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Consensual monitoring provides consent to record conversation

Facts

On two separate occasions, December 4, 2018, and January 3, 2019, confidential informant Ronald Keen met with law enforcement officers from the Batesville Police Department to make a controlled purchase of drugs from a man Keen knew as “Buddy Row.” On each occasion, Keen’s person and vehicle were searched, recording equipment was placed in Keen’s vehicle, and Keen was provided $20 in cash. Officers followed Keen to the Bradford Trailer Park and positioned themselves near the trailer park as Keen entered. The audio and video recordings from each occasion showed Keen purchase a substance believed to be cocaine from Buddy Row for $20. Keen then left the trailer park and met officers at an agreed upon location. Officers collected each substance from Keen and put it in an evidence bag.

The two collected substances were sent to and analyzed by the Mississippi Forensics Laboratory. Erik Frazure, the section chief over the drug analysis section at the Mississippi Forensics Laboratory and an expert in forensic science specializing in drug analysis, opined that the two substances were determined to be cocaine in the amount of 0.169 grams and 0.194 grams.

Willie Douglas was indicted and charged with two counts of the sale of less than two grams of cocaine. The indictment further charged Douglas as a habitual offender under Mississippi Code Section 99-19-83 (Rev. 2015).

At trial, Keen recounted the events of December 4 and January 3. Keen testified that on each occasion he met with police who searched his person and vehicle, placed recording equipment in his vehicle, and provided him $20 in cash. He then drove to Bradford Trailer Park where he purchased a substance believed to be cocaine from Buddy Row in exchange for $20. Keen identified Douglas as the man he knew as Buddy Row, and he confirmed that Douglas was the man from whom he purchased the drugs.

Douglas did not testify or present any evidence or testimony at trial. The jury found Douglas guilty on both counts. At the sentencing hearing, two witnesses testified regarding Douglas’s habitual offender status. Trina Burris, the records department supervisor for the Mississippi Department of Corrections (MDOC), testified that Douglas was previously convicted in Quitman County of grand larceny and served one year and 251 days on that conviction. Lori Priest, director of records management for the Tennessee Department of Corrections (TDOC), testified that Douglas had been previously convicted of aggravated robbery in Shelby County and served approximately seven years on that charge.

Douglas was sentenced, as a habitual offender under Section 99-19- 83, to life without parole in the custody of the MDOC. On appeal, Douglas asserted that his fourth amendment rights were violated. MSC affirmed.

Analysis

For the first time on appeal, Douglas asserts his constitutional right to be free from illegal searches and seizures was violated. But because Douglas failed to raise his Fourth Amendment claims before the trial court, this issue is barred from appellate consideration. Notwithstanding the procedural bar, Douglas’s claims lack merit.

Both the Fourth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment of the United States Constitution, and article 3, section 23, of the Mississippi Constitution protect persons from unreasonable searches and seizures. See MSC Fisher. Notably, neither law enforcement nor any agent acting on behalf of law enforcement searched Douglas or his residence. Regardless, Douglas claims law enforcement needed a search warrant to record the controlled purchases. We disagree.

The Fourth Amendment, protection of privacy rather than property rationale, is restricted to private conversations of non-consenting parties. See MSC Everett v. State, 248 So. 2d 439 (Miss. 1971). Electronic surveillance, “bugging,” does not tread upon constitutional rights of the Fourth Amendment when the consent of one of the parties is first obtained. The expectation of privacy, though perhaps shaken by the mistaken belief that a person to whom one voluntarily confides will not reveal the conversation, does not reach constitutional proportions. See SCOTUS Hoffa v. United States, 385 U.S. 293(1966).

Here, Keen consented to use the audio and video equipment as part of his agreement with law enforcement to capture the controlled purchases. Because Keen’s consent was first obtained, there was no constitutional violation. Although Douglas argues Keen was not competent to consent, there is no evidence of that in the record.

Douglas also claims that law enforcement needed a search warrant before entering the Bradford trailer park because it is privately owned by Melvin Bradford. But law enforcement did not need a search warrant because the record shows that the controlled purchases occurred on a public road within the trailer park. Douglas had no reasonable expectation of privacy on a public road because the route which any visitor to a residence would use is not private in the Fourth Amendment sense. See MSC Mitchell.

Douglas’s constitutional right against unreasonable searches and seizures was not violated because no search warrant was required. Accordingly, this issue lacks merit.

 

https://courts.ms.gov/images/Opinions/CO173489.pdf