Williams v. State, 07-KA-59483
| Decision Date | 26 June 1991 |
| Docket Number | No. 07-KA-59483,07-KA-59483 |
| Citation | 583 So.2d 620 |
| Parties | Herbert WILLIAMS and Elizabeth Norwood v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
John Arthur Eaves, Jackson, for appellants.
Mike C. Moore, Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.
I.
Today's appellants are pot pushers who have been convicted of possession of a more than modest quantity of marijuana with intent to distribute. They challenge principally the prosecution's use of the marijuana as evidence at trial and argue en route that the authorities came by the marijuana through an illegal search and seizure. We have considered the arguments with care and reject them all.
We affirm.
II.
Herbert Williams, age 51, and Elizabeth Norwood, age 40, were the Defendants below and are the Appellants here, and it is clear from the record they engaged in romantic and other liaisons. Norwood lived in the Carpenter Community in rural Copiah County. Williams lived with his sister in Claiborne County, but, more than occasionally, frequented Norwood's abode.
The story begins in an altogether different part of the state. Over an eight-day period beginning January 26, 1988, Mississippi State University student Ron Howard unwittingly and illegally made three sales of marijuana to undercover agents of the Mississippi Bureau of Narcotics (MBN). On February 9, 1988, MBN officers arrested Howard and charged him with an assortment of offenses. In the course of confessing his crimes, Howard implicated his principal supplier, Joel Tullos, a student at Mississippi College in Clinton. MBN authorities decided to pursue Tullos and had Howard immediately negotiate a buy from Tullos over the telephone. Matters proceeded apace, and MBN followed Howard to Hinds County, observed Howard make his buy from Tullos, and then placed Tullos under arrest.
It seems that Howard had also had direct dealings with Herbert Williams and, in fact, on January 25, 1988, Howard had received marijuana from the dwelling soon to be at issue. For the most part, Tullos had brokered Williams' sales to Howard. In any event, once Tullos was in tow, MBN decided to go after Williams and to do so with dispatch. Securing the assistance of Copiah County Sheriff Tommy Jackson and MBN Sergeant Tommy Cavanaugh, who worked the Copiah County area, the officers proceeded to the home of Justice Court Judge Billie (Mrs. John M.) Smith. Judge Smith issued a search warrant for the residence in Carpenter they thought was Williams'. By this time it was the early evening of February 10. In an abundance of precaution, Sheriff Jackson and the MBN officers assembled a team of some eighteen officers of the law, and they hurried to the Carpenter Community and arrived at what was in fact Norwood's house at approximately 11:00 p.m. The entourage gained entrance with little difficulty and found Williams and Norwood in bed asleep. Of more importance, the officers found as well some 12.4 pounds of marijuana and $11,595.00 in cash.
On April 5, 1988, the grand jury of Copiah County returned an indictment charging Williams and Norwood with the unlawful possession of more than one kilogram of marijuana with intent to distribute. Miss.Code Ann. Sec. 41-29-113(c)(12) and -139(a)(1) (Supp.1988). Prior to trial, Williams and Norwood moved to suppress all evidence seized on the night of February 10, charging an illegal search and seizure. The Circuit Court conducted an extensive pre-trial hearing and, in the end, denied the motion. The case proceeded to trial, whereupon the jury found Williams and Norwood guilty as charged. The Circuit Court sentenced each to twenty years imprisonment in the custody of the Mississippi Department of Corrections and ordered that each pay a fine of $30,000.00 plus all costs of court. Miss.Code Ann. Sec. 41-29-139(b)(1) (Supp.1990).
Williams and Norwood now appeal to this Court.
III.
Williams and Norwood argue that the Circuit Court erred when it denied their motion to suppress and when it allowed the prosecution to offer into evidence the items seized in the late night search on February 10, 1988, principally the marijuana and the money. As grounds, Williams and Norwood mount a broad-side attack on the legality of the search, beginning with the charge that there was not sufficient probable cause for Judge Smith to issue the search warrant.
