OF JUDGMENT: 09/22/2016
COUNTY CIRCUIT COURT HON. MICHAEL M. TAYLOR JUDGE
COURT ATTORNEYS: JASON E. TATE WILLIAM BRENDON ADAMS M. A.
ATTORNEY FOR APPELLANT OFFICE OF STATE PUBLIC DEFENDER BY
BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE OFFICE OF THE ATTORNEY GENERAL BY SCOTT
DISTRICT ATTORNEY DEE BATES
KITCHENS, P.J., MAXWELL AND ISHEE, JJ.
John Cole was adjudged guilty by a jury in the Lincoln County
Circuit Court for the unlawful possession of less than thirty
grams of marijuana with the intent to distribute, and the
illegal possession of a firearm by a convicted felon. He was
sentenced as a habitual offender. As a result, Cole was
sentenced to serve three years for the marijuana-related
charge, and ten years for the possession of the firearm; the
sentences were ordered to run consecutively. Cole filed
posttrial motions, all of which were denied. This direct
appeal followed, wherein Cole attacks the admission of
certain evidence. Finding no error, we affirm.
OF FACTS AND PROCEDURAL HISTORY
On August 6, 2015, Agent Hunter Huff of the Mississippi
Bureau of Narcotics (MBN) received information from an
anonymous tipster that several unidentified individuals were
outside a private residence selling drugs. The tipster
conveyed to Huff that the house was located on, or around,
Dr. Martin Luther King Jr. Drive, and had a chiminea (or fire
pit) out front. In response, Huff, along with Captain Billy
Ray Warner, Agent Jesse Leggett, and other officers arrived
simultaneously at the location approximately described by the
tipster to investigate the claim. They parked along the
public roadway and found six men sitting near the street.
Cole was one of the six, seated to the far right. The scene
aligned roughly with that described by the tipster, according
At that time, the agents immediately observed one of the
individuals hide something under his shirt. Huff, Leggett,
and the other agents then approached the men while Huff began
explaining why they were present. When asked to produce the
hidden object, the individual revealed a marijuana joint. The
same individual had his foot on top of a CD case located on
the ground, which was found to contain additional marijuana.
A second individual produced from his pocket a bottle housing
marijuana. The agents then found marijuana and a pistol on
another individual, Lattrick Williams. Having found narcotics
on at least three of the individuals present, as well as a
gun, the agents continued the investigation and chose to
frisk Cole for weapons. But when the agents either attempted,
or initially began, to frisk Cole, he stood, then fled along
Agents on the scene testified that Cole discarded what
appeared to be a white hand towel while running. While
pursuing Cole, Officer Barlow of the Brookhaven Police
Department stated that he heard what sounded like metallic
clinking along the pavement-when he looked down, he observed
a revolver and alerted the other agents to its presence. When
inspected by Leggett, the towel was found near a firearm. In
close proximity to the pistol was marijuana. Cole
subsequently was restrained by the agents, placed under
arrest, and searched. Additional marijuana was found on his
person. He was then taken to jail.
Once at jail, Cole was Mirandized,  waived his
rights, and spoke with Huff and Leggett. According to
Huff's and Leggett's testimony, Cole provided a
statement, in which he allegedly admitted selling the bags of
marijuana for $10 each, and that he recently had purchased
the pistol found at the scene for $120. Huff stated on
cross-examination, however, that Cole's statement was not
recorded in any fashion, and that no written report was
constructed by either himself or Leggett detailing Cole's
statement. But Huff also stated that, as a general practice,
MBN does not record every statement of a suspect.
During pretrial proceedings, Cole moved to suppress evidence
related to the marijuana and pistol, claiming that the search
and seizure were unlawful and, therefore, those items were
"fruit of the poisonous tree." Cole also sought to
have any alleged statements by him suppressed.
During the suppression hearing, Cole chose to testify. Cole
admitted that he had waived his Miranda rights and
that he had "talked with" the agents, but he denied
making any statements regarding the sale of marijuana. As a
result, his testimony varied in some respects from that to
which Huff and Leggett had testified. Even so, Cole admitted
that he had fled because he did not want to go to jail, and
that he was in possession of the marijuana and the pistol
before he fled. Following the suppression hearing, the
circuit court denied Cole's motion to
As a result, Cole proceeded to trial on September 22, 2016.
Upon conclusion of trial, the jury found Cole guilty of both
counts charged, and he was sentenced as a habitual offender.
