BRANDON Q. GALES a/k/a BRANDON GALES
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 02/26/2013.
[Copyrighted Material Omitted]
WASHINGTON COUNTY CIRCUIT COURT, HON. RICHARD A.
SMITH, TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: PHILLIP BROADHEAD, OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, STAN PERKINS.
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND, JOHN R. HENRY, JR.
COLEMAN, JUSTICE. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.
¶1. The instant matter is before the Court on appeal filed by Brandon Q. Gales against the State of Mississippi. Gales was convicted in the Washington County Circuit Court of armed robbery and conspiracy to commit armed robbery with sentences of life imprisonment and five years, respectively. Gales appealed, raising three issues. While the trial court committed error, such errors are harmless, and the remaining issues lack merit. Thus, the Court affirms the judgment of the trial court, albeit on different grounds.
FACTS AND PROCEDURAL HISTORY
¶2. On December 19, 2011, at about 10:00 p.m., Abdulhakim Weber was in the process of closing his convenience store, the Hyatt Food Mart, for the night. As an employee was about to lock the front door, two black males masked with white t-shirts came into the store. One of the intruders had a pistol and yelled " nobody move" before firing a shot into the ceiling. The shooter took the money that Weber had been counting at the register, while the shooter's partner took money from Weber's pockets. The shooter then demanded a pack of cigarettes before both robbers fled the scene. Weber's employee called 911.
¶3. The store was equipped with twelve security cameras, which captured the quick exchange. The video shows two black males, wearing white t-shirts as masks, entering the store. The shooter wore a black hoodie, light blue jeans, and brown casual shoes. The shooter's partner wore a black sweatshirt, gray pants, and black and gray shoes.
¶4. Within minutes of the 911 call, officers arrived at the store and viewed the surveillance footage. Officer Jeremy Arendale described the fugitives to dispatch, which issued a " be on the look out" description. The description depicted a black male with a blue shirt, black pants, and a white hoodie and did not describe the suspect's footwear. Soon after hearing the description, Officer Tabari Thomas spotted a young black male, later identified as Brandon Gales, running roughly five blocks from the Hyatt Food Mart. According to Officer Thomas, Gales was running but attempted to make it seem like he was walking upon noticing the police presence. Officer Thomas stopped Gales and asked him why he was out of breath. Gales responded that he had just left a gambling house.
¶5. Officer Thomas then conducted a Terry pat-down of Gales. While Officer Thomas did not find a weapon on Gales, he felt a bulge in Gales's back pocket. According to his testimony, Officer Thomas either asked Gales to " let him see what was in his pocket" or Gales voluntarily emptied his pockets, showing him money that Gales said he had won gambling. Officer Thomas asked dispatch for another description of the suspects. Dispatch responded, describing an individual with a black hoodie, light jeans, and brown casual shoes. Gales was not wearing a black hoodie, but instead a gray, long-sleeved shirt; however, he was wearing light jeans and brown casual shoes. Officer Thomas noted that Gales seemed suspicious, as he was out of breath and wearing light clothes for a December night. Because Gales partially matched the description of one of the robbers, Officer Thomas handcuffed and detained Gales for further investigation and soon after drove him to the crime scene.
¶6. Arriving at the Hyatt Food Mart, Officer Thomas told Officer Arendale that he had detained a person of interest. Officer Arendale spoke with Gales and photographed the money in Gales's pockets. There are some discrepancies in the record as to what exactly happened next. According to Officer Arendale's recount, he went back into the store and asked Weber how much money was stolen and in what denominations. Officer Arendale returned to Gales, took the money from his pockets, and proceeded to count the money, which Officer Arendale testified was consistent with Weber's description. Officer Arendale, noting a five dollar bill with a red stamp on it, went back to Weber and asked him if there was anything unusual
about any of the bills. Weber proceeded to describe a five dollar bill with a red stamp on it that he had received from the bank.
¶7. According to Weber's recount, after the police detained the suspect, Officer Arendale immediately brought the money inside the store and placed it on the counter. Officer Arendale asked Weber if he knew any of the serial numbers, and, after viewing the bills, Weber recognized the bill with the stamp on it as one that he had acquired through regular business and not from a bank. Gales was placed under arrest and brought to the police station once the police connected him to the bill with the red stamp.
¶8. At the station, officers swabbed Gales's hands for gunshot residue. The swabs were sent to the Mississippi Crime Lab, where forensic scientist Chad Suggs analyzed them for the presence of gunshot residue. Suggs found only a particle indicative of gunshot residue on the back of Gales's left hand; however, he was unable to " identify it as gunshot residue to the exclusion of all other environmental sources."
