Drugs found during search incident to arrest

Facts

Terry Evans was a commercial truck driver. According to Evans, he and Debra Smith were leaving Ontario, California, headed east. They were accompanied by a hitchhiker named “Cindy”. As they neared Monroe, Louisiana, he became aware that Cindy had illegal drugs in her luggage. Upon his arrival at a truck stop in Jackson, Mississippi, Evans claims to have evicted Cindy from his truck, because he did not allow illegal drugs in it.

Evans and Ms. Smith ate at the truck stop and then headed north on Interstate 55. Officer Bruce Gresham, of the Mississippi Public Service Commission, was doing random stops and safety inspections of commercial vehicles in Holmes County. Evans was among the persons stopped by Gresham. Evans was requested to exit the vehicle and produce his log book.

Upon presentation of the book, Gresham noticed that Evans had failed to make entries in his book for several days. Gresham then inquired whether Smith was authorized to ride as a passenger in the truck, and requested permission to search the truck. When Evans refused to give written consent to search the truck, Gresham ordered Evans and Smith out of the truck, and placed Evans under arrest for failure to properly maintain his log book.

After the arrest Evans and Smith were frisked for weapons, after which Gresham searched the seat area of the truck cab. He allowed Smith to return to the passenger seat, and then searched the sleeping area of the cab. There he discovered a blue zippered bag, which upon being opened contained what Gresham believed to be marijuana.

Evans and Smith were then placed in the patrol car, and given the Miranda warnings. Ms. Smith stated that she had an “eight ball of crank” in her purse which had been purchased at the Jackson truck stop. Evans denied knowledge of any of the drugs.

Evans was convicted of possession of methamphetamine and possession of marijuana and sentenced to ten years. On appeal, he argued the search of his truck was illegal. MCOA affirmed.

Analysis

In Rankin v. State, 636 So. 2d 652 (Miss. 1994), MSC held that the right to search incident to a lawful arrest extends to any container, opened or unopened within the arrestee’s immediate control .

At the suppression hearing, Officer Gresham testified:

I got him out of the truck, walked him around there, had him empty his pockets out, make sure there’s no weapons, patted him down. I had Mrs. Smith empty her pockets out and pull her clothing tight in places I didn’t want to touch and made sure she didn’t have any weapons. I told them to stand where I could see them.

At this point, he’s under arrest. The search on the vehicle incident to an arrest, make sure there’s no weapons or anything there. I get up in front, looked, didn’t see anything. On the back sleeper berth, I saw a small blue bag with Looney Tunes on it, picked it up, unzipped it, and I saw a green leafy substance that I believed to be marijuana.

Well, after I searched the front-let me go back. It was cold that day. . . . Both of these people had on shirts and they were about to freeze. So I felt like I could let them sit up there in the seats because you can’t -in that particular style 18-wheeler, you can’t really stand up in the cab. . . . So, I told them they could come sit inside the warm, because it was bitterly cold. And after I got them seated, I sat down on the bed and that’s when I found the little blue plastic zipper bag, Looney Tunes on it, and inside I found-I just looked at it and it was a green leafy substance that appeared to be marijuana and some small plastic baggies.

The trial court then ruled:

The question is whether or not there was probable cause for the search. The court finds from the testimony of the officer that consent, once he was requested to give written consent, the consent to search was withdrawn. However, the search – the consent to search by Ms. Smith was not withdrawn. Therefore, the court finds that the search was not a consensual search as it relates to Mr. Evans.

Whether or not the officer had a right to search incident to arrest, in that – Mr. Evans had been taken from the truck at that point, the court finds that the officer was not in any danger of Mr. Evans grabbing a weapon or anything which is the reasons for the search incident to arrest.

Another question, whether or not it was reasonable for the officer to place the defendants, Mr. Evans and Mrs. Smith back into the truck and by placing them back into the truck if he then – if a search incident to arrest became necessary at that point.

Based on the circumstances and the testimony of the officer about the conditions and how they were dressed as to why he placed them back into the truck, he was there by himself with no other officers there, as opposed to placing them back into the truck or in his car, whether that was reasonable.

The court finds that under the circumstances that it was reasonable to place them back into the truck and, therefore, the search at that point incident to the arrest became necessary to search the sleeper area of the truck, and therefore, the items found at that point, the court finds cannot be suppressed.

MCOA then said the following:

This court looks to determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence. Where supported by substantial credible evidence, this court will not disturb those findings. Officer Gresham’s testimony provided a substantial and credible basis for the trial court’s denial of the suppression motion.

Thoughts

Gant, which came out in 2009, clarified that police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Under the very unique circumstances in this case, the search incident to arrest would still work for this case.

 

https://courts.ms.gov/images/Opinions/Conv12394.pdf