Probable cause is a practical inquiry, a function of the totality of the circumstances in each particular case. Bevill v. State, 556 So.2d 699, 712 (Miss.1990); Daniel v. State, 536 So.2d 1319, 1322 (Miss.1988); Lee v. State, 435 So.2d 674, 676 (Miss.1983); see also, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Objectivity is the key, for the information supporting probable cause must be such that would lead a reasonably competent issuing magistrate to believe that evidence will be found. Rooks v. State, 529 So.2d 546, 555 (Miss.1988). Stale news may not suffice, Rooks, 529 So.2d at 555, see also, W. LaFave, Search and Seizure Sec. 3.7(a) (1987), a point to which we return below. In reviewing a magistrate's finding of probable cause, we look for a substantial objective basis for that finding. Carney v. State, 525 So.2d 776, 782 (Miss.1988); Lockett v. State, 517 So.2d 1317, 1324 (Miss.1987); Harper v. State, 485 So.2d 1064, 1066 (Miss.1986). In making our review, we look both to the facts and circumstances set forth in the affidavit for search warrant and as well, the sworn oral testimony presented to the issuing magistrate. See, e.g., Hickson v. State, 512 So.2d 1, 3 (Miss.1987); Hester v. State, 463 So.2d 1087, 1089-90 (Miss.1985).
MBN Lieutenant Charlie McVey and MBN Agent Lee Miley, both of MBN's Starkville District Office, made the affidavit for search warrant, a copy of which we attach to this opinion as an Appendix. Also presenting testimony in support of issuance of the search warrant was local MBN Sergeant Tommy Cavanaugh. The affidavit contains a lengthy statement of underlying facts and circumstances beginning with the statement that Ron Howard personally observed marijuana at the residence in issue in Copiah County on January 25, 1988. Williams and Norwood argue this is too remote, that this information is stale and does not suggest the presence of marijuana on February 10. Any such staleness evaporates in the face of the further fact that the marijuana Agents McVey and Miley saw Tullos sell to Howard on February 10 came from Williams and from the house in issue that very day. We hold there was a reasonable, objective basis for Justice Court Judge Smith finding that probable cause existed for supporting the issuance of the search warrant.
Williams and Norwood next challenge the search on grounds the information given to Judge Smith did not establish the reliability of the original informant, Ron Howard. As best we can decipher it, the point harkens back to the old Aguilar 1-Spinelli 2 test for judging probable cause. This test was abandoned in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and replaced by the now familiar totality-of-the-circumstances test. We have followed Gates consistently at least since 1983. Lee v. State, 435 So.2d at 676. Assuming arguendo Howard's credibility was not sufficiently shown under the old test, we repeat what we have said above, to-wit: given the totality of the circumstances presented to Judge Smith, there existed a reasonable, objective basis for a finding of probable cause for the issuance of a search warrant.
Williams and Norwood next challenge the search on grounds that Attachment "A" to the affidavit for search warrant--that part of the affidavit containing a description of the house to be searched--was not signed by the affiants. For explication, the affidavit consists of five pages. The first two appear to be a printed form with filled-in blanks, regularly used by MBN officers. 3 At the end of the second page, MBN Lt. Charlie McVey and Agent Lee Miley signed it and swore to its truthfulness. The third page is Attachment "A" and contains a description of the residence in the Carpenter Community to be searched. The fourth and fifth pages are the Underlying Facts and Circumstances, referred to in paragraph five of the printed form, and are signed by McVey and Miley at the bottom of each page.
Williams and Norwood argue in effect that each and every page of the affidavit had to be signed, reasoning that otherwise the officers could detach a page from the original and substitute a new one and, in this way, work considerable mischief.
We find no case in this jurisdiction on the point. Commonwealth v. Truax, 397 Mass. 174, 490 N.E.2d 425 (1986) is analogous. In Truax, police attached an unsigned form to their affidavit for a search warrant. Truax, 490 N.E.2d at 431. Noting that no statute or other authority required an affiant to sign pages attached to a warrant application, the court held failure to sign the additional pages did not render the warrant application defective. Truax, 490 N.E.2d at 431.
Commonwealth v. Bass, 24 Mass.App.Ct. 972, 512 N.E.2d 519 (Mass.App.Ct.1987) found Truax controlling. In Bass, a detective preparing an affidavit in support of an application for a search warrant used a separate page to supply information. Bass, 512 N.E.2d at 521. On the original document, the detective referred to the attachments by stating "See Attached Affidavit and Documents." Bass, 512 N.E.2d at 521. The court held the validity of affidavits should not turn on "such a nuance of form". Bass, 512 N.E.2d at 522. Instead, the court deemed the attached page incorporated into the original document. Bass, 512 N.E.2d at 522.
In the case at bar, MBN agents did not sign the warrant's page containing the description of the property. However, Agent McVey, the author of the warrant and application, swore that the description was...
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