Wright v. State

• Decision Date: 01 June 1970
• Docket Number: No. 45873,45873
• Citation: 236 So.2d 408
• Parties: Earlie WRIGHT, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 408

236 So.2d 408

Earlie WRIGHT, Jr. v. STATE of Mississippi.

No. 45873.

Supreme Court of Mississippi.

June 1, 1970.

Rehearing Denied July 2, 1970.

Billy J. Jordan, Jerome Lohrmann, Columbus, for appellant.

A. F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., and Timmie Hancock, Special Asst. Atty. Gen., Jackson for appellee.

RODGERS, Justice:

The appellant, Earlie Wright, Jr., was indicted, tried and convicted of having in his possession 'a narcotic drug, to-wit marijuana', in the Circuit Court of Lowndes County, Mississippi.

The appellant's conviction came about under the following circumstances. On the night of August 31, 1968, the appellant, Earlie Wright, Jr., got out of an automobile in front of the Elks Club in the city of Columbus, Mississippi. He went up to the door of the lodge. An officer requested the appellant to show his identification card. The appellant was slow in complying with the officer's request. Two policemen testified that appellant was drunk and disorderly. The officers arrested the appellant, 'patted' him down, and discovered a pistol on his person. They then took him to police headquarters. One of the officers took the contents of his pockets and put them in an envelope. The envelope was marked by another officer. In the process of searching the prisoner, an officer discovered a small brown package in the prisoner's rear pants pocket. The officer examined the package and discovered twelve (12) small rolled cigarettes. The size and contents of the cigarettes aroused the officer's curiosity. He burned one of the cigarettes and discovered that it had a peculiar odor. The package was placed in the 'evidence locker' at the police headquarters and later turned over to the chief of police. It was delivered to the Mississippi Crime Laboratory, and upon examination, it was discovered that the cigarettes contained marijuana.

The appellant testified that a 'guy named Jimmy something * * * handed me a packet and said: 'Hold this for me until I return'.' Appellant did not locate the person named 'Jimmy' as a witness.

On appeal to this Court the appellant complains that he did not receive a fair trial because (1) the trial court permitted the introduction of evidence with reference to the package of cigarettes alleged to have been obtained by an illegal search of the appellant; (2) the trial court permitted the introduction of demonstrative evidence without requiring preliminary proof of the condition of the cigarettes from the time of seizure until they were examined by the expert witness; (3) the trial court erroneously permitted the district attorney to introduce a witness who had previously testified and had returned to the jury room; (4) the trial court refused to conduct a preliminary hearing on a motion to suppress illegally obtained evidence; (5) Section 6846, Mississippi Code 1942 Annotated (1952) is unconstitutional because it establishes a crime without an evil intention.

In order to move directly to the predominant issues involved in this case, we think that it is only necessary to point out that issues number two and three are issues which are usually determined within the sound discretion of the trial judge, and, unless this judicial discretion has been so abused as to be prejudicial to the defendant, this Court will not reverse the ruling of the trial court. The following authorities listed under the foregoing issue numbers will suffice to illustrate this rule: Second issue-29 Am.Jur.2d Evidence § 769 (1967); 20 Am.Jur. Evidence § 717 (1939); 32 C.J.S. Evidence § 602 (1964). See also: Bester v. State, 222 Miss. 706, 77 So.2d 270 (1955); Wood v. State, 221 Miss. 901, 74 So.2d 851 (1954). Third issue-Cannon v. State, 190 So.2d 848 (Miss.1966); Fondren, Alias Taylor v. State, 253 Miss. 241, 175 So.2d 628 (1965); Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961); Triplett v. State, 230 Miss. 707, 93 So.2d 654 (1957); Thomas v. State, 103 Miss. 800, 60 So. 781 (1913). We find no error in the ruling of the court on these issues.

The appellant complains (issue number four) that the trial court erred in not granting a preliminary hearing upon a motion to suppress illegally obtained evidence under the rule in Henry v. State, 253 Miss. 263, 174 So.2d 348 (1965). This suggestion is not well taken for two reasons. First, no motion was made to suppress the evidence, and, second, if such a motion had been made and overruled, this would not have been error since we hold hereafter that the testimony was properly admitted in evidence on the trial. The record shows that the motion made by the appellant in fact requested the court to dismiss the charge against appellant rather than to suppress certain testimony.

