Patrick Michael Milliorn v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 97-KA-00940-COA
PATRICK MICHAEL MILLIORN
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
6/19/97
TRIAL JUDGE:
HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
CYNTHIA ANN STEWART
ATTORNEYS FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS JR.
DISTRICT ATTORNEY:
KEN TURNER
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
CONVICTION OF POSSESSION AND INTENT TO SELL
ILLEGAL SUBSTANCES; SENTENCE TO 25 YRS IN
CUSTODY OF MISSISSIPPI DEPT. OF CORRECTIONS
AND FINE OF $20,000.
DISPOSITION:
AFFIRMED - 08/17/99
MOTION FOR REHEARING:
04/06/99 - DENIED
CERTIORARI FILED:
MANDATE ISSUED:
MODIFIED OPINION
ON MOTION FOR REHEARING
EN BANC
SOUTHWICK, J., FOR THE COURT:
¶1. The original opinion is withdrawn and this opinion substituted on rehearing. The motion for rehearing is
denied. Patrick Milliorn was convicted by a Scott County Circuit Court jury of possession of more than one
kilogram of marijuana with the intent to distribute. On appeal he argues that he was arrested without
probable cause, that a search violated his constitutional rights, and that his resulting confession was tainted
by the preceding illegality. We disagree with his assertions and affirm.
THE FACTS
¶2. On January 23, 1994, Highway Patrol Officer Walter Davis stopped Patrick Milliorn in Scott County
for speeding. Milliorn gave the officer his New Mexico driver's license and the rental papers for the car
which he was driving. At the window of Milliorn's vehicle, the officer noticed the odor of alcohol coming
from within. He asked Milliorn to take a hand held breathalizer test. Milliorn complied. He registered .04 on
the test, which indicates no illegal intoxication.
¶3. The officer observed a pair of pants and a suit coat hanging in the back seat of Milliorn's vehicle. He
questioned Milliorn about the contents of the trunk and whether or not he had any additional luggage.
Milliorn responded that he did not have any additional luggage and that he had not been into the trunk.
What happens next is in dispute. The differing factual accounts regarding whether there was consent to
search and when Milliorn was arrested and for what offense, will be discussed under the issues to which
those facts relate. At this time it is enough to say that the trunk of Milliorn's vehicle was opened and inside
were several large plastic bags which were later determined to contain marijuana. The officer handcuffed
Milliorn and placed him inside his patrol car. He was then informed of his constitutional rights arising from
this arrest.
¶4. At the police station, officer Leonard Harrison of the Mississippi Bureau of Narcotics again informed
Milliorn of his constitutional rights and then took a statement. Harrison's testimony at trial revealed only one
potentially incriminating admission, which was that Milliorn refused to assist in arresting others since he was
going to jail regardless.
DISCUSSION
1. Probable cause to arrest Milliorn
¶5. Milliorn's counsel filed a motion to suppress on October 6, 1995, almost two years before the trial
commenced on June 18, 1997. The motion alleged that the officer did not have probable cause to stop
Milliorn, that the stop was pretextual, that Milliorn was improperly detained, and that the search of the
vehicle violated the defendant's constitutional rights. There is no record of a hearing on the motion until after
the arresting officer had testified at the 1997 trial and a second officer had begun his testimony. On
rehearing Milliorn's counsel argues that the practice of this circuit judge is to await trial to hear motions to
suppress. We accept the assertion as accurate, but that does not relieve counsel of bringing the suppression
matter to the court's attention prior to or at the time that any challenged evidence is introduced, or else
making an objection to that evidence. Admitting evidence addressed in a pending suppression motion that
has not been brought on for hearing preserves no allegation of error, absent an objection lodged at the time.
¶6. The arresting officer testified first without objection that after Milliorn took the breathalyzer test and
while both were seated in the police car, the officer asked if he could look inside the trunk of Milliorn's
rental car. The officer testified that Milliorn said that he did not care. Milliorn at the subsequent suppression
hearing denied that he gave the officer his consent to search the vehicle.
