Danny Melton v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-00008-COA
DANNY MELTON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/2/2005
HON. MIKE SMITH
LINCOLN COUNTY CIRCUIT COURT
LOUIS IVAN BURGHARD
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DEE BATES
CRIMINAL - FELONY
CONVICTED OF COUNT I POSSESSION OF
PRECURSOR CHEMICALS WITH INTENT TO
MANUFACTURE METHAMPHETAMINE AND
SENTENCE OF THIRTY YEARS; COUNT II
UNLAWFUL
MANUFACTURE
OF
METHAMPHETAMINE AND SENTENCE OF
THIRTY YEARS; AND COUNT III POSSESSION OF
LESS THAN ONE TENTH OF A GRAM OF
METHAMPHETAMINE, AND SENTENCE OF FOUR
YEARS ALL TO RUN CONCURRENTLY IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITH THE FIRST TWENTY YEARS
TO SERVE AND FIVE YEARS OF REPORTING/
SUPERVISED POST-RELEASE SUPERVISION AND
FIVE YEARS OF NON-REPORTING/UNSUPERVISED
POST-RELEASE SUPERVISION TO RUN
CONSECUTIVELY TO EACH OTHER, FINE OF
$75,000 AND RESTITUTION OF $300
AFFIRMED AND REMANDED- 03/06/2007
BEFORE KING, C.J., CHANDLER, ISHEE AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
Danny Melton was convicted by a Lincoln County Circuit Court jury for multiple crimes
relating to methamphetamine. On appeal, he contests the validity of a search of his premises.
Finding no error, we affirm.
FACTS
¶2.
On February 15, 2005, approximately six sheriff’s deputies were involved in an undercover
purchase of drugs from Melton’s neighbor, Jeff Wilson. A few minutes passed between the actual
purchase and the arrival of the deputies. Upon arrival the deputies could not locate the marked
purchase money. A search of the area included Melton’s adjacent yard. A few items that were
commonly used in the manufacture and use of methamphetamine were located on Melton’s property.
A search warrant was obtained and more incriminating items were found on Melton’s property
which led to his arrest and indictment. The details of how the items were located that led to a search
warrant are the subject of this appeal and are discussed below.
¶3.
A grand jury returned a four count indictment against Melton for the unlawful possession
of precursor chemicals with intent to manufacture methamphetamine, unlawful manufacture of
methamphetamine, unlawful possession of less than one tenth of a gram of methamphetamine with
intent to distribute, and conspiracy to manufacture methamphetamine.
¶4.
A Lincoln County jury convicted Melton for the crimes of possession of precursor chemicals
to manufacture methamphetamine, manufacturing methamphetamine, and possession of
methamphetamine with intent to distribute. Melton’s appeal has been deflected to this Court.
DISCUSSION
¶5.
Both of Melton’s arguments on appeal relate to the suppression of evidence and involve an
alleged violation of his Fourth Amendment rights. Both the Fourth Amendment to the United States
Constitution and Article 3, Section 23 of the Mississippi Constitution protect citizens from
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unreasonable searches and seizures. Our analysis is guided under a mixed standard of review in that
“determinations of reasonable suspicion and probable cause should be reviewed de novo.” Dies v.
State, 926 So. 2d 910, 917 (Miss. 2006) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)
(other citation omitted)). We recognize however that we are “restricted to a de novo review of the
trial judge’s decision based on historical facts reviewed under the substantial evidence and clearly
erroneous standards.” Dies, 926 So. 2d at 918 (citation omitted).
1. Legality of Detention
¶6.
Melton argues that he was illegally detained leading up to the search of his yard. He argues
that law enforcement had no grounds for detaining him because the investigation concerned
Melton’s neighbor and there was no evidence that Melton was involved in any criminal behavior
with his neighbor.
¶7.
Melton testified that he pulled into his driveway, his fiancé pulled in behind him, and then
the Lincoln County Sheriff and a few people with the sheriff pulled into Melton’s driveway. Deputy
Barefield was the only witness to testify at the suppression hearing. The deputy testified that when
he approached Melton, the sheriff was already speaking with Melton. Melton stated that the sheriff
informed him that the deputies next door were trying to locate some marked money relating to the
drug bust at Wilson’s house and they might want to speak with Melton for a minute. Melton said
he replied, “yes, sir.”
¶8.
Melton, his fiancé, his daughter, her boyfriend, and Melton’s grandchild were standing in
the front yard when Deputy Barefield approached and requested to see their money. They all
complied with the request. None of the money matched the serial numbers of the marked money.
Melton claims that at this point he requested that all of the law enforcement leave his property.
Melton also claims that he told the officers that they were trespassing. Whether Melton made these
statements is disputed.
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¶9.
