BEFORE WALKER, DAN LEE AND SULLIVAN
WALKER, PRESIDING JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Lowndes County, Mississippi wherein the appellant, Gary L. Hall, was convicted of possession of controlled substances with intent to deliver and was sentenced to a term of eighteen years in the custody of the Mississippi Department of Corrections and fined $40,000.00. Aggrieved with the lower court's holding, appellant has perfected his appeal to this Court contending it was error to overrule his motion to suppress evidence seized during a search of his safety deposit box at the National Bank of Commerce in Columbus, Mississippi.
On November 23, 1982 Officer Dowdle, Commander of the Columbus-Lowndes Narcotic Unit, received information through a reliable informant that a male person on November 16 was observed in the National Bank of Commerce acting very suspiciously. After renting a large safety deposit box this man secured a large black suitcase from his automobile, an Oldsmobile with Florida tags, returned to the Bank and presumably, while behind closed doors, emptied the contents of the suitcase into the deposit box. Dowdle contacted the bank president and learned that a box had been rented on November 16 by Raymond E. Eaves who listed his address as Post Office Box 1533 in Columbus, Mississippi. Officer Dowdle then went to the bank, and along with Bank officials approached the safety deposit box where he noticed a distinct acrid chemical type odor. It was later learned this address belonged to one Joseph Cook, owner of O.C. Electric Company. Mrs. Cook, who works for her husband's company, testified she did not know Raymond Eaves.
From an investigation of various local motels, the register at the Best Western Motel in Columbus, Mississippi showed R. G. Evans was registered November 17 and the tag number on the registration came off of a Pontiac registered in Florida. Through police communications, it was discovered that Evans was an alias for Robert Glenn Hobson who was known to have dealt in drugs and explosives and at one time had been a patient in a mental hospital.
With this information and concerned that the safety deposit box might possibly contain explosives, Dowdle obtained a search warrant on November 29 from Charles Younger, Justice Court Judge in District No. 5. Before the warrant was granted Dowdle was placed under oath and presented his affidavit of underlying facts and
circumstances (see Appendix "A") as well as telling Younger orally of the reliability of his informant.
A locksmith was called in to aid the officer in opening the safety deposit box. Inside the box the men found over 12,000 quaaludes.
The appellant was arrested January 17, 1983 at the National Bank of Commerce carrying a large empty suitcase. On his person he had keys to a brown Oldsmobile and also a set of keys to a lock box located at another local bank.
Appellant contends the attached affidavit did not establish probable cause for the issuance of a search warrant for his safety deposit box. We do not agree.
Probable cause exists when the facts and circumstances within an officer's knowledge, or of which he has reasonable trustworthy information, are sufficient in themselves to justify a man of average caution in belief that a crime has been committed and that a particular individual has committed it. Holland v. State, 263 So.2d 566 (Miss. 1972).
It was not until Dowdle feared the safety deposit box contained explosives that he sought a search warrant. This suspicion was based on the information which was received from Florida concerning a man named Evans in conjunction with the odor of an acrid type chemical which Dowdle smelled near appeallant's safety deposit box.
The United States Supreme Court in Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L.Ed. 436 (1948) made it clear that probable cause may be established through the sense of smell stating:
At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain defendant's contention, erroneously made, on the strength of Taylor v. United States, 286 US 1, 76 L ed 951, 52 S Ct 466, that odors cannot be evidence sufficient to constitute probable grounds for any search. That decision held only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds
the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such basis insufficient to justify issuance of a search warrant. Indeed might very well be found to be evidence of most persuasive character.
The learned Circuit Judge, Harvey Buck, found that under the totality of the circumstances the Justice Court Judge did have probable cause for issuance of the search warrant and rendered the following scholarly opinion explaining his ruling:
The Court, after hearing evidence and argument of counsel on the Motions to Suppress filed in Cause Numbers 7917, 7918, 7919, 7823, 7920, 7921, and 7922, and consolidated for hearing by the parties, issues the following opinion:
Probable cause is an intangible concept. Undoubtably it is comprised of little building blocks of facts as characterized in the argument of the prosecution; yet there is none of the precision and concreteness that the use of the term "building blocks" , suggests. In fact, the whole concept is somewhat vague by its very nature. It is defined in terms of what a "reasonable" man would believe; but we as individuals all have a different perception of what is "reasonable" in a given situation. This case presents us with an illustration of that fact.
It is now the duty of the Court to pass on the actions of the Law Enforcement Officers involved in this investigation and determine if there was probable cause, as a matter of law, for the searches conducted herein. What this Court must do, using the Prosecution's analogy, is step back and size up the pile ...