DAVID LEE MAY A/K/A DAVID L. MAY A/K/A DAVID MAY APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 12/11/2013
COUNTY CIRCUIT COURT SECOND JUDICIAL DISTRICT, HON. LAWRENCE
PAUL BOURGEOIS JR. TRIAL JUDGE
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER,
GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, LISA
L. BLOUNT JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY: JOEL SMITH
David Lee May was convicted of possession of one-tenth but
less than two grams of cocaine and sentenced as a habitual
offender to life without parole. On appeal, May argues he was
subject to an illegal search and seizure under the Fourth
Amendment. We agree. The State failed to prove that May
consented to the search that resulted in the discovery of the
cocaine or that the police had probable cause to conduct the
search. Therefore, we find that May's conviction and
sentence must be reversed and rendered.
Around midnight on November 3, 2010, Biloxi Police Department
Officer Doug DeGeorge saw a vehicle veer over the fog line
and into the median on Interstate 10. May was a passenger in
the vehicle. Officer DeGeorge conducted a traffic stop for
careless driving. The driver could not produce a driver's
license, so Officer DeGeorge asked him to exit the vehicle.
In frisking the driver for weapons, he felt "an
unusually large bulge" in the driver's pants. The
driver admitted it was drugs. The driver was placed under
arrest, and Officer DeGeorge called for backup.
Officer DeGeorge asked May if he had a driver's license.
May had a Mississippi identification card, but his license
was suspended. Because the driver had been arrested and
May's license was suspended, Officer DeGeorge began the
process to have the vehicle towed. Officer DeGeorge asked May
to exit the vehicle so it could be inventoried. May was
directed to sit on the ground next to the front driver's
side tire of Officer DeGeorge's patrol car.
As May sat on the ground, Officer DeGeorge noticed that he
was acting "extremely nervous" and was
"[e]xtremely fidgety." Officer DeGeorge observed
that May held onto his right shoe and looked down at it if
anyone talked to him or he thought anyone was looking at him.
Officer DeGeorge asked May if he had anything illegal in his
possession. May said no. According to Officer DeGeorge, he
then asked May if he would mind removing his shoes. Officer
DeGeorge testified that May said he did not mind and took off
his shoes. A Zippo lighter fell out of one of his shoes.
Officer DeGeorge picked up the lighter to examine it. He
testified: "[W]ith a Zippo, you can actually pull the
center out to refill it. And so I did so. And a plastic bag
containing marijuana, a small amount of marijuana[, ] and a
small amount of crack cocaine fell out of the center of
that." May was arrested. At the police station, he gave
a voluntary statement, admitting that the cocaine and
marijuana were his.
May was indicted in the Harrison County Circuit Court for
possession of one-tenth but less than two grams of cocaine
under Mississippi Code Annotated section 41-29-139(c)(1)(B)
(Supp. 2016). He proceeded to trial and was allowed to
represent himself with the assistance of standby counsel.
Prior to trial, May filed a pro se motion to suppress. It
stated: "I am request[ing] . . . [Investigator] David
Elliott . . . of the Biloxi Police Department to suppress all
evidence on case num. 10-025337[, ] . . . possession of a
controlled substance to wit crack cocaine/cell phones . .
. [-] the items . . . that w[ere] tak[e]n the [night] of Nov.
3[, ] 2010." After conducting a hearing, the circuit
court denied May's motion to suppress. The jury found May
guilty as charged. He was sentenced as a habitual offender
under Mississippi Code Annotated section 99-19-83 (Rev. 2015)
to life in the custody of the Mississippi Department of
Corrections. May appeals, arguing his conviction and sentence
should be reversed because the search of the lighter violated
the Fourth Amendment.
We apply a mixed standard of review to Fourth Amendment
issues. Cook v. State, 159 So.3d 534, 537 (¶6)
(Miss. 2015). The existence of probable cause or reasonable
suspicion is reviewed de novo. Id. "But the de
novo review is limited to the trial court's 'decision
based on historical facts reviewed under the substantial
evidence and clearly erroneous standards.'"
Id. (quoting Dies v. State, 926 So.2d 910,
917 (¶20) (Miss. 2006)).
¶7. May raises one issue on appeal: whether the search
of the lighter that fell from his shoe violated the Fourth
Amendment. "The Fourth Amendment of the U[nited]
S[tates] Constitution and Article 3, Section 23 of the
Mississippi Constitution guarantee a person's right to be
free from unreasonable searches and seizures."
