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OCTOBER 12, 1983




Tony Penick appeals from his conviction in the Circuit Court of Rankin County of the possession of more than one ounce, but less than one kilogram, of marijuana in violation of Miss. Code Ann. 41-29-139(d)(2)(C) (1972, as amended) and a sentence of three years.

The only issue we address upon this appeal is the legality of the search of Penick and his possessions. The circuit judge ruled the search valid; persuaded otherwise, we reverse and remand.


 In mid-afternoon on April 2, 1980, Penick, a native of Jackson, arrived at the Jackson Municipal Airport on a flight from Fort Lauderdale, Florida.

 Also at the terminal were Ernest S. Jacobsen, special agent with the Drug Enforcement Administration, Mickey Robbins, an agent with the State Bureau of Narcotics, and other state drug agents. This federal and the state agents were there on an investigation unrelated to Penick.

 Penick and Jacobsen were well acquainted, Penick being an informant for Jacobsen in his investigation into illicit drug trafficking, and, according to Jacobsen, he had contacted Penick on a daily basis for six to eight months.

 Jacobsen testified that when Penick observed him he became" very nervous. "Nevertheless, Penick walked over and talked to Jacobsen. Penick asked Jacobsen what he was doing at the airport, and Jacobsen replied he was there to see a friend off on a plane.

 Penick left, saying he had to make a phone call, and proceeded to a phone booth in the main terminal. Jacobsen said he observed Penick" peeking around the phone booth watching me. "Suspecting Penick, Jacobsen then notified other narcotic agents to keep their eye on Penick, that he, Jacobsen, was going to leave the terminal.

 Penick left the phone booth, went to a restroom, and then walked outside the terminal to his pickup in the parking area.

 As he got to his pickup, Penick was stopped by Robbins. Robbins identified himself as a state narcotics agent and was talking to Penick when Jacobsen walked over.

 Jacobsen asked Penick to accompany them back to the airport and Penick went with them to a police office in the terminal. Penick testified he thought he had to go with them. Jacobsen and Robbins both testified Penick appeared nervous and, according to Robbins, Penick" appeared that he didn't want to talk to anybody and he became upset when he got inside the police office there. "

 When they got into the police office, Jacobsen and Robbins exited, leaving Penick behind with two police officers. According to Penick, he was told to" stay there, "and could not leave. Jacobsen said if Penick had wanted to leave, he would have had to go through him, but could have left.

 Jacobsen and Robbins returned, took Penick across the hall and began questioning him as to where he had been, where his ticket was, and whether he had any luggage. *fn1

 Penick undressed, there was no contraband on his person, and Robbins left the room as Penick was putting his clothes back on.

 The events immediately preceding Penick removing his clothes and what then transpired are in dispute.

 According to Penick, following the questioning, he was told to empty his pockets, which he did, and then told to take off his clothes. He testified he did not feel he had a right to leave or to do other than as he was told, that the officers were direct and forceful. He said they found a claim ticket and Jacobsen told Robbins to go get the luggage. Then Robbins returned with the suitcase, the officers opened it with a screwdriver.

 According to Jacobsen, when he and Robbins took Penick across the hall and were questioning him, Penick was" acting real nervous, "and said:" I guess you want me to - want to search me, don't you? "Jacobsen testified he said," Well, yes, if you don't mind. "and Penick then took his clothes off.

 Jacobsen testified that following the search and, as Penick was putting his clothes back on, a baggage receipt slip fell on the floor. Jacobsen testified that as he reached down to pick it up, Penick said," Damn, Jake, I've got two pounds of grass in my bag. "

 Jacobsen then walked to the door where Robbins was waiting outside and gave him the luggage ticket to go and get the bag.

 According to Jacobsen, when the luggage was returned, Penick attempted to open the bag by the combination lock, but, being unable to do so, a screwdriver was used to open the bag. The marijuana was discovered inside and then Penick was placed under arrest and given the conventional Miranda warnings.

 Robbins was not present at the time the baggage receipt was picked up by Jacobsen. He testified when the bag was retrieved, Penick opened it from a combination lock, he did not recall the screwdriver being used.

 The first trial of Penick resulted in a hung jury and a mistrial. Robbins, who left the job as narcotics agent and was privately employed, did not testify at the first trial. He did testify at the second trial.

 Penick made a pretrial motion to suppress the evidence, claiming his constitutional right against unreasonable search and seizure had been violated. Following hearing, at which Penick and Jacobsen testified, the motion was overruled.

 Thereafter in both trials, and over Penick's objection, the evidence of marijuana found in the luggage was introduced before the jury.

 Upon this appeal Penick assigns as error the trial judge's overruling his motion to suppress.


 Section 23 of the Mississippi Constitution provides:

 Section 23. The people shall be secure in their persons, houses, and possessions, from unreasonable seizure and search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.

 The Fourth Amendment to the United States Constitution provides:

 AMENDMENT IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 Was there a search and seizure in this case in violation of these Constitutions' provisions?

 We will refer first to our State Constitution as we have interpreted it over the years.

 We do not have before us a search made as an incident to Penick's arrest. This is not even contended by the state. Rather, it is the contention of the state that Penick consented to the search.

 We agree with the astute and experienced circuit judge's observation that there are" pickup truck loads "of cases on these issues. Our task cannot be to remove the

 nettlesome questions presented in search and seizure cases, but we will endeavor to avoid adding to the confusion. Yet, the razor's edge gradation between search and seizure cases is often so difficult to define or delineate under the conventional principles we must apply in explaining our reasons, we are compelled to repeat the refrain: each of these cases must be judged on its own facts. We can go little further.

 In Smith v. State, 133 Miss. 730, 98 So. 344 (1923), a search of the defendant's home was challenged as being violative of her rights against unreasonable searches under Section 23 of our state Constitution. On the question of whether the defendant had consented to a search of her home, we stated:

 [T]he occupant, as a matter of legal right, stands objecting to any unlawful search of her premises; and in order to waiver her rights it must clearly appear that she voluntarily permitted, or expressly invited and agreed to the search, being cognizant of her rights in the premises when the officer proposed to her, by asking her permission, to make the search without a warrant. [Emphasis added] 133 Miss. at 736, 98 So. 345.

 This case is also authority for the principle that where an accused neither consents to nor objects to the search, this does not constitute a waiver.

 Smith v. State has been cited in numerous subsequent decisions of this Court. See: Morton v. State, 135 Miss. 284 101 So. 379 (1924); Boyd v. State, 164 Miss. 610, 145 So. 618 (1933); Lancaster v. State, 188 Miss. 374, 195 So. 320 (1940); Martin v. State, 64 So. 2d 629 (Miss. 1953).

 Quan v. State, 185 Miss. 513, 188 So. 568 (1939), again regarding Section 23 of our state Constitution, we stated:" A party, when he knows that a proposed search would be illegal, may waive the illegality and consent to the search; and when he does he may not thereafter complain of its illegality. "[Emphasis added] 185 Miss. 513, at 520, 188 So. 569.

 In order for there to be a valid consent to a search not otherwise authorized by law, must the person searched be aware he has the legal right to refuse? Put in a different way, in order for there to be a valid waiver of the Constitutional right against an illegal search, is it ...

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