¶9. The morning after Gales's arrest, officers found a black hoodie and a Smith & Wesson handgun in an alley near North Harvey and Bland Street, near where Gales was detained. The handgun and a spent shell casing found at the crime scene were sent to the crime lab for comparison. Forensic scientist Brian McIntire determined that the bullet fired at the Hyatt Food Mart had been fired from the discovered pistol.
¶10. Gales was indicted for two counts of armed robbery and one count of conspiracy to commit armed robbery. Gales filed a motion to suppress all evidence stemming from his unreasonable search and seizure. A hearing was held on the motion, after which the trial court entered an order denying the motion and finding that Officer Thomas's stop and frisk of Gales was proper under Terry. The trial court granted a directed verdict on one count of armed robbery. A jury convicted Gales on the remaining counts of armed robbery and conspiracy, and the trial court sentenced him to life imprisonment and five years, respectively, with the sentences to run concurrently. Gales appealed.
¶11. For the sake of organization, Gales's arguments have been divided into five issues. The first three issues concern alleged improprieties as to the Terry stop, Gales's arrest, and the recitation of Miranda warnings, respectively, while the remaining two arguments focus on the narration of the surveillance video and whether there was legal and evidentiary sufficiency supporting the verdict.
I. Whether the trial court erred by refusing to suppress the fruits of an impermissible stop and an unreasonable warrantless search of Gales, when the stated reason for the stop was to conduct a Terry pat-down, but the search and seizure of Gales did not meet the constitutional prerequisites for the police officer's actions.
¶12. Gales's first issue deals with whether Officer Thomas properly performed a Terry stop in detaining Gales. For the sake of clarity, the issue has been subdivided into three parts: (a) the initial Terry stop, (b) the Terry pat-down, and (c) the continued detainment and search of Gales following the Terry stop.
¶13. The Court applies a mixed standard of review to Fourth-Amendment claims. Eaddy v. State, 63 So.3d 1209, 1212 (¶ 11) (Miss. 2011) (citing Dies v.
State, 926 So.2d 910, 917 (Miss. 2006)). " Whether probable cause or reasonable suspicion exists is subject to a de novo review. But the Court limits the de novo review of the trial court's determination to historical facts reviewed under the substantial evidence and clearly erroneous standards." Id. (emphasis added) (citations omitted). When reviewing evidentiary rulings made by a trial court, the Court employs an abuse of discretion standard. Brown v. State, 965 So.2d 1023, 1026 (¶ 10) (Miss. 2007) (citing Peterson v. State, 671 So.2d 647, 655 (Miss. 1996), overruled on other grounds by Caldwell v. State, 6 So.3d 1076 (Miss. 2009)). " [The] Court must first determine if the proper legal standards were applied." Id. " Where error involves the admission or exclusion of evidence, [the] Court will not reverse unless the error adversely affects a substantial right of a party." Ladnier v. State, 878 So.2d 926, 933 (¶ 27) (Miss. 2004) (quoting Whitten v. Cox, 799 So.2d 1, 13 (Miss. 2000)).
A. The Initial Stop
¶14. First, Gales argues that Officer Thomas did not have a " reasonable suspicion" to stop Gales, as Officer Thomas was responding to the initial, inaccurate description, which described a black male wearing a blue shirt, black pants, and a white hoodie. The description also stated that the suspects were headed in the direction of Belle Aire Street; however, Gales was not walking in that direction. It should be noted that in Gales's motion to suppress, which the trial court denied, Gales conceded that " the Greenville Police Department had the right to stop and question the defendant, and even the right to conduct a pat-down for weapons." Accordingly, the issue of whether Officer Thomas had legal grounds to conduct the Terry stop of Gales in the first place was conceded and not argued before the trial court. " Failure to raise an issue at trial bars consideration on an appellate level." Walker v. State, 913 So.2d 198, 217 (¶ 49) (Miss. 2005); see also Johnson v. State, 155 So.3d 733, 2014 WL 971542, *4 (¶ 6) (Miss. Mar. 13, 2014). Regardless, the Court will proceed with an analysis of the stop and pat-down.
¶15. In response, the State argues that Gales essentially is attacking Officer Thomas's credibility. Further, the State notes that the trial court sits as the finder of fact at suppression hearings and thus is solely responsible for determining witness credibility and resolving any conflicts in the evidence, citing Glasper v. State, 914 So.2d 708 (Miss. 2005). The State contends that Officer Thomas had a reasonable suspicion to stop Gales because (1) he was spotted minutes after an armed robbery and only about five blocks away from the crime scene; (2) he partially matched the description of one of the robbers; and (3) he was running and appeared nervous.
