David Lee May v. State of Mississippi , 222 So. 3d 1074 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-KA-00681-COA
DAVID LEE MAY A/K/A DAVID L. MAY A/K/A APPELLANT
DAVID MAY
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/11/2013
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF ONE-
TENTH BUT LESS THAN TWO GRAMS OF
COCAINE AND SENTENCED AS A
HABITUAL OFFENDER TO LIFE IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION
DISPOSITION: REVERSED AND RENDERED – 12/13/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
IRVING, P.J., FOR THE COURT:
¶1. David Lee May was convicted of possession of one-tenth but less than two grams of
cocaine and sentenced as a habitual offender to life without parole. On appeal, May argues
he was subject to an illegal search and seizure under the Fourth Amendment. We agree. The
State failed to prove that May consented to the search that resulted in the discovery of the
cocaine or that the police had probable cause to conduct the search. Therefore, we find that
May’s conviction and sentence must be reversed and rendered.
FACTS
¶2. Around midnight on November 3, 2010, Biloxi Police Department Officer Doug
DeGeorge saw a vehicle veer over the fog line and into the median on Interstate 10. May
was a passenger in the vehicle. Officer DeGeorge conducted a traffic stop for careless
driving. The driver could not produce a driver’s license, so Officer DeGeorge asked him to
exit the vehicle. In frisking the driver for weapons, he felt “an unusually large bulge” in the
driver’s pants. The driver admitted it was drugs. The driver was placed under arrest, and
Officer DeGeorge called for backup.
¶3. Officer DeGeorge asked May if he had a driver’s license. May had a Mississippi
identification card, but his license was suspended. Because the driver had been arrested and
May’s license was suspended, Officer DeGeorge began the process to have the vehicle
towed. Officer DeGeorge asked May to exit the vehicle so it could be inventoried. May was
directed to sit on the ground next to the front driver’s side tire of Officer DeGeorge’s patrol
car.
¶4. As May sat on the ground, Officer DeGeorge noticed that he was acting “extremely
nervous” and was “[e]xtremely fidgety.” Officer DeGeorge observed that May held onto his
right shoe and looked down at it if anyone talked to him or he thought anyone was looking
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at him. Officer DeGeorge asked May if he had anything illegal in his possession. May said
no. According to Officer DeGeorge, he then asked May if he would mind removing his
shoes. Officer DeGeorge testified that May said he did not mind and took off his shoes. A
Zippo lighter fell out of one of his shoes. Officer DeGeorge picked up the lighter to examine
it. He testified: “[W]ith a Zippo, you can actually pull the center out to refill it. And so I
did so. And a plastic bag containing marijuana, a small amount of marijuana[,] and a small
amount of crack cocaine fell out of the center of that.” May was arrested. At the police
station, he gave a voluntary statement, admitting that the cocaine and marijuana were his.
¶5. May was indicted in the Harrison County Circuit Court for possession of one-tenth
but less than two grams of cocaine under Mississippi Code Annotated section 41-29-
139(c)(1)(B) (Supp. 2016). He proceeded to trial and was allowed to represent himself with
the assistance of standby counsel. Prior to trial, May filed a pro se motion to suppress. It
stated: “I am request[ing] . . . [Investigator] David Elliott . . . of the Biloxi Police
Department to suppress all evidence on case num. 10-025337[,] . . . possession of a
controlled substance to wit crack[] cocaine/cell phone[]s . . . [—] the items . . . that w[ere]
tak[e]n the [night] of Nov. 3[,] 2010.” After conducting a hearing, the circuit court denied
May’s motion to suppress. The jury found May guilty as charged. He was sentenced as a
habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life in
the custody of the Mississippi Department of Corrections. May appeals, arguing his
conviction and sentence should be reversed because the search of the lighter violated the
Fourth Amendment.
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STANDARD OF REVIEW
¶6. We apply a mixed standard of review to Fourth Amendment issues. Cook v. State,
159 So. 3d 534, 537 (¶6) (Miss. 2015). The existence of probable cause or reasonable
suspicion is reviewed de novo. Id. “But the de novo review is limited to the trial court’s
‘decision based on historical facts reviewed under the substantial evidence and clearly
erroneous standards.’” Id. (quoting Dies v. State, 926 So. 2d 910, 917 (¶20) (Miss. 2006)).
DISCUSSION
¶7. May raises one issue on appeal: whether the search of the lighter that fell from his
shoe violated the Fourth Amendment. “The Fourth Amendment of the U[nited] S[tates]
Constitution and Article 3, Section 23 of the Mississippi Constitution guarantee a person’s
right to be free from unreasonable searches and seizures.” Cooper v. State, 145 So. 3d 1164,
1168 (¶10) (Miss. 2014). “As a general rule, our state and federal Constitutions prohibit
searches without a valid warrant unless an exception applies.” Galloway v. State, 122 So.