Deputy Barefield testified that he communicated to Melton that the deputy would like to take
a look around Melton’s yard in an effort to locate the missing money. Deputy Barefield testified that
he explained to Melton that Melton had the right to refuse giving consent to the search. Wilson
could have placed the money outside somewhere in his yard or in Melton’s adjacent yard as there
was a few minutes delay between the purchase of drugs and the arrival of police. The deputy
testified that Melton gave verbal consent to the search because Melton “stated okay.”
¶10.
Melton either walked beside or trailed closely behind the deputy as the two walked along the
fence line separating the two yards and into Melton’s backyard. Deputy Barefield became
suspicious of some items on the ground in Melton’s yard. The items found in Melton’s yard
included a two-liter bottle containing a white liquid substance, another bottle, and a piece of burnt
tin foil. Melton stated he did not know what the objects were. One of the bottles had a strong
ammonia smell. Deputy Barefield recognized that these items were used in the manufacture and use
of methamphetamine.
¶11.
The deputy communicated to Melton that information was received that Melton used his
carport to manufacture methamphetamine. The original source of this information was not
disclosed. Melton became visibly worried at this point and forbade any further access to his
property including the carport, shed, and house. As soon as Melton made this statement denying
further access without a search warrant, the deputy ceased any further search, departed from
Melton’s property and proceeded to obtain a search warrant based only upon the items found in
Melton’s yard. Other deputies watched the property while a search warrant was being obtained.
¶12.
Based upon the suspicious items found in Melton’s yard, Deputy Barefield was able to obtain
a search warrant for Melton’s property. A search of Melton’s carport and property revealed
additional items which led to Melton’s arrest and indictment. Deputy Barefield testified that the
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search warrant was obtained because of the items found in Melton’s yard and not based upon any
previous information that Melton was involved with manufacturing methamphetamine. The missing
money was later found at Wilson’s property.
¶13.
The Mississippi Supreme Court has stated that law enforcement activities can be divided into
three types:
(1) Voluntary conversation: An officer may approach a person for the purpose of
engaging in a voluntary conversation no matter what facts are known to the officer
since it involves no force and no detention of the person interviewed; (2)
Investigative stop and temporary detention: To stop and temporarily detain is not an
arrest, and the cases hold that given reasonable circumstances an officer may stop
and detain a person to resolve an ambiguous situation without having sufficient
knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the
officer has probable cause.
Dies, 926 So. 2d at 918 (quoting Singletary v. State, 318 So. 2d 873, 876 (Miss. 1975)).
¶14.
Melton is arguing that his interaction with Deputy Barefield should be classified as an
investigatory detention. In accordance with United Stated Supreme Court precedent, our Supreme
Court has recognized that “given reasonable circumstances an officer may stop and detain a person
to resolve an ambiguous situation without having sufficient knowledge to justify an arrest . . . .”
Wilson v. State, 935 So. 2d 945, 950 (Miss. 2006) (internal citations omitted). The Court has stated
that the “United Stated Supreme Court has unequivocably settled the question of the lawfulness of
an investigative stop where there is no probable cause to arrest if the officer acts reasonably.” Id.
at 951 (citation omitted). We apply this reasonableness test on a case-by-case basis because no
“concrete rule” has been articulated by either the United States Supreme Court or the Mississippi
Supreme Court for the specific circumstances justifying an investigatory stop. Id.
¶15.
In the present case, Melton was approached by law enforcement because of missing marked
money used in an undercover purchase of contraband. There is credible evidence that Melton
voluntarily complied with the request made by Deputy Barefield to view the money in his wallet.
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Testimony was presented that Melton gave consent to Deputy Barefield to look around the yard for
the missing money. After suspicious items were discovered on Melton’s property, Melton withdrew
his consent to search, with which the deputy immediately complied.
¶16.
The nature of his encounter with the deputy seems more properly characterized as a
voluntary conversation. The investigation that was taking place was not directed at Melton
personally but involved Melton because of the close proximity of his yard and the possibility that
the drug money may be located on his property. Melton obviously knew he had the right to
terminate the search, and exercised that authority in demanding the search end and not continue
without a search warrant. Under these circumstances there was no illegal detention.
2. Validity of Consent to Search
¶17.
Melton also argues that he did not and could not have given a valid consent to the search of
his premises. Melton concludes that the circuit court erred in not suppressing the evidence against
him because the evidence was unconstitutionally obtained. Melton alleges that he was coerced or
intimidated into consenting to the search and relies on cases involving such situations. U.S. v.
Morales, 171 F.3d 978, 983 (5th Cir. 1999) (involuntary consent where officers with drawn weapons
rushed into warehouse and ordered suspects to the floor); U.S. v. Ivy, 165 F.3d 397, 402 (6th Cir.
1998) (involuntary consent where officer threatened to arrest suspect’s girlfriend and take child into
protective custody).
¶18.
We review the voluntariness of consent to search based on the “totality of the
circumstances.” Culp v. State, 933 So. 2d 264, 272 (Miss. 2005). This consideration includes,
“among other things: the location of the encounter, any overt coercion, the display of weapons,
experience of the defendant with the criminal justice system, and the defendant’s age.” Id. (citing
Jones v. State ex rel. Miss. Dep’t of Pub. Safety, 607 So. 2d 23, 27 (Miss. 1991)). There is no
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requirement that defendants be “affirmatively told that they had the right to refuse for their actions
to be voluntary.” Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 234 (1973)).
¶19.
At the time of the encounter, Melton was a grown adult. Melton had some level of
awareness of interaction with law enforcement because of a previous encounter with the law many
years ago. Of importance is that Melton actually ended the search demanding that the deputy obtain
a search warrant. The consent was given at Melton’s home, not in seclusion with only a police
presence. Armed police were present due to the ongoing search for the missing marked money but
there is no indication that weapons were drawn.
¶20.
Police interaction with Melton took place in the open area outside of Melton’s house with
at least a couple of other adults present. Melton was certainly not in custody when consent was
requested to search his yard. Custody requires that “a reasonable person would feel that they were
going to jail and not just being temporarily detained.” Culp, 933 So. 2d at 272. A determination
of whether a person was in custody is determined by “whether a reasonable person felt they had the
freedom to refuse police demands.” Id. There is evidence that the deputy sheriff warned Melton
about his right to refuse consent to a search of his yard. Melton eventually exercised that right but
only after suspicious items were located in his yard. Melton’s actions demonstrate that he felt that
he had the freedom to refuse police demands, and in fact did so.
¶21.
The record reflects that Melton initially consented to the search of his property but withdrew
that consent when the suspicious items were found. Melton’s actions gave probable cause to believe
that more evidence of the manufacture and use of methamphetamine was located on Melton’s
property. There was adequate support for the trial judge to deny Melton’s motion to exclude the
evidence.
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¶22.
A legally insignificant discrepancy was discovered while completing a comprehensive
review of the record. Count three of the indictment charged that Melton did “feloniously . . . have
in his possession less than one tenth (.1) gram of methamphetamine . . . in violation of Section
41-29-139. . . .” Melton was convicted on this count as charged in the indictment. The sentencing
order states that on count three Melton was convicted for the crime of “unlawful possession of less
than one tenth of a gram of methamphetamine with intent to distribute. . . .” The discrepancy is that
Melton was charged with simple possession which falls within Section 41-29-139(c), not charged
with the crime of possession with intent to distribute under Section 41-29-139(a)(1).
¶23.
On count three Melton received a sentence of four years imprisonment. The four year
sentence is to run concurrently with the much longer sentences on counts one and two. This reflects
that the sentencing order contains a clerical error because four years is the maximum sentence
Melton could receive on count three for the crime of simple possession of less than one-tenth of a
gram of methamphetamine. See Miss. Code Ann. § 41-29-139(c)(1)(a) (stating the maximum
sentence for possession of less than one-tenth of a gram of methamphetamine is four years if
indicted as a felony charge). Also, there are other obvious errors in the order, such as stating that
the Melton is sentenced to “THIRTY (3) YEARS” on another count. Even so, the sentence on count
three is within the statutory range for the indicted charge and conviction.
¶24.
Courts of record have inherent power to correct clerical errors in criminal prosecutions and
civil cases. Kitchens v. State, 179 So. 2d 13, 14 (Miss. 1965). We affirm Melton’s conviction and
sentence but remand for the Circuit Court of Lincoln County to correct the sentencing order.
¶25. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF
CONVICTION OF COUNT I POSSESSION OF PRECURSOR CHEMICALS WITH
INTENT TO MANUFACTURE METHAMPHETAMINE AND SENTENCE OF THIRTY
YEARS; COUNT II UNLAWFUL MANUFACTURE OF METHAMPHETAMINE AND
SENTENCE OF THIRTY YEARS; AND COUNT III POSSESSION OF LESS THAN ONE
TENTH OF A GRAM OF METHAMPHETAMINE AND SENTENCE OF FOUR YEARS,
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ALL TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH THE FIRST TWENTY YEARS TO SERVE
AND FIVE YEARS OF REPORTING/SUPERVISED POST-RELEASE SUPERVISION AND
FIVE YEARS OF NON-REPORTING/UNSUPERVISED POST-RELEASE SUPERVISION
TO RUN CONSECUTIVELY TO EACH OTHER, A FINE OF $75,000 AND RESTITUTION
OF $300, IS AFFIRMED. THE CAUSE IS REMANDED TO THE CIRCUIT COURT FOR
CORRECTION OF THE SENTENCING ORDER CONSISTENT WITH THIS OPINION.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ISHEE AND ROBERTS, JJ., CONCUR.
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