In 2013, a confidential informant who had worked with police for four years and provided credible information in the past, told Clarksdale P.D. that Herman Jackson possessed a large amount of marijuana and that he was selling it out of his home. Police obtained a search warrant for the home and found marijuana, scales, baggies, and proof that he lived there.
Jackson was arrested and booked and then made three calls from the police station that were recorded wherein he stated the drugs and home belonged to him. He was convicted of possession of marijuana with intent to sell and sentenced to ten years. On appeal, he argued the phone calls should have been suppressed and the search warrant was improperly obtained. MCOA affirmed.
A. Telephone calls from Jail
Officer Carl Hinton, who transported Jackson to jail, identified Jackson’s voice on the calls, and another employee testified about the process for obtaining copies of the recorded phone calls. Additionally, a person may only challenge an intrusion to his or her right to privacy where the person would objectively and reasonably expect privacy. Jackson did not have a reasonable expectation of privacy for his telephone calls because he was in custody and being monitored.
Jackson claims he was not advised that his telephone calls would be recorded; therefore, he might present a question of whether he had a subjective expectation of privacy; however, we find that Jackson did not have an objective expectation of privacy. In Pierre v. State, 607 So. 2d 43 (Miss. 1992), MSC said that there was no reasonable expectation of privacy under the Fourth Amendment for a telephone conversation by a defendant in custody, when she confessed to a crime while on the phone with her brother in an open room as police officers sat nearby.
B. Search Warrant – confidential informant reliability
The standard for determining the existence of probable cause for a search warrant based on an informant is the totality of the circumstances. In determining whether there was a substantial basis for probable cause, we look at both the facts and circumstances set forth in the affidavit for the search warrant and sworn oral testimony presented to the issuing judge.
In Roebuck, we said that the substantial basis standard is met where the affidavit contains 1) a statement that an officer has successfully used a confidential informant to prosecute criminal allegations in the past, and 2) the affidavit contains corroborating evidence to show a confidential informer is truthful and reliable.
In part, the search warrant in this case stated, “A very reliable confidential informant went to 343 Bolivar Street duplex B and observed a quantity of marijuana. Present at the residence was Herman Jackson Jr; A.K.A. Main Love. This informant has provided information and assistance for more than four (4) years, and his/her information has resulted in numerous drug seizures and several arrests on drug charges and numerous convictions in State Courts.” The documents presented in support of the search warrant contained statements sufficient to show the confidential informant was very reliable.
C. Search Warrant – property to be seized
MSC said in Williams v. State, 583 So. 2d 620 (Miss. 1991), that descriptions in search warrants are sufficient if the places and things to be searched are designated in such a manner that the officer making the search may locate them with reasonable certainty. For property other than what is illicit or contraband, the thing or things to be seized must be described with some particularity.
Here, the affidavit stated the search would be for marijuana, and items such as packaging, notes, weapons, calendars, utility bills, currency, and other particular things too numerous to list here. This argument is without merit.
D. Search Warrant – staleness
Jackson argues that the search warrant was stale because the supporting affidavit did not include the time or date that the confidential informant observed marijuana at the residence, or when the confidential informant related the information to the affiants.
In Flake, the informant did not specify the date he bought drugs from the house where a search warrant was obtained. We said that the standard for determining the existence of probable cause for a search warrant based on an informant is the totality of the circumstances.
The confidential informant stated that he observed a quantity of marijuana at the house. Even if the informant had observed the marijuana some days previously, there would be a likelihood that some would still be present, given the quantity observed. While we are not privy to the exact facts, if any, the officers related to the magistrate, in addition to those contained in the affidavit, there is no indication that any of the information was stale.
Also, we understand the hesitancy of law enforcement to disclose in the affidavit a specific date the informant observed the interior of a certain residence, as that could lead to the possible identification of the informant.