3d 614, 669 (¶182) (Miss. 2013). The State bears the burden to show that a warrantless
search falls under one of the permissible exceptions. Id. If no exception is found, the
evidence seized as a result of the search “should be suppressed as fruit of the poisonous tree.”
State v. Woods, 866 So. 2d 422, 427 (¶16) (Miss. 2003). “A search is not unreasonable when
it is based on probable cause.” Walker v. State, 881 So. 2d 820, 827 (¶15) (Miss. 2004).
¶8. One exception to the warrant requirement is consent. Galloway, 122 So. 3d at 669
(¶182). Also excepted from the warrant requirement are items within a police officer’s plain
view or plain feel. Ferrell v. State, 649 So. 2d 831, 833-34 (Miss. 1995) (plain view); Gales
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v. State, 153 So. 3d 632, 639 (¶17) (Miss. 2014) (plain feel). The State asserts May
consented to the search that resulted in his conviction, and, even if he did not, May’s
behavior created probable cause for the search, rendering his consent unnecessary. The State
further argues that May has waived his arguments regarding these issues, as they were not
specifically raised in his motion to suppress.
1. Consent
¶9. To provide an exception to the warrant requirement, a person’s consent to search must
be knowing and voluntary. Moore v. State, 933 So. 2d 910, 916 (¶19) (Miss. 2006). For
consent to be given knowingly, “the person searched must be aware he has the legal right to
refuse.” Id. Voluntariness is determined from the totality of the circumstances. Graves v.
State, 708 So. 2d 858, 863 (¶24) (Miss. 1997). Factors to consider are
whether the circumstances were coercive, occurred while in the custody of law
enforcement or occurred in the course of a station house investigation. The
court must also look to the individual’s maturity, impressionability, experience
and education. Further, the court should consider whether the person was
excited, under the influence of drugs or alcohol, or mentally incompetent. If
the consent occurred while the defendant was being generally cooperative, the
consent is more likely to be voluntary; however, if the defendant agreed and
then changed his mind, the consent should be suspect.
Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226-28 (1973)). “[W]here consent is
given, the State is not required to demonstrate knowledge; rather, ‘the burden is on the
defendant to show impaired consent or some diminished capacity.’” Moore, 933 So. 2d at
916 (¶20) (quoting Jones v. State, 607 So. 2d 23, 29 (Miss. 1991)).
¶10. May argues his consent was involuntary under the circumstances—he was afraid
because he had just seen his companion arrested, and he was sitting on the side of the
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interstate with no way to leave. For these same reasons, May argues that he was subjected
to a custodial interrogation, as he was in a custodial situation when Officer DeGeorge asked
him to remove his shoe, and he was not read his rights under Miranda v. Arizona, 384 U.S.
1121, 1125 (1966), rendering the questioning illegal. However, according to Officer
DeGeorge’s testimony, May was not under arrest or being detained for any reason when he
was asked to remove his shoe. Rather, he was sitting on the ground because his driver’s
license was suspended and he could not lawfully drive the vehicle in which he had been
riding. As Officer DeGeorge testified, “Because we arrested the driver . . . [and] Mr. May
. . . [had] a suspended driver’s license, . . . he wasn’t able to leave at that point.” According
to May’s own statements, he was allowed to use his cell phone to make calls to look for a
ride as he sat on the ground. The record shows that Officer DeGeorge did not appear
concerned with May at this point. Officer DeGeorge testified he did not recall whether May
had his phone or whether he was making calls, as Officer DeGeorge was “dealing with” the
driver, who was under arrest, and “[the driver’s] narcotics,” and he was making phone calls,
“notifying the investigators and the supervisors and such.”
¶11. As May points out on appeal, practically speaking, it may have been difficult for him
to leave the scene, as it was the middle of the night and the traffic stop occurred on the
interstate. But there was no testimony to this effect. Nor was there any testimony that
Officer DeGeorge used coercive tactics to detain May or make May remove his shoe. May
bore the burden to prove his consent was involuntary. He has provided no such proof.
Rather, the evidence showed May was being generally cooperative and was allowed to sit
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with minimal supervision to use his phone. Based on the facts presented, we find May
voluntarily consented to the removal of his shoe.
¶12. We must next examine whether May’s voluntary consent to remove his shoe extended
to the search of the lighter that fell from his shoe. The State argues, and the dissent agrees,
that May’s consent and voluntary removal of his shoe imputed consent to search all items
contained in May’s shoe. The State and dissent cite Gales in support of their assertion.
