Cole v. State

242 So.3d 31

John Norman COLE a/k/a Bo Cole a/k/a John Cole

v.STATE of Mississippi

NO. 2016–KA–01441–SCT

Supreme Court of Mississippi.

February 1, 2018

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART

BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.

ISHEE, JUSTICE, FOR THE COURT:

¶ 1. John Cole was adjudged guilty by a jury in the Lincoln County Circuit Court for the unlawful possession of less than thirty grams of marijuana with the intent to distribute, and the illegal possession of a firearm by a convicted felon. He was sentenced as a habitual offender. As a result, Cole was sentenced to serve three years for the marijuana-related charge, and ten years for the possession of the firearm; the sentences were ordered to run consecutively. Cole filed posttrial motions, all of which were denied. This direct appeal followed, wherein Cole attacks the admission of certain evidence. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On August 6, 2015, Agent Hunter Huff of the Mississippi Bureau of Narcotics (MBN) received information from an anonymous tipster¹ that several unidentified individuals were outside a private residence selling drugs. The tipster conveyed to Huff that the house was located on, or around, Dr. Martin Luther King Jr. Drive, and had a chiminea (or fire pit) out front. In response, Huff, along with Captain Billy Ray Warner, Agent Jesse Leggett, and other officers arrived simultaneously at the location approximately described by the tipster to investigate the claim. They parked along the public roadway and found six men sitting near the street. Cole was one of the six, seated to the far right. The scene aligned roughly with that described by the tipster, according to Huff.

¶ 3. At that time, the agents immediately observed one of the individuals hide something under his shirt. Huff, Leggett, and the other agents then approached the men while Huff began explaining why they were present. When asked to produce the hidden object, the individual revealed a marijuana joint. The same individual had his foot on top of a CD case located on the ground, which was found to contain additional marijuana. A second individual produced from his pocket a bottle housing marijuana. The agents then found marijuana and a pistol on another individual, Lattrick Williams. Having found narcotics on at least three of the individuals present, as well as a gun, the agents continued the investigation and chose to frisk Cole for weapons. But when the agents either attempted, or initially began, to frisk Cole, he stood, then fled along the roadway.

¶ 4. Agents on the scene testified that Cole discarded what appeared to be a white hand towel while running. While pursuing Cole, Officer Barlow of the Brookhaven Police Department stated that he heard what sounded like metallic clinking along the pavement—when he looked down, he observed a revolver and alerted the other agents to its presence. When inspected by Leggett, the towel was found near a firearm. In close proximity to the pistol was marijuana. Cole subsequently was restrained by the agents, placed under arrest, and searched. Additional marijuana was found on his person. He was then taken to jail.

¶ 5. Once at jail, Cole was Mirandized ,² waived his rights, and spoke with Huff and Leggett. According to Huff's and Leggett's testimony, Cole provided a statement, in which he allegedly admitted selling the bags of marijuana for $10 each, and that he recently had purchased the pistol found at the scene for $120. Huff stated on cross-examination, however, that Cole's statement was not recorded in any fashion, and that no written report was constructed by either himself or Leggett detailing Cole's statement. But Huff also stated that, as a general practice, MBN does not record every statement of a suspect.

¶ 6. During pretrial proceedings, Cole moved to suppress evidence related to the marijuana and pistol, claiming that the search and seizure were unlawful and, therefore, those items were "fruit of the poisonous tree." Cole also sought to have any alleged statements by him suppressed.

¶ 7. During the suppression hearing, Cole chose to testify. Cole admitted that he had waived his Miranda rights and that he had "talked with" the agents, but he denied making any statements regarding the sale of marijuana. As a result, his testimony varied in some respects from that to which Huff and Leggett had testified. Even so, Cole admitted that he had fled because he did not want to go to jail, and that he was in possession of the marijuana and the pistol before he fled. Following the suppression hearing, the circuit court denied Cole's motion to suppress.³

¶ 8. As a result, Cole proceeded to trial on September 22, 2016. Upon conclusion of trial, the jury found Cole guilty of both counts charged, and he was sentenced as a habitual offender. As such, he received a three-year sentence for his possession of less than thirty grams of marijuana with the intent to distribute, and ten years for being a felon in possession of a firearm; the sentences were ordered to run consecutively, the entirety of which was to be served in the custody of the Mississippi Department of Corrections (MDOC).

