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Garth v. State

Court of Appeals of Mississippi

June 2, 2015

ALPHONZO CORTEZ GARTH A/K/A ALPHONZO GARTH A/K/A ALPHONZO C. GARTH, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

DATE OF JUDGMENT: 01/25/2013

CLAY COUNTY CIRCUIT COURT HON. LEE J. HOWARD TRIAL JUDGE

ATTORNEY FOR APPELLANT: RODNEY A. RAY

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER

DISTRICT ATTORNEY: FORREST ALLGOOD

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

FAIR, J.

¶1. Alphonozo Garth was convicted of the possession of more than thirty grams of cocaine. On appeal, he contends that the drugs were found following an illegal search incident to his arrest. However, the record indicates his arresting officers had a different justification for the warrantless search: probable cause based on a drug-sniffing dog alerting to illegal drugs at the driver's door of Garth's automobile. We find that the trial court did not abuse its discretion in denying Garth's motion to suppress, so we affirm.

FACTS

¶2. Garth and another man were sitting in a vehicle outside some apartments in West Point, Mississippi. Garth was in the driver's seat and the other man in the passenger's seat. Police were searching for the other man after a complaint that he had been involved in a disturbance at the apartments and was still outside, sitting in a vehicle. The officers spoke to Garth, who provided identification to prove he was not the man they were looking for. When the officers went to speak to the passenger, one noticed that Garth had an open container of an alcoholic beverage between his legs. At this point, Garth exited the vehicle, hitting one of the officers with the door, and then attempted to strike the officer. The officer defended himself, and during the tussle, Garth threw a clear plastic bag that contained something white, which was picked up by a bystander who escaped with it.

¶3. Garth was arrested for assaulting the police officer and taken away from the scene. A drug-sniffing dog was brought to look for narcotics, and, while walking past the driver's door of Garth's vehicle, it "alerted" to the presence of illegal drugs. The officer attending the dog then opened the door and found what was later determined to be 37 grams of cocaine in a pocket on the driver's door. The officers also found digital scales and an additional 2.7 grams of cocaine in the center console.

¶4. The officers also found a large amount of cash in Garth's pockets – more than $400. The cash was seized, and when Garth was presented with a written notice that said it was seized because of his possession of crack cocaine, Garth interjected to say the cocaine was powder, not crack – which turned out to be true.

ΒΆ5. Garth was tried before a Clay County jury. He presented no witnesses in his ...


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