¶13. In Gales, 153 So. 3d at 636 (¶2), two individuals robbed a convenience store at
gunpoint and then fled. A police officer saw a man, later identified as Brandon Gales, who
met the description of one of the suspects, running down a street near the store. Id. at (¶4).
Gales tried to make it look as if he was walking when he saw the officer. Id. The officer
approached him. Id. Because he had reason to suspect that Gales possessed a weapon, the
officer frisked Gales for safety reasons. Id. at 640 (¶19). The officer felt an unknown bulge
in Gales’s back pocket. Id. at 636 (¶4). The officer asked Gales what was in his pocket. Id.
at (¶5). Gales voluntarily removed wads of cash. Id. at 642 (¶27). On appeal, Gales argued
that the officer exceeded the scope of Terry v. Ohio, 392 U.S. 1 (1968), by asking him to
remove an item from his pocket that the officer knew was not a weapon. Id. at 639 (¶17).
However, the Mississippi Supreme Court noted that “since Terry, the U.S. Supreme Court
has held repeatedly that mere police questioning does not constitute a seizure.” Id. at (¶18)
(quoting Florida v. Bostick, 501 U.S. 429, 434 (1991)). The supreme court further found that
“once police are lawfully in a position to observe an item first-hand, its owner’s privacy
interest in that item is lost.” Id. at 642 (¶30) (quoting Illinois v. Andreas, 463 U.S. 765, 771
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(1983)). Thus, “[b]ecause Gales voluntarily showed [the officer] the money, Gales no longer
had a ‘reasonable expectation of privacy’ as to the money under the Fourth Amendment,” and
the seizure was legal. Id. at 639 (¶17).
¶14. This case is distinguishable from Gales. When Gales voluntarily removed the cash
from his pocket, it was immediately viewable as incriminating because the officer was
looking for an armed-robbery suspect matching Gales’s description who had stolen cash.
And Gales voluntarily showed the officer the cash, removing any reasonable expectation of
privacy. Here, however, when May voluntarily removed his shoe, only the lighter was
revealed. There was no testimony that the lighter was inherently incriminating or illegal, that
the lighter was a weapon or could contain a weapon, or that Officer DeGeorge was concerned
for his safety because of the lighter. Thus, unless the scope of May’s consent to remove his
shoes extended to a search of the interior of the lighter, the search of the lighter was illegal.
¶15. The scope of consent under the Fourth Amendment is examined for “objective
reasonableness.” O’Donnell v. State, 173 So. 3d 907, 914 (¶13) (Miss. Ct. App. 2015). We
must ask ourselves: “[W]hat would the typical reasonable person have understood by the
exchange between the officer and the suspect?” Id. (quoting Florida v. Jimeno, 500 U.S.
248, 251 (1991)). We cannot find that a typical reasonable person would have understood
a request to remove a person’s shoes as a request to search the contents of any object
contained in the shoes. As applied to the facts here, we cannot find that by consenting to
remove his shoes, May would have understood that he was consenting to Officer DeGeorge
taking apart and searching the lighter that fell from his shoe. Rather, we find the scope of
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May’s consent only extended to the contents of the shoe that were plainly viewable as
incriminating or dangerous. Because Officer DeGeorge had no basis to search the lighter and
May had not consented to the search of the lighter, May retained a reasonable expectation
of privacy in its contents. Without May’s consent, the State was required to prove probable
cause or another exception to the warrant requirement for the contents of the lighter to be
admissible under the Fourth Amendment.
2. Probable Cause
¶16. May asserts that Officer DeGeorge’s search of the lighter was not reasonably related
to the scope of the initial stop nor was probable cause to search the lighter developed during
the stop. See Terry, 392 U.S. at 20. A search is reasonable under Terry when: (1) “the
officer’s action was justified at its inception,” and (2) “it was reasonably related in scope to
the circumstances which justified the interference in the first place.” Id. Under the first
factor, May concedes the careless-driving traffic stop was justified. He also concedes that
Officer DeGeorge had the right to conduct a pat-down search for weapons. But he argues
that under the second factor, the scope of the search went beyond that allowed by Terry, and
no probable cause was created during the stop for the warrantless search.
¶17. We agree that the scope of the search was not reasonably related to the circumstances
warranting the interference—the traffic stop. At the time May was asked to remove his shoe,
the traffic stop had been completed, and the driver was under arrest. Officers were making
arrangements for the vehicle to be inventoried and towed. Therefore, our analysis is limited
to whether Officer DeGeorge had probable cause to determine that May was involved in
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illegal activity.
