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May v. State

Court of Appeals of Mississippi

December 13, 2016

DAVID LEE MAY A/K/A DAVID L. MAY A/K/A DAVID MAY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/11/2013

         HARRISON 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

         EN BANC.

          IRVING, P.J.

         ¶1. 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.

         FACTS

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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 phone[]s . . . [-] 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.

         STANDARD OF REVIEW

         ¶6. 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)).

         DISCUSSION

          ¶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) (Miss. 2004).

         ¶8. 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.

         1. Consent

         ¶9. 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)).

         ¶10. 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."

         ¶11. 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 ...


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