Steven Ray v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00011-COA
STEVEN RAY A/K/A STEVEN J. RAY
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
12/17/1999
TRIAL JUDGE:
HON. L. BRELAND HILBURN JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
DAN W. DUGGAN JR.
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: MICHAEL C. MOORE
DISTRICT ATTORNEY:
JENNIFER STUDEBAKER
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
12/17/1999: C/S POSS METHAMPHETAMINE:
SENTENCED TO SERVE A TERM OF SIX YEARS IN THE
CUSTODY OF THE MDOC
DISPOSITION:
AFFIRMED- 5/15/01
MOTION FOR REHEARING FILED: 5/30/2001; denied 7/31/2001
CERTIORARI FILED:
8/13/2001; denied 10/11/2001
MANDATE ISSUED:
11/1/2001
BEFORE SOUTHWICK, P.J., IRVING, AND MYERS, JJ.
IRVING, J., FOR THE COURT:
¶1. This appeal arises from the Hinds County Circuit Court. Ray was convicted and sentenced to six years
in the custody of the Mississippi Department of Corrections for the crime of possession of
methamphetamine. Feeling aggrieved, Ray has effectuated this appeal, raising the following issues for our
review: (1) whether the State failed in its proof of probable cause for the initial stop of appellant's vehicle
and (2) whether the scope of the search of appellant's vehicle incident to his arrest was improper.
¶2. Finding no reversible error, we affirm.
FACTS
¶3. On July 16, 1997, two officers from the Jackson Police Department were on patrol when they pulled
behind Ray's car. The officers reported that Ray was speeding in excess of fifty miles per hour in a thirty
mile per hour zone. They also testified that they observed Ray swerve off the right side of the road and
back onto the road. After this observation, the officers decided to stop Ray. As they approached the
vehicle, Officer McGehee went to the driver's side, and Officer Bryant went to the passenger's side. Officer
Bryant testified that he noticed Ray "making a lot of furtive movements. He was reaching above the visor.
He was reaching around beside him." Officer Bryant then notified his partner to "watch out because the
driver was moving around more than what you normally see people do on a traffic stop." When Officer
McGehee asked Ray for his driver's license, Ray told the officer it had been taken by a "cop." At this time,
Officer Bryant looked into the car with his flashlight and saw a plastic vial lying on the passenger seat. Then
Officer McGehee ran a warrants check on Ray and found that he had an outstanding warrant for false
pretense. Officer McGehee testified that he observed Ray at this time "reach up with his left hand as though
he was either taking something from the window trim, the door area, where the window meets the ceiling,
either putting something there or taking something down."
¶4. Officer McGehee returned to the car and asked Ray to step out. At this point, Officer Bryant noticed a
syringe under the visor on the driver's side. The officers arrested Ray and conducted a pat down. They
found a small bag containing a yellowish powder substance in Ray's cap. The officers then conducted an
"inventory" search of the vehicle and found two .38 revolvers in the glove box, a pager, a police scanner,
and a Coke bottle with a milky substance inside. The crime lab later determined that the yellowish powder
substance in the bag was methamphetamine and that the syringe and vial also contained methamphetamine.
DISCUSSION OF THE ISSUES
1. Justification for the Stop
¶5. Prior to the trial, defense counsel filed a motion to suppress all the evidence recovered on the grounds
that the officers did not have probable cause to seize and search Ray's vehicle. After a hearing, the motion
was denied. Ray contends that the trial court was in error because the State did not present sufficient
evidence to support a finding of probable cause for the stop. Ray points this court to McCray v. State, 486
So. 2d 1247 (Miss. 1989), which sets forth the standard the State must meet to support a vehicular stop.
The McCray court opined that evidentiary support for an investigatory stop requires that a law enforcement
officer articulate specific facts to support a reasonable suspicion that the officer had a particularized and
objective basis for suspecting criminal activity on the part of the particular person subject to the stop. Id. at
1249; see also Ellis v. State, 667 So. 2d 599, 608 (Miss. 1995) (citing Terry v. Ohio, 392 U.S. 1, 21-2
(1968)). The courts have not articulated a concrete rule for determining what circumstances justify an
investigatory stop; instead, each case is to be reviewed on a case by case analysis in light of the totality of
the circumstances. See Green v. State, 348 So. 2d 428, 429 (Miss. 1977); see also Illinois v. Gates,
462 U.S. 213, 230 (1983).
¶6. In the case sub judice, Ray argues that the State did not present any physical evidence to support the
reason for the stop. Despite Ray being issued a citation for speeding and reckless driving, the State did not
produce such documents during its case in chief or anytime thereafter. The State merely relied on the
testimony of the officers that they observed Ray speeding and driving recklessly. Hence, Ray argues that the
State did not present substantial credible evidence to support the trial court's finding, and thus, did not meet
the standard for suppression hearing findings. We disagree.
¶7. While the citation would have definitely added to the persuasiveness of the officers' testimony and could
have easily been produced, the courts have never held that to be a requirement. The standard merely
requires the officer(s) to articulate particularized facts which support an objective belief that the subject has
already participated in or is in the process of participating in criminal activity. McCray, 486 So. 2d at 1249.
Here, two separate officers testified that Ray was driving in excess of the posted speed limit and that they
had observed him swerve off the side of the road. It is our opinion that the officers' testimony, as presented,
met the threshold of particularized facts required to support a reasonable suspicion justifying the initial stop.
