In 2017, Sybil Brooks hired Jason Sebren to make repairs to a mobile home, allowing him to live in the mobile home in exchange. Unbeknownst to Brooks, Sebren invited Michael Buford and his wife to stay at the mobile home as well. Brooks and Sebren then had an argument and Sebren moved out. Brooks called the Pearl River Police Department to get Buford and his wife out of the home as well.
Police arrived and asked Buford for documentation showing that he was supposed to be at the home but he had nothing to produce. Officer Brad Winningham then asked Buford if he had any issues with being searched for anything illegal and he did not. Winningham conducted the search of Burford’s person and felt a can of smokeless tobacco.
He then opened the tobacco can and found methamphetamine. Buford was convicted as a habitual offender of possession of methamphetamine and sentenced to 16 years. Buford argued that he was illegally seized and that his consent to search did not include opening a tobacco can. MSC affirmed.
A. Seizure of Buford
Mere police questioning does not constitute a seizure. The officers were engaged in a voluntary consensual encounter with Burford at a mobile home where he was not authorized. There was no illegal seizure of Buford.
The scope of a person’s consent under the 4th amendment is reasonableness – what would a typical person have understood by the exchange between the officer and the suspect. In Florida v. Jimeno, 500 U.S. 248 (1991), the U.S. Supreme Court rejected the assertion that police must separately request permission to search each closed container found during a general search. Based on the facts, the opening of the can of tobacco based on Buford’s agreement to be searched was reasonable.
C. Plain Feel
The MCOA stated in its appeal that the search of the can was also permissible via plain feel. The Mississippi Supreme Court noted that plain feel did not apply in this case as it was a consensual search. However, they went on to speak about plain feel and explained that if a police officer was conducting a Terry frisk and felt an object whose contour or mass makes its identity immediately apparent (probable cause) as contraband, that item could be seized under plain feel. The MSC then stated, “Officer Winningham could not have felt the smokeless tobacco can and determined that its identity was methamphetamine.”
A review of plain feel cases in Mississippi reveals that the MCOA in 2009 decided Anderson. In Anderson, MCOA found that the plain feel exception did not apply when an officer responding to an anonymous tip at a house about drug activity conducted a terry frisk of an individual and felt a pill bottle. It was only when the officer retrieved and examined the pill bottle that he saw contraband.
The MCOA noted in Anderson that a pill bottle is not contraband. The dissent in the Anderson case asked why the police officer’s knowledge about drugs being kept in a pill bottle would not have gone towards the probable cause. The MCOA majority response to that was as follows: there was no evidence that, through his experience, Deputy Truett had probable cause to suspect that a pill bottle contained narcotics. Deputy Truett merely testified that he had “felt a gazillion pill bottles.” He never testified that those “gazillion” pill bottles generally contained contraband.
I put the plain feel discussion in here because it is important that you have conversations with your prosecutor with respect to matchboxes and pill containers in the context of plain feel. One prosecutor might read the two cases above and believe you should not be opening cans or pill bottles pursuant to plain feel. Another prosecutor may argue that your particular facts are distinguishable from the cases above which provides probable cause to open the can or pill bottle.