Clothes taken from arrestees can be searched (and analyzed) incident to arrest


The last time that Patty Milliken was seen alive was at the conclusion of her shift at 8:00 p.m., November 21, 1995, at the Majik Mart in Biloxi, Mississippi. She told her co-worker, James Leland Hartley, that she was going outside to smoke and talk to William Gerald Mitchell and that she would return shortly to get her stuff.

Hartley had seen Mitchell enter the store three separate times to visit Milliken while she was working her shift. Hartley also overheard Milliken refer to Mitchell by the name of “Jerry.”

Ten minutes after Milliken had gone outside, Hartley walked outside to ask her a question, but she was not there. Her belongings were still inside the store, and her car remained in the parking lot. Hartley telephoned Milliken’s home and learned that she had not been in contact with her family. When Milliken had still not returned by 10:00 p.m., Hartley telephoned the police.

Hartley gave police Milliken’s purse and showed them where she had written Jerry’s phone number. The police cross-referenced the telephone number to a physical address, and proceeded to 323 Croesus Street. The police arrived at the residence at approximately midnight.

Officers Matory and Doucet went to the front door, and Officer McKaig was on the right side of the house approaching the rear. McKaig saw Mitchell, and Mitchell asked, “Who’s that?” McKaig identified himself as a police officer and explained that he wanted to speak to him. Mitchell ran, and a pursuit on foot followed.

Captain Patterson spoke with Booker Gatlin, Mitchell’s grandfather and owner of the residence on Croesus Street. Gatlin indicated that “Jerry” was William Gerald Mitchell, and that he drove a blue Grand Am.

When the foot pursuit proved unsuccessful, the Biloxi Police Department issued a be-on-the-lookout (“BOLO”) for Mitchell and his vehicle. Shortly thereafter, an officer spotted Mitchell getting gas at a Shell station located on U.S. Highway 90. When Mitchell noticed the police car, he threw down the gas nozzle he was using and sped away in his vehicle.

Patrolman Sonnier took part in the pursuit of Mitchell. Sonnier testified that Mitchell was the driver of the vehicle and that Curtis Pearson was his passenger. The high speed chase ended in Mitchell being arrested for various traffic violations. Mitchell’s passenger, Pearson, testified that, during the chase, Mitchell stated 2-3 times that he “got that bitch.”

Officer Heard of the Biloxi Police Department discovered the mutilated, almost naked body of Patty Milliken under the Popps Ferry Bridge at 7:14 a.m. the following morning. Her body was bruised and scraped, and her head was burst open with the brains spilling out of the skull, scattered about on the yard, and there was also some of the brain matter stuck on her back.

There were numerous tire tracks back and forth all over that area; tracks that were similar to the ones found on Milliken’s body. Testing would ultimately show that the tire casts from the area matched three of the four tires on Mitchell’s car with regard to tread design, size and overall width.

Later that day, pursuant to a search warrant, Burris also collected evidence from Mitchell’s car. Burris found hair and blood on the passenger door; blood underneath the fender and body of the car, as well as on the catalytic converter; and blood spatters in three of the wheel wells.

Mitchell was initially interviewed by Sergeant Torbert and Investigator Thompson. Later, Officers Newman and Peterson interviewed Mitchell on the same day Milliken’s body was found. At the time of this second interview, Mitchell had not been arrested or charged with murder, but was in custody for the traffic violations.

Mitchell said that he was the only one to use his vehicle that night. Mitchell claimed that Milliken was alive when he left her, though he did admit that he had hit her hard enough in the nose that blood just flew everywhere.

After Mitchell’s second interview, Mitchell was booked on the charge of murder. A suspect rape kit was performed on Mitchell at the Biloxi Regional Medical Center. Later, search warrants were secured and executed on Mitchell, Mitchell’s car, and Mitchell’s residence at 323 Croesus Street in Biloxi.

Mitchell was convicted of murder and sentenced to death. On appeal, he argued 1) he was illegally arrested, 2) police trespassed at his house and 3) the search warrant of his body was illegal. MSC affirmed.


A. Arrest

Two pursuits of Mitchell occurred before he was arrested. The first took place on foot as he ran from his residence. The second was a high speed chase as police pursued Mitchell in his car.

The facts known to the police prior to their decision to question Mitchell at his home were as follows: (1) Milliken had worked the 4:00-8:00p.m. shift at the Majik Mart on November 21, 1995; (2) surveillance video at the store showed Mitchell coming into the store three different times that day talking to Milliken; (3) Milliken’s coworker saw Milliken write down Mitchell’s telephone number in her address book; (4) Milliken telephoned her son to inform him she would be home in fifteen minutes; (5) Milliken had left her personal belongings inside the store and stated that she was going outside to smoke a cigarette with Mitchell; (6) Milliken walked with Mitchell out of the store; (7) ten minutes later, Milliken’s coworker stepped outside to ask her a question and realized that she was gone; (8) Milliken’s car was still parked at the store; (9) two hours after Milliken had gone outside with Mitchell, she had still not returned, her personal effects were still at the store, and she had not gone home; (10) Milliken’s coworker had called the police concerned about Milliken’s whereabouts; (11) Milliken’s coworker had told the police about Mitchell’s visits, showed them the surveillance video, and Mitchell’s telephone number in Milliken’s purse; (12) the police had cross-referenced the telephone number, learned of Mitchell’s address, and proceeded to 323 Croesus Street to see if Mitchell knew of Milliken’s whereabouts.

