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A parolee has a lesser expectation of privacy

Facts

In 2004, John Purser, a field officer with the Mississippi Department of Corrections, received an anonymous tip stating that Corey Barlow was living on Beard Road in Lincoln County and that he and Thomas McWilliams were in possession of a large amount of drugs. In an effort to confirm the information, Officer Purser contacted the Lincoln County Sheriff’s Department and asked it to assist him in locating Barlow. Purser and officers from the Sheriff’s Department went to the residence on Beard Road; however, no one was there.

The next day Purser received a second anonymous tip informing him that Barlow would be going to the residence on Beard Road sometime that afternoon and that drugs would likely be in his vehicle and residence. During this time, Barlow was on parole for possession of marijuana with intent to distribute. Purser attempted to contact Barlow’s field officer, Tanya Thompson; however, she was not available. As a result, Purser spoke with Greg Ferrell, a field officer in Copiah County, who informed him that Barlow had previously failed drug tests.

Purser and officers from the Sheriff’s Department returned to the Beard Road residence, and again Barlow was not there. Officers from the Sheriff’s Department then set up a roadblock on the road that leads to Barlow’s residence. About an hour later, Barlow and McWilliams approached the roadblock. Purser was positioned at the opposite end of the road from where Barlow entered the roadblock, but he quickly went to where Barlow had been detained. Barlow and McWilliams were asked to exit the vehicle, and while McWilliams was doing so, drugs fell out of the car. McWilliams also had approximately two thousand dollars on his person.

Major Dustin Barefield stated that he read Barlow and McWilliams their Miranda rights after the drugs fell from the car. Purser confirmed that Major Barefield read Barlow his rights. Barefield also testified that McWilliams claimed that the drugs belonged to Barlow and that Barlow agreed. He also stated that after he read Barlow his rights, he asked him whether he had any more drugs. Barlow then informed him that another bag of drugs was in the vehicle and that additional drugs could be found at his nearby residence.

Barefield stated that McWilliams and Barlow verbally consented to the search of the residence, and McWilliams later signed a consent to search form at the Sheriff’s Department. He also stated that Barlow agreed to lead the officers to the house where he told them that he had been residing for three weeks prior to this incident. Upon arriving at the residence, Barefield stated that Barlow led them to a room where he showed them a cabinet which contained what Barefield described as “a large sum of crack and powder cocaine.”

Barefield stated that he also found two “bricks of powder cocaine” which weighed about 2.2 pounds each. According to Barefield, several more bags of powder and crack cocaine were found in the residence. Barefield stated that Barlow then led the officers to what Barlow referred to as “his” bedroom, where he showed them yet more drugs. Barefield testified that they also found a handgun in Barlow’s bedroom.

He stated that Barlow implicated himself in the drug operation, stating that all of the items that had been recovered belonged to him and that selling drugs provided him with a means of income. Barefield also stated that the quantity of the drugs and the different ways in which they were packaged led him to conclude that Barlow was involved in the distribution of crack and powder cocaine. McWilliams and Barlow were arrested and taken into custody. Barefield estimated that the total street value of the drugs recovered from Barlow’s residence was approximately $345,730.

B.W. Pitts, a deputy with the Sheriff’s Department, also assisted with the investigation and testified for the State. Pitts testified that after Major Barefield read Barlow and McWilliams their rights, he placed Barlow in his patrol car and took him to the house. According to Pitts, while Barlow was in the car, they had a “conversation” wherein Barlow informed him that there would be “a lot of more drugs” in the house.

On cross-examination, Pitts was asked if he questioned Barlow on the way to the house, and he responded by stating that: “I just made a statement that if it was anymore there, you know, it’d be best to tell it. And then that’s when he said we was gonna find a lot.” Pitts did not participate in the search of the residence.

John Whitaker, a deputy with the Sheriff’s Department, was also present at the roadblock and assisted in arresting McWilliams and Barlow. Whitaker recalled a slightly different version of how the drugs were discovered when McWilliams exited the vehicle. He testified that he asked McWilliams to exit the vehicle and that when he attempted to perform a pat-down search, drugs fell out of McWilliams’s shirt. He notified Barefield, placed McWilliams in handcuffs, read him his rights, and placed him in the patrol car. Whitaker searched the vehicle and found another bag of what appeared to be cocaine. He stated that at that point Barlow said, “I’ve got more at the house and I’ll show you.”

The last witness the State called was the owner of the Beard Road residence, Charles Brown. McWilliams and Barlow are Brown’s nephews, and Brown allowed them to reside at the residence. He testified that McWilliams and Barlow were living at the residence at the time of this incident. On cross-examination, Brown testified that he did not give Barlow a key to the residence, but he also stated that he did not know if Barlow had a key.

The defense called three witnesses who stated Barlow lived at a different address.

Barlow was convicted of possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute and sentenced to 60 years. On appeal, he argued the roadblock was illegal and all evidence and statements should have been suppressed. MCOA affirmed.

Analysis

A. Roadblock

Barlow cited U.S. Supreme Court case Indianapolis v. Edmond, 531 U.S. 32, 44 (2000), for the proposition that roadblocks that are set up solely to trap drug offenders have been found to violate the Fourth Amendment. In Edmond, the City of Indianapolis instituted a vehicle checkpoint operation in which roadblocks were set up in an effort to interdict unlawful drugs. The United States Supreme Court held that the vehicle checkpoints violated the Fourth Amendment because their primary purpose was to advance the general interest in crime control.

Barlow fails to consider that because he is a parolee, he has a lesser expectation of privacy. While we recognize that the Fourth Amendment mandates that searches be reasonable, the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.

In Samson v. California, 547 U.S. 843 (2006), the United States Supreme Court held that parolees are on the continuum of state-imposed punishments. On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.

Further, in Robinson v. State, 312 So. 2d 15 (Miss. 1975), the MSC concluded that courts generally hold that although an inmate is released on parole, the parole authorities may subject him, his home and his effects, to inspection and search as may seem advisable to them. This issue lacks merit.

B. Statements

Officer Purser, Major Barefield, Deputy Pitts, and Deputy Whitaker all testified that Barlow admitted to owning the drugs that were recovered from the vehicle and that he agreed to lead them to the Beard Road residence and showed them where more drugs were located.

Barlow denies making the incriminating statements and argues the trial judge violated his constitutional rights by admitting them into evidence. Specifically, Barlow argues that he could not have voluntarily, knowingly, and intelligently waived his constitutional right to remain silent when he vehemently denies that his Miranda rights were read to him before he is alleged to have made statements, and when he adamantly denies that the statements attributed to him were ever made.

Further, Barlow argues that there was no need for the State to introduce the statements that he allegedly made since the trial judge had already upheld the warrantless search that resulted in his arrest.

The statements were freely given after Barlow had been informed of his rights. Thus, although he may not have explicitly waived his rights, he implicitly did so by continuing to talk after he had been advised that he was under no obligation to make any statements. This issue is without merit.

 

https://courts.ms.gov/Images/Opinions/CO49793.pdf