White v. State

• Decision Date: 10 April 2003
• Docket Number: No. 2000-KA-01034-SCT.,2000-KA-01034-SCT.
• Citation: 842 So.2d 565
• Parties: James V. WHITE a/k/a James Vonell White v. STATE of Mississippi.
• Court: Mississippi Supreme Court

842 So.2d 565

James V. WHITE a/k/a James Vonell White v. STATE of Mississippi.

No. 2000-KA-01034-SCT.

Supreme Court of Mississippi.

April 10, 2003.

Robert M. Ryan, Thomas M. Fortner, Jackson, Larry Neal McMurtry, Carthage, Charles R. Saltzman, for appellant.

Office of the Attorney General by Jean Smith Vaughan, for appellee.

EN BANC.

ON MOTION FOR REHEARING

SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶ 1. The motion for rehearing is granted. The previous opinions of this Court are withdrawn, and this opinion is substituted therefor.

¶ 2. James V. White appeals to this Court from the Circuit Court of Hinds County where he was convicted of Count II, possession of more than one ounce of marijuana with the intent to distribute, but found not guilty of Count I, sale of more than one ounce of marijuana. White raises three issues. First, he challenges the validity of the search of his apartment. Second, he contends that the trial court improperly denied his request for a limiting instruction as to statements regarding his prior bad acts. Finally, he contends that the trial court erred in refusing to give lesser-included offense instructions to the jury. We note the issue of telephonic search warrants as an issue of first impression, and we reject such search warrants. This is a subject for the Legislature as such searches are primarily creatures of statute. However, we adopt the good faith exception recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and find the officers acted reasonably. Finding no reversible error, we affirm the judgment of the trial court.

FACTS

¶ 3. Jeremy Stevens and Brandon Wigley were suspected of dealing marijuana. On January 28, 1998, the Warren County Sheriff's Department set up a "sting" operation in which undercover officer Tim Williams attempted to buy $40 of marijuana from Stevens. Stevens offered to find some marijuana for Williams if he would front him $40. Stevens was given $40 to make the buy.

¶ 4. Wigley picked up Stevens, and after an unsuccessful trip to Delta, Louisiana, the pair headed to Hinds County. The Hinds County Sheriff was called, and arrangements were made for Hinds County officials to assist the Warren County investigators in the undercover operation. Stevens and Wigley arrived in Clinton and proceeded to White's apartment where they bought marijuana. Later Wigley's car was pulled over, and the two were arrested at the Hinds/Warren County line.

¶ 5. Both the White residence and Wigley's car were placed under surveillance after the buy took place. The officers watching White's apartment grew concerned that he might be tipped off as a result of Stevens's and Wigley's arrests. Detective Jeff Crevitt testified that some friends of Jeremy's at Jeremy's trailer were "expecting Stevens and Wigley to return to Warren County." Hinds County Judge Chet Henley was contacted by Officer Larry Iles by telephone, and an "oral/telephonic search warrant" was procured for the White residence. A search of the apartment yielded marijuana, pagers, cell phones, bank statements, a Crown Royal bag, a gun and the $40 given to Stevens to make the buy. White was taken into custody.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE FRUITS OF A SEARCH CONDUCTED BY LAW OFFICERS PURSUANT TO A TELEPHONIC SEARCH WARRANT AS SAID SEARCH WAS THE SAME AS A WARRANTLESS SEARCH AND VIOLATED THE RELEVANT PROVISIONS OF THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.

¶ 6. White contends that the trial court erred in denying his motion in limine to exclude the fruits of what he alleges was an illegal search. It is true that the officers did not have a paper warrant when they searched White's apartment. They had, however, received approval of the search from a county judge resulting from a phone call by one of the officers to the judge.

¶ 7. While not statutorily provided for in Mississippi, telephonic search warrants could possibly act as a buffer against warrantless searches which often undermine Fourth Amendment protections. In the trial court's ruling as to the reasonableness of the search, the judge stated his belief that this Court would prefer "a finding of probable cause by a neutral and detached magistrate telephonically" in a situation where the only other alternative would be a warrantless search. While this may be true, there are other problems with this procedure which warrants a detailed examination and discussion by this Court. If exigent circumstances existed so as to preclude obtaining a proper search warrant, as long as the officers were in good faith in their request and followed other procedural safeguards, evidence found as a result of the issuance of a "telephonic search warrant" would be admissible at trial. However, nothing under current Mississippi law provides for this type of search warrant.