¶ 9. Displeased, Cole moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial—neither motion, however, specifically attacked the circuit court's admission of the firearm or marijuana. The circuit court ultimately denied all of Cole's posttrial motions. Aggrieved, Cole timely filed this direct appeal.

STANDARD OF REVIEW

¶ 10. "This Court applies a mixed standard of review when considering Fourth–Amendment issues." Cook v. State , 159 So.3d 534, 537 (Miss. 2015) (citing Eaddy v. State , 63 So.3d 1209, 1213 (Miss. 2011) ). "We apply de novo review when determining whether probable cause or reasonable suspicion exists." Cook , 159 So.3d at 537. Our de novo review, however, is "limited to the trial court's ‘decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.’ " Id. (quoting Dies v. State , 926 So.2d 910, 917 (Miss. 2006) ).

DISCUSSION

¶ 11. In seeking relief from this Court, Cole raises but one error: the circuit court's denial of his motion to suppress. Subsumed within this issue, however, is whether Cole's right to be free from unreasonable searches and seizures was violated.⁴

¶ 12. "Both the Fourth Amendment to the United States Constitution and Article III, Section 23 of the Mississippi Constitution protect an individual's right to be free from unreasonable searches and seizures." Eaddy , 63 So.3d at 1212 (citing Dies , 926 So.2d at 917–918 ); see also U.S. Const. amend. IV ; Miss. Const. art. 3, § 23. "To determine whether the search and seizure were unreasonable, the inquiry is two-fold: (1) whether the officer's action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Gonzales v. State , 963 So.2d 1138, 1141 (Miss. 2007).

¶ 13. "As a general rule, the state and federal constitutions prohibit warrantless searches unless an exception applies." Eaddy , 63 So.3d at 1213. Therefore, "[u]nless the State proves that a warrantless search comes within an exception, all evidence seized from the search is inadmissible." Id. A noncustodial investigatory stop, commonly referred to as a Terry stop, is a recognized exception.⁵ See Gonzales , 963 So.2d at 1141.

I. Investigatory Stops

¶ 14. Before this Court may address the merits of whether the circuit court erred in denying Cole's motion to suppress, we first must determine the lawfulness of the investigatory stop, as any evidence derived from an illegal search or seizure will be deemed tainted as "fruit of the poisonous tree." United States v. Maberry , 193 F.Supp.3d 724, 731 (S.D. Miss. 2016).

¶ 15. With that in mind, it is well-settled that "[p]olice officers may detain a person for a brief, investigatory stop consistent with the Fourth Amendment when the officers have ‘reasonable suspicion, grounded in specific and articulable facts[,]’ [which] allows the officers to conclude the suspect is wanted in connection with criminal behavior." Eaddy , 63 So.3d at 1213 ; see also Terry , 392 U.S. at 21, 88 S.Ct. 1868.

A. Reasonable Suspicion

¶ 16. Generally, there are two sources from which grounds for reasonable suspicion may be established: "either the officers' ‘personal observation’ or an informant's tip." Eaddy , 63 So.3d at 1213 (citing Florida v. J.L. , 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ). "The officer's personal observation includes information from other law-enforcement personnel." Eaddy , 63 So.3d at 1213. "And an informant's tip may provide reasonable suspicion if accompanied by some indication of reliability; for example, reliability may be shown from the officer's independent investigation of the informant's information." Id. (citing J.L. , 529 U.S. at 270, 120 S.Ct. 1375 ).

¶ 17. That said, the scope of an investigatory stop is not unlimited. Eaddy , 63 So.3d at 1213. Rather, "[t]he scope of a search or seizure must relate to the initial circumstances that called for police action." Id. at 1214. And "[w]hen police detention exceeds the scope of the stop, the stop becomes a ‘seizure,’ and the State must show probable cause." Id.

¶ 18. Applied here, Cole argues that the agents' actions were not justified at the inception of the stop because "they did not possess a reasonable belief that Cole was armed," and therefore, "lacked authority to conduct a Terry pat-down for weapons." Unclear, however, is whether Cole is arguing that the inception of the stop began with the agents' initial approach of the group, or when Huff attempted to frisk Cole's person. Regardless, to assess whether the agents' stop was justified at its inception—be it the overall...