¶7. The officer asked Milliorn to get out of the patrol car and walk over to the vehicle with him. At that
point, the officer took the keys out of the ignition and attempted to open the trunk with them. When that
was unsuccessful, the officer noticed that Milliorn put his hands inside his front pockets. It was not until that
moment that the officer had any concerns about his safety. Thereafter, he asked Milliorn to put his hands on
the car, and the officer proceeded to conduct a pat down. The pat down revealed a large, double folding
pocket knife. At that point, Officer Davis informed Milliorn that he was under arrest. Presumably that was
based on having a concealed weapon, though Milliorn was not subsequently charged with that. However, in
short order much happened to change the investigation. Milliorn then suggested to the officer that he could
open the trunk using a button inside the car. The button did in fact open the trunk. Seven plastic bags were
then discovered that were later found to weigh over 200 pounds.
¶8. All of the foregoing was admitted without objection. The officer was not allowed to state that the plastic
bags appeared to contain marijuana. A witness from the state crime lab later made the identification.
¶9. When the second officer began to testify about a statement made by Milliorn at the police station, the
court stopped the proceedings without any defense objection and asked that the jury retire from the
courtroom. Perhaps this course was earlier established off the record by agreement of the judge and
counsel. Counsel on rehearing states as much. The judge stated that the jury was excused in order "to
explore the admissibility of the statement." The officer was Leonard Harrison. The State questioned him on
the taking of the statement and tried to show that it was voluntarily given after adequate warnings of
constitutional rights. Milliorn was then called as well. His testimony went far beyond just the hearing on the
admissibility of the police station statement, but also addressed the events at the roadside when the
marijuana was first discovered.
¶10. When all the testimony on suppression was concluded, Milliorn's attorney argued that the permissible
scope of a search incident to a traffic stop was exceeded, and that everything else that followed including
the statement at the police station was a product of that illegality. The court found that the stop and the
search were lawful, and that the statement was voluntarily given.
¶11. The specific question in this first issue is whether the arrest was unlawful. The search is discussed in
two subsequent issues. At this hearing the defense argued that the statement was the fruit of an illegal search
incident to arrest, not that the arrest itself was improper. The court never made a ruling on the propriety of
the arrest as he was not asked to do so.
¶12. A party is obligated to seek a ruling on an objection or motion. "Our rule is that a party making a
motion must 'follow up that action by bringing it to the attention of the judge and by requesting a hearing
upon it.' Sharplin v. State, 357 So.2d 940, 943 (Miss.1978). It 'is the responsibility of the movant to
obtain a ruling from the court on motions filed by him, and failure to do so constitutes a waiver of same.'
Martin v. State, 354 So.2d 1114, 1119 (Miss.1978)." Billiot v. State, 454 So.2d 445, 456 (Miss. 1984)
. If this interruption in the trial proceedings is taken as a consideration of the motion to suppress, which
included an attack on the arrest, no ruling on that portion of the motion was made. Similarly, failure to offer
a contemporaneous objection at trial results in a waiver of the matter for appellate review. Stevens v.
State, 458 So. 2d 726, 730 (Miss. 1984). This rule applies to Fourth Amendment claims. Id. The trial
court was not asked to rule on the issue of probable cause for Milliorn's arrest. We therefore hold that this
issue was not properly preserved for our review. The possible bases for arrest, including whether the knife
discovered in Milliorn's pocket was a concealed weapon under Mississippi Code Section 97-37-1, or
whether the subsequent discovery of marijuana through a consensual search cured any possible invalidity in
the initial arrest, and all the facts necessary to analyze those possibilities, are simply not in the record.
2. Validity of search and seizure
¶13. Where an unreasonable search and seizure is conducted, no evidence obtained, no matter how
probative of guilt of the accused, may be introduced at the trial of the defendant. Jackson v. State, 418
So. 2d 827, 829 (Miss. 1982). The supreme court has noted that the Fourth Amendment's rule against
warrantless searches is subject to a few specifically established and well-delineated exceptions." Graves v.
State, 708 So. 2d 858 (Miss. 1997) (quoting Katz v. United States, 389 U.S. 347, 357 (1967). Among
the most important exceptions is the consent of the person with control over the premises to be searched.
