In the past can mean one day in an affidavit


On January 22, 2003, a confidential informant (CI) reported to Shannon Bullock, an investigator with the Hinds County Sheriff’s Department, that he had witnessed the possession and distribution of cocaine at the home of Jimmie Roach. In turn, Bullock relayed this information to another Hinds County investigator, Richard Spooner. On the same day, Spooner and Bullock met with the CI to arrange a controlled buy of crack cocaine from Roach at his residence.  Spooner testified that following the purchase, field tests of the substance confirmed it was crack cocaine.

The following day, January 23, 2003, Spooner signed an Affidavit for the purpose of obtaining a search warrant for Roach’s residence. Without relaying any information about the controlled buy one day earlier, Spooner, in the affidavit, characterized the CI as being a “truthful, credible, and a reliable source” who had furnished him with “information in the past.”

Judge Parker issued the search warrant for Roach’s residence on January 23, 2003, and it was executed the same day. Spooner would later testify at the suppression hearing that, in the Underlying Facts and Circumstance Sheet, he did not include information about the controlled buy that took place prior to the issuing of the warrant for fear of revealing the identity of the CI. Spooner also testified that he had spoken with this particular CI on several occasions, each of which involved another officer’s case.

The search warrant executed on January 23, 2003, resulted in the detention and questioning of five people, including Roach and his wife, Petrice. During the course of the search, cocaine and hydromorphone were recovered. A small bag filled with 1.86 grams of crack cocaine was found in one of the couch cushions in the living room. In front of the refrigerator in the kitchen, a bag containing 17.12 grams ofccrack cocaine and 400 dosage units of Dilaudid was discovered.

Roach was convicted of possession of cocaine and possession of hydromorphone and sentenced to 108 years.

MCOA reversed based on the affidavit. They said:

There are two interpretations of the statement in the affidavit that the CI had furnished Officer Spooner with information in the past: (1) that Officer Spooner had a working relationship with the CI, who had given him reliable information that had been verified in the course of past cases; or (2) that Officer Spooner was referring only to the January 22 controlled buy when he stated that the CI had given him reliable information in the past. Of these two interpretations, we find that the issuing judge was far more likely to assume the first from Officer Spooner’s averment in the affidavit. This court is also of the opinion that that is most likely what Officer Spooner intended for the judge to believe.

MSC reversed MCOA and found the affidavit had a substantial basis for concluding that probable cause existed.


A. Affidavit

In Illinois v. Gates, 462 U.S. 213 (1983), the U.S. Supreme Court established a totality-of-the-circumstances test for determining whether probable cause exists for the issuance of a search warrant.

MCOA relied heavily on Pipkins v. State, 592 So.2d 947 (Miss. 1991) in reaching this conclusion. The CIs in both Pipkins and our case were described by the officers as having provided reliable information to them “in the past,” when both officers had worked with the informants personally only on one occasion. However, Pipkins is easily distinguished from today’s case.

In Pipkins, there was no controlled buy or any other independent, investigatory corroboration of the CI’s statements, as there was in this case. Therefore, the agent in Pipkins could not possibly have been referring to any prior corroboration of the CI for the purpose of establishing reliability.

In today’s case, Spooner received information that Roach was in possession of cocaine, which was corroborated with a controlled buy. This all occurred prior to Spooner providing his underlying facts and circumstances attesting to the reliability of the CI.

Prior to Pipkins, this court, in Bevill v. State, 556 So.2d 699 (Miss. 1990), (reversed on other grounds), upheld the validity of a search warrant even where there were errors in the underlying facts. In Bevill this Court stated:

It is true that subsequent events proved the officer erred in some of the statements set forth in the underlying facts, e.g. that the hair in the victim’s hands was the same color as Bevill’s, the similarity of Bevill’s tennis shoes’ footprints and the footprint at the scene, and bloodstain on the tennis shoes. Even so, at the suppression hearing the officer was cross-examined at great length by Bevill’s attorney, and there was no showing that the officer intentionally misrepresented those facts, or made them in reckless disregard for the truth. Moreover, the remaining underlying facts clearly constituted probable cause for the issuance of the search warrants.

We find similarities with Bevill in the present case in that there is no showing that Spooner intentionally misrepresented facts or made them in reckless disregard for the truth. Spooner described the CI as reliable in the past because he knew him to be a reliable CI used by the department on occasion.

Furthermore, he was able independently to corroborate the CI’s reliability when the controlled buy resulted in Roach selling cocaine to the CI. We do not equate Spooner’s omission of the fact that there was a controlled buy the day before as a reckless disregard for the truth, given that Spooner testified he was protecting the identity of the CI.

In sum, we find MCOA erred in reversing the trial court’s judgment of conviction and sentence on this issue.

B. Constructive possession

We said in Powell v. State, 355 So.2d 1378 (Miss.1978):

One in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband.

The State cites several facts from the record establishing exclusive control and possession of the contraband by Roach. No one else was found in the house; Roach’s wife was outside the residence when the officers arrived. Spooner testified that, in addition to Petrice Roach, three other individuals were standing in the front yard, and that all of these individuals denied possession of the drugs.

Roach was found “within arm’s reach” of the bag of crack cocaine found in the couch cushion, and in close proximity to the bag containing cocaine and hydromorphone discovered on the kitchen floor in front of the refrigerator. No one else was found inside the house near the couch where cocaine was found.

Based on the record, we find that the evidence was legally sufficient to establish constructive possession of the contraband by Roach.