Any occupant of house can provide consent to search


On December 15 or 16, 1992, Tracy West left Pulaski, Tennessee on a road trip along with two of his friends, Paul Rathe and Scott Cothren. West did not know where they were going, and did not bring along any extra clothes because he did not realize that they would be gone for awhile. They were riding in a car that Rathe had stolen from a truck driver who lived in Pulaski.

They traveled to Alabama, where they robbed a convenience store and Cothren thereafter murdered the store clerk. On December 16, they then drove to Gulfport, Mississippi, where Cothren threatened to shoot Rathe and West if they did not rob another convenience store and kill the clerk. Rathe and West entered and robbed the cash drawer of the store. West then shot the clerk, Azra Garriga Kiker, and she died immediately.

Cothren, Rathe and West then proceeded to New Iberia, Louisiana, where they stopped to stay at the home of Mrs. Babineaux, who was the aunt of a friend of theirs. On December 20, Rathe and West were arrested in connection with a report that the car in which they were riding was stolen. Pursuant to these arrests, the law enforcement officers searched the Babineaux home and recovered a pistol that was later determined to be the weapon that killed Ms. Kiker. Cothren was arrested soon thereafter.

West was convicted of capital murder and sentenced to death. On appeal, he argued the house was searched illegally and his confession should have been suppressed. MSC affirmed on those grounds but resentenced him to life for unrelated reasons.


A. Search of house

West contends that the pistol should have been suppressed because the police failed to obtain a warrant before arresting him at his residence. In Payton v. New York, 445 U.S. 573 (1980), the U.S. Supreme Court held that the Fourth Amendment prohibits police from making felony arrests of people from within the confines of their homes unless they have an arrest warrant, absent exigent circumstances like a fleeing felon or imminent destruction of evidence.

In Minnesota v. Olson, 495 U.S. 91 (1990), the U.S. Supreme Court held that since Olson had a reasonable expectation of privacy in the residence in which he was spending the night on the floor, the protections of the Fourth Amendment prohibited Olson’s arrest in that residence in absence of a warrant or exigent circumstances.

Notwithstanding West’s expectation of privacy in the Babineaux trailer, the Payton rule does not apply when the police are in the premises pursuant to a lawful consent. Given that Mrs. Babineaux, the owner and co-occupant of the trailer, gave the police consent to enter her trailer, the arrest of West within that trailer does not violate the Payton rule.

The owner and co-occupant had an equal right to use or occupy the room in which the police found the gun. Therefore, her consent was sufficient to authorize the search, and the trial court committed no error in declining to suppress the pistol on this ground.

B. Confession

West notes that, in addition to his being retarded, his “waiver” was given when he was tired and confused, and after a night of heavy drinking and no sleep. Since the police did not read him his Miranda rights slowly or carefully or use simplified sentence structure or vocabulary, he cannot be said to have understood them.

The evidence is clear from the videotaped confession that West was read his Miranda rights more than once. In fact, Officer Calvanese stopped the interrogation to ask West whether he remembered his rights and whether he was confessing freely, and reminded him of them at the close of the interrogation. The trial judge heard evidence that West has an IQ around 70, and he furthermore observed West testify during the hearing about the events leading up to his confession before concluding that he had been advised of his Miranda rights and waived them freely and voluntarily.

This court has upheld trial courts’ findings that a mentally impaired defendant waived his Miranda rights knowingly, intelligently, and voluntarily where the fact of the defendant’s impairment was known to the court. See Neal v. State, 451 So.2d 743 (Miss.1984), where defendant had IQ of 54 and organic brain dysfunction was nevertheless held to have lawfully waived Miranda rights

In Veal v. State, 585 So.2d 693 (Miss.1991), a mildly mentally retarded defendant who can read and write and appeared to all witnesses to the interrogation to have understood the process held to have voluntarily, intelligently and knowingly waived Miranda rights.

In Smith v. State, 534 So.2d 194 (Miss.1988), this court upheld a trial court’s finding that a Miranda waiver was lawful in spite of extensive expert testimony that Smith had an IQ of 65, could not read, would not recognize the word “waiver,” could not understand multi-syllabic words, and had the minimal skills necessary for daily functioning.

This court held that since the trial court in Smith was persuaded by a review of a taped confession that Smith was capable of voluntarily confessing, and had found that the psychological evidence did not outweigh this conclusion, the trial court’s ruling was not clearly erroneous. In light of that factual precedent, we hold that the trial court’s finding that West’s waiver was knowing, intelligent, and voluntary was also not clearly erroneous.

This argument is therefore without merit.