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PHILLIP GANDY v. STATE OF MISSISSIPPI

SEPTEMBER 28, 1983

PHILLIP GANDY
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, C.J., BOWLING AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Phillip Gandy has been convicted in the Circuit Court of Hinds County on a charge of conspiracy to deliver cocaine in violation of Miss. Code Ann. 41-29-139(c) (Supp. 1982). He has been sentenced to serve five years in the custody of the Mississippi Department of Corrections.

 As he is of right entitled, Gandy has on this appeal asked that we review his conviction. Most serious of the questions presented regards the admissibility of an incriminating fingerprint Gandy says was obtained through an illegal arrest. Other evidentiary rulings, as well as the court's refusal to grant several requested instructions, have also been assigned as error.

 Having carefully reviewed this entire matter concentrating of course on the errors urged, we affirm.

 II.

 The operative facts occurred in late autumn of 1980. Officers of the State Bureau of Narcotics had under investigation one Jimmy Birdwell who lived in the Clinton, Mississippi, area. In November of 1980 Officer Eddie Berry, utilizing the services of a confidential informant, made a buy of four grams of cocaine from Birdwell for $600. On December 6, 1980, another buy was made from Birdwell, this time one ounce of cocaine for $2,000. In the course of these two buys the officers learned that Birdwell's potential supplier was James Dale Nicholson.

 A week later, Berry and Agent Pam Vandenberg set up a new deal with Birdwell. They proposed to purchase five ounces of cocaine for $10,000. The agents were confident that Birdwell would obtain his supply from Nicholson. They arranged a surveillance on Nicholson's residence in hopes of nabbing the person from whom Nicholson obtained his supply. Their plan was to" bust "Birdwell, Nicholson and Nicholson's supplier, if detected.

 On the afternoon of December 14, 1980, state narcotics officials had Nicholson's residence under

 surveillance. Their dual purpose was to see if a supply would be delivered to Nicholson and to follow Nicholson when he left to make his anticipated delivery to Birdwell. At this time the officers had never heard of Phillip Gandy. They did know that the buy from Birdwell had been arranged for later that afternoon. Based upon their prior observations of Nicholson and Birdwell, they anticipated that Nicholson would that afternoon deliver to Birdwell the cocaine the undercover agents were going to buy from Birdwell. They did not know who would supply Nicholson.

 At approximately 1:45 p.m. on December 14, Gandy drove up to Nicholson's residence. He got out of his car and went inside. A few moments later, Gandy came back to his car, got something, and went back inside. Two of the officers testified that Gandy appeared to be carrying a brown paper bag of unknown contents when he came back into Nicholson's house.

 At about 3:20 p.m., Gandy and Nicholson emerged from the house and got in their respective cars. Just as they were leaving, a young man pulled up in a Volkswagen, got out of his car and walked over to Nicholson. The two spoke briefly and then all of them - Gandy, Nicholson and the young man - went their separate ways. At this time, the narcotics agents surveilling the house separated and followed Nicholson and Gandy who drove off in different directions. The record does not show that anyone followed the Volkswagen.

 In any event, as soon as it became clear to the officers that Nicholson was going to Birdwell's apartment, they pulled him over. A quick search revealed that Nicholson had in his custody three and a half ounces of cocaine plus a quantity of Inisotol, a cut. Nicholson also had three-quarters of a gram of cocaine in a vial on his person. At this point the officers became convinced that Nicholson had obtained the cocaine from Gandy. They radioed the other agents following Gandy and instructed them to arrest him, which was done.

 Armed with the information recited above, undercover Agent Bill Marshall stopped Gandy as he was leaving the Jackson area headed South. Marshall placed Gandy under arrest, searched Gandy and the car but found no drugs or drug related paraphernalia. Clearly, Gandy was breaking no law at the time he was pulled over. He was, nevertheless, taken to the Jackson Police Department, fingerprinted and questioned briefly.

 Subsequently, the officers conducted a search of Nicholson's home. They found an additional quantity of cocaine, along with various items of cocaine paraphernalia number written on a piece of paper.

 Most significant was a brown pyrex bowl which had been used to" cut "the cocaine. The bowl was dusted for fingerprints. One of the prints obtained matched one of the prints taken from ...


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