Turning now to the two issues that we feel should be discussed more fully (the first and fifth), we repeat for clarity that it is the first contention of appellant that the examination of the contents of a brown package was an unlawful search and seizure because the officer's act was forbidden by the Fourth Amendment to the United States Constitution.

The Fourth Amendment to the United States Constitution has been made applicable to the states by a manipulation of the Fourteenth Amendment to the United States Constitution. Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

However, long before these cases were reported, we had, in Mississippi, made the evidentiary exclusionary rule a part of our case law under the authority of Section 23, Mississippi Constitution (1890). One 1948 Pontiac Automobile v. State, 221 Miss. 352, 72 So.2d 692 (1954); Williams v. State, 129 Miss. 469, 92 So. 584 (1922); Tucker v. State, 128 Miss. 211, 90 So. 845 (1922). The many cases gathered under Section 23, Mississippi Constitution (1890) indicate the determination of this Court to preserve the constitutional right of our citizens to privacy.

The appellant has cited several United States cases which we feel should be examined. The case of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964), is a case where two persons were arrested for vagrancy. After they were taken to the police station, their automobile was towed to a garage. Later, the automobile was searched and women's stockings cut for mouth and eye holes, ropes, pillow slips and illegal license plates were found in the automobile. One of the persons arrested confessed that they intended to rob a bank fifty-one (51) miles from the place of the arrest. This information was given to the federal officers and a prosecution was instituted in the federal court. The defendants objected to the introduction of this physical evidence upon the ground that the search of the automobile was not an incident to a lawful arrest. The Supreme Court held that:

'* * * Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145, supra, * * *.'

(376 U.S. at 367, 84 S.Ct. at 883, 11 L.Ed.2d at 780)

This Court has previously held this rule to be true in this state in Smith v. State, 240 Miss. 738, 128 So.2d 857 (1961), and we repeated our holding in King v. State, 230 So.2d 209 (Miss.1970); May v. State, 199 So.2d 635 (Miss.1967); and Coston v. State, 252 Miss. 257, 172 So.2d 764 (1965).

In the case of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the United States Supreme Court, in a six-two decision, sharply limited the scope incident to a lawful arrest by holding that such a search of the prisoner must be limited to the person of the prisoner and 'the area from within which he might gain possession of a weapon or destructible evidence.' See also: Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969); Von Cleef v. New Jersey, 395 U.S. 814, 89 S.Ct. 2051, 23 L.Ed.2d 728 (1969).

However, eight years before Chimel, this Court said in Smith v. State, 240 Miss. 738, 128 So.2d 857 (1961):

'* * * Unlike the search made under a search warrant, which describes the property to be searched, the search, as an incident to an arrest, is a limited search. It extends only to the 'immediate presence' of the prisoner, the possessions in his 'immediate control' and in his 'immediate surroundings'. * * *.' (240 Miss. at 742, 743; 128 So.2d at 859)

In the case of Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the Supreme Court of the United States held that a search of an automobile seized one week after the owner's arrest and held as evidence under a forfeiture charge was not unreasonable since the search was closely related to the charge for which the arrest was made. This case seems to be an exception to the general rule and this was pointed out in the dissent.

The search in Cooper was permitted to be admitted in evidence because the automobile was impounded 'as evidence' pursuant to a California statute permitting seizure and forfeiture of vehicles used in violation of California narcotics laws. The Court said:

'* * * (T)he reason for and nature of the custody may constitutionally justify the search. * * *' (386 U.S. at 61, 87 S.Ct. at 791, 17 L.Ed.2d at 733)

The Supreme Court of Mississippi followed Cooper in the case of Gordon v. State, 222 So.2d 141 (Miss.1969), not upon the ground that the automobile was being forfeited as in Cooper, but upon the ground that the automobile was itself evidence and its contents were necessarily inventoried. There is, however, no Mississippi statute requiring such a procedure.

In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), the Court held that officers could not enter an apartment and arrest an occupant simply because they smelled opium burning. This opinion is based upon the proposition...