Wilson v. State
| Decision Date | 02 May 1966 |
| Docket Number | No. 43783,43783 |
| Citation | 186 So.2d 208 |
| Parties | Elbert WILSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Lester C. Franklin, Jr., Pascagoula, for appellant.
Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
This is an appeal by Elbert Wilson from his conviction of burglary and larceny in the Circuit Court of Jackson County. He was indicted jointly with Carl Trehern and Robert Gold, but, upon his motion, a severance was granted and he was tried separately.
The essence of appellant's argument upon the one ground assigned for reversal on this appeal is that the evidence upon which he was convicted was inadmissible, having been obtained as the result of an unlawful search following his arrest without a warrant and without probable cause, in violation of the United States Constitution Amendments IV, V, and XIV, and Mississippi Constitution Article Three sections 14 and 23.
No other ground for reversal is assigned or argued.
The facts bearing upon the legality of the arrest and search may be summarized as follows.
Shortly after 10:00 P.M. on the night of February 25, 1965, Alec Judice, having heard a weather report that freezing weather was anticipated, went out with his flashlight to drain the radiator of his car. He was about 200 feet from Tanner's Supermarket and, in the lights which illuminated the front premises of that establishment, he observed a light colored Plymouth station wagon backed up to the front door. As he stood watching, some very heavy object was heaved into the back of the station wagon, 'making a great racket' and causing the back end of the station wagon to go down and the front end to come up, 'almost off the ground.' Immediately afterward, four men (who had come apparently from Tanner's Supermarket) ran to the doors of the station wagon, jumped in and drove away. The whole length of this vehicle was visible to Judice as it made its departure. Judice went over and examined the door of Tanner's and found that it had been broken open. He did not have a phone, and there having been no convenient pay telephone, he drove down to the sheriff's office and reported the occurrence which he had observed.
Among the officers who heard his report was Chief Deputy Sheriff Palmer who went out immediately to Tanner's and found that the front door had been forced and that a safe, containing money and valuables usually kept there and with which he happened to be familiar, was missing. He observed scratches and marks upon the waxed tile from the place where the safe usually stood, out the front door, as if it had been dragged out that way. Tanner confirmed the fact that the safe, containing money and valuables, had been stolen. The safe weighed between 500 and 600 pounds.
An official radio call went out to all local law enforcement units to the effect that there had been a safe burglary at Tanner's and giving a description of the vehicle and the other data as to its occupants, including the fact that one was wearing an unusually long coat.
Road blocks were established, all main highways were blocked and a saturated search was begun of all secondary roads.
Among the officers receiving the radio alert was Mississippi Highway Patrolman Simmons who was then on duty and patrolling U.S. Highway #90. At about 11:00 P.M., as he cruised along the highway, Patrolman Simmons noticed a light colored Plymouth station wagon parked at Tony's Pizza Place. He turned his patrol car around and went back. He saw three men come out of Tony's and get into the station wagon, but, as he drove up, all three got out again and went around and stood in front of it. Patrolman Simmons stopped and went inside of Tony's and asked the counterman how long the men had been there and was told, 'about five minutes.' He then went out and asked which of these men was driving the station wagon. Upon being told that appellant was the driver, he asked for and was shown his driver's license.
Patrolman Simmons testified:
Patrolman Simmons testified further that he did not arrest appellant or his companions, and that they were arrested later by Deputy Sheriff Palmer. He said, 'I asked them if they would mind remaining there until I had a deputy talk to them and they said certainly they wouldn't mind staying.'
In making this request, Patrolman Simmons did not overstep the bounds of proper investigatory procedure and his action did not amount to an arrest. United States ex rel. Alexander v. Fay, 237 F.Supp. 142 (S.D.N.Y.1965).
Patrolman Simmons then went out to his car and by his radio telephone apprised Deputy Sheriff Palmer of the situation.
Palmer, who had previously conferred with Judice and Tanner and had made his examination of the premises at...
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