Walker v. State

• Decision Date: 05 August 2004
• Docket Number: No. 2003-KA-00313-SCT.,2003-KA-00313-SCT.
• Citation: 881 So.2d 820
• Parties: James Allen WALKER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

881 So.2d 820

James Allen WALKER v. STATE of Mississippi.

No. 2003-KA-00313-SCT.

Supreme Court of Mississippi.

August 5, 2004.

Bobby Taylor Vance, Batesville, attorney for appellant.

Office of the Attorney General, by John R. Henry, attorney for appellee.

Before WALLER, P.J., CARLSON and DICKINSON, JJ.

WALLER, Presiding Justice, for the Court.

¶ 1. James Allen Walker appeals from a jury verdict convicting him of possession of two precursor chemicals (pseudoephedrine and lithium), knowing that the precursor chemicals would be used to unlawfully manufacture a controlled substance (methamphetamine).

¶ 2. On June 12, 2001, an employee of Sam's Club in Southaven called the Southaven Police Department, reporting that a white male had bought large amounts of ephedrine. As the police arrived, a GMC pickup truck occupied by two white males was leaving the parking lot. The driver of the truck matched the description (white male, mid-30s, wearing a pullover shirt with three large stripes) given by the employee. The police proceeded to follow the truck and then noticed that the truck had no brake lights. They stopped the truck and informed the occupants, James Allen Walker and William Stanley Miller, that they had received a report about someone buying large quantities of ephedrine. The occupants verbally consented to a search of the truck. The police recovered several boxes of ephedrine and several packs of lithium batteries. Walker and Miller were arrested for possession of two or more precursors.

¶ 3. After a trial, Walker was found guilty and was sentenced to 20 years in the custody of the Mississippi Department of Corrections, with 10 years suspended conditioned on future good behavior. After considering the issues Walker raises on appeal, we affirm the conviction and sentence.

DISCUSSION

I. THE CONSTITUTIONALITY OF MISS. CODE ANN. § 41-29-313(1)(a)(ii).

¶ 4. Walker argues that Miss.Code Ann. § 41-29-313(1)(a)(ii) (Supp.2003), the statute under which he was convicted and sentenced, is unconstitutionally vague. The statute provides in pertinent part as follows:

(1)(a) Except as authorized in this section, it is unlawful for any person to knowingly or intentionally:

* * *

(ii) Purchase, possess, transfer or distribute any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance.

* * *

(3) The terms "listed precursor drug or chemical" means a precursor drug or chemical that, in addition to legitimate uses, may be used in manufacturing a controlled substance in violation of this chapter.... The following are "listed precursor drugs or chemicals": ... (d) Ephedrine; ... (f) Lithium;....

Walker contends that:

[t]he reasonable person who sees legal and legitimate items for sale with no notice that the brand or name under which they are sold may contain an ingredient [that] is a precursor and that the purchase of two or more legitimate, legal items may subject the purchaser to criminal prosecution does not have notice and such lack of notice denies the American consumer of common household products constitutional due process.

¶ 5. "Legislative acts are ... cloaked with a presumption of constitutionality, and unconstitutionality must appear beyond reasonable doubt." Mauldin v. Branch, 866 So.2d 429, 435 (Miss.2003) (citing In re Estate of Smiley, 530 So.2d 18, 21-22 (Miss.1988)). A statute's validity is presumed:

We adhere here to the rule that one who assails a legislative enactment must overcome the strong presumption of validity and such assailant must prove his conclusions affirmatively, and clearly establish it beyond a reasonable doubt. All doubts must be resolved in favor of validity of a statute. If possible, a court should construe statutes so as to render them constitutional rather than unconstitutional if the statute under attack does not clearly and apparently conflict with organic law after first resolving all doubts in favor of validity.

Loden v. Miss. Pub. Serv. Comm'n, 279 So.2d 636, 640 (Miss.1973) (citations omitted). We must presume that the Legislature "intended to comply with the organic law, and the statute should be given a reasonable interpretation which is consistent with that presumed intent and which would permit the upholding of the act." Mauldin, 866 So.2d at 435 (citing Berry v. Southern Pine Elec. Power Ass'n, 222 Miss. 260, 76 So.2d 212, 214 (1954)).

