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VINCENT HUDSON v. STATE OF MISSISSIPPI

AUGUST 28, 1985

VINCENT HUDSON
v.
STATE OF MISSISSIPPI



BEFORE WALKER, P.J., PRATHER AND SULLIVAN, JJ.

WALKER, PRESIDING JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Lauderdale County, Mississippi, wherein the appellant, Vincent Hudson, was indicted along with Evelyn Jemison and William Perry, Jr. for armed robbery. Jemison entered a guilty plea and a severance was granted as to Perry, Jr. Following trial of Hudson he was convicted and sentenced to serve a term of thirty years in the custody of the Mississippi Department of Corrections.

On December 24, 1981 at approximately 5:45 to 6:00 p.m, Tony Swift, manager of the Radio Shack store located at College Park Shopping Mall in Meridian, was robbed at gunpoint while attempting to deposit the receipts from the store's sales for that day. A blue money bag containing checks, deposit slips and approximately $1,153 in cash was taken,

 After securing information from an employee of Eckerds, located next to Radio Shack, the investigating officers with the Meridian Police Department proceeded to the Village Apartments; in particular the apartment of E. Jemison. Officer Nelson armed with a shotgun knocked on the door of Jemison's apartment and identified himself. Through the opening in a curtain in a window next to the door he observed a black male matching the description of the alleged robber approach the front door with a nickel plated gun held in a raised position. Again Nelson knocked on the door and advised the appellant to drop the gun, The appellant threw the gun on a nearby couch and opened the door. Nelson advised him to

 exit the apartment and then asked Perry to also step outside.

 The appellant along with William Perry was placed under arrest and taken from the second floor of the apartment complex to a patrol car located in the parking lot. Consent to search, both oral and written, was obtained from Evelyn Jemison. The officers who searched her apartment found a .22 calibre 4 inch barrel pistol; a .38 calibre nickle plated pistol; $1,153 in cash; a partially burned money bag; and several partially burned checks made out to Radio Shack. Following trial the jury found the appellant guilty as charged. As the jury was unable to determine his sentence, the court sentenced appellant to 30 years in the custody of the Mississippi Department of Corrections. Aggrieved with the lower court's holding, the appellant has perfected his appeal to this Court raising three assignments of error.

 The appellant initially asserts the court erred when it failed to grant his motion to suppress the evidence seized from the apartment during an unreasonable search and seizure.

 Although the appellant argues at length the impropriety of introducing the evidence seized where the arresting officers had no probable cause to arrest nor probable cause to search, he overlooks the main question, that being: Was the evidence obtained as the result of a warrantless search admissible based on a consent given prior to the search by one who jointly occupied by the premises?

 The lower court found it unnecessary to address the validity of the consent given as it determined the investigating officers had sufficient probable cause to proceed to the apartment rented by Jemison.

 (1) Information had been obtained from an employee of Eckerds located next to the Radio Shack that Jemison earlier informed the employee that Jemison, the appellant, and Perry planned to rob someone that day.

 (2) At the apartment Officer Nelson observed a black male fitting the general description of the robber carrying a gun which matched the description of the gun used by the alleged robber.

 We find it unnecessary to delve into the issue relative to `probable cause' as we have held that one of the specifically established exceptions to the requirements of both a warrant and probable cause to permit the search is a search conducted pursuant to consent. Jackson v, State, 418 So. 2d 827 (Miss. 1982).

 In Bell v. State, 360 So. 2d 697 (Miss. 1978) the appellant, convicted of armed robbery, complained it was error to introduce into evidence items secured during a warrantless search of his bedroom. The appellant lived in a home rented by his mother who gave her consent for the search. Citing from United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L.Ed.2d 242 (1974), we said:

 [T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared, [W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed ...


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