As such, he received a three-year sentence for his possession
of less than thirty grams of marijuana with the intent to
distribute, and ten years for being a felon in possession of
a firearm; the sentences were ordered to run consecutively,
the entirety of which was to be served in the custody of the
Mississippi Department of Corrections (MDOC).
Displeased, Cole moved for a judgment notwithstanding the
verdict (JNOV) or, in the alternative, a new trial-neither
motion, however, specifically attacked the circuit
court's admission of the firearm or marijuana. The
circuit court ultimately denied all of Cole's posttrial
motions. Aggrieved, Cole timely filed this direct appeal.
"This Court applies a mixed standard of review when
considering Fourth-Amendment issues." Cook v.
State, 159 So.3d 534, 537 (Miss. 2015) (citing Eaddy
v. State, 63 So.3d 1209, 1213 (Miss. 2011)). "We
apply de novo review when determining whether probable cause
or reasonable suspicion exists." Cook, 159
So.3d at 537. Our de novo review, however, 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 (Miss. 2006)).
In seeking relief from this Court, Cole raises but one error:
the circuit court's denial of his motion to suppress.
Subsumed within this issue, however, is whether Cole's
right to be free from unreasonable searches and seizures was
"Both the Fourth Amendment to the United States
Constitution and Article III, Section 23 of the Mississippi
Constitution protect an individual's right to be free
from unreasonable searches and seizures."
Eaddy, 63 So.3d at 1212 (citing Dies, 926
So.2d at 917-918); see also U.S. Const.
amend. IV; Miss. Const. art. 3, § 23. "To determine
whether the search and seizure were unreasonable, the inquiry
is two-fold: (1) whether the officer's action was
justified at its inception, and (2) whether it was reasonably
related in scope to the circumstances which justified the
interference in the first place." Gonzales v.
State, 963 So.2d 1138, 1141 (Miss. 2007).
"As a general rule, the state and federal constitutions
prohibit warrantless searches unless an exception
applies." Eaddy, 63 So.3d at 1213. Therefore,
"[u]nless the State proves that a warrantless search
comes within an exception, all evidence seized from the
search is inadmissible." Id. A noncustodial
investigatory stop, commonly referred to as a Terry
stop, is a recognized exception. See Gonzales, 963
So.2d at 1141.
Before this Court may address the merits of whether the
circuit court erred in denying Cole's motion to suppress,
we first must determine the lawfulness of the investigatory
stop, as any evidence derived from an illegal search or
seizure will be deemed tainted as "fruit of the
poisonous tree." United States v. Mayberry, 193
F.Supp.3d 724, 731 (S.D.Miss. 2016).
With that in mind, it is well-settled that "[p]olice
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[, ]' [which] allows the officers to
conclude the suspect is wanted in connection with criminal
behavior." Eaddy, 63 So.3d at 1213; see
also Terry, 392 U.S. at 21.
Generally, there are two sources from which grounds for
reasonable suspicion may be established: "either the
officers' 'personal observation' or an
informant's tip." Eaddy, 63 So.3d at 1213
(citing Florida v. J.L., 529 U.S. 266, 270, 120
S.Ct. 1375, 146 L.Ed.2d 254 (2000)). "The officer's
personal observation includes information from other
law-enforcement personnel." Eaddy, 63 So.3d at
1213. "And an informant's tip may provide reasonable
suspicion if accompanied by some indication of reliability;
for example, reliability may be shown from the officer's
independent investigation of the informant's
information." Id. (citing J.L., 529
U.S. at 270).
That said, the scope of an investigatory stop is not
unlimited. Eaddy, 63 So.3d at 1213. Rather,
"[t]he scope of a search or seizure must relate to the
initial circumstances that called for police action."
Id. at 1214. And "[w]hen police detention
exceeds the scope of the stop, the stop becomes a
'seizure, ' and the State must show probable
Applied here, Cole argues that the agents' actions were
not justified at the inception of the stop because "they
did not possess a reasonable belief that Cole was armed,
" and therefore, "lacked authority to conduct a
Terry pat-down for weapons." Unclear, however,
is whether Cole is arguing that the inception of the stop
began with the agents' initial approach of the group, or
when Huff attempted to frisk Cole's person. Regardless,
to assess whether the agents' stop was justified at its
inception-be it the overall group or of Cole himself-we ...