There are three valid police tactics to investigate a possible crime as set out by this court in Nathan v. State, 552 So.2d 99 (1989):

(1) Voluntary Conversation: An officer may approach a person for the purpose of engaging in a voluntary conversation no matter what facts are known to the officer since it involves no force and no detention of the person interviewed; (2) Investigative Stop and Temporary Detention: 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; (3) Arrest: An arrest may be made when the officer has probable cause.

The officers in the present case chose to approach Mitchell and attempt to engage him in voluntary conversation, although they could have just as legally stopped and detained Mitchell.

Once he fled the officers and ignored their commands to halt, the officers, already possessing a reasonable suspicion, also obtained probable cause. This is consistent with Sibron v. New York, 392 U.S. 40 (1968), which states deliberately furtive actions and flight at the approach of law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.

After the BOLO had been issued on police radio, Officer Dawson, traveling in a marked police car, viewed a man and car fitting the description getting gasoline at a Shell station. As Dawson approached the gas station, Mitchell threw down the gas nozzle and sped away. Dawson stated that he immediately began following Mitchell’s vehicle, but did not put on his lights and siren until he observed Mitchell run a red light on another street. Mitchell was eventually arrested for disturbing the peace, reckless driving, and resisting arrest.

Probable cause to arrest Mitchell existed when he received the BOLO and subsequently viewed Mitchell’s vehicle matching the description. Coupled with Mitchell’s reaction by fleeing and stealing gas, Dawson had sufficient probable cause to pursue and arrest Mitchell.

B. Trespass

Mitchell asserts that the police officers made an illegal trespass onto the property where he was staying, and, as a result, evidence taken from his person and his car should have been suppressed by the trial court.

This court, in Waldrop v. State, 544 So.2d 834 (Miss. 1989), determined that a claim of police trespass cannot be made regarding areas that are typically used by visitors.

In this case, Officer McKaig was in an area of common use, near the driveway and the back door. Mitchell had been in his car in his driveway, when he got out of his vehicle and first noticed Officer McKaig. An illegal trespass by the police did not occur in this case.

C. Search warrant of body

Mitchell asserts that Mississippi law does not provide for search warrants of the person and that the evidence collected from Mitchell should have been suppressed.

Evidence collected encompassed Mitchell’s clothing, including blue jeans, and a suspect rape kit. It appears only the blue jeans with human blood on them were admitted at trial, rendering analysis of the admissibility of the rape suspect kit moot.

C1. Inventory Search

The U.S. Supreme Court in South Dakota v. Opperman, 428 U.S. 364 (1976), outlined several factors which must exist in order for an inventory search to be valid. First, the thing or person searched must be lawfully in police custody. Second, the inventory must be conducted pursuant to standard, routine police procedures. Finally, there must be no suggestion that the standard procedures are a pretext concealing an investigatory police motive.

This is an administrative task, that must be conducted pursuant to standard, routine police procedures. In the cases involving inventory searches of persons, the search is conducted as part of a routine booking procedure.

The search in the case at hand clearly does not meet the criteria of a valid inventory search. There is nothing in the record which indicates this was a standard, administrative search conducted pursuant to routine procedures.

C2. Search incident to arrest

The U.S. Supreme Court in United States v. Edwards, 415 U.S. 800 (1974), had a similar issue. Edwards was arrested and charged with attempting to break into a post office. Shortly thereafter, investigation revealed that entry had been made through a wooden window, leaving paint chips on the window.

The next morning, Edwards’s clothing was taken from him and held as evidence as examination of the clothing revealed matching paint chips. It is important to note, and this Court has recognized, that Edwards’s clothes were seized not as part of a routine booking procedure, but in order to obtain evidence of the crime for which he had been arrested.

The Supreme Court explained that the search was a valid warrantless search incident to a custodial arrest. The Court explained that such searches are justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime. The Court stated that searches and seizures that could be made on the spot at the time of arrest may be conducted later when the accused arrives at the place of detention.

This Court relied upon Edwards in Rankin v. State, 636 So. 2d 652 (Miss. 1994). In Rankin, the defendant was arrested for carrying a concealed weapon. When he arrived at the jail, officers searched the defendant’s jacket and found cocaine. The defendant was then placed under arrest for possession of cocaine.

On appeal, the defendant argued that his clothing was illegally searched. This court set forth two grounds in holding that the strictures of the Fourth Amendment were met by the search. First, the court noted that because the personal effects of one under lawful custodial arrest were subject to search at the time and place of arrest, they were likewise subject to a warrantless search at the place of detention. Second, the court stated that the search was also valid as part of a routine inventory search at the place of detention, incident to processing the arrestee.

Based upon the first rationale expressed in Rankin, a valid warrantless search of Mitchell’s personal effects occurred at the site of where he was being detained after a lawful custodial arrest.