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Harper v. State

October 13, 1998

BENNIE HARPER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE



Before Bridges, C.j., Coleman, And Herring, JJ.

The opinion of the court was delivered by: Herring, J.

DATE OF JUDGMENT: FEBRUARY 18, 1997

TRIAL JUDGE: HONORABLE MARCUS D. GORDON

COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA WITH INTENT TO SELL: SENTENCED TO SERVE A TERM OF 20 YRS IN THE MDOC & PAY A FINE OF $10,000; UPON PAYMENT OF $10,000 3 YRS IS SUSPENDED & PLACED ON PROBATION FOR 5 YRS

DISPOSITION: REVERSED AND REMANDED-10/13/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

¶1. Bennie Harper appeals to this Court from his conviction in the Circuit Court of Scott County, Mississippi, of possession of more than one kilogram of marijuana with intent to sell. Harper challenges his conviction on the grounds that the trial court erred in denying a request to suppress (1) evidence and (2) a statement by Harper obtained by agents during and shortly after his arrest. We find that the statement was not freely and voluntarily given and therefore reverse and remand for a new trial.

A. THE FACTS

¶2. On July 12, 1996, several agents from the Mississippi Bureau of Narcotics met with a confidential informant and conducted a preliminary meeting relating to a proposed drug buy from a suspected dealer, Bennie Harper. After searching the informant and his vehicle, the agents installed a transmitter in the vehicle and instructed the informant to place a telephone call to Harper's pager from a local pay telephone. The informant called Harper's pager number, and shortly thereafter, he received a call back from Harper. Harper directed the informant to travel to the 35 Quick Stop near Forest, Mississippi. As the informant complied with Harper's instructions, the agents followed him to the parking lot of the Quick Stop where they overheard a conversation between the informant and an unidentified individual over the transmitter.

ΒΆ3. The informant then contacted the agents and notified them that Harper was traveling in their direction. The agents, who were pulled over onto the shoulder of the roadway, observed the suspect as he drove down the road and then stopped on the side. The informant followed the suspect in his vehicle to the location on the roadside where Harper had parked. At that point, the informant got out of his vehicle and walked toward Harper's vehicle. At the trial, Agent Jimmie Nichols testified that the informant appeared to enter Harper's vehicle and, after a few minutes, returned to his vehicle. Once inside his own vehicle, the informant notified the agents that Harper possessed the drugs, and they proceeded to arrest Harper. Although the record is not clear, it appears that the informant did not actually purchase any drugs from Harper. When the agents removed Harper from his vehicle, they noticed an open bag on the rear floorboard which contained what appeared to be several "bricks" of marijuana. After ...


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