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officer had reasonable suspicion for stop based on not seeing tag as well as suspicious behavior

Facts

In 2018, Officer Ryan Darby of the Hernando Police Department initiated a traffic stop of a vehicle driven by Stanley Wilson. Officer Darby testified that he initiated the stop for two reasons: he did not see a state-issued license tag displayed on the vehicle and he observed the driver of the vehicle acting in a suspicious manner. During the traffic stop, Officer Darby learned that Wilson had outstanding warrants for his arrest. Wilson consented to a search of the vehicle, and law enforcement officers discovered pill bottles containing oxycodone pills.

The trial judge denied the motion to suppress. Wilson then waived his right to a jury trial and proceeded with a bench trial. The trial judge found Wilson guilty of possession of forty dosage units of more of oxycodone and he was sentenced to ten years. On appeal, he argued there was no reasonable suspicion for the stop. MCOA affirmed.

Analysis

Wilson maintains that he had a valid license tag conspicuously displayed on his vehicle at the time of the traffic stop, and therefore Officer Darby lacked the requisite reasonable suspicion to initiate the traffic stop. Wilson asserts that because the traffic stop was improper, the trial judge should have excluded from evidence the alleged drugs that were found during the search of the vehicle, along with any oral statements, as “fruit of the poisonous tree.”

The MSC has explained that reasonable suspicion is based on something less than the personal observation of a violation of law. Reasonable suspicion is the standard for a stop or search based on suspicious activity that does not yet amount to criminal activity, but which compels an officer to believe that criminal activity has happened, is happening, or is about to happen. See MSC Martin.

Darby testified that on the afternoon of April 10, 2018, he was driving in his patrol car and encountered a dark-colored Audi that did not have a license tag visible on the back of the vehicle. Officer Darby testified that he followed the vehicle as it exited the interstate. During this time, Darby observed that the driver of the vehicle “seemed to be turned around and he was doing something in the back seat as he was turned around.”

Darby also observed two car seats (for children) in the back of the vehicle. Darby testified that he continued to follow the vehicle down the exit ramp. Darby observed the vehicle come to a stop at an intersection, and Darby testified that the driver “continued to sit still approximately ten to fifteen seconds” while the traffic light was green. Darby stated that this behavior appeared suspicious to him.

Darby explained that the driver of the vehicle knew that Darby was behind him, and Darby opined that “it’s just not common behavior” to pull up to a green light and then not move your vehicle. Darby stated that based upon the lack of a visible license tag displayed on the vehicle, as well as the driver’s suspicious behavior, Darby initiated a traffic stop.

Darby testified that as he approached the stopped vehicle, he still did not see a license tag displayed on the back of the vehicle. Darby also testified that before even speaking to the driver of the vehicle, he “instantly smelled marijuana.” Darby asked the driver for his driver’s license, and Darby identified Wilson as the driver of the vehicle. Wilson informed Darby that he still had some unpaid fines. Darby gave the law enforcement dispatch Wilson’s information, and the dispatcher informed Darby of local outstanding warrants for Wilson.

Darby testified that when he learned of the outstanding warrants for Wilson, he asked Wilson to exit the vehicle and informed Wilson of the warrants. Darby testified that he asked Wilson if he had smoked marijuana in the vehicle, and Wilson answered that he had not. According to Darby, Wilson informed him that he could search the vehicle and the trunk. Darby stated that he could see a pill bottle containing pills in the padding of a child’s car seat.

Photographs of Wilson’s vehicle were entered into evidence, and the photographs show a paper drive-out license tag from a dealership visible on the back windshield of the vehicle. An enlarged photograph of the paper drive-out tag was also admitted into evidence. During his testimony, Darby admitted the photographs of Wilson’s vehicle entered into evidence show that a drive-out tag is visible on the back windshield of the vehicle. However, Darby maintained that the tag was not visible when he stopped Wilson. Darby testified that the traffic stop occurred shortly after noon, and he stated that it was possible that the sun’s reflection on the back windshield may have obstructed his view of the tag at that time.