¶16. " Police officers may detain a person for a brief, investigatory stop consistent with the Fourth Amendment when the officers have 'reasonable suspicion, grounded in specific and articulable facts . . .' that allows the officers to conclude the suspect is wanted in connection with criminal behavior." Eaddy, 63 So.3d at 1213 (¶ 14) (citing Walker v. State, 881 So.2d 820, 826 (Miss. 2004)); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Based on the evidence in the record, the trial court in the case sub judice did not err in finding that Officer Thomas had formed a reasonable suspicion in his detention of Gales. Gales was in the immediate vicinity of the crime scene soon after the robbery, partially matched the description of one of the robbers, and appeared nervous. Officer Thomas's suspicions were further piqued when Gales, who was wearing casual shoes, stopped running
when he noticed Officer Thomas's presence. Based on the above facts, Officer Thomas's actions were grounded in a reasonable suspicion that Gales was connected with the armed robbery.
B. Officer Thomas's Terry Pat-Down
¶17. Second, Gales argues that, even assuming Officer Thomas had reasonable suspicion initially to stop Gales, Officer Thomas exceeded the scope of Terry by ordering Gales to take money out of his pocket, knowing that it was not a weapon. Gales argues that such a search violates the " plain feel" doctrine enunciated by the Supreme Court in Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (" If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent . . . its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." ). The State argues that Gales misconstrues the record and quotes Officer Thomas's statement at the suppression hearing: " when I felt that bulge in his pocket, I didn't know if it was a knife or something wrapped up in something." According to the State as well as the trial court's factual findings, Officer Thomas then asked Gales what was in his pocket, and Gales voluntarily pulled the money out, claiming he had just won it gambling. Because Gales voluntarily showed Officer Thomas the money, Gales no longer had a " reasonable expectation of privacy" as to the money under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J. concurring). Officer Thomas's suspicions were piqued, resulting in his requesting a fresh description, which was more accurate and partially matched Gales.
¶18. " The rationale underlying the Terry stop is the protection of the officer." Ellis v. State, 573 So.2d 724, 725 (Miss. 1990). To that effect, the U.S. Supreme Court has said that the search " must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Terry, 392 U.S. at 29. " When an object is soft or does not reasonably resemble a weapon, the Terry analysis does not justify removing it from the suspect's clothing and searching it." Ellis, 573 So.2d at 725 (citing 3 W. Lafave, Search and Seizure § 9.4(b) (2d ed. 1987)). It is noteworthy that, unlike in the case sub judice, the police officer in Ellis testified that he had suspected the object he felt during the Terry pat-down to be drugs and did not testify that he was concerned about a concealed weapon. Id. Additionally, " [s]ince Terry, [the U.S. Supreme Court has] held repeatedly that mere police questioning does not constitute a seizure." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); see also United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993).
¶19. Here, Officer Thomas was pursuing an armed robbery suspect who was
last seen brandishing a pistol. Officer Thomas had reason to believe that Gales might have been armed, necessitating a frisk of his person. While Officer Thomas did not feel anything that was immediately recognizable as a weapon, he felt a unknown bulge in Gales's pocket, prompting concern for his safety. Despite his concern, Officer Thomas did not search Gales's pocket but merely asked what was in it. Gales voluntarily emptied his pockets, showed the money to Officer Thomas, and claimed that he had won it gambling. Based on these facts, the trial court did not err in finding that Officer Thomas constitutionally performed a Terry pat-down.
C. Gales's Continued Detainment and Officer Arendale's Conduct
¶20. Gales also argues that his continued detainment after Officer Thomas handcuffed him and Officer Arendale's searches exceeded the scope of Terry. Gales alternatively argued at the suppression hearing that he was arrested when Officer Thomas handcuffed him and brought him to the crime scene, and the officers should have Mirandized Gales at the point of arrest. In its brief, the State did not respond to the alleged Terry violations stemming from Officer Arendale's conduct other than saying that it was " justified and permissible." The State further argues that Officer Thomas's encounter with Gales was a Terry stop; thus, Officer Thomas was not required to Mirandize Gales as he was not yet under arrest.
¶21. After the hearing on Gales's motion to suppress, the trial court entered an order denying the motion and finding that Officer Thomas's stop and pat-down of Gales was proper under Terry. While the order mentioned that Officer Thomas took Gales to the crime scene, it did not analyze the fact under Terry. The order referenced Officer Arendale's taking pictures of the money but failed to mention his emptying Gales's pocket. The order stated that " Officer Jeremy Arendale testified the accused was arrested when a stamped bill was confirmed by the owner to be one of his stolen bills."
