Derrick Powell v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01873-COA
DERRICK POWELL
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
10/18/2000
HON. JOSEPH H. LOPER JR.
MONTGOMERY COUNTY CIRCUIT COURT
WEBB FRANKLIN
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
DOUG EVANS
CRIMINAL - FELONY
GUILTY: SENTENCED TO SERVE 12 YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, 4 YEARS SUSPENDED
AFFIRMED - 08/20/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
9/10/2002
BEFORE SOUTHWICK, P.J., LEE, AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. After a bench trial, Derrick Powell was found guilty of possession of marijuana. Powell appeals arguing
that evidence of the marijuana should have been suppressed because the drugs were found after an illegal
search. We uphold the search, though on grounds other than those relied upon by the trial court.
Consequently, we affirm.
STATEMENT OF FACTS
¶2. On May 5, 2000, a search warrant was executed at a residence in Winona, Mississippi. During the
search the officers divided their efforts, some participating in the search of the interior of the residence and
others providing outside security. Powell, his mother, and his girlfriend, Latisha Merritt, all were present
during the execution of the search warrant.
¶3. A canine unit was outside of the residence. According to one officer's testimony, the dog was allowed
out of the patrol car in order to relieve itself prior to its involvement in the search. When it was close to the
automobile that Powell drove, the dog indicated the presence of drugs. The vehicle was located across the
street from the residence and was not listed as an item to be searched in the warrant. Taking notice of the
dog's behavior, one of the officers went inside to ask Latisha Merritt for permission to search. Merritt
consented. Before he returned to notify the other officers, the vehicle's trunk had already been opened.
Found in the trunk after the officer returned with permission was 606.9 grams of marijuana. Powell
admitted that the drugs belonged to him.
¶4. After a hearing on Powell's motion to suppress, the trial court found that the consent to search the
vehicle was invalid because the search began prior to the consent. The court instead found that Powell had
no standing to assert a Fourth Amendment violation. This was because Powell neither was the owner of the
automobile nor was he in lawful possession of it.
¶5. Powell subsequently waived his right to a jury trial. The case was submitted on stipulated facts. Powell
was found guilty of possession. His appeal has been deflected here.
¶6. We initially remanded this case to the lower court for findings as to these questions.
Question 1: Was consent to search the vehicle in which the contraband was discovered voluntarily
given by Latisha Merritt or some other person with the authority to grant such consent, and without
any knowledge on the part of the person consenting that a search potentially had already begun?
¶7. The lower court determined that neither Latisha Merritt nor Mississippi Bureau of Narcotics Agent
Mike Perkins had knowledge that the search was already in progress when Merritt gave Agent Perkins
consent to search the vehicle.
Question 2: Was the dog taken near the vehicle in which contraband was found in order that the dog
could relieve itself, and while being walked away from the house for that purpose gave the normal
indication to its handlers of the presence of contraband within the vehicle, or was that explanation a
pretext for a purposeful taking of the dog near the vehicle to determine if the dog would alert on the
vehicle?
¶8. The trial court took judicial notice of the fact that dogs frequently "mark their territory" when entering
unfamiliar surroundings. The trial court accepted the explanation offered by the officers that the dog was
released from the patrol car so it could relieve itself prior to searching the house.
DISCUSSION
I. Standing
¶9. Whether Powell has standing to contest the search of the Merritt vehicle is a question of law except to
the extent the facts of ownership and use are contested. We perform a de novo review of that legal issue.
Peterson v. State, 671 So. 2d 647, 652 (Miss. 1996).
¶10. The right to be free from illegal searches is a personal right. Unless his own rights were violated by a
search, a defendant cannot prevent the use of evidence discovered in the search. White v. State, 571 So.
2d 956, 958 (Miss. 1990). This issue of standing is resolved through two inquiries: did the defendant have a
subjective expectation of privacy in the placed searched; from society's perspective, was an expectation
reasonable? Rakas v. Illinois, 439 U.S. 128, 151 (1978). The Court stated that the ultimate question is not
whether a defendant has property rights in the area searched, but whether that defendant has a reasonable
expectation of privacy in the invaded place. Id. at 143.
