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JOHNNY HARPER v. STATE OF MISSISSIPPI

MARCH 12, 1986

JOHNNY HARPER
v.
STATE OF MISSISSIPPI



BEFORE WALKER, HAWKINS AND ROBERTSON

WALKER, PRESIDING JUSTICE, FOR THE COURT:

Appellant prosecutes this appeal from the Circuit Court of Lowndes County, Honorable Earnest L. Brown presiding, wherein he was indicted and tried for and convicted of the crime of possession of more than one ounce but less than

one kilogram of marijuana and was sentenced as an habitual offender to pay a fine of $3,000.00 and to serve a term of three (3) years imprisonment in the custody of the Department of Corrections.

 Appellant's only assignment of error is that the trial court erred in overruling his motion to suppress evidence.

 The case began on July 28, 1984, when two agents from the Columbus-Lowndes Narcotics Unit and two Columbus Police officers went to Apartment D, 1112 6th Avenue North, Columbus, Mississippi to execute a search warrant on Apartments C and D and a 1972 Green Mercury automobile alleged to be the property of Johnny Harper.

 Harper and Barbara Roland were listed as the persons living in Apartment D. There was a complete search of the apartment and no drugs were found in the house, however marijuana in an amount greater than one ounce was found in the automobile.

 The narcotics agent obtained the search warrant based on information from a confidential informant who had seen Harper in the automobile with drugs within a thirty six hour period, and who had given information in the past that had led to confiscation of drugs in the past and misdemeanor convictions.

 The trial court overruled the appellant's motion to suppress evidence, motion for a directed verdict, peremptory instruction and motion for a new trial.

 Appellant contends that the affidavit for search warrant contained insufficient probable cause to support issuance of the warrant. The pertinent portion of the underlying facts and circumstances section of the affidavit reads as follows:

 On July 27, 1984, affiant was advised by a confidential informant that within the past 36 hours prior to the issuance of this affidavit and search warrant informant saw marijuana being kept inside the residence of Barbara Rollins *fn1 and Johnny Ray Harper located at 1112 6th Avenue North #D Columbus, Mississippi.

 Informant has on prior occasions proven to be reliable and credible by providing information that resulted in the seizure of marijuana, paraphernalia and other controlled substances.

 Informant further stated that marijuana was being kept inside a 1972 Green Mercury, bearing license plate #MKP-566, this vehicle being registered to Johnny Ray Harper. Informant personally observed marijuana in said vehicle within 36 hours prior to the issuance of this affidavit and search warrant.

 In the recent case of Breckenridge v. State, 472 So.2d 373, 376 (Miss.1985), the Court explained the test to be employed in reviewing a claim that a search warrant was not based upon constitutionally sufficient probable cause.

 We have faithfully enforced the two-pronged test of Aguilar and Spinelli. That test has been supplanted by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L.Ed.2d 527 (1983), wherein the United States Supreme Court established a" totality of the circumstances "approach. Under Gates the magistrate issuing the warrant is to take a practical, common-sense approach of whether, given all the circumstances set forth in the affidavit before him, including veracity and basis of knowledge of the person ...


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