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police are not required to deliver the Miranda warnings at the precise moment they have probable cause for arrest


In 1997, Officer Alex Hodge pulled over a red Ford Taurus traveling at the rate of 75 mph in a 70 mph zone in Jones County. The driver of the vehicle was James B. Millsap and forty six kilograms of marijuana were found in the trunk of his car. Lieutenant Tony Sarrow, a lieutenant with the Harrison County Sheriff’s Department, was riding along with Hodge on the day in question.

Hodge became suspicious when he noticed that the vehicle was a Hertz rental and Millsap’s name did not appear on the rental contract. He asked Millsap if he had any handguns, contraband or dead bodies in the vehicle. Hodge testified that Millsap’s response was “Of course not. My father would kill me if I was involved in anything like that.”

Then Hodge testified that he asked Millsap, “What are you talking about when you refer to that?” and stated that Millsap’s response was “You know, drugs and stuff.” Then Hodge asked if he could search the vehicle, and Millsap stated that he did not want the vehicle searched because the last time it was searched the police had damaged his vehicle.

Hodge then got his patrol dog to do an exterior walk around the vehicle, which resulted in the dog making an aggressive alert to the back of the car by scratching on the trunk. The officer asked