Townsend v. State, 681 So. 2d 497, 501 (Miss. 1996). The totality of the relevant circumstances must be
examined in determining whether consent was voluntarily made, a decision initially for the trial judge who is
best able to adjudge the credibility of those testifying. Jones v. State, 607 So. 2d 23, 28 (Miss. 1991).
When the testimony on the issue is conflicting, as indeed it usually is, the trial court is the principal evaluator
of credibility. Id.
¶14. Milliorn advances two arguments in this regard. First, he asserts that if the search was incident to his
arrest, the search was invalid because the arrest was unlawful for being without probable cause. Secondly,
Milliorn contends that he did not give his consent to the search making it unlawful and the fruits of the
search inadmissible at trial.
¶15. This is the trial court's ruling on the motion:
Officer Davis testified that on this occasion, he stopped the Defendant for the traffic violation of
speeding, and then he testified regarding the circumstances incident to the investigation of the speeding
offense. It all led to the search of the vehicle, and in my opinion, it was a lawful stop and a legal
search.
The court relied on the statements of Officer Davis, who had testified that the stop occurred because of
speeding, that the arrest occurred initially because of the discovery of the knife, and that Milliorn consented
to the search. We must determine, if that evidence is accepted as the most credible, whether it is sufficient
to sustain the search.
¶16. We first note that Davis, who was the arresting officer, informed the jury of all of his actions without
objection except when he was asked to identify what he found. Does a failure to object to testimony that
describes the steps of an allegedly unconstitutional search waive the objection to what was found, or is it
only when the result of the search is being introduced into evidence that the objection must be lodged? It
would appear in the absence of any case law that we have discovered, that there is no obligation on a
defendant's part to object to each misstep by an investigating officer when the impropriety is not itself
incriminating to the accused. Therefore, even if Milliorn is correct that the arresting officer did not have
authority to search his trunk, the fact that a search occurred is not incriminating. Only when the officer
started to say that marijuana was discovered was there an objection. Counsel did not state whether the
objection was based on the expertise of the officer or on the alleged illegality of the search, but it was
sustained all the same. We find no waiver by the fact that the arresting officer testified without objection as
to the mechanics of the search.
¶17. The United States Supreme Court has held that the test for the validity of consent to a search is a fact
question of voluntariness, a matter to be determined by the totality of the circumstances. Ohio v. Robinette,
519 U.S. 33 (1996). The Robinette Court ruled that police officers do not have to inform detainees that
they are free to go prior to questioning or obtaining their consent to a search. Id. For a time this State had a
contrary rule, that an accused must be shown to have knowledge of a right to refuse consent. Penick v.
State, 440 So. 2d 547, 549-50 (Miss. 1983). The Penick rule has been modified. The prosecution need
not show knowledgeable consent but rather the burden is on the accused to establish diminished capacity to
consent. Jones, 607 So. 2d at 28. No such issue was raised in this case.
¶18. Under the totality of the circumstances, the trial court accepted the testimony of the arresting officer as
to consent. The question of consent is a factual one to be decided based on conflicting evidence by the trial
judge. Id. Here, he concluded that Milliorn in fact gave his consent to the search. On appeal Milliorn argues
both that the officer should not be believed, and also that the consent as a matter of law was involuntary
because it was given after an illegal arrest.
¶19. As to which witnesses to believe, the trial court chose officer Davis and that was within his discretion.
As to the effect of the arrest, we note that Davis testified that Milliorn immediately after the breath test and
before the arrest stated that he did not care if a search was conducted. The search was being attempted
when Milliorn's placing of his hands in his pockets caused a frisk for weapons to be made. The arrest that
then occurred, after consent to search but before the search was concluded, did not end the effectiveness
of the consent.
¶20. The trial court did not err in upholding the search.
3. Milliorn's statement to Officer Harrison
¶21. The determination of whether a confession was freely and voluntarily given is a finding of fact for the
trial court, with the burden of proof upon the State. Layne v. State, 542 So. 2d 237, 239 (Miss. 1989).
The trial court must resolve "whether the accused has been adequately warned, and whether, under the
totality of the circumstances, he has voluntarily and intelligently waived his privilege against selfincrimination." Id. The trial court's decision in this regard will not be disturbed unless the trial judge applied
the wrong legal standard, committed manifest error, or the conclusion was contrary to the overwhelming
weight of the evidence. Balfour v. State, 598 So. 2d 731, 742 (Miss. 1992).
