Before McMILLIN, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: McMILLIN, P.j.
ELWOOD WHITE, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 11/06/95
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: COPIAH COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: UNLAWFUL POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE: SENTENCED TO SERVE A TERM OF 30 YEARS IN THE MDOC.
DISPOSITION AFFIRMED - 4/7/98
MOTION FOR REHEARING FILED:
Officer LeFleur, a municipal policeman investigating a pickup truck improperly stopped in the lane of travel of a public road in Crystal Springs, observed two men in the vicinity of the truck. One was the defendant in this case, Elwood White, who was sitting in the driver's seat of the truck. The other was William White, who was standing near the passenger-side door of the truck. As Officer LeFleur approached the truck, he observed William White remove a container that appeared to be a beer can from the back of the truck and throw it into the cab of the truck. The open container of beer was in plain view when Officer LeFleur looked into the truck through the open passenger door. Upon making this discovery, LeFleur placed William White under arrest for violation of the city's open container ordinance. As a part of the arrest procedure, Officer LeFleur placed handcuffs on William White.
Officer Funchess, responding to a radio call, appeared on the scene to act as backup to Officer LeFleur. He proceeded to deal directly with the defendant while Officer LeFleur remained involved with William White. As a safety precaution, Officer Funchess required the defendant to submit to a Terry-frisk of his person to discover if he was carrying a dangerous weapon. No weapons were discovered; however, Officer Funchess did discover several rounds of ammunition in one of the defendant's front pockets. Having found these bullets, Officer Funchess elected to conduct an inspection of the interior of the defendant's truck. There he found a handgun, the handle of which was in plain view. Based on this discovery, Officer Funchess placed the defendant in handcuffs and returned once again to the truck to conduct a more thorough search. On this occasion he discovered a medicine bottle, which he opened. In the bottle, Officer Funchess discovered a substance that appeared to him to be crack cocaine. He then arrested the defendant for possession of a controlled substance. Subsequent scientific testing revealed that the substance was, indeed, cocaine.
White has now appealed his conviction, presenting three issues which he claims warrant a reversal of his conviction. We find these issues to be without merit and affirm the conviction.
The Reasonableness of the Search for Drugs
White claims that the cocaine discovered by Officer Funchess was inadmissible in his trial as having been discovered pursuant to an unreasonable search of his vehicle that violated the protections afforded him under the Fourth Amendment of the Constitution of the United States. His argument begins with the uncontested assertion that the search of his vehicle was conducted without a search warrant and without his consent. He also claims that he was not under arrest at the time of the search, so that the search cannot be justified on the basis of being a warrantless search incident to arrest. Finally, White claims that there was no probable cause to ...