¶18. Probable cause for a warrantless search “exists where the facts and circumstances
within the arresting officer’s knowledge and of which [he] had reasonably trustworthy
information are sufficient in themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed.” Walker, 881 So. 2d at 827 (¶15). “A
collection of actions which, individually, are subject to innocent explanation may be
sufficient to create reasonable suspicion under the totality of the circumstances.” Anderson
v. State, 864 So. 2d 948, 951 (¶13) (Miss. Ct. App. 2003) (citing United States v. Arvizu, 534
U.S. 266, 274 (2002)). “However, mere hunches or ‘looking suspicious’ is not sufficient to
establish reasonable suspicion.” Id. (citing Brown v. Texas, 443 U.S. 47, 52 (1979)).
¶19. As the supreme court has explained:
[Probable cause] is not what some officer thought[;] it is not some conduct that
was simply unusual, not some conduct which simply roused the suspicion that
illegal activity could be afoot when there was at the same time just as likely a
possibility that nothing at all illegal was transpiring. Rather, it must be
information reasonably leading an officer to believe that then and there
contraband or evidence material to a criminal investigation would be found.
Rooks v. State, 529 So. 2d 546, 555 (Miss. 1988).
¶20. Officer DeGeorge testified at the suppression hearing as follows regarding his
observations of May’s behavior:
Q. And what, if anything, did you observe about Mr. May as he was sitting
there in front of your vehicle?
A. Mr. May was extremely nervous. Extremely fidgety. He continued to
keep holding on to his right shoe, kept looking down at it anytime
anybody was talking to him or if he thought somebody was looking at
him. I made note of that.
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Q. And what did his demeanor tell you from your experience as a police
officer?
A. Usually when people start looking at things or putting their hand in
their pockets or a certain pocket, they are trying to conceal something
or hide something.
Q. And what did you do then?
A. I asked Mr. May if he had anything illegal on him. He told me no. I
asked him if he would mind taking his shoes off. He said, no. He took
his shoes off and a Zippo lighter fell out.
¶21. At trial, Officer DeGeorge testified as follows:
Q. What was [May]’s demeanor as he was removed from the vehicle and
sitting on the ground in front of your patrol vehicle?
A. . . . I noticed that he continued to stare at his right shoe. He started
reaching and grabbing for it as if he was trying to hide something.
Anytime somebody would look at it, he would hold it. If somebody
wasn’t looking at him, he would hold it and kind of look at it. It kind
of brought my attention, obviously, to his right shoe.
Q. And based on your training and experience, what did . . . his actions
suggest to you?
A. Normally if people are—if they will stick their hand in their pocket,
say, their right pocket, but their other hand is not in a pocket, they are
usually trying to conceal something in the pocket. Especially if they
look down at their hand. Most of the time, if something is illegal, such
as narcotics or weapons, it’s almost as if they’re touching it that it
doesn’t exist and you can’t see it.
¶22. We cannot find probable cause existed for a search based on Officer DeGeorge’s
testimony. Officer DeGeorge merely testified that he became suspicious that May could have
something illegal in his shoe because May acted nervous and looked at and held onto his
right shoe as he sat on the ground. But to establish probable cause, an officer must have
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“information reasonably leading [the] officer to believe that then and there contraband or
evidence material to a criminal investigation would be found.” Rooks, 529 So. 2d at 555.
Officer DeGeorge guessed that May could be in possession of something illegal. But this
alone is insufficient to establish probable cause. As stated, “mere hunches or ‘looking
suspicious’ is not sufficient to establish reasonable suspicion.” Anderson, 864 So. 2d at 951
(¶13).
¶23. We find the facts here analogous to the following cases, in which no probable cause
was found under the plain-view or plain-feel doctrine for containers that typically hold
innocuous materials. In Anderson, 864 So. 2d at 949 (¶2), a police officer conducted a traffic
stop at approximately 11:30 p.m. The defendant, Carl Anderson, was asked to exit the
vehicle. Id. at (¶3). Anderson acted nervous, and the officer could see a plastic bag sticking
out of Anderson’s pants. Id. The officer testified he could not see the contents of the bag,
nor did he believe the bag itself to be dangerous. Id. at 950 (¶9). But the officer thought the
bag looked “out of place.” Id. at 951 (¶12). He pulled Anderson’s pants away from his body
and could see the plastic bag contained what appeared to be cocaine. Id. at 949-50 (¶3). In
holding the search was illegal, we found that “[t]hough crack cocaine may quite often be
carried in plastic bags, and though having a plastic bag inside one’s pants may be unusual,
neither consideration creates probable cause to believe that there was cocaine.” Id. at 951
(¶12). We noted the officer’s somewhat ambiguous testimony that he thought he saw residue
higher on the bag, which “was possibly crack cocaine.” Id. at 950 (¶10). But we found that
even “[o]bserving the powdery substance itself did not create probable cause.” Id. at 950-51
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(¶10).