[S]uppression of the product of a Fourth Amendment violation can be successfully urged only by
those whose rights were violated by the search itself, not by those who are aggrieved solely by the
introduction of damaging evidence.
Alderman v. United States, 394 U.S. 165, 171-2 (1969).
¶11. During the suppression hearing, Wesley Merritt testified that title to the vehicle was registered in his
name. He had given permission to his daughter, Latisha Merritt, to use the vehicle. Mr. Merritt testified that
he did not transfer the title to the vehicle to his daughter because she was only fifteen years old at the time
he gave it to her. He testified that he never gave his daughter permission to allow Powell or anyone else to
use the vehicle.
¶12. Powell claims that an expectation of privacy arises from the fact that his girlfriend, Latisha Merritt, with
whom he lived, allowed him free use of the automobile. The State stipulated that Powell had the girl's
permission. Through surveillance prior to the execution of the search warrant, the officers knew that Powell
frequently used the automobile. Powell argues that because he had Latisha Merritt's permission, he had an
actual and reasonable expectation of privacy in the vehicle.
¶13. Powell refers us to a federal precedent in which a person who was employed by the renter to drive a
rental truck from New York to Dallas, had standing to object to a warrantless search of the truck. United
States v. Kye Soo Lee, 898 F.2d 1034, 1038 (5th Cir. 1990). The court did not discuss whether the
rental agreement allowed the renter to permit others to drive. Only if the rental agreement prohibited the
renter from allowing anyone other than specifically authorized individuals to drive the truck would the case
be analogous to our facts. To compare our case, here Latisha Merritt was given the vehicle by the actual
owner. The father did not authorize his daughter to permit others to use it. Nonetheless, she permitted her
live-in boyfriend Powell to do so. We do not find assistance from Kye Soo Lee on whether it is reasonable
for a person to expect privacy in a vehicle impermissibly loaned him by the authorized user.
¶14. Powell also refers us to a precedent in which a passenger challenged the search of the automobile in
which she had been riding. United States v. Martinez, 808 F.2d 1050, 1056 (5th Cir. 1987). The
passenger was the girlfriend of the absent owner and had his permission to be using the car. The Fifth
Circuit found this to be sufficient to give the passenger standing to contest the search. Id. Whether the
girlfriend had the owner's permission to allow someone else to drive the car was not an issue in the appeal.
We do not find Martinez helpful, since there the defendant was the one who had the owner's authority. The
key element in determining Powell's standing is that his use was allowed by someone who had permission
but who was not supposed to grant others permission.
¶15. We do not find that the terms of an oral loan agreement between father and daughter are controlling as
to reasonable expectations of privacy for Fourth Amendment purposes.
Other factors to be weighed include whether the defendant has a possessory interest in the thing
seized or the place searched, whether he has the right to exclude others from that place, whether he
has exhibited a subjective expectation that it would remain free from governmental invasion, whether
he took normal precautions to maintain his privacy and whether he was legitimately on the premises.
United States v. Haydel, 649 F.2d 1152, 1155 (5th Cir. 1981). Insofar as the evidence reveals, this was
Powell's principal, usual mode of transportation. Powell through his girl-friend's loan of the car had been
given the implicit right to exclude others except for his girlfriend and her father. He had been using the
vehicle freely. We find that he had a possessory interest. Not having the legal right to use the vehicle would
have considerable impact on the incidents of liability that grow out of non-permissive use, such as for
insurance coverage. But insofar as criminal law is concerned, Powell had a reasonable expectation that the
contents of this vehicle would not be searched without Fourth Amendment-compliant justification.