¶22. While the Court agrees with the trial court's order that Officer Thomas's initial stop and pat-down was proper, upon de novo review, the trial court erred in restricting its analysis to the initial stop and not further analyzing Gales's prolonged detainment and searches by Officer Arendale. The U.S. Supreme Court has stated that Terry searches are " confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Terry, 392 U.S. at 29. Officer Thomas already had conducted a proper Terry search, concluding that Gales was unarmed and had only money in his pockets. While an additional search may have been justified to further ensure officers' safety, Officer Arendale did not pat-down Gales for weapons but instead took money from his pockets and showed it to Weber, who recognized the stamped bill.
¶23. Officer Thomas's continued detainment of Gales and Officer Arendale's conduct in taking Gales's money are not congruent with Terry. Gales was in custody, having been handcuffed and placed in a police cruiser. The officers had ample time to attain a search warrant, which would have made Officer Arendale's actions decisively proper. Regardless, the trial court correctly determined Officer Arendale's actions were " justified and permissible," although potentially under a different rationale, as Gales no longer had a
" reasonable expectation of privacy" after he voluntarily showed Officer Thomas his money. Katz, 389 U.S. at 360. See also Dies v. State, 926 So.2d 910, 918 (¶ ¶ 23-24) (Miss. 2006). Alternatively, if the officers determined that probable cause existed following Officer Thomas's Terry pat-down, the officers could have arrested him at that point, potentially allowing the officers to conduct a search incident to arrest. However, Officer Arendale testified that he did not arrest Gales until after Weber identified the stamped bill. As Gales argues, " if Arendale had probable cause to arrest based on what he learned following the search at the Food Mart [that Weber recognized the bill], then clearly he did not have probable cause to search [Gales] when [he] arrived at the scene with Thomas."
¶24. The trial court erred in finding that Gales was not arrested until the bill was confirmed by Weber to be one of the stolen bills. When Officer Thomas handcuffed Gales, placed him in his cruiser, and transported him to another location, Gales was " effectively seized for the purposes of the Fourth Amendment. These circumstances surely amount to a show of official authority such that a reasonable person would have believed he was not free to leave." Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Because his detainment would qualify as a Fourth Amendment seizure, the arresting officers were required either to attain a search warrant or to find an applicable exception to the warrant requirement in order to search Gales.
¶25. Because Officer Arendale's subsequent searches of Gales prior to his being placed under arrest may have exceeded the scope of Terry, we must also analyze whether Gales's arrest and subsequent searches were legally justified.
II. Whether, assuming that Gales was arrested when Officer Thomas placed him in his police cruiser, Officer Thomas had probable cause to arrest Gales and Officer Arendale had a proper basis to conduct a warrantless search of Gales's person.
A. Probable Cause
¶26. Before analyzing whether Officer Arendale's search of Gales was proper, the Court must first determine whether probable cause existed to place Gales under arrest. " Probable cause exists when the facts and circumstances within an officer's knowledge or of which he has reasonable trustworthy information, are sufficient in themselves to justify a man of average caution in belief that a crime has been committed and that a particular individual has committed it." Hall v. State, 455 So.2d 1303, 1304 (Miss. 1984) (citing Holland v. State, 263 So.2d 566 (Miss. 1972)). The test for probable cause is not reducible to " precise definition or quantification." Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). " Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence . . . have no place in the [probable-cause] decision." Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). " All [the U.S. Supreme Court has] required is the kind of 'fair probability' on which 'reasonable and prudent [people,] not legal technicians, act.'" Florida v. Harris, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (2013) (quoting Gates, 462 U.S. at 238, 231)).
¶27. Here, Officer Thomas responded to dispatch's description of armed
robbery suspects in the vicinity of the Hyatt Food Mart. While the initial description of the suspect was inaccurate, Officer Thomas noticed a suspicious individual running away from the Hyatt Food Mart. Officer Thomas saw that the man began walking upon noticing police presence. Officer Thomas properly performed a Terry stop and pat-down of Gales. While Gales was detained, Officer Thomas noticed that he was sweating, appeared nervous, and was wearing light clothing on a cold December night. Gales voluntarily showed Officer Thomas wads of money, which he claimed he had won gambling. Officer Thomas then asked dispatch to repeat the description of the suspect. Dispatch then had a more accurate description of the suspect, describing an individual with a black hoodie, light blue jeans, and brown casual shoes. Gales matched the description, other than the black hoodie.
¶28. Based on the totality of the circumstances, there was more than enough information for a reasonable person to ascertain a fair probability that Gales had just committed the crime in ...