¶24. In Anderson v. State, 16 So. 3d 756, 758 (¶3) (Miss. Ct. App. 2009), officers observed
a handgun inside a home on a table near a known felon. Jamie Anderson, who was also in
the home, was frisked for weapons. Id. at (¶4). In patting down Anderson, no weapons were
found, but the officer felt a pill bottle, which he believed to contain methamphetamine. Id.
“The issue that follow[ed] [was] whether [the officer] had probable cause to believe that
what he felt in Anderson’s pants at the time of the pat-down search actually contained
contraband.” Id. at 760 (¶11). While the officer “assumed” the pill bottle contained drugs,
“[t]here [wa]s no testimony in the record that pill bottles found in pants’ pockets normally
contain illegal contraband.” Id. We found that under the plain-view doctrine, “the
contraband must itself be in plain view” to establish probable cause and provide an exception
to the warrant requirement. Id. at 761 (¶12) (quoting Ferrell, 649 So. 2d at 833). Because
the contents of the pill bottle were “not immediately apparent as contraband,” “the seizure
of the contraband from a pill bottle in Anderson’s pocket fit[] neither the ‘plain-view’ nor
the ‘plain-feel’ exceptions to the warrant requirement” and was illegal. Id. at (¶¶13-14).
¶25. In a similar case, Ferrell, 649 So. 2d at 834, the supreme court found no exception to
the warrant requirement for the search of a matchbox. Ray Ferrell was arrested for speeding
and driving with a suspended license. Id. at 832. Ferrell was frisked and placed in the back
of the officer’s patrol car. Id. Upon Ferrell’s request, one of the officers went to retrieve
Ferrell’s keys from his vehicle. Id. The officer saw a matchbox on the passenger seat next
to the keys. Id. From his experience, the officer knew narcotics were often carried in
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matchboxes. Id. The officer picked up the matchbox, revealing a yellow pill. Id. He opened
the matchbox, and it contained only matches. Id. The officer then saw a second matchbox
between the two front seats. Id. The officer opened it and discovered nine rocks of crack
cocaine. Id. at 832-33. The supreme court found the search impermissible under the plain-
view doctrine. Id. at 833-34. The supreme court stated that “[t]he plain[-]view exception
is intended to allow police officers to seize incriminating items that are discovered in the
course of their legitimate law enforcement activities, not to justify warrantless, exploratory
searches of containers that purport to contain innocuous materials.” Id. at 834 (internal
citations omitted) (quoting United States v. Villarreal, 963 F.2d 770, 776 (5th Cir. 1992)).
“[A] container cannot be opened unless its contents are in plain view or they can be inferred
from the container’s outward appearance.” Id. (quoting United States v. Sylvester, 848 F.2d
520, 525 (5th Cir. 1988)).
¶26. Here, like the foregoing cases, Officer DeGeorge could not articulate anything more
than speculation that May might have had something illegal in his possession. When the
lighter fell from May’s shoe, nothing illegal came into plain view or could be inferred from
the lighter’s outward appearance. Nor did the testimony show that there was anything
inherently dangerous about the lighter that would have justified a search for officer safety.
Finally, there was no testimony that Officer DeGeorge’s handling of the lighter led him to
believe under the plain-touch doctrine that something illegal may be inside. Under the
totality of the circumstances and based on our de novo review of the facts established at trial,
we find no substantial basis for the establishment of probable cause and no exception to
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justify Officer DeGeorge’s warrantless search of the contents of the lighter.
¶27. Because Officer DeGeorge lacked probable cause for the search of the lighter and no
exception to the warrant requirement applied, his search of the lighter was a Fourth
Amendment violation. It follows that the cocaine seized as a result of the search should have
been suppressed. With no evidence to support May’s possession-of-cocaine conviction, the
conviction must be reversed and rendered.
3. Waiver
¶28. The State argues “several of the issues raised,” including May’s assertions of lack of
consent and improper custodial interrogation, are procedurally barred because they were not
“sufficiently raised” in May’s general motion to suppress. See Evans v. State, 725 So. 2d
613, 638 (¶48) (Miss. 1997) (stating that the failure to raise an issue at trial procedurally bars
the issue on appeal).
¶29. In addressing this assertion, we must consider that May filed his motion to suppress
pro se and proceeded pro se at trial with standby counsel. May’s standby counsel did not
assist at the suppression hearing or during the questioning of Officer DeGeorge at trial.
