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JERRY McCOMMON v. STATE OF MISSISSIPPI

APRIL 24, 1985

JERRY McCOMMON
v.
STATE OF MISSISSIPPI



EN BANC

DAN LEE, JUSTICE, FOR THE COURT:

Jerry McCommon stands convicted of being a rather uncommon carrier. A jury in the Circuit Court of Simpson County found him guilty of knowingly possessing more than one kilogram of marijuana. The marijuana was discovered in the trunk of McCommon's car after law enforcement officers, acting on a tip from a confidential informer, followed McCommon to Miami, Florida and back to Simpson County.

After McCommon was detained officers asked him where he had been. He told them that he had been on the Mississippi Gulf Coast camping. Knowing this to be a lie, and having other indicia of probable cause, two of the officers left the scene to secure a search warrant for McCommon's vehicle. McCommon was taken into custody and his vehicle was taken to the Simpson County courthouse. After a search warrant had been secured, McCommon's trunk was opened and four bales of marijuana were found therein. Following his conviction and sentence to a term of 15 years in the custody of the Mississippi Department of Corrections, with the last five years being on supervised parole, and a fine of $20,000, McCommon brings this appeal. McCommon's sole assignment of error relates to the search and seizure of his automobile. We affirm.

 PROBABLE CAUSE

 In Lee v. State, 435 So.2d 674 (Miss. 1983), this Court adopted the totality of the circumstances test for determining the existence of probable cause which was articulated by the United States Supreme Court in Illinois v. Gates, ___ U.S. ___, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983). That test has subsequently been followed in Hall v. State, 455 So.2d 1303 (Miss. 1984) and Stringer v. State, ___ So.2d ___, ___ (Miss. No. 54,805, decided February 27, 1985, not yet reported). As Stringer makes clear, the totality of the circumstances test applies whether we are construing the probable cause requirement of Section 23, Art. 3 of the Mississippi Constitution or that found in the Fourth Amendment to the Constitution of the United States.

 Under the totality of the circumstances test" [T]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place and the duty of a reviewing court is simply to insure that the magistrate had a substantial basis for . . . conclud[ing] that probable cause existed. "Lee at 676 and Stringer, slip at 8, quoting Gates at ___ U.S. ___, 103 S. Ct. 2332, 76 L.Ed.2d ___.

 We are asked to decide whether, under the totality of the circumstances, the justice court judge who issued the search warrant to search McCommon's vehicle was correct in deciding that the state had probable cause to believe that" contraband or evidence of a crime "would be found in Jerry McCommon's car. By simply reviewing the affidavit and the warrant on their face, the following facts support the state's assertion that probable cause was present. (1) In May, 1982, McCommon had been arrested for possession of cocaine. The search of his vehicle revealed a large amount of marijuana debris. (2) Information from a confidential source revealed that McCommon was driving to Miami, Florida and returning with large amounts of marijuana in his vehicle. (3) On July 13, 1982, two associates of McCommon were arrested for possession of approximately 500 pounds of marijuana. One of the vehicles containing the marijuana belonged to McCommon. One of these associates had been in Miami, Florida at the same time as Jerry McCommon. (4) A confidential source told Sgt. Barrett of the Jackson Police Department, that McCommon was going to Miami, Florida" possibly to pick up a load of drugs. "McCommon was followed to Florida and observed at a residence occupied by a person known to the United States Drug Enforcement Administration

 as a marine smuggler. When McCommon returned to Mississippi his vehicle was sagging in the rear although it had not done so on the trip to Florida. (5) When McCommon was stopped and questioned by authorities he told them that he had been on the Mississippi Gulf Coast camping, a statement known by police officers to be untrue. Given all of these circumstances, we conclude that there was probable cause to issue the search warrant.

 WAS THE WARRANT ISSUED BY A NEUTRAL AND DETACHED MAGISTRATE?