Cooper v. State, 145 So.3d 1164, 1168 (¶10)
(Miss. 2014). "As a general rule, our state and federal
Constitutions prohibit searches without a valid warrant
unless an exception applies." Galloway v.
State, 122 So.3d 614, 669 (¶182) (Miss. 2013). The
State bears the burden to show that a warrantless search
falls under one of the permissible exceptions. Id.
If no exception is found, the evidence seized as a result of
the search "should be suppressed as fruit of the
poisonous tree." State v. Woods, 866 So.2d 422,
427 (¶16) (Miss. 2003). "A search is not
unreasonable when it is based on probable cause."
Walker v. State, 881 So.2d 820, 827 (¶15)
One exception to the warrant requirement is consent.
Galloway, 122 So.3d at 669 (¶182). Also
excepted from the warrant requirement are items within a
police officer's plain view or plain feel. Ferrell v.
State, 649 So.2d 831, 833-34 (Miss. 1995) (plain view);
Gales v. State, 153 So.3d 632, 639
(¶17) (Miss. 2014) (plain feel). The State asserts May
consented to the search that resulted in his conviction, and,
even if he did not, May's behavior created probable cause
for the search, rendering his consent unnecessary. The State
further argues that May has waived his arguments regarding
these issues, as they were not specifically raised in his
motion to suppress.
To provide an exception to the warrant requirement, a
person's consent to search must be knowing and voluntary.
Moore v. State, 933 So.2d 910, 916 (¶19) (Miss.
2006). For consent to be given knowingly, "the person
searched must be aware he has the legal right to
refuse." Id. Voluntariness is determined from
the totality of the circumstances. Graves v.
State, 708 So.2d 858, 863 (¶24) (Miss. 1997).
Factors to consider are
whether the circumstances were coercive, occurred while in
the custody of law enforcement or occurred in the course of a
station house investigation. The court must also look to the
individual's maturity, impressionability, experience and
education. Further, the court should consider whether the
person was excited, under the influence of drugs or alcohol,
or mentally incompetent. If the consent occurred while the
defendant was being generally cooperative, the consent is
more likely to be voluntary; however, if the defendant agreed
and then changed his mind, the consent should be suspect.
Id. (citing Schneckloth v. Bustamonte, 412
U.S. 218, 226-28 (1973)). "[W]here consent is given, the
State is not required to demonstrate knowledge; rather,
'the burden is on the defendant to show impaired consent
or some diminished capacity.'" Moore, 933
So.2d at 916 (¶20) (quoting Jones v. State, 607
So.2d 23, 29 (Miss. 1991)).
May argues his consent was involuntary under the
circumstances-he was afraid because he had just seen his
companion arrested, and he was sitting on the side of the
interstate with no way to leave. For these same reasons, May
argues that he was subjected to a custodial interrogation, as
he was in a custodial situation when Officer DeGeorge asked
him to remove his shoe, and he was not read his rights under
Miranda v. Arizona, 384 U.S. 1121, 1125 (1966),
rendering the questioning illegal. However, according to
Officer DeGeorge's testimony, May was not under arrest or
being detained for any reason when he was asked to remove his
shoe. Rather, he was sitting on the ground because his
driver's license was suspended and he could not lawfully
drive the vehicle in which he had been riding. As Officer
DeGeorge testified, "Because we arrested the driver . .
. [and] Mr. May . . . [had] a suspended driver's license,
. . . he wasn't able to leave at that point."
According to May's own statements, he was allowed to use
his cell phone to make calls to look for a ride as he sat on
the ground. The record shows that Officer DeGeorge did not
appear concerned with May at this point. Officer DeGeorge
testified he did not recall whether May had his phone or
whether he was making calls, as Officer DeGeorge was
"dealing with" the driver, who was under arrest,
and "[the driver's] narcotics, " and he was
making phone calls, "notifying the investigators and the
supervisors and such."
As May points out on appeal, practically speaking, it may
have been difficult for him to leave the scene, as it was the
middle of the night and the traffic stop occurred on the
interstate. But there was no testimony to this effect. Nor
was there any testimony that Officer DeGeorge used coercive
tactics to detain May or make May remove his shoe. May bore
the burden to prove his consent was involuntary. He has
provided no such proof. Rather, the evidence showed May was
being generally cooperative and was allowed to ...