The trial judge found that Darby’s decision to stop Wilson was reasonable, and the judge accordingly denied Wilson’s motion to suppress. The trial judge explained that Darby testified “unequivocally” that while he was following Wilson’s vehicle, he could not see a license tag, and no tag was in plain view. The trial judge held that this alone authorized the officer to stop the car, which we think was reasonable. The trial judge further found that Darby testified that after he exited the patrol car and approached Wilson’s vehicle, he still did not see a tag. The trial judge acknowledged that the photographs of the vehicle entered into evidence “clearly show a drive-out tag.” However, the trial judge stated that he did not know any details regarding when the photograph was taken.

Mississippi Code Annotated section 27-19-323 (Rev. 2017) states that vehicles operated on Mississippi highways must have a tag that is “conspicuously displayed on the vehicle . . . in such manner that it may be easily read.” Mississippi Code Annotated section 27-19-40 (Rev. 2017) regulates temporary tags like the dealership drive-out tag at issue in the present case. See MCOA Wade. Section 27-19-40(2) requires that these tags be “properly displayed.”

Wilson maintains that the drive-out tag on his vehicle was conspicuously displayed, and he therefore argues that Officer Darby lacked reasonable suspicion to initiate the traffic stop. In support of his argument, Wilson distinguishes the facts of his case from those of MSC Gonzales, and Wilson asserts that he is entitled to a reversal of his conviction.

In Gonzales, the defendants argued that because the license tag on their vehicle was in plain view, the highway patrol officer lacked reasonable suspicion to stop their vehicle for not having a tag. During a hearing on the defendants’ motion to suppress the evidence found in the vehicle as a result of the traffic stop, the officer “repeatedly stated that she pulled over the defendants’ vehicle because it appeared not to have a tag.” The officer also testified that as she approached the driver, she did not see a tag on the vehicle at all. Evidence produced at the suppression hearing showed that the vehicle’s windows were tinted, which made the tag difficult to see or read. The trial judge ultimately found that the officer reasonably suspected the vehicle had no tag. On appeal, MSC held that the record contains ample evidence to support that finding, and it will not be disturbed on appeal. Wilson argues that unlike Gonzales, the evidence in the present case showed that the license tag on Wilson’s vehicle was clearly and conspicuously displayed. As a result, Wilson claims that Darby’s assertion that he could not see the tag “was specious, at best.”

Our review of the record reflects that Darby indicated on the incident report that he stopped Wilson’s vehicle because he did not see a license tag displayed on the vehicle. As stated, photographs of Wilson’s vehicle were admitted into evidence that show a drive-out tag displayed on the rear windshield of the vehicle. Darby acknowledged these photographs, but he maintained throughout the suppression hearing that the tag was not visible to him at any time while he was following Wilson’s vehicle or during the traffic stop. Darby suggested that because the traffic stop occurred shortly after noon, the glare from the sun may have obstructed his view of the license tag. Darby also testified that he wrote on the incident report that Wilson was stopped at a green light for approximately ten seconds. Darby explained that he found it suspicious that Wilson remained stopped at a green light for that long.

We have held that as a general rule, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See MCOA Henderson. The MSC has clarified that this is an objective test based on the facts known to the officer at the time of the stop, not on the motivations of the officer in making the stop. On the other hand, if it is clear that what the police observed did not constitute a violation of the cited traffic law, there is no “objective basis” for the stop, and the stop is illegal. See MSC Moore.

Our appellate courts have affirmed a trial judge’s findings that a police officer had reasonable suspicion to initiate a traffic stop in cases where the officer reasonably suspected the car had no license tag and also where the officer conducted the stop to investigate the validity of a car tag. See MSC Gonzales and MCOA $20,800 v MBN.

After our review, we find that Officer Darby had reasonable suspicion to initiate an investigatory stop of Wilson’s vehicle. We accordingly find that the trial judge did not err in denying Wilson’s motion to suppress.

 

https://courts.ms.gov/images/Opinions/CO162480.pdf