¶22. Milliorn argues that Officer Harrison's testimony regarding the statement he gave at the police station
was improperly admitted into evidence because it was the "fruit of the poisonous tree," meaning that it was
tainted by an illegal arrest. We have already found that the fruit resulting from the arrest was not poisoned,
and thus this argument fails.
¶23. Milliorn makes no separate argument that anything after the arrest made the statement involuntary. The
trial court specifically found that Milliorn was informed of his constitutional rights, that he understood them
and made a knowing and intelligent waiver of his rights. The trial court applied the correct standard, was not
manifestly in error, and the overwhelming weight of the evidence is not contrary to the trial court's decision.
4. Officer Harrison's testimony regarding drug trafficker's use of rental vehicles
¶24. Milliorn argues that Officer Harrison's testimony was inadmissible that it was common for crosscountry drug carriers to use rental cars. Milliorn seeks to classify this testimony as "drug courier profile"
evidence. The issue of the use of a drug courier profile as substantive evidence has bedeviled the courts,
and Milliorn wants to visit such difficulties on this appeal. In that he fails.
¶25. The relevant testimony is this:
Q. [THE PROSECUTOR] . . .are you familiar with the most common manner of transportation used
by drug couriers in carrying large amounts of drugs across the county?
[DEFENSE COUNSEL]:
Judge, I would object to the relevance of this testimony in this particular case. I, frankly, don't
understand how this officer can testify to that. He is attempting to use him as sort of an expert witness
based on that question, and I think that would be entirely improper.
BY THE COURT: Objection overruled.
Q. What would be the most common method of transportation?
A. [OFFICER HARRISON] And of the most common methods is rental vehicles.
Q. And, why would they use a rental vehicle?
A. Because if drugs are found in a vehicle belonging to the person, it would be subject to seizure.
Q. But, if the vehicle is owned by, say, a Hertz Corporation or something like that, are you able to
seize it?
A. No, sir. That would be an innocent owner type situation. We couldn't take it away from the leasing
agency.
¶26. In permitting the jury as rational and accurate a view of an offense as possible, a broader picture is at
times needed. "In the context of a drug case, that reasonably includes proof regarding the nature of the drug,
the manner in which it is used, the effect it has upon the individual who uses it and related matters." Turner
v. State, 478 So. 2d 300, 301 (Miss. 1985). Explaining to the jury why someone transporting drugs would
use a rental car is similar to explaining why someone possessing crack cocaine with intent to distribute
would need scales, razor blades, plastic bags, and other relatively innocent items. In an appeal regarding
just such an offense, the testimony of an agent with the state Bureau of Narcotics was approved Kelly v.
State, 553 So. 2d 517, 521 (Miss. 1989). The agent, who was not certified as an expert, was allowed to
testify as to how rock cocaine is made and the items used in the process. The Mississippi Supreme Court
ruled:
We find no error in the initial explanation of rock cocaine that was offered by the State through the
witness Jackson [the narcotics officer]. Such an explanation was helpful to the jury in understanding
the charge. We find, and so hold, it was error to allow the testimony of Jackson, a non-expert, who
characterized the use of the physical evidence in the manufacture of rock cocaine. However, after
examination of the record as a whole, we find that such error was harmless beyond a reasonable
doubt.
Id. at 522.
¶27. In a different case regarding drug possession, but not with the intent to distribute as here, the supreme
court found that the admission of similar testimony was harmless. Haddox v. State, 636 So. 2d 1229,
1231 (Miss. 1994). There an officer who was not certified as an expert, was permitted to testify that
"based on his past experience in drug-related cases, weapons and money were typically associated with
controlled substances crimes." Id. at 1232. The appellant argued that such testimony was expert testimony
and that if the supreme court found that it was, it was error for the State to have failed to list the officer as
expert witness prior to trial. Id. at 1238. The Mississippi Supreme Court ruled:
[W]e need not decide this evidentiary issue, for the admission of this testimony does not appear to
have harmed the defendants' case. This testimony was offered primarily to promote the [S]tate's
charge of intent to transfer. The question posed to Officer Vasillion was an inquiry into whether guns
and money were associated with drug dealing, not mere possession. . . . In light of the entire record,
this testimony was harmless in its effect upon the conviction of possession.
