Thomas, P.J., Lee And Southwick, J.J.
The opinion of the court was delivered by: Southwick, J.
DATE OF JUDGMENT: 6/19/97
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTION OF POSSESSION AND INTENT TO SELL ILLEGAL SUBSTANCES; SENTENCE TO 25 YRS IN CUSTODY OF MISSISSIPPI DEPT. OF CORRECTIONS AND FINE OF $20,000.
DISPOSITION: AFFIRMED - 03/23/99
¶1. Patrick Milliorn was convicted by a Scott County Circuit Court jury of possession of more than one kilogram of marijuana with the intent to distribute. On appeal he argues that he was arrested without probable cause, that a search violated his constitutional rights, and that his resulting confession was tainted by the preceding illegality. We disagree with his assertions and affirm.
¶2. On January 23, 1994, Highway Patrol Officer Walter Davis stopped Patrick Milliorn in Scott County for speeding. Milliorn gave the officer his New Mexico driver's license and the rental papers for the car which he was driving. At the window of Milliorn's vehicle, the officer noticed the odor of alcohol coming from within. He asked Milliorn to take a hand held breathalizer test. Milliorn complied. He registered .04 on the test, which indicates no illegal intoxication.
¶3. The officer observed a pair of pants and a suit coat hanging in the back seat of Milliorn's vehicle. He questioned Milliorn about the contents of the trunk and whether or not he had any additional luggage. Milliorn responded that he did not have any additional luggage and that he had not been into the trunk. What happens next is in dispute. The differing factual accounts regarding whether there was consent to search and when Milliorn was arrested and for what offense, will be discussed under the issues to which those facts relate. At this time it is enough to say that the trunk of Milliorn's vehicle was opened and inside were several large plastic bags which were later determined to contain marijuana. The officer handcuffed Milliorn and placed him inside his patrol car. He was then informed of his constitutional rights arising from this arrest.
¶4. At the police station, officer Leonard Harrison of the Mississippi Bureau of Narcotics again informed Milliorn of his constitutional rights and then took a statement. Harrison's testimony at trial revealed only one potentially incriminating admission, which was that Milliorn refused to assist in arresting others since he was going to jail regardless.
1. Probable cause to arrest Milliorn
¶5. Milliorn's counsel filed a motion to suppress on October 6, 1995, almost two years before the trial commenced on June 18, 1997. The motion alleged that the officer did not have probable cause to stop Milliorn, that the stop was pretextual, that Milliorn was improperly detained, and that the search of the vehicle violated the defendant's constitutional rights. There is no record of a hearing on the motion until after the arresting officer had testified at the 1997 trial and a second officer had begun his testimony.
¶6. The arresting officer testified first without objection that after Milliorn took the breathalyzer test and while both were seated in the police car, the officer asked if he could look inside the trunk of Milliorn's rental car. The officer testified that Milliorn said that he did not care. Milliorn at the subsequent suppression hearing denied that he gave the officer his consent to search the vehicle.
¶7. The officer asked Milliorn to get out of the patrol car and walk over to the vehicle with him. At that point, the officer took the keys out of the ignition and attempted to open the trunk with them. When that was unsuccessful, the officer noticed that Milliorn put his hands inside his front pockets. It was not until that moment that the officer had any concerns about his safety. Thereafter, he asked Milliorn to put his hands on the car, and the officer proceeded to conduct a pat down. The pat down revealed a large, double folding pocket knife. At that point, Officer Davis informed Milliorn that he was under arrest. Presumably that was based on having a concealed weapon, though Milliorn was not subsequently charged with that. However, in short order much happened to change the investigation. Milliorn then suggested to the officer that he could open the trunk using a button inside the car. The button did in fact open the trunk. Seven plastic bags were then discovered that were later found to weigh over 200 pounds.
¶8. All of the foregoing was admitted without objection. The officer was not allowed to state that the plastic bags appeared to contain marijuana. A witness from the state crime lab later made the identification.
¶9. When the second officer began to testify about a statement made by Milliorn at the police station, the court stopped the proceedings without any defense objection and asked that the jury retire from the courtroom. Perhaps this course was earlier established off the record by agreement of the Judge and counsel. The Judge stated that the jury was excused in order "to explore the admissibility of the statement." The officer was Leonard Harrison. The State questioned him on the taking of the statement and tried to show that it was voluntarily given after adequate warnings of constitutional rights. Milliorn was then called as well. His testimony went ...