¶ 8. White argues that to uphold the "telephonic search warrant" would be a violation of the Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution. Though Rule 41 of the Federal Rules of Criminal Procedure sets out procedures to obtain a "telephonic search warrant," we have no such rule, and our state constitution says nothing about such warrants. White also submits that in the absence of a specific statute, telephonic search warrants are contrary to the applicable law of Mississippi and that the search of his apartment should be treated as a warrantless search.

¶ 9. It is for this Court as the final interpreter of Mississippi's Constitution to determine the legality of this type of search. Penick v. State, 440 So.2d 547, 551 (Miss.1983). This Court finds that the search was a warrantless search, as Mississippi has yet to recognize the viability of telephonic warrants. In Boyd v. State, 206 Miss. 573, 40 So.2d 303 (1949), we reversed a conviction based on the illegality of a warrant. There the officer had signed the affidavit at his office, and a judge in another county signed off on the warrant. The officer never appeared before the judge, and thus the warrant was illegally obtained. We note that the process of appearing before the judge is important in Mississippi. The current status of our law requires the affiant's and the affidavit's presence before the issuing magistrate before a search warrant may properly issue. See Miss.Code Ann. § 41-29-157(a)(2) (2001). The form of an affidavit for a search warrant also indicates the presence of the affiant at issuance. See Miss.Code Ann. § 99-25-15 (2000). Thus, by requiring a sworn affidavit before issuance of a warrant, we insure the affidavit is free from facts which might be discovered later and included in a subsequently filed affidavit to support the finding of probable cause. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

¶ 10. In the case sub judice, no recording was made of the phone call in which this search warrant was authorized, and no paper copy of the search warrant existed at the time of the search. There does exist a document made under oath in this record which resembles a search warrant affidavit, executed by the narcotics officer the day after this search. Also in the record is a warrant bearing the judge's signature which also was executed the day afterwards.

¶ 11. The several states that have accepted telephonic warrants require specific procedures most of which were not met here. The Federal Rules of Criminal Procedure allow for such warrants, and map out a procedure complying with constitutional mandates. See Fed.R.Crim.P. 41. Such a process should certainly be allowed considering the changing times and advancements in technology. Further, more than one-third of the States have expressly adopted such warrants by statute, court rule or case law. See generally Ala. R.Crim. P. 3.8(b); Alaska Stat. §§ 12.35.010 and 12.35.015 (1991); Ariz. Rev.Stat. § 13-3914 (1999); Cal.Penal Code § 1526 (1998); Idaho Code § 19-4404 (1994); Ind.Code § 35-33-5-8 (1998); Iowa Code § 321J.10 (1998); § 462A.14D (2000) (However, these two code sections allow for telephonic warrants in cases where an officer is demanding blood or urine specimens from those suspected of driving or operating a boat while under the influence. Iowa does not authorize telephonic search warrants in general cases. See Iowa Code § 808.3 (1998)); Kan. Stat. Ann. § 22-2502 (1995); La.Code Crim. Proc. Ann. art 162.1 (1999); Mich. Comp. Laws Ann. § 780.651 (1998); Minn. R.Crim. P. 36.08; State v. Andries, 297 N.W.2d 124 (Minn.1980); Mont.Code Ann. § 46-5-221 (1991); Neb.Rev.Stat. §§ 29-814.03 & 29-814.05 (2001); Nev.Rev.Stat. 179.045(2) (1997); N.J. Rules of Court 3:5-3; N.Y.Crim. Pro. Law §§ 690.35 & 690.36 (1998); N.C. Gen. Stat Ann. § 15A-244, 245 (2001) (See Criminal Code Commission Commentary); N.D. R.Crim. P. 41(c)(2); Or.Rev.Stat. § 133.545(5) (1999); S.D. Codified Laws § 23a-35-5 (2001); Utah Code Ann. § 77-23-204(2) (1998); Wash. Sup.Ct. Crim. R. 2.3(c); Wis. Stat. Ann. § 968.12(3) (1998).

¶ 12. Nonetheless, that is not the current state of the law in Mississippi. We note that in our sister states telephonic search warrants are primarily a creature of statute. Where they have been accepted in the ordinary course of police investigation, certain specific safeguards exist in these jurisdictions to insure authenticity and proper issuance upon the finding of probable cause. Typical of these safeguards are the requirements: (l) that the entire telephone conversation be recorded; (2) that the officer seeking the warrant is placed under oath by the impartial magistrate while the officer relates the facts supporting a finding of probable cause; and (3) that a paper copy is prepared and provided to the premises owner-either by means of facsimile machine or by requiring the magistrate to read aloud word-for-word the contents of the search warrant he or she has authorized for copying by the officer executing the warrant....