Wolf v. State

• Decision Date: 27 March 1972
• Docket Number: No. 46695,46695
• Citation: 260 So.2d 425
• Parties: Donald J. WOLF v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 425

260 So.2d 425

Donald J. WOLF v. STATE of Mississippi.

No. 46695.

Supreme Court of Mississippi.

March 27, 1972.

Rehearing Denied April 17, 1972.

Billy J. Jordan, Columbus, for appellant.

A. F. Summer, Atty. Gen., by William Jeff East, Sp. Asst. Atty. Gen., Jackson, for appellee.

GILLESPIE, Chief Justice:

Donald J. Wolf was convicted in the Circuit Court of Lowndes County of possession of marijuana. He was sentenced to two years in the state penitentiary and fined the sum of $1,000. Wolf was also found guilty of constructive contempt of court and sentenced to thirty days in jail and fined $250. He appeals both judgments.

The defendant was driving a Karmann Ghia Volkswagon automobile on a Columbus street at about 10:15 p.m., when he was stopped by Sergeant Harry Dowdle of the Columbus Police Force. The car was searched and a marijuana cigarette was found in a plastic bag lying on the rear seat. Wolf and his two passengers were then arrested for possession of marijuana and were transported to police headquarters in Sergeant Dowdle's police car, while another officer who had been summoned to the scene drove Wolf's car to police headquarters where it was parked on the police lot outside the door of the chief of detectives. After arriving at headquarters, Wolf was booked for possession of marijuana and his passengers, David Toole and Gail Loftis, were released. After their release, Miss Loftis and Toole talked to Officer Dowdle for sometime and they indicated there was more marijuana in the defendant's car. Dowdle then went to Wolf's car and found a bag of marijuana in a plastic bag over the driver's sun visor.

I.

One assignment of error raises the question whether the officer had probable cause to stop and make the initial search of defendant's automobile. Defendant relies on Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and O'Bean v. State, 184 So.2d 635 (Miss.1966).

Defendant concedes that the informer involved in this case was reliable because the proof showed that he had furnished reliable information many times before. The unidentified informer first called Chief of Detectives Walters at about 6:30 p.m., and told him that there was a 'pot party' in progress at 513-6th Street South in Columbus, Mississippi. Chief Walters then communicated with Sergeant Dowdle and told him to check the address and to take the tag numbers of the cars parked there. This was done. About 10:10 p.m., the informer called Chief Walters and told him that people were going out to a Karmann Ghia automobile and smoking 'pot.' The informer also told Walters that defendant Wolf would be leaving shortly, driving a beige colored Karmann Ghia Volkswagon with a Florida license tag, and that marijuana would be in the automobile. Walters then called Dowdle and gave him the information furnished by the informer. Walters instructed Dowdle to proceed to the address and if he saw the described Karmann Ghia automobile moving to stop and search it.

Sergeant Dowdle immediately went to the address given him, and just as he arrived, the Karmann Ghia automobile, driven by defendant Wolf, was leaving the driveway. A short distance away, Sergeant Dowdle stopped the car, and told the driver he was going to search it. He then asked Wolf and his two passengers to get out of the automobile, after which he found a marijuana cigarette in a plastic bag lying on a rear seat. Wolf and his passengers were then arrested for possession of marijuana.

On the probable cause question, the standards applicable to a search of an automobile without a warrant are substantially the same as those required for a search warrant. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

Aguilar laid down the two-pronged test applicable to the factual basis supporting a magistrate's assessment of probable cause for a search warrant, and that test applies with respect to an officer's assessment of probable cause for a warrantless search. As already stated, the defendant in this case concedes that the informer involved here was reliable under the Aguilar test. It remains to be determined whether the evidence offered on the motion to suppress was sufficient to meet the Aguilar basis-of-knowledge test and applied and expounded on in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). In the later case of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the Court again considered the requirements of the underlying factual basis necessary for the issuance of a search warrant, and enunciated the court's commonsense and nontechnical approach in reviewing probable cause questions by quoting from United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), as follows:

(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one here, must be tested in a commonsense and realistic fashion. They are normally drafted by the nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. (91 S.Ct. at 2079, 29 L.Ed.2d at 730).

In Spinelli, the Court recognized the importance of the detail with which an informer describes the accused's criminal activity, saying:

In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation. (393 U.S. at 416, 89 S.Ct. at 589).

In White v. United States, 448 F.2d 250 (8th Cir. 1971), the Court upheld an investigative stop because the informer's tip was specific, containing considerably more detail than that disapproved in Spinell. The Court stated:

Here the informant's reliability was bolstered both by the specificity of the tip and by the independent corroboration of a substantial number of the facts it contained. It is true that at the time of the stop the conclusion that the defendant was connected with the crime had not yet been independently corroborated but that is generally the situation with most investigations, and we do not think that is determinative in a situation where the police are stopping for purposes of investigation only and not for purposes of arrest. (448 F.2d at 253).

In Strode v. State, 231 So.2d 779 (Miss.1970), 1970), this Court, in determining whether the two-part test of Aguilar and Spinelli were satisfied, stated 'probable cause is a practical, nontechnical concept, based upon the conventional considerations of everyday life upon which reasonable and prudent men, not legal technicians, act.' (231 So.2d at 782). The Court continued, stating:

In short, under the basis-of-knowledge test, the informer must have obtained his knowledge by personal observation or in some other dependable manner rather than through casual rumor. The second reliability test is an attempt to guard against tips provided by untruthful or unreliable informers, and suggests that an informer is credible if he has provided truthful tips in the past. Moreover, the information may be deemed reliable if corroborated by independent investigation. Both tests require only that some of the underlying circumstances be sworn to. Furthermore, in Spinelli, the Court indicated that the basis-of-knowledge test could be fulfilled without a statement of the circumstances from which the informer derived his information; i.e., if a tip is sufficiently detailed, it may be self-verifying, and one may conclude that the informer was not relying on mere rumor. In the instant case, the tip, because of its great detail and corroboration, was self-verifying, and in addition, there was independent corroboration by the New Orleans officers. Given substantial compliance by disclosure of some of the underlying circumstances relevant to each of the two tests, magistrates and reviewing courts have ample room in which to use common sense. (231 So.2d at 783).

In the present case the informer told Chief Walters that (1) a 'pot party' was in progress at a certain address; (2) that the people at the party were going to and from the defendant's Karmann Ghia automobile and were smoking 'pot' therein; (3) that the Karmann Ghia, accurately and precisely described, would be leaving the premises shortly; (4) that defendant Wolf would be driving; ant (5) that the automobile would contain marijuana. In our opinion this detailed information is self-verifying and to a considerable extent was corroborated before accused's automobile was stopped. This information is far more than the casual rumor or tip which Aguilar and subsequent cases condemned. We think that the basis-of-knowledge test required by Aguilar was satisfied. Because of the infinite variety of situations that arise in the course of criminal investigations, it is impractical, if not impossible, to lay down a precise test that will apply in all cases.

II.

The next question is whether the continuation of the search of defendant's automobile after it was removed to the police station was a violation of his Fourth Amendment rights.

Defendant was driving the car when it was stopped by Sergeant Dowdle. Miss Loftis was on the righthand front seat and David Toole was riding on the rear seat. The evidence offered on the motion to suppress showed that all of the parties, including defendant, had been...