II. Consent
¶16. During the suppression hearing, the State put on evidence that Latisha Merritt had given permission to
search the vehicle. The vehicle's registration was introduced into evidence. Merritt's father testified that he
had given his daughter the car but had not authorized her to let anyone else drive it. Thus the State
presented uncontested evidence that the person given possession by the lawful owner had consented to the
search. The only evidence also was that though the trunk was opened before the officer returned to the
vehicle after obtaining the permission, there was no examining of the trunk until that officer informed the
others of the consent. Nothing in the record indicates when the consent was given in relation to when the
trunk was opened. We only know that the officers at the vehicle did not learn of the consent until after the
trunk was opened. The contraband that was found was in plastic bags underneath the tire located in the
trunk.
¶17. After this evidence was presented at the suppression hearing, the trial judge stated that he was
"satisfied that there was not a valid consent when the car was searched." The judge added that "[y]ou can't
cure that after the fact." Being rejected on consent, the State then argued that Powell had no standing since
the vehicle's owner had not given his daughter the right to permit others to use the car. The court agreed
that testimony as to standing should be presented. After hearing that testimony, the trial judge determined
that Powell did not have standing.
¶18. The issue we face now after finding that there was standing, is whether the matter of consent is
procedurally as well as factually a potential justification for the search. The issue was not addressed by the
State in its initial brief or in its supplemental brief to this Court. Since the trial judge ruled on the absence of
standing, the State has tried to uphold the search on that ground. Powell maintains that during his bench trial,
the State waived all potential legal claims with the exception of standing by what he calls a "stipulation."
After the evidence was not suppressed, nine days later the trial was to begin. By then, Powell had agreed
with the prosecutor to stipulate as to what witnesses would testify if called. As his attorney stated, Powell's
defense "is solely related to the issue of the legality of the search and the introduction into evidence of the
contraband."
¶19. The assistant district attorney, Walter Bleck, then described the evidence that he could introduce
through various witnesses. He indicated that drugs were found after a drug dog had alerted on the vehicle.
Powell gave a written statement that those drugs as well as others that were found inside the residence
belonged to him. The state crime lab's analysis was introduced into evidence.
¶20. Powell's attorney followed by admitting the truth of the facts stated in the proffer. Then he made
statements regarding acquiring and executing the search warrant that he called a stipulation. He agreed that
a drug dog brought to assist in the search was let out of the law enforcement vehicle in order to relieve itself
prior to beginning the search, and at that time alerted on the Merritt-Powell automobile. He then stated this:
when the dog alerted on the white Mazda automobile, the other officers were in the residence and the
deputy sheriff of Winona and others outside near the car commenced the search of the automobile,
without authority or without consent of the owner or anyone in possession of the automobile and
without a warrant.
¶21. There were a few more statements after that about what was found. Then the prosecutor responded to
all of what Powell's attorney just said, which comprises four pages of transcript, by saying that he "would
agree to that, Your Honor. We just wanted to make sure that the legal argument as to the motion that was
had last week, all that is part of the record in this, so they understand why we argued the - - - ." The Court
interrupted by saying that this would be done. Then the prosecutor stated that he wanted the record to
include "all of the proceedings had previously before this Court concerning the suppression hearing." The
trial judge agreed to "consider that [prior] testimony just like I would the proffers that have been made this
morning."
¶22. We cannot find on this record that the issue of consent has been stipulated away. The State presented
it to the trial judge at the suppression hearing through evidence and argument, but the trial judge rejected it.
Then after the various recitals by both attorneys on the morning of the scheduled trial, the State asked that
all that was presented in the earlier suppression hearing be considered by the trial judge and also be made a
part of the appellate record. The trial court agreed. The motion to suppress the evidence had already been
denied. Prosecutor Bleck's making certain that the record contained all that was presented on that point
satisfied his obligation to have the entire issue available for review.
¶23. Powell's appellate argument that the issue of consent was abandoned is based on Bleck's failure to
object to one part of the four-page recital that Powell's counsel made: officers "commenced the search of
the automobile, without authority or without consent of the owner or anyone in possession of the automobile
and without a warrant." The entire focus of this part of Powell's "stipulation" is the word "commenced." We
read that, in light of the evidence introduced, as an entirely accurate point that the search commenced when
the trunk of the vehicle was opened. That occurred before those at the vehicle knew that the person in
possession had given authority or consent. The warrant did not apply. An agreement by the prosecutor to
this statement did not waive the legal effect of the consent later obtained.
