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RONALD J. ROOKS AND GREG L. MONTEE v. STATE OF MISSISSIPPI

MAY 11, 1988

RONALD J. ROOKS AND GREG L. MONTEE
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., SULLIVAN AND ZUCCARO, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

This case involves an appeal from the Circuit Court of Leflore County wherein Ronald J. Rooks and Greg L. Montee were found guilty of possession of more than one kilogram of marijuana (156,567 grams). Rooks was sentenced to 20 years in the Mississippi Department of Corrections (MDOC) and ordered to pay a fine of $250,000. Montee was sentenced to serve a term of 20 years in MDOC and pay a fine of $100,000.

Rooks and Montee appeal assigning as error that certain evidence admitted at trial should have been suppressed, that the trials should have been severed, that venue was not proven, and that the State failed to make proper discovery. Finding no merit in any of these assignments, we affirm.

 FACTS

 Mark Henderson was an employee of Better Flying, Inc., an aerial application business located on the southeast end of the taxiway at the Indianola airport. The Indianola airport is located four miles northwest of Indianola and has a concrete runway 7,000 feet long, which is longer than average for a town with this population. Around 11:00 a.m. on September 17, 1984, Henderson noticed a brown Oldsmobile approaching their business trailer. Henderson had two years training in criminal justice at Moorhead Junior College, had worked for the sheriff's office in Sunflower County as a

 radio dispatcher, and had ridden with patrolling officers, and had witnessed drug" pickups "and ensuing arrests. He became suspicious and watched the car and its two white male occupants. After the car turned almost completely around on the parking apron, the passenger stepped out. This man looked around and walked over behind the office into a grassy area, picked up two black garbage bags, carried them to the car and placed them in the trunk. The car then sped away from the airport. As the car left, Henderson recorded the Mississippi tag number: BPD 946. Henderson contacted Sunflower County Sheriff Jack Sessums, told him what he had seen, described the car and gave him the tag number. Because Henderson had watched the incident through some blinds, however, he could not give facial descriptions. He only knew they were two white males.

 After Henderson's call, Sheriff Sessums determined from relaying the tag number to Jack Matthews, a dispatcher of the Mississippi Highway Patrol, that the car was registered to Mims Rental Agency in Greenwood. Sessums radioed his deputy Marvin Farmer to stop the car and detain the two men until he could get there. Farmer traveled to Highway 82, the main thoroughfare between Indianola and Greenwood to watch the traffic. The fourth car passing fit the description and had the tag number. Farmer stopped the car approximately one-half mile from where he had first spotted it. Montee was driving the car and Rooks was the passenger. Farmer asked Montee to see his driver's license, whereupon Montee stepped out of the car and asked what was wrong. Farmer asked again to see Montee's license, which Montee then gave him. Farmer then asked if he could search the car. Montee responded," Sir, I don't have a key. If I did, you would still have to have a search warrant. I'm not going to open my trunk. "He further informed Farmer that he had rented the car because he had a truck in Greenwood that was broken down. At this point Rooks stepped out of the car, dropped something, put his foot on it, turned with a movement similar to extinguishing a cigarette, then took a step toward Farmer. Farmer who had recently had back surgery was in fear of Montee and Rooks and therefore arrested them.

 In the preliminary hearing to determine if the officers had probable cause for the subsequent searches, Farmer testified that before he had put the cuffs on Mr. Rooks, he bent down to pick up the key and that as he bent down, he smelled marijuana. Farmer communicated this information to Sheriff Sessums, who later arrived with a search warrant for the car. Using the key that Rooks had rubbed into the ground, the trunk was opened and the officers found two black garbage bags with duct tape around them containing

 marijuana.

 Doug Petrari, of the Mississippi Bureau of Narcotics (the Bureau), while in Jackson, heard conversations on the Civil Defense telephone between the Sunflower County Sheriff's Department and the Greenwood office of the Highway Patrol concerning the incident at the airport. He relayed this information to Agent Richard Oakes in the Greenwood area, who called Sheriff Sessums for more information. Oakes, after being informed about Henderson's observation, was told that the Oldsmobile was registered to Mims Rental Agency. Both Jack Matthews, the Mississippi State Patrol dispatcher, and Oakes separately talked with Betty Mims (Mims) of Mims Rental Agency. Mims informed Trooper Matthews and Oakes that around 10:00 or 10:30 a.m. Rooks had rented a brown 1984 Oldsmobile with tag number BPD 946. Rooks had told Mims that he was from Missouri and staying at the Holiday Inn in Greenwood. Mims also stated that when Rooks left, he motioned for someone to follow him. She looked out of a window and saw a black Chevrolet pickup with white camper and out of state tag follow Rooks.

 Matthews called the Holiday Inn to determine if Rooks was registered there. He also asked the management at the Holiday Inn what the tag number of the vehicle was that Rooks had registered. Matthews then ran the Missouri tag number and relayed the information to the Sunflower County Sheriff's Office and to his supervisor.

