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Cook v. Rankin County

Court of Appeals of Mississippi

December 3, 2013

CARL RICHARD COOK A/K/A CARL R. COOK A/K/A CARL COOK, APPELLANT
v.
RANKIN COUNTY, MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 09/10/2012. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION: CONVICTED OF DRIVING UNDER THE INFLUENCE, FIRST OFFENSE, AND SENTENCED TO FORTY-EIGHT HOURS IN THE RANKIN COUNTY JAIL, WITH FORTY-EIGHT HOURS SUSPENDED, AND TO PAY A FINE OF $1000, WITH $500 SUSPENDED.

FOR APPELLANT: CLARENCE TERRELL GUTHRIE III.

FOR APPELLEE: MICHAEL A. BOLAND, RICHARD H. WILSON.

BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. CARLTON, J., CONCURS IN RESULT ONLY.

OPINION

Page 1090

NATURE OF THE CASE: CRIMINAL - MISDEMEANOR

GRIFFIS, P.J.:

[¶1] Carl Richard Cook appeals his conviction of misdemeanor driving under the influence (DUI), first offense. Cook argues that the court applied an erroneous Fourth Amendment standard on uncorroborated anonymous tips and erred when it considered constitutional issues to be waived at trial. We find no error and affirm.

STATEMENT OF FACTS

[¶2] The facts of this case are not in dispute. On March 12, 2011, Reservoir Patrol Officer Timothy Ware of the Pearl River Valley Water Supply District was on duty in the area of Northshore Parkway and Timber Lake Campground in Rankin County, Mississippi. Officer Ware received a call from the Reservoir patrol dispatch to " be on the lookout" (BOLO) for a vehicle that was driving erratically and the driver of the vehicle possibly flashing a badge of some sort.

[¶3] Officer Ware did not know who made the initial call to law enforcement. To his knowledge, the " tip" was from an anonymous caller and was uncorroborated. The call described a gray Chevrolet Avalanche, and gave the license-plate number. Officer Ware saw a vehicle that matched the description he received. He turned his patrol vehicle around and proceeded behind the suspect Avalanche. Officer Ware observed the Avalanche for a short period of time, though he did not observe the vehicle driving erratically at that time, nor did he observe the driver flashing a badge or committing any crimes.

[¶4] Deputy Fred Lovett of the Rankin County Sheriff's Office was also in the area when the BOLO came over both the Reservoir patrol dispatch and the Rankin County Sheriff's dispatch. Deputy Lovett met the Avalanche head on. He then turned around and got within " a couple" of car lengths behind Officer Ware and the Avalanche.

[¶5] Officer Ware initiated a stop on the Avalanche on Church Street in the Reservoir area. Based on subsequent interactions between Officer Ware, Deputy Lovett, and Cook, Cook was arrested for DUI, first offense.

[¶6] Cook was convicted of misdemeanor DUI, first offense, in violation of Mississippi Code Annotated section 63-11-30(1)(a) (Supp. 2012), in the Rankin County Justice

Page 1091

Court. Cook appealed and received a trial de novo before the Rankin County County Court. In a non-jury trial before the county judge, Cook's counsel moved to dismiss the case at the conclusion of the State's case-in-chief. Cook argued that the BOLO that led to the investigatory stop violated his Fourth Amendment rights against illegal search and seizure, as it was based on an anonymous tip that lacked sufficient indicia of reliability. The county judge denied the motion and entered a detailed order overruling the motion to dismiss. The county judge also entered a judgment of conviction.

[¶7] Cook then appealed his conviction to the Rankin County Circuit Court. As error, Cook argued that the county judge erred in the application of the Fourth Amendment standards regarding uncorroborated anonymous tips. The circuit court entered an opinion and order that affirmed the county court's conviction. It is from this conviction that Cook now appeals.

ANALYSIS

1. Whether the constitutional issues were waived at ...


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