¶24. We also note that this stipulation did not waive the effect of the dog's alerting on the vehicle as a
possible justification. Because of our ruling on consent, we do not reach that issue. There were stipulated
facts but no limit to the law that would be applied.
¶25. The next procedural matter is whether the State's failure to add this as an alternative appellate basis to
uphold the search somehow waives the issue. At least two legal arguments were presented at the
suppression hearing. One was accepted and the other rejected by the trial court. Since the State is the
appellee here, there was no need for it to make assignment of errors. A cross-appeal can be utilized by the
State to challenge "a ruling adverse to the state or municipality in every case in which the defendant is
convicted and prosecutes an appeal . . . ." Miss. Code Ann. § 99-35-103 (c) (Rev. 2000). In discussing
this statute in the appeal of an habeas corpus matter, the Supreme Court found that when the State does not
file a cross-appeal it cannot be heard "except in support of the decree of the trial court . . . ." Bishop v.
Jones, 207 Miss. 423, 446 , 42 So. 2d 421, 426 (1949). The decree of the trial court here was to admit
the evidence and to convict Powell of the offense. Thus there was no adverse ruling excluding evidence,
only a rejection of one of alternative legal argument. Whatever this statute covers, we do not find that it
requires the State to file a cross-appeal in order to support a decree on legal grounds other than those
adopted by the trial court.
¶26. Finally, we note that an appellate court may affirm a trial judge "on grounds other than that which the
trial court used." Kirksey v. Dye, 564 So. 2d 1333, 1336 (Miss. 1990). On this question of law of the
effect of obtaining the consent only after the trunk was opened, we are not foreclosed by the trial judge's
adverse ruling and the failure of the State to argue it as an alternative.
¶27. Now that we have found that we may consider the issue of consent, we proceed to do so. The lower
court determined that the consent obtained from Latisha Merritt was invalid because at the time notice of
the consent was given to those at the vehicle, the initial stage of the search had commenced. The evidence
that Powell is attempting to suppress was discovered by Agent Perkins after obtaining consent and rejoining
the search team. Nothing incriminating was found until after the consent was obtained; indeed, it appears
that the trunk was simply opened and the officers were standing nearby until Perkins returned. Their
impatience was regrettable but not fatal to the search. Had, for example, Merritt consented after knowing
that the search had already begun, she may have been coerced by the sense that refusing was futile.
However, the trial court found that the consent was not the product of the premature commencement of the
search. The exclusionary rule is to bar use of the fruit of the poisonous tree of a Fourth Amendment
violation. Jones v. State, 798 So. 2d 1241, 1247 (Miss. 2001). No fruit was obtained by the premature
opening of the trunk.
¶28. In addition, under the inevitable discovery doctrine, the results from an unreasonable search will be
admissible if it can be shown that this evidence would have ultimately been discovered by constitutionally
permissible means. Nix v. Williams, 104 S. Ct. 2501, 2509 (1984). It appears that the only defect was
that the trunk was opened prior to the consent's being obtained. Regardless, even had the contraband been
found prior to the officer's return from talking to Latisha Merritt, so long as her consent was uninfluenced by
the early commencement of the search, then the drugs inevitably would have been discovered. The same
consent and the same discovery would have occurred if the officers next to the vehicle had waited a few
minutes more. The sequence was wrong, but the late-acquired but uncontaminated consent would have
cured the search.
¶29. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF MORE THAN 500 GRAMS BUT LESS THAN ONE
KILOGRAM OF MARIJUANA AND SENTENCE OF TWELVE YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR YEARS
SUSPENDED ON PROBATION, AND DRIVING PRIVILEGES SUSPENDED FOR SIX
MONTHS, IS AFFIRMED. SENTENCE IMPOSED IN THIS CAUSE SHALL RUN
CONSECUTIVELY TO ANY SENTENCE PREVIOUSLY IMPOSED. ALL COSTS ARE
ASSESSED TO APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND
BRANTLEY, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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