“While pro se litigants are afforded some leniency, they must be held to substantially the
same standards of litigation conduct as members of the bar.” Sumrell v. State, 972 So. 2d
572, 574 (¶6) (Miss. 2008). But a pleading filed by a pro se person “is held to less stringent
standards than formal pleadings drafted by lawyers.” Terrell v. State, 573 So. 2d 732, 733
(Miss. 1990). When a person is proceeding pro se, we will not find a “meritorious complaint
. . . lost because [it was] inartfully drafted.” Id.
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¶30. Although inartfully drafted, we find May’s motion to suppress was sufficient to
preserve this issue for review. And, even if it was not, we find review for plain error
appropriate. “The plain-error doctrine is implicated when an error at trial affects substantial
rights and results in a manifest miscarriage of justice.” Hearn v. State, 3 So. 3d 722, 736
(¶36) (Miss. 2008). Plain error may be found where the trial court fails “to properly evaluate
evidentiary matters.” Id. “Plain[-]error [review] is also appropriate where there is a violation
of constitutional rights.” Id. May’s right to be free from an illegal search and seizure is a
constitutional right under the Fourth Amendment, and the admission of the cocaine into
evidence was an evidentiary matter, which we find was not properly reviewed by the trial
court. Thus, the issues raised, even if waived, are proper for plain-error review. May’s
conviction is reversed and rendered.
¶31. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR AND GREENLEE, JJ.,
CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE
WRITTEN OPINION.
CARLTON, J., DISSENTING:
¶32. I respectfully dissent from the majority’s opinion. I find that May consented to
remove his shoe and, in so doing, voluntarily revealed to Officer DeGeorge the cigarette
lighter concealed inside the shoe. As a result, I find that Officer DeGeorge’s search of May’s
cigarette lighter and seizure of the cocaine inside the lighter failed to violate May’s Fourth
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Amendment rights. For these reasons, I would affirm the circuit court’s denial of May’s
motion to suppress and would affirm May’s conviction.
¶33. After arresting the vehicle’s driver and discovering that May’s driver’s license was
suspended, Officer DeGeorge concluded that the vehicle would have to be towed. Officer
DeGeorge therefore asked May to exit the vehicle and sit on the ground so officers could
inventory the vehicle’s contents before the vehicle was towed. Officer DeGeorge testified
that May was not yet in custody when he asked May to exit the vehicle and sit on the ground.
However, Officer DeGeorge further stated that it was not safe for the officers to inventory
the vehicle while someone was still inside the car.
¶34. Although May was not yet in custody, Officer DeGeorge noticed that May acted
extremely nervous and fidgety. According to Officer DeGeorge’s testimony, May kept
grabbing and holding onto his right shoe as though he were trying to hide something.
Whenever anyone spoke to May or looked in his direction, Officer DeGeorge observed that
May would grab and hold onto his right shoe. Due to May’s behavior, Officer DeGeorge
asked whether May had anything illegal in his possession. After May answered that he did
not, Officer DeGeorge asked May whether he would mind taking off his shoes. Officer
DeGeorge testified that May consented to the request.
¶35. As May voluntarily took off his shoe, a Zippo cigarette lighter fell to the ground.
Officer DeGeorge testified that the center part of Zippo cigarette lighters come out so that
a person can refill the lighter. When Officer DeGeorge pulled out the center part of May’s
cigarette lighter, he found two small plastic bags containing marijuana and crack cocaine.
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After discovering the narcotics, Officer DeGeorge arrested May and searched May’s person.
Upon arriving at the police station, May waived his constitutional rights and gave a
statement. During his statement, May admitted that the cocaine and marijuana belonged to
him. Testing later revealed that May’s cigarette lighter had contained 0.3 grams of cocaine.
¶36. May was subsequently indicted and charged with “knowingly, willfully, unlawfully[,]
and feloniously possess[ing] 0.1 grams or more but less than 2.0 grams of cocaine, a
Schedule II Controlled Substance[.]” See Miss. Code Ann. § 41-29-139(c)(1) (Rev. 2013).
The indictment further charged that May was a habitual offender under Mississippi Code
Annotated section 99-19-83 (Rev. 2015) and had been previously convicted of the following
felonies: (1) burglary in cause number B2402-2007-00714, with a sentence of five years in
the custody of the Mississippi Department of Corrections (MDOC); (2) unlawful possession
of a firearm or a weapon by a convicted felon in cause number B2402-2003-622, with a
sentence of three years in MDOC’s custody; and (3) attempted robbery, a crime of violence,
in cause number 91-7245, with a sentence of fifteen years in MDOC’s custody.
