Gun seized from murder suspect under plain view and/or Search incident to arrest



In 2016, Joshua McDonald and Edmond Clark were working on a car when Devonte Easterling approached the car and fatally shot McDonald. Easterling fled but then called police to turn himself in. Easterling came out of his grandmother’s home and met the officers in the driveway.

Officer Joseph Barnes told Easterling to turn around. At that moment, Barnes spotted a handgun in Easterling’s back pocket. Barnes seized the handgun and handcuffed and arrested Easterling.

He was convicted in Covington County for murder and sentenced to life. On appeal, he argues that 1) officers trespassed onto private property without a warrant and 2) a warrant should have been obtained before seizing the gun. MCOA affirmed.


A.  Police coming onto private property

When Barnes and his partner arrived at Easterling’s grandmother’s house and was walking up the driveway, Easterling came out of the house. Easterling headed toward him, and they met at the carport. Barnes asked Easterling to turn around and stated that he saw a firearm (later identified as a Jimenez 9mm handgun) in Easterling’s back pocket in plain view.

In Waldrop v. State, 544 So. 2d 834 (Miss. 1989), MSC stated that it is not objectionable for an officer to come up upon that part of the property which has been open to the public common use. The route which any visitor to a residence would use is not private in the Fourth Amendment sense, and thus if police take that route for the purpose of making a general inquiry or for some other legitimate reason, they are free to keep their eyes open.

In this case, Barnes had a legitimate reason to be at Easterling’s grandmother’s house, namely to arrest Easterling who was turning himself in.

B.  Terry frisk

The Terry doctrine states that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.

Before conducting an investigatory, or Terry stop, officers are required to have reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in a felony or some objective manifestation that the person stopped is or is about to be engaged in criminal activity.

When Easterling came outside and turned around as Barnes requested, Barnes saw the gun in his back pocket. Barnes had the authority per Terry to take necessary measures to protect himself and others around him, so a patdown of Easterling was warranted.

C.  Plain view

We said in Hoskins that a police officer may seize an object in plain view if the officer can see it from a place he has a lawful right to be, the object’s incriminating character is readily apparent (probable cause), and the officer has a lawful right of access to the evidence. When Easterling turned around, Barnes saw the firearm in plain view.

D.  Search incident to arrest

In White, MSC said that a search incident to arrest is an exception to the warrant requirement after an arrest if founded upon the reasonable concern that the arrestee might have a weapon on his person or within reach, or that he may attempt to destroy evidence which is within his grasp. Seizing the gun under search incident to arrest was appropriate in this case.


Great example of being able to search and seize an object based on at least three different exceptions to the 4th amendment. I would document in my police report that I performed a  Terry frisk and then seized the weapon via 1) plain view seizure and/or 2) search incident to arrest (you could probably even throw in exigent). Then you can leave it to defense to try and fight multiple avenues of lawfully getting the gun admitted into evidence.