¶ 6. "[T]he wording of a statute does not necessarily offend the requirements of due process as long as the language provides a `sufficient warning as to the proscribed conduct when measured by common understanding and practices....'" Perkins v. State, 863 So.2d 47, 54 (Miss.2003) (citing Cassibry v. State, 404 So.2d 1360, 1368 (Miss.1981) (following Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957))).

¶ 7. We find that Walker has failed to overcome the presumption that the statute is constitutional. Walker's argument that an ordinary person buying a box of decongestant would not know that he or she was committing a crime fails because the statute requires mens rea, i.e., either having known or should have reasonably known that the decongestant would be used in the manufacture of a controlled substance. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982)

("[A] scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed."). See also Tobacco Accessories & Novelty Craftsmen Merchants Ass'n v. Treen, 681 F.2d 378 (5th Cir.1982); Florida Businessmen for Free Enterprise v. City of Hollywood, 673 F.2d 1213 (11th Cir.1982).

¶ 8. This claim is without merit.

II. WHETHER THE POLICE OFFICER'S ACTS OF FOLLOWING WALKER'S TRUCK AND MAKING AN INVESTIGATORY STOP WERE BASED ON REASONABLE SUSPICION.

¶ 9. Walker claims that probable cause and/or reasonable suspicion did not exist because Officer Greg Smorowski, the first officer on the scene, began following Walker's truck before Officer Smorowski was able to determine that Walker's appearance matched that of the description given. Indeed, the record shows:

... Dispatch put out a call that there was a white male subject inside Sam's attempting to purchase a large amount of ephedrine. So I told dispatch that I was in the area, and I pulled up onto the parking lot trying to locate the subjects or the vehicle.

At that time, they didn't have a vehicle description. [A] blue pickup truck ... was leaving the parking lot as I was pulling up on the parking lot. It was occupied by two white males.... I looked down at it, and it didn't have any brake lights on the vehicle. So I pulled in behind it and waited for traffic to clear.

When they got a break in traffic, the vehicle made a left turn out onto Goodman Road, and at that time, I made a left turn out on Goodman Road after the vehicle, and I was able to observe the driver of the vehicle. The driver of the vehicle, as the call was put out was supposed to be a white male wearing a striped shirt where the stripes ran up and down.

¶ 10. Walker is mistaken that probable cause was needed to (1) watch the truck because of the defective brake lights; (2) follow the vehicle after matching Walker's description with that given by the Sam's employee; and (3) make an investigatory stop. All that is needed for these activities is reasonable suspicion:

[T]he Fourth Amendment ... requires that in every situation the officer must make the intrusion into the person's privacy as limited as reasonably possible. On the other hand, as aptly stated in United States v. West, 460 F.2d 374 (5th Cir.1972), "The local policeman ... is also in a very real sense a guardian of the public peace and he has a duty in the course of his work to be alert for suspicious circumstances, and, provided that he acts within constitutional limits, to investigate whenever such circumstances indicate to him that he should do so."

Singletary v. State, 318 So.2d 873, 876 (Miss.1975). The constitutional requirements for an investigative stop and detention are less stringent than those for an arrest. An investigative stop of a suspect may be made so long as an officer has "a reasonable suspicion, grounded in specific and articulable facts, that a person he encounters was involved in or is wanted in connection with a felony." (Floyd v. City of Crystal Springs, 749 So.2d 110, 114 (Miss.1999)). Put another way, the investigative stop exception to the Fourth Amendment warrant requirement allows a police officer to conduct a brief investigative stop if the officer had a reasonable suspicion, based upon specific and articulable facts which, taken together with rational inferences from those facts, result in the conclusion that criminal behavior has occurred or is imminent. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889, 904-05 (1968).

¶ 11. We find that Officer Smorowski did have a reasonable suspicion to pick out Walker, to begin to follow him, and to make an investigatory stop. The officer knew that a white male had bought a large quantity of ephedrine. The Sam's employee could not have called the police department until the person checked out because there was no way to determine what the person was purchasing until check-out. Therefore, the officer reasonably opined that the person would be in the parking lot by the time the officer arrived. He saw Walker's truck with two white male passengers. At that point, it was reasonable to suspect that the white male who purchased the ephedrine could be one of the occupants of the truck. He noticed that the truck did not have brake lights, so, as the truck had stopped at the entrance to the parking lot in order to make a left-hand turn, the officer pulled in...