¶37. Prior to his trial, May moved to suppress the evidence of the cocaine found in his
lighter during the traffic stop. However, the circuit court denied May’s pretrial motion and
allowed the State to introduce the evidence during the trial. After considering the evidence
and testimony presented at trial, the jury found May guilty of possession of a controlled
substance. The circuit court sentenced May, as a habitual offender, to life in MDOC’s
custody without the possibility of parole or probation. May filed an unsuccessful motion for
a new trial or, in the alternative, a judgment notwithstanding the verdict. Aggrieved by his
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conviction and sentence, May now appeals to this Court.
¶38. On appeal, May asserts no dispute that probable cause existed for Officer DeGeorge’s
initial traffic stop. Nor does May challenge Officer DeGeorge’s right to conduct a pat down
of May for the safety of Officer DeGeorge and the other police officers. Instead, May asserts
that Officer DeGeorge’s search of his cigarette lighter and seizure of the cocaine inside the
lighter violated the Fourth Amendment. As a result, May argues the circuit court erred by
denying his pretrial motion to suppress the evidence of the cocaine found in his lighter.
¶39. According to May’s argument, Officer DeGeorge’s search was unreasonable, lacked
probable cause, and occurred without valid consent. Specifically, May argues Officer
DeGeorge’s search was not reasonably related to the scope of the initial traffic stop and was
not justified by probable cause developed during the traffic stop. Furthermore, May contends
Officer DeGeorge lacked valid consent to search the lighter. May therefore asks this Court
to either reverse and render his conviction or to remand the case for a new trial.
¶40. With regard to the applicable standard of review, the Mississippi Supreme Court has
previously stated:
When reviewing a trial court’s denial of a motion to suppress, [the appellate
court] adopts a mixed standard of review. Determinations of reasonable
suspicion and probable cause are reviewed de novo. However, [the appellate
court] should take care both to review findings of historical fact only for clear
error and to give due weight to inferences drawn from those facts by resident
judges and local law enforcement officers. Thus, [the appellate court] is
restricted to a de novo review of the trial judge’s findings using the applicable
substantial evidence/clearly erroneous standard. Finally, [the appellate court]
reviews the admission or exclusion of evidence for abuse of discretion.
Gillett v. State, 56 So. 3d 469, 482 (¶21) (Miss. 2010) (internal citations and quotation marks
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omitted).
¶41. I also acknowledge that this case addresses the discovery of incriminating evidence
found upon May’s voluntary removal of his shoe and the revelation to Officer DeGeorge of
the lighter concealed within the shoe. As our caselaw establishes, the voluntariness of one’s
consent to a search is a question of fact to be determined from the surrounding
circumstances. See Gilbreath v. State, 783 So. 2d 720, 723 (¶6) (Miss. Ct. App. 2000).
¶42. “The Fourth Amendment to the United States Constitution and Article 3 Section 23
of the Mississippi Constitution provide that an individual has the right to be free from
unreasonable searches and seizures.” Shelton v. State, 45 So. 3d 1203, 1208 (¶10) (Miss. Ct.
App. 2010) (citing Dies v. State, 926 So. 2d 910, 917-18 (¶21) (Miss. 2006)). “The action
of an officer stopping a vehicle is reasonable when there is ‘probable cause to believe that
a traffic violation has occurred.’” Lee v. State, 100 So. 3d 982, 984-85 (¶9) (Miss. Ct. App.
2012) (quoting Whren v. United States, 517 U.S. 806, 810 (1996)). However, consent to a
search provides an exception to the requirement of a valid warrant or probable cause. Id. at
985 (¶10).
¶43. Although May raises no dispute that probable cause existed for Officer DeGeorge’s
initial traffic stop, I briefly address the issue. The record reflects that Officer DeGeorge
stopped the vehicle for careless driving after he observed the vehicle swerve on the interstate
and cross the fog line toward the median. As this Court has previously recognized, the
“failure to have regard for the width and use of the street by swerving off the side of the road
or crossing the marker lines constitutes probable cause for a traffic stop.” Henderson v.
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State, 878 So. 2d 246, 247 (¶8) (Miss. Ct. App. 2004). Thus, under the circumstances
presented, probable cause existed for Officer DeGeorge to execute a traffic stop and detain
the vehicle.
¶44. “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.” Gonzales v. State, 963
So. 2d 1138, 1141 (¶13) (Miss. 2007) (citation omitted). In addition, the United States
Supreme Court has “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?” Id.
at 1141-42 (¶13) (citations and internal quotation marks omitted). During a proper
investigative stop, if a police officer “develops reasonable, articulable suspicion of some
criminal activity in addition to . . . that initially suspected, the permissible scope of the stop
expands to include the officer’s investigation of the newly suspected criminal activity.” Tate
v. State, 946 So. 2d 376, 382 (¶18) (Miss. Ct. App. 2006) (citing United States v. Kye Soo
Lee, 898 F.2d 1034, 1040 (5th Cir. 1990)).
