible. Officer Turner had pulled Townsend over for running a traffic light. Officer Forrest Adcock, upon seeing Turner questioning Townsend, also immediately pulled up to the scene. The two officers had placed Townsend under lawful arrest and seated him inside the patrol car The Fourth Amendment prohibits unauthorized search and seizure of personal property by law enforcement officers. However, an exception exists when there is a consensual search, Loper v. State, 330 So.2d 265 (Miss.1976), or a search permitted under exigent circumstances with probable cause. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (the seizure is legal if the officer, in stopping and searching the vehicle, has reasonable or probable cause for believing that said vehicle is transporting illegal substance). As a general rule, a policeman making a lawful custodial arrest of the occupant of an automobile may search the automobile "as a contemporaneous incident of that arrest." New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981).

                upon running a check on his license and discovering three other failures to appear for traffic violations.  Townsend himself told the officer that his vehicle contained a money bag that he wanted to retrieve.  Officer Turner told Townsend that although Townsend could not get it, he would go get it for Townsend.  Officer Turner then proceeded to retrieve the bag.  Upon opening the door, the odor of marijuana pierced Officer Turner's nostrils.  Officer Forest Adcock was on the scene when Turner smelled the marijuana. 1  Turner then summoned Assistant Chief Ken Adcock to the scene.  Turner then left to take Townsend to the Leake County jail, and told Officer Forrest Adcock to stay on the scene until Officer Ken Adcock arrived and until the towing service had picked up Townsend's vehicle.  When Officer Ken Adcock arrived about six or seven minutes after the initial stop, Forrest had been waiting for him.  Then, they both proceeded to re-initiate a search of the vehicle.

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