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Sellers v. State

Court of Appeals of Mississippi

May 26, 2015

KIMBERLY C. SELLERS A/K/A KIMBERLY CHENILLE SELLERS, APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT:04/22/2013

COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT HON. LEE J. HOWARD

ATTORNEY FOR APPELLANT: CHARLES BRUCE BROWN

ATTORNEY FOR APPELLEE: CAROLINE MOORE

CITY ATTORNEY: ROY E. CARPENTER JR.

BEFORE IRVING, P.J., BARNES AND FAIR, JJ.

FAIR, J.

¶1. Kimberly Sellers was convicted of first-offense DUI after she was stopped at a driver's license checkpoint in Starkville. A subsequent Intoxilizer test revealed her blood-alcohol content to be .088, in excess of the legal limit. On appeal, Sellers argues that the circuit court erred in failing to suppress any evidence stemming from the stop, because the officer who screened Sellers at the checkpoint did not testify at trial. We find that this issue was waived, but even if it was not, there was sufficient evidence for the court to have found extended detention was justified by reasonable suspicion.

DISCUSSION

1. Suppression of Evidence Stemming from Stop

¶2. Sellers does not challenge the initial stop at the safety checkpoint, but, rather, the apparent diversion and extended detention of her vehicle for further examination. Our analysis of this issue is complicated by Sellers's failure to properly raise it in the trial court. Sellers did not move to suppress the evidence stemming from the stop prior to trial. When the prosecution presented its primary witness, the DUI officer to whom Sellers had apparently been directed by an initial screening officer, Sellers objected on the basis that there was no "probable cause" to stop her vehicle. The objection was overruled. Sellers's attorney never asked for a suppression hearing, and he only ever said the word "suppress" when arguing for a directed verdict after the prosecution had presented its entire case.

¶3. Sellers erroneously contended (and, indeed, continues to argue) that extending her detention required probable cause. Instead, an investigatory stop requires only reasonable, articulable suspicion that the person has committed or is about to commit a crime. Eaddy v. State, 63 So.3d 1209, 1213-14 (¶¶13-16) (Miss. 2011). It is well established that "[o]bjection on one ground at trial waives all other grounds for objection on appeal." Carter v. State, 722 So.2d 1258, 1261 (¶13) (Miss. 1998) (citation omitted). Sellers waived this issue by failing to present a coherent, timely motion to suppress.

¶4. Also, because Sellers failed to move to suppress the evidence, there was no suppression hearing, and the exact circumstances surrounding the stop were not thoroughly explored at trial. It does appear that Sellers was subjected to a lengthier detention than others at the checkpoint, prior to the second officer obtaining reasonable suspicion to hold her, but this was never directly shown.

¶5. Notwithstanding Sellers's failure to preserve the issue, her argument appears to be without merit. Whether reasonable suspicion exists is reviewed de novo, but the factual determinations that underlay that question are subject to the more deferential substantial evidence standard. Eaddy, 63 So.3d at 1212 (¶11). The DUI officer testified that he immediately noticed the smell of an intoxicating beverage that was "emitting" from the vehicle, and that Sellers was wearing a paper bracelet like the ones required by local establishments that serve alcohol. The odor of an alcoholic beverage is sufficient to establish reasonable suspicion for an investigatory stop. Watts v. State, 78 So.3d 901, 904 (ΒΆ13) (Miss. 2012). These things were in plain sight (or smell, as ...


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