¶45. In the present case, Officer DeGeorge was able to reasonably articulate the behavior
that led him to suspect “some criminal activity in addition to . . . that initially suspected[.]”
Id. Officer DeGeorge testified that he noticed May acting extremely nervous and fidgety as
he sat on the ground. Specifically, Officer DeGeorge observed that May appeared
preoccupied with his right shoe and constantly grabbed the shoe whenever anyone spoke to
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him or looked at him. Based on his experience and training as a police officer, Officer
DeGeorge testified that May’s behavior indicated that May was attempting to hide something
in his shoe. According to Officer DeGeorge’s testimony, May voluntarily consented to
remove his shoes. On appeal, the State argues this indicates May also consented to the search
of the cigarette lighter that fell out of his shoe.
¶46. In addition to arguing that he never consented to the search of the lighter, May
contends that Officer DeGeorge’s search of the lighter was an illegal attempt to find evidence
without probable cause. May asserts that, at the time the cigarette lighter fell to the ground,
Officer DeGeorge had completed his “safety search” of May. Therefore, because the lighter
was a closed container and was neither a weapon nor contraband, May argues that the
ensuing search of his lighter was unreasonable and lacked probable cause.
¶47. In addressing May’s assignment of error, I again emphasize that “consenting to a
search is an exception to the requirement that searches are to be conducted pursuant to a valid
warrant or probable cause.” Lee, 100 So. 3d at 985 (¶10) (citing Jackson v. State, 418 So.
2d 827, 830 (Miss. 1982)). I also recognize that, “[w]hether a person voluntarily consents
to a search is a question of fact to be determined by the total circumstances.” Moore v. State,
933 So. 2d 910, 916 (¶20) (Miss. 2006) (citation and internal quotation marks omitted). In
Gales v. State, 153 So. 3d 632, 639 (¶17) (Miss. 2014), our supreme court recognized that
a defendant lacked a reasonable expectation of privacy with regard to incriminating evidence
contained in his pocket when he voluntarily took the item out of his pocket and showed it to
law-enforcement officers. With respect to the present case, I find the supreme court’s
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holding in Gales controlling.
¶48. In Gales, a police officer was in pursuit of an armed-robbery suspect when he
encountered the defendant. Id. at 640-41 (¶19). The officer had reason to suspect that Gales
possessed a weapon, and he therefore conducted a search of Gales’s person. Id. at 641 (¶19).
Even though the officer felt no weapon, he did feel an unknown bulge in Gales’s back
pocket. Id. Although concerned for his safety, the officer did not search Gales’s pockets.
Id. Instead, the officer testified that he asked Gales what was in his pocket. Id. The officer
further testified that Gales voluntarily emptied his pockets, showing the officer the money
in his pocket and claiming that he had won the money while gambling. Id.
¶49. Prior to his trial for armed robbery and conspiracy to commit armed robbery, Gales
argued the officer’s search was unreasonable, and he unsuccessfully tried to suppress all
evidence seized as a result of the search. Id. at 637 (¶10). In upholding the trial court’s
finding that the officer performed a constitutional search, the supreme court stated, “Because
Gales voluntarily showed [the officer] the money, Gales no longer had a ‘reasonable
expectation of privacy’ as to the money under the Fourth Amendment.” Id. at 639 (¶17)
(quoting Katz v. United States, 389 U.S. 347, 359 (1967) (Harlan, J. concurring)).
¶50. In the present case, May consented to the removal of his shoe, which led him to
voluntarily reveal to Officer DeGeorge the cigarette lighter concealed within the shoe. The
record reflects substantial evidence to support the circuit court’s factual finding that May
consented to Officer DeGeorge’s search. The record also reflects that May’s behavior
created probable cause for the search, thereby rendering consent unnecessary. Like the
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defendant in Gales, May lacked any reasonable expectation of privacy as to the incriminating
evidence that he voluntarily revealed by removing his shoe. See id. As a result, I find no
merit to May’s claims that Officer DeGeorge’s search of his cigarette lighter and seizure of
the cocaine inside the lighter violated the Fourth Amendment. I therefore would find no
abuse of discretion in the circuit court’s denial of May’s motion to suppress. See Gillett, 56
So. 3d at 482 (¶21). Accordingly, I respectfully dissent from the majority’s opinion and
would affirm the circuit court’s judgment of conviction against May.
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