¶8. Further, pursuant to Whren v. United States, 517 U.S. 806, 810 (1996), the U.S. Supreme has
opined that the decision to stop an automobile is reasonable where the police have actual probable cause to
believe that a traffic violation has occurred. Here, the officers testified that they observed Ray driving his
vehicle in excess of the posted speed limit, an undisputed traffic violation. Therefore, the officers actually
had more than the required reasonable suspicion. They had probable cause to support the stop.
2. The Search of Ray's Vehicle
¶9. After the officers stopped Ray, they became aware that Ray had an outstanding warrant for a charge of
false pretense. Once Ray was arrested, the officers began a search of his person and his vehicle. As stated,
during the search of the vehicle, the officers discovered several incriminating items. Ray argues that once the
officers became aware of the outstanding warrant, he was under arrest at that moment. He was removed
from the vehicle and handcuffed "right at his door" and taken to the rear of the car. It was at that time that
the officers began the search of the vehicle. Ray asserts that the search of the car was at most a search
incident to arrest and that it exceeded the scope for such search. The State on the other hand contends that
the search of the car was an inventory search and that Ray is procedurally barred from raising the issue as
to the scope of the search. We first address the matter of the procedural bar as it relates to the scope of the
search.
¶10. Since we are not a court of original jurisdiction, we can only review questions that have been first
raised and decided upon by the trial court. See Leverett v. State, 197 So. 2d 889, 890 (Miss. 1967);
Collins v. State, 173 Miss. 179, 159 So. 865 (1935). Ray, at the trial level, filed a motion to suppress the
evidence discovered on his person as well as in his vehicle. The motion was premised on a claim of lack of
probable cause for the initial stop and did not argue alternatively that, assuming the existence of probable
cause for the stop, the search was still illegal because it exceeded permissible limits for a search incident to
arrest. However, the fact that the motion did not make the alternative argument is of no moment because the
motion as written covered all of the contraband that was discovered in the search of the car as well as on
Ray's person. Consequently, on these facts, we find no basis on which to impose a procedural bar
regarding the scope of the search. We now turn to the merits of the issue.
¶11. Searches conducted outside the judicial process, or without the issuance of a warrant by a neutral and
detached magistrate or judge, have long since been seen as per se unreasonable and in violation of the
Fourth Amendment, subject to only a few specifically established and well-delineated exceptions. See Katz
v. United States, 389 U.S. 347, 356 (1967). Two such exceptions are (1) a search incident to a lawful
arrest and (2) a properly conducted inventory of a vehicle.
¶12. In this case, the classification of the search is important because the permissible scope of a search
incident to arrest is more limited than the scope of an inventory search. A search incident to arrest is
founded on the principle that the subject may have a weapon on his person or within reach, or that he may
attempt to destroy evidence which is within his grasp. White v. State, 735 So. 2d 221, 224 (Miss. 1999);
see also Cupp v. Murphy, 412 U.S. 291, 295 (1973). The Cupp court also declared that the scope of the
warrantless search must be commensurate with the rationale that excepts the search from the warrant
requirement. Cupp, 412 U.S. at 295. In other words the scope of a search incident to arrest must be
limited to a reasonable area equal to that which is within the arrestee's reach where he may have access to a
weapon or may have attempted to destroy or discard evidence. We now turn our attention to a discussion
of an inventory search.
¶13. When an individual is arrested and there is no one readily available to take possession of the arrestee's
vehicle, the arresting officer will often have the car impounded. The courts have created the inventory
exception for three basic reasons: (1) the protection of the arrestee's property while in police custody, (2)
the protection of the police against claims or disputes over lost or stolen property and (3) the protection of
the police from potential danger. South Dakota v. Opperman, 428 U.S. 364, 371 (1976). To ensure that
the inventory search remains within the scope necessary to carry out the care-taking function of protecting
the arrestee's vehicle, the officers must follow the standard departmental procedure set for inventory and
impounding. Id. at 373.
¶14. The crux of the issue before us is whether the search was in fact a search incident to arrest or an
inventory search. As stated, Ray argues that he was handcuffed "right at his door" and taken to the back of
his car. Thus, the argument follows that, because Ray was handcuffed and behind the car, the interior of the
car was not within his reach; therefore, the search of the interior of the car was unreasonable.
¶15. The State counters Ray's argument with the assertion that following Ray's arrest, the officers properly
conducted a pat down search of his person and that the pat down constituted a search incident to arrest.
However, upon preparing to transport Ray to the police department, the officers then proceeded to
conduct an inventory search of the vehicle as a part of the standard procedure of the Jackson Police
Department.
¶16. It is our view that the search of the interior of Ray's car was a properly conducted inventory search.
Because of the proximity of the search to the time of the arrest, it may appear that the search should be
characterized as a search incident to arrest. However, the record is clear that the officers made a decision
to arrest Ray and transport him to the police department. There was no one readily available to remove the
vehicle from the roadside. The officers then followed standard departmental procedure and impounded the
vehicle. Prior to the impoundment, the officers conducted a proper inventory search to protect Ray's
property within the vehicle from the threat of loss or damage, as well as to protect themselves from
potential danger. Therefore, we hold that the trial judge did not err in denying Ray's motion to suppress
evidence discovered as a result of the search.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION
OF POSSESSION OF METHAMPHETAMINE AND SENTENCE TO A TERM OF SIX
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS ARE ASSESSED TO HINDS COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., PAYNE, BRIDGES, THOMAS, LEE,
MYERS AND CHANDLER, JJ., CONCUR.
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