 When Oakes reached the car, which had been stopped around Moorhead, Sheriff Sessums was also arriving with a search warrant which produced the two bags of marijuana. Rooks and Montee were taken to Indianola where they were searched. In frisking Montee, Deputy Charles Smith found two keys to Room 403 at the Holiday Inn in Greenwood. Oakes then traveled to Greenwood where Judge Peeples granted a search warrant for the black Chevrolet Silverado pickup located at the Holiday Inn. Around 1:15 p.m. Artie Hitchins (Hitchins), of the Greenwood Police Department, was requested by Matthews to travel to the Holiday Inn to watch the pickup. Leflore County Sheriff Ricky Banks and Hitchins had walked up to the truck to examine it and could smell marijuana. They could also see many articles in the camper through cracks in the curtains. When Oakes arrived with a search warrant about 5:30 p.m., Hitchins opened the cab with a" slim jim. "The officers had no key to the camper. They were informed by James Stevens, chief of the Greenwood Police Department, who also owned a camper of this model, that there were very few keys for this model camper. Stevens then used his key to open the camper. Upon opening the camper, there was a strong

 odor of marijuana. Because a crowd had gathered, the pickup was towed to the Leflore County Sheriff's Department to be inventoried.

 In the rear of the truck, the officers found many articles, primarily 14 bags of marijuana containing a total weight of 156,567 grams or around 345.1 pounds. The marijuana had blankets lying across it. On top of the blankets were found bags containing identification of both Rooks and Montee. Also found in the back of the truck was a book listing all police frequencies nationwide, two radio scanners, two radios used to communicate on aircraft frequencies, a walkie-talkie, a citizens band radio, a radar detector, a sack with batteries, curtains, a life raft, a bladder auxiliary fuel tank for an airplane, three life jackets, a flare, two flashlights and blankets, folding lawn chairs, an empty gas can, step stool and articles of clothing. The scanners, when later checked to see what channels for which they were programmed, had been set for the frequencies of the Greenwood Police Department, the statewide police department channel, the statewide sheriff's department channel, the Sunflower sheriff's department, the Indianola police department and Mississippi Highway Patrol frequencies.

 The next morning Oakes and Sheriff Banks transported the bags to the Mississippi Crime Lab in Batesville. Joe Lee Williams, of the Mississippi Crime Lab, determined that the substance was marijuana and determined that the total weight was 156,567 grams or around 345.1 pounds.

 After the pickup was emptied and inventoried, Louis Grones, of the Greenwood Police Department, a fingerprint expert, thoroughly examined the pickup truck for fingerprints. He found Montee's prints on the outside of the window of the left door, on a cassette inside the truck, on a Cheeto's bag inside the truck and on an atlas inside the truck. He found Rooks's prints on the outside of the window on the right door. Grones further found both Rooks's and Montee's prints on duct tape used to hold the curtains to the windows inside the camper. On October 1, 1984, Grones and Oakes traveled to the Crime Lab to remove the outer bags from the marijuana in order to examine them for prints. Grones, however, did not thoroughly examine the bags for prints because too many people had handled them.

 Both Rooks and Montee were indicted by the Leflore County grand jury for possession of the marijuana found in the pickup truck in Greenwood. On or about March 16, 1985, Rooks and Montee filed a joint discovery request. Thereafter, on March 22, 1985, the State responded to

 discovery by disclosing several items. Not included in the items were fingerprint evidence from the pickup. Rooks filed a motion to sever the trial on April 2, 1985. Rooks' motion and a similar motion brought by Montee were presented to the court on the morning of trial, April 3, 1985. The court first refused to hear arguments, but did concede to listen to argument on the motions. The circuit judge nevertheless overruled both motions after discovering that the State was going to only introduce the marijuana seized from the pickup.

 During the course of the trial, as Louis Grones, the State's fingerprint expert, was about to testify, the defense interposed an objection, believing they were not offered the fingerprint evidence during discovery. The State, however, brought witnesses before the court who stated that the evidence was offered to both defense counsel to which Montee's counsel rejected. Rooks' counsel, however, stated that he had no recollection of any similar event. The court, apparently believing the evidence was offered to defense counsel and rejected, allowed Grones to testify.

 After both sides had rested the defense objected to State's Instructions S-1 and S-2 because the instructions did not state that the offense occurred in Leflore County. The trial court overruled the objections giving the instructions to the jury. Then on April 4, 1985, both Rooks and Montee were found guilty and convicted. They have appealed.

 VALIDITY OF SEARCH OF OLDSMOBILE AUTOMOBILE

 Rooks and Montee have filed separate briefs. Both of them first claim that the location and subsequent search of the pickup truck in Greenwood resulted from their illegal arrest and illegal search of the Oldsmobile automobile, which Montee was driving and Rooks had rented from Mims Rental Service. Additionally, Rooks asserts that even though the evidence resulting from the search of the car had been suppressed by a circuit judge in a pre-trial motion, the trial judge's allowing Henderson to testify prejudiced the defendants before the jury by testimony implicating the defendants with possession of marijuana in Sunflower County. *fn1 It is correct, of course, that if the search of the Oldsmobile was illegal, and also that without the information from Henderson used for this search, there would have been no basis for a subsequent search and seizure of the pickup truck, then the Leflore County search and seizure was invalid as well. Wong Sun v. U.S., 371 U.S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963); White v. State, 507 So.2d 98 (Miss. 1987).

 The first question before us, then, is whether the search of the Oldsmobile was illegal, or as the State contends, legal. If the search of this car was legal, regardless of the circuit judge's pre-trial suppression ruling, no" fruit of the poisonous tree "error was committed in offering evidence of the Leflore County search of the truck. Rooks and Montee contend that manifestly the Sunflower County search of the car was illegal because the officers failed to have that" probable cause "to do so, which has been delineated in numerous cases in this Court as well the Federal courts. We disagree.

 Our inquiry begins with the 4th Amendment of the U.S. Constitution and Article 3, Section 23 of our Mississippi ...


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