In 2003, Lisa White was stopped by Officer Scott Fulwood at 9:30 p.m. because she did not have a tag light. Fulwood noticed the smell of alcohol when he approached the vehicle. It was a cold night, and Fulwood asked White to accompany him to his vehicle where he could administer a breathalyzer test. White registered below the legal limit. Fulwood continued to question White for approximately twenty minutes.
Fulwood testified that White was “extremely fidgety”and “overly nervous.” Based on her nervous behavior, Fulwood asked White if he could search her car for narcotics and weapons. White consented to the search, and they got out of Fulwood’s patrol car.
Before searching White’s car, Fulwood testified that he decided to search White for safety precautions. Fulwood conducted a pat down search of White for weapons. White became evasive when Fulwood attempted to search the inside pocket of her jacket. Eventually, White produced a small case or pouch from the pocket which contained a substance later to be determined as cocaine. The cocaine found in the jacket was the underlying cause of the indictment.
Prior to trial, White moved to suppress the cocaine arguing that it was found due to an illegal search. The trial court found that the search was not reasonable given the interval of time that Fulwood waited to search White.
Under Mississippi Code Annotated section 99-35- 103(b)(Rev. 2000), the State can appeal from a judgment actually acquitting the defendant where a question of law has been decided adversely to the state but in such case, the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed. (Why appeal in this case if Ms. White cannot be tried again? The prosecutor may have been concerned about the precedent this ruling would have, etc.).
MCOA reversed the trial court.
The U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1, 27 (1968), said that reasonable suspicion is all that is required to stop and frisk. Although such stops and limited searches may be permissible under the particular circumstances at their inception, they may become violative of the Fourth Amendment by exceeding the permissible scope.
The key question is whether reasonable suspicion existed after Fulwood’s twenty minute conversation with White. Fulwood’s suspicions were clearly not dispelled after questioning White. He testified that White continued to act “extremely fidgety” and “overly nervous” after she passed the breathalyzer test. Based on Fulwood’s experience, such behavior was not normal under the circumstances.
Fulwood testified that he had genuine concerns for his safety. He stopped White at approximately 9:30 p.m. Fulwood was the only officer on the scene. His vehicle did not have a “cage” capable of containing White while he searched her vehicle. White would be unattended while Fulwood conducted the vehicle search. Fulwood testified that he was concerned about turning his back from White while searching her vehicle. Fulwood’s concerns were reasonable and valid.
The search of White was legal. Although the cocaine was not the point of Fulwood’s search in the first place, such chance discovery does not require suppression.
Fulwood did not discover the cocaine by exceeding the scope of the permissible search. He did not discover it by prying into objects which could not have reasonably held a weapon, such as a match box or small flat envelope.
Fulwood stopped White because her tag light was out. White continued to act suspicious after she passed the breathalyzer test. Finally, White’s evasive behavior during the pat down search furthered Fulwood’s suspicion prompting his search of her jacket pocket where he discovered the cocaine.
Therefore, under the totality of the circumstances, the discovery and seizure of the cocaine were proper. The trial court erred in sustaining the motion to suppress and consequently dismissing the indictment. Accordingly, we reverse.