Hector Hernandez Gonzales v. State of Mississippi ( 2006 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2006-KA-01191-SCT
HECTOR HERNANDEZ GONZALES AND
JUAN GONZALEZ-TORRES
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 06/22/2006
TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: DAVID G. HILL
D. GILL BAKER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
DISTRICT ATTORNEY: JOHN W. CHAMPION
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/30/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE SMITH, C.J., DICKINSON AND LAMAR, JJ.
DICKINSON, JUSTICE, FOR THE COURT:
¶1. A law enforcement officer stopped a vehicle which did not appear to have a tag. After
obtaining consent to search the vehicle, the officer found sixty pounds of marijuana inside.
Although the vehicle had no regular tag, it had a temporary tag taped to the back window in
the lower-left corner. The question presented is whether the officer lacked reasonable
suspicion to stop the vehicle, rendering the search improper and the evidence obtained
inadmissible.
STATEMENT OF THE FACTS
¶2. While waiting in the median on Highway 78 near Olive Branch, Mississippi, Highway
Patrol Trooper M/Sgt. Gayle McMullin observed an east-bound, blue Dodge Durango, which
appeared to have no tag displayed. Trooper McMullin stopped the Durango and engaged the
driver, identified as Hector Hernandez Gonzales, in a conversation concerning his travel
route. Trooper McMullin noted on her initial, written report that, as she questioned Gonzales
about his destination, she became suspicious because his demeanor changed. Specifically,
she reported that the driver appeared “very nervous” and looked to the passenger, Juan
Gonzalez Torres, when questioned about his direction of travel. Trooper McMullin was later
to testify, “When I asked him which route he was going, he looked over to the passenger, like
to get an idea of where to go or what to say, and by his body language and his nervousness
and the odor of marijuana, I called for a canine.”
¶3. Trooper McMullin notified Gonzales that she pulled the vehicle over because there
was no tag displayed on the vehicle. Gonzales pointed out the temporary paper tag posted
on the lower lefthand corner of the rear window of the vehicle. Trooper McMullin testified
that she did not see the paper tag until the driver pointed it out to her and she shined her
flashlight on the area. Trooper McMullin then radioed Trooper Brian Magee, the canine
officer, for backup while she compared the papers Gonzales had given her with the
information on the tag. By the time she finished writing out the tag citation, Trooper Magee
and the canine arrived.
¶4. The driver, Gonzales, and passenger, Torres, consented to a vehicle search. Trooper
Magee found marijuana residue and loose marijuana in the center console area of the vehicle,
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necessitating a further search. The canine alerted to the back rear passenger door. The
vehicle was then taken to a secure location and searched further. The officers found a
suitcase in the back seat which contained twenty-five bundles, or roughly sixty pounds, of
marijuana.
¶5. In January 2005, the DeSoto County Grand Jury returned an indictment against both
Gonzales and Torres for possession of a controlled substance with intent to distribute. The
defense filed a motion to suppress the evidence, claiming Trooper McMullin did not have
reasonable suspicion to stop the vehicle. The trial judge held a suppression hearing and took
the testimony of Troopers McMullin and Brian Magee. The judge then requested that the
parties brief the issue, which he narrowed to the “actual initial stop and up to the point of
where the officer indicate[d] she smelled marijuana.” After full briefing and a review of the
pleadings, the trial judge entered an order denying the defendants’ motion to suppress the
evidence.
¶6. Thereafter, the defendants reached an agreement with the State which resulted in a
stipulation of certain factual findings, and an agreement to a bench trial on a new charge of
possession of a controlled substance, reserving unto the defendants the right to appeal the
issue before us today.
¶7. The defendants proceeded to trial on the stipulation, admitting constructive possession
of the marijuana. Moreover, the defendants waived their right to a jury and right of
confrontation, relying instead on appellate review of the suppression hearing to overturn their
convictions. On the record, the defendants’ counsel noted, “our defense in this case is a
technical defense, and we’re simply trying to get this case out of the [t]rial [c]ourt and into
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the [a]ppellate [c]ourt.” The trial judge, upon admitting the stipulation of facts into the
record, found sufficient evidence to convict Gonzales and Torres, and sentenced them each
to fifteen years in the custody of the Mississippi Department of Corrections.