Id. at 1238.
¶28. On the other hand, when lengthy explanatory testimony regarding drugs was given by a police officer
who was not qualified as an expert, reversal was the result. Ramos v. State, 710 So. 2d 380, 387 (Miss.
1998). In another case, reversal occurred because an officer who was not qualified as an expert testified
about a typical marijuana user, the quantity normal for personal use, the street value of the drug, and its
packaging. Sample v. State, 643 So. 2d 524, 530-31 (Miss. 1994). We find that it was error for the trial
court to admit the officer's testimony about the manner in which drugs were often or normally transported
across the country, but as in Haddox the principal problem was that the preliminary qualifying of the witness
as an expert was not undertaken. The single statement that rental cars are frequently used is much more
akin to Haddox and Kelly than to the more elaborate evidence from an improperly qualified witness in
Sample and Ramos.
¶29. The error in this case was harmless.
5. Chain of custody of marijuana
¶30. Milliorn asserts that the marijuana was improperly allowed into evidence because the agent who
retrieved the bundles of marijuana from the crime lab and delivered it to the trial court did not testify. The
test for the continuous possession of evidence is a determination of "whether or not there is any indication or
reasonable inference of probable tampering with the evidence or substitution of the evidence." Wells v.
State, 604 So. 2d 271, 277 (Miss. 1992). Additionally, the trial court is vested with sound discretion in
determining any questions as to the chain of custody and possession of evidence. Thomas v. State, 711
So. 2d 867, 871 (Miss. 1998). A strong presumption of validity accompanies actions of law enforcement
officials with regard to preservation of evidence. Nixon v. State, 336 So. 2d 742, 744 (Miss. 1976).
¶31. Here, Officer Davis testified that he left the bundles he discovered in Milliorn's vehicle in the trunk. He
radioed a tow truck to transport the car to the police station. Officer Davis stated the he followed the tow
truck hauling Milliorn's vehicle, then confiscated the bundles, weighed them, and handed them over to
Officer Harrison. Officer Davis stated that the marijuana weighed 231 pounds. Thereafter, Officer Harrison
labeled the bundles and personally took them to his office in Meridian and signed them into their evidence
room. The following day Harrison and another agent drove the bundles to the state crime lab. Harrison
personally handed the bundles to forensic scientist, Grady Downy. Downy again labeled the marijuana,
tested the marijuana, and stored the bundles at the crime lab until time for trial. Downy also testified that
when he tested the drugs shortly after they were delivered, the total weight was 218 pounds and 15.5
ounces.
¶32. Officer Harrison testified at trial that he instructed an agent from his office to pick up the marijuana
from the crime lab and deliver it to the trial court. Officer Harrison, Officer Davis and Downy all testified
that the bundles of marijuana were in the same condition as they were in when each had control over them.
The trial court was satisfied that the State had established a proper chain of custody of the marijuana and so
ruled.
¶33. In this case the only suggestion of tampering is the difference in weight of thirteen pounds or 5%
between the weight measured by Officer Davis and that calculated at the crime lab. There is no evidence
regarding the accuracy of the scales used by either Officer Davis or the crime lab. Such a small discrepancy
does not indicate tampering that would affect a substantial right of the defendant. The trial court did not
abuse its discretion in finding that the chain of custody was complete.
¶34. THE JUDGMENT OF THE CIRCUIT COURT OF SCOTT COUNTY OF POSSESSION
OF MORE THAN ONE KILOGRAM OF MARIJUANA WITH INTENT TO DISTRIBUTE
AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND FINE OF $20,000 IS AFFIRMED. SENTENCE TO
RUN CONSECUTIVELY TO ANY PREVIOUS SENTENCES. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO APPELLANT.
McMILLIN, C.J., KING, P.J., BRIDGES, DIAZ, LEE, PAYNE, AND THOMAS, JJ.,
CONCUR.
IRVING, J., CONCURS IN RESULT ONLY.
MOORE, J., NOT PARTICIPATING.
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