 McCommon here argues that the issuing magistrate, Justice Court Judge Nevel Mangum, was not a neutral and detached magistrate. Both the United States Supreme Court and this Court have held that the individual issuing the warrant must be a neutral and detached magistrate. Johnson v. United States, 333 U.S. 10, 68 S. Ct. 367, 92 L.Ed. 436 (1948); Birchfield v. State, 412 So.2d 1181 (Miss. 1982). A magistrate who fails to perform his neutral and detached function and who serves" merely as a rubber stamp for the police "cannot validly issue a search warrant. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S. Ct. 2319, 60 L.Ed.2d 920 (1979).

 Judge Mangum was called as a witness for the state during the suppression hearing in this cause. On cross-examination by the defense attorney, Judge Mangum testified that he relied primarily on the fact that the people who requested the warrant were sworn police officers rather than anything in particular in the affidavit of underlying facts and circumstances. Judge Mangum did add however," Well, if I didn't feel like it was warranted, now, then, naturally, I wouldn't issue it. "

 McCommon asserts that the judge's testimony that he primarily relied on the fact that sworn police officers were asking for the warrant is evidence that he was not a neutral and detached magistrate. We disagree. Judge Mangum's testimony that he would not have issued the warrant had he not thought it appropriate is evidence that he was not serving" merely as a rubber stamp for the police. "We therefore find no merit in McCommon's argument; however, it is appropriate that we add a comment here for the benefit of both the bar and those state officials in whom resides the duty of issuing search warrants.

 The importance of the neutral and detached magistrate cannot be over emphasized. That magistrate stands as the barrier against unwarranted intrusions into the private lives and personal effects of the people. As the United

 States Supreme Court said in Coolidge v. New Hampshire, 403 U.S. 443, 481, 91 S. Ct. 2022, 2045, 29 L.Ed.2d 564, 569 (1971):

 [T]he warrant requirement has been a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow `weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the `well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement."

 We realize that the task of a magistrate who issues search warrants is not an easy one. Their role requires detachment and study as they consider whether they have been presented with sufficient probable cause to issue a warrant to search or seize a particular person, place or thing. We fully appreciate the gravity of that role and are optimistic that those vested with that responsibility do likewise. The justice court judges, police judges and other judicial officers of the state called upon to issue warrants must remember that they are judges. On their oaths they may not issue warrants just to help law enforcement. They must always remember that a request for a warrant requires a judicial determination. Impartiality and reasoned application of legal principles are the foundation of a judicial determination.

 WAS IT ERROR TO ALLOW THE STATE TO AMEND ITS PROOF AND SUBSTITUTE A SIGNED COPY OF THE SEARCH WARRANT AND AFFIDAVIT AS OPPOSED TO

 THE UNSIGNED COPY ADMITTED DURING THE STATE'S CASE?

 During the suppression hearing the state introduced a copy of the affidavit for a search warrant which was presented to Justice Court Judge Mangum. Following the close of the state's case the defense moved for a directed verdict based on the fact that those copies did not contain Judge Mangum's signature or seal. On the day of trial, the court allowed the state to amend the affidavits for a search warrant so as to insert the original into the record which contained the judge's signature. The judge testified that he had signed those documents on October 6, 1982, the day they were issued.

 In Powell v. State, 355 So.2d 1378 (Miss. 1978),

 this Court wrote:

 The other proposition argued is that the search warrant was fatally defective because the Justice Court Judge failed to sign the jurat of the affidavit. We find no merit in this argument. Undisputed testimony shows that the affiant appeared before Judge Dale, who put him under oath and obtained the information contained in the underlying facts and circumstances of the affidavit. After giving that information to the judge under oath, Pickens signed the affidavit and Dale wrote the date and his title at the bottom. Pursuant to the affidavit, Dale then issued the search warrant for the residence rented by appellant. The search warrant bears Dale's signature, which by reference incorporates the content of the affidavit. 355 So.2d at 1380.

 In the instant case the undisputed testimony also showed that the affiants were put under oath and Judge Mangum elicited the information which appeared in the affidavit from them. Under the authority of Powell we hold that no error occurred when the trial court allowed the state the opportunity to ...


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