¶8. The defendants assert two errors on appeal: (1) the trial court erred in admitting
evidence uncovered after the officer’s basis for pulling the vehicle over proved unfounded,
therefore making the stop illegal; and (2) the trial court erred in failing to suppress all
statements made prior to the defendants being Mirandized in Spanish.
ANALYSIS
¶9. As stated in Carney v. State:
The rule is simple. Unless the marijuana was discovered during a legal search,
it may not be seized. If it was illegally seized, it may not be admitted into
evidence. It is therefore important to examine the legality of the particular
intrusions which enabled the police to see this marijuana to determine if these
intrusions were outside the legitimate scope [of the police’s authority].
Carney, 525 So. 2d 776, 785 (Miss. 1988). Accordingly, this Court must determine whether
Trooper McMullin was justified initially in stopping the defendants.
I.
¶10. The defendants contend that Trooper McMullin had no “specific and articulable facts”
from which a “reasonable suspicion” of a traffic offense or other crime could be gleaned to
support and justify a traffic stop or a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968). The standard of review for reasonable suspicion is somewhat
more complicated than other standards by which this Court reviews trial court
determinations. The United States Supreme Court has sought to clarify the standard by
stating:
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The principal components of a determination of reasonable suspicion or
probable cause will be the events which occurred leading up to the stop or
search, and then the decision whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to reasonable
suspicion or to probable cause.
Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996).
Further, the Supreme Court noted that the “first part of the analysis involves only a
determination of historical facts, but the second is a mixed question of law and fact.” Id.Thus, historical facts are reviewed only for clear error,1 while determinations of reasonable
suspicion are reviewed de novo. Id. at 699; Floyd v. City of Crystal Springs, 749 So. 2d 110,
113 (Miss. 1999).
¶11. The Fourth Amendment to the United States Constitution provides that all persons
shall be secure “in their persons, houses, papers, and effects, against unreasonable searches
and seizures” and that “no warrants shall issue, but upon probable cause.” U.S. Const.,
amend. IV; Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981)
(incorporating the Fourth Amendment to states through the Fourteenth Amendment); see also
Miss. Const. art. III, § 23 (1972); Floyd, 749 So. 2d at 114 (noting that the Fourth
Amendment to the United States Constitution and Article III, Section 23 of the Mississippi
Constitution contain almost identical language expressing an individuals right to be free from
unreasonable searches and seizures).
¶12. Both this Court and the United States Supreme Court have recognized several
exceptions to the Fourth Amendment’s general proscription against warrantless searches.
1
The United States Supreme Court has noted that background facts and inferences made by
local trial judges and law enforcement officers provide the context for the historical facts, and “when
seen together . . . deserve deference.” Ornelas, 517 U.S. at 699.
5
Of interest in this case is the warrant exception for non-custodial investigatory stops, also
known as Terry stops.2
¶13. The United States Supreme Court has noted that swift and necessary actions by
officers “must be tested by the Fourth Amendment’s general proscription against
unreasonable searches and seizures.” Terry, 392 U.S. at 20. “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.” Singletary v. State, 318 So. 2d 873, 876 (Miss. 1975). Moreover, the
Supreme Court noted that it is imperative that the facts be judged against an objective
standard: “Would the facts available to the officer at the moment of the seizure or the search
‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?”
Terry, 392 U.S. at 21-22 (citing Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L.
Ed. 543 (1925); Beck v. Ohio, 379 U.S. 89, 96-97, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)).
¶14. The traditional reasonableness standard under U.S. Supreme Court jurisprudence is
determined by balancing an individual’s privacy interests against legitimate governmental
interests. See e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53, 115 S. Ct. 2386,
132 L. Ed. 2d 564 (1995). 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
2
The Mississippi Supreme Court has recognized exceptions to the warrantless search
prohibition in the following cases, inter alia: White v. State, 842 So. 2d 565 (Miss. 2003) (good faith
exception); Shook v. State, 552 So. 2d 841 (Miss. 1989) (consent exception); Taylor v. State, 733
So. 2d 251 (Miss. 1999) (exigent circumstances exception and plain view exception).
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interference in the first place. Terry, 392 U.S. at 19-20. In order to satisfy the first prong,
the law enforcement officer must be able to point to “specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant that intrusion.”
Id. at 21.
II.
¶15. The defendants assert that their vehicle had a tag in plain view and, therefore, Trooper
McMullin had no reasonable suspicion that the vehicle had no tag; and because Trooper
McMullin had no probable cause or reasonable suspicion to pull them over, all fruits of the
illegal stop should be suppressed. Accordingly, we shall set forth the specific facts and
circumstances of the stop.
¶16. Trooper McMullin repeatedly stated that she pulled over the defendants’ vehicle
because it appeared not to have a tag.3 Specifically, she testified that upon approaching the
driver, she “did not see a tag at all.” Although no evidence of tint rating was elicited at the
suppression hearing, testimony indicated that the windows of the Dodge Durango were very
dark. Trooper McMullin testified, “After I told Mr. Gonzales the reason for the stop, he
pointed out to me that he did have a paper tag on the back window, but I did not see it. The
window was very tinted, and I did not see it until I walked back there and looked at it with
my flashlight.”
3
Throughout the record, Trooper McMulllin never wavered in this assertion. In her initial
written report, she specifically noted that the Dodge had “no tag displayed.” Additionally, at the
suppression hearing, McMullin repeatedly testified to this fact.
Q: Tell me what the basis of the stop was on that evening.
A: He did not have a tag, proper tag displayed on the vehicle.
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¶17. Two photographs of the back of the vehicle showing the tag were introduced. The
first was taken from the angle of the Trooper’s car behind the Durango at the time of the
traffic stop. While a white rectangle is visible in the lower lefthand corner of the back glass,
the numbers or any identifying marks are illegible from that distance. Additionally, it is
evident that at least one other set of trooper car lights are shining in that direction, thereby
illuminating the windows further. No other tag is displayed on the back tailgate.
¶18. The second photograph is a close-up picture of the tag with the numbers clearly
visible. It appears that, in this photograph, one light is concentrated in the tag area. Troopers
McMullin and Magee noted that the photographs admitted into evidence were taken with
many lights shining onto the paper tag, without which the tag was indistinguishable.
Interestingly, Trooper McMullin issued a citation to Gonzales for having no tag displayed,
even though she noted the temporary tag number on the ticket.
¶19. The State contends that, even if the vehicle had a valid tag, it was not “conspicuously
displayed,” as required by the statute. Thus, the State argues, Trooper McMullin was within
her authority to pull the vehicle over to check for a tag, and to check the expiration of the tag
(if found) or to see if it was valid. Therefore, the State maintains, the stop was legal and not
at odds with the Fourth Amendment. We agree.
¶20. The statute at issue provides that vehicles operated on Mississippi’s highways must
have tags “conspicuously displayed on the vehicle being operated in such a manner that it
may be easily read.” Miss. Code Ann. § 27-19-23(Rev. 2006). In light of this clear statutory
language, it is not enough that the vehicle actually had a tag. If the tag was not
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“conspicuously displayed” and “easily read,” Trooper McMullin was fully justified in
making the stop.
¶21. Gonzales and Torres argue that because Trooper McMullin’s written report regarding
the incident contained no references to her detection of the odor of marijuana, the stop was
pretextual. The defendants cite Whren v. United States 4 and United States v. Escalante 5 in
support of their position that the traffic stop was illegal. However, both Whren and
Escalante are distinguishable from this case. In each of those cases, the officer had a
suspicion that some type of criminal activity was occurring but was not aware of what that
activity was. See Escalante, 239 F.3d at 679; Whren, 517 U.S. at 808. The officer therefore
used the pretext of a traffic stop to further his investigation. In the present case, however,
the trial court found that Trooper McMullin reasonably suspected the Dodge Durango had
no tag. The record contains ample evidence to support that finding, and it will not be
disturbed on appeal.
¶22. The defendants also cite cases in which this Court and the Court of Appeals have
ruled that actions which do not constitute criminal offenses are not objective bases for a stop,
and, therefore, the stops are illegal. McNeely v. State, 277 So. 2d 435 (Miss. 1973);
Couldery v. State, 890 So. 2d 959 (Miss. Ct. App. 2004). In Couldery, the officer initiated
a traffic stop for driving in the left-hand lane on the interstate. After reviewing the statutory
offenses the officer put forth as the basis for the citation, the Court concluded that the actions
of the driver did not constitute a criminal offense – that driving in the left-hand lane on the
4
517 U.S. 806, 116 S.Ct. 1769, 135 L. Ed. 2d 89 (1996).
5
239 F.3d 678, 680-81 (5th Cir. 2001).
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interstate was not illegal. Therefore, the officer’s misapprehension of the law precluded the
stop from being valid. Couldery, 890 So. 2d at 963.
¶23. Here, Trooper McMullin noted in her initial, written report and testified at the
suppression hearing that the purpose for the stop was “no valid tag displayed.” Highway
Patrol officers have been given the statutory authority to enforce all traffic laws, rules and
regulations of the State of Mississippi. See Miss. Code Ann. § 45-3-21(1)(a) (2007)(Rev.
2004). Failure to conspicuously display a tag in such a manner that it may easily be read is
an offense under Mississippi Code Section 27-19-323 (Rev. 2006). Moreover, Mississippi
Code Section 27-19-40 regulates “special in-transit tags” like that at issue here, and requires
that such tag be “properly displayed” and “displayed in plain view.” See Miss. Code Ann.
§ 27-19-40(1), (1)(c), (4)(Rev. 2006).
¶24. Trooper McMullin testified she stopped the Dodge Durango because she suspected
a violation of these laws. The statutes require not only the existence of a valid tag, but also
that the tag be displayed in plain view. Evidence was produced that the Dodge Durango’s
windows were tinted, making the tag difficult to see or read. Indeed, even though a valid tag
was taped inside the back window of the vehicle, the trooper issued a traffic citation for
violation of the statute.
¶25. From the evidence in the record, we cannot say that the trial court committed clear
error in finding reasonable suspicion to make the stop. Thus, the stop was justified at its
inception, and the State has satisfied the first prong.
¶26. Additionally, because the subsequent search of the vehicle was incidental to the
officer smelling marijuana emanating from the vehicle, and valid consent to search was given
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by the defendants, an analysis of the second prong is unnecessary. Having found the initial
stop reasonable, we affirm the trial court’s admission of evidence.
IV.
¶27. The defendants next contend that the trial court erred in failing to suppress all
statements made prior to their being Mirandized in Spanish. See Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After a thorough review of the record,
however, we were unable to find where the trial court considered any statements made prior
to the defendants being notified of their Miranda right in Spanish. Indeed, the record is clear
S the trial judge based all findings on the stipulation of facts submitted into evidence by the
defendants themselves.
¶28. Where an argument has never been raised before the trial court, we repeatedly have
held that “a trial judge will not be found in error on a matter not presented to the trial court
for a decision.” Purvis v. Barnes, 791 So. 2d 199, 203 (Miss. 2001). This issue is not
properly before this Court, thus, it is without merit.
CONCLUSION
¶29. We find that Trooper McMullin was justified in her reasonable suspicion that the
defendants’ vehicle bore no tag. Therefore, the initial stop was legal, because the trooper
could articulate an objective basis for the traffic stop. Because the issue of whether the State
could introduce statements made before the defendants were Mirandized in Spanish was not
presented to the trial court, this Court is precluded from addressing it on appeal.
¶30. AS TO HECTOR HERNANDEZ GONZALES: CONVICTION OF
POSSESSION OF A CONTROLLED SUBSTANCE, TO-WIT: MARIJUANA,
FIVE(5) KILOGRAMS OR MORE AND SENTENCE OF FIFTEEN (15) YEARS IN
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THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. UPON RELEASE, THE APPELLANT IS PLACED UNDER FIFTEEN
(15) YEARS OF POST-RELEASE SUPERVISION, WITH CONDITIONS. SAID
SENTENCE SHALL RUN CONSECUTIVE TO ANY AND ALL SENTENCES
PREVIOUSLY IMPOSED. APPELLANT SHALL BE GIVEN CREDIT FOR 322
DAYS TIME SERVED. AS TO JUAN GONZALES-TORRES: CONVICTION OF
POSSESSION OF A CONTROLLED SUBSTANCE, TO-WIT: MARIJUANA,
FIVE(5) KILOGRAMS OR MORE AND SENTENCE OF FIFTEEN (15) YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. UPON RELEASE, THE APPELLANT IS PLACED UNDER FIFTEEN
(15) YEARS OF POST- RELEASE SUPERVISION, WITH CONDITIONS. SAID
SENTENCE SHALL RUN CONSECUTIVE TO ANY AND ALL SENTENCES
PREVIOUSLY IMPOSED. APPELLANT SHALL BE GIVEN CREDIT FOR 348
DAYS TIME SERVED.
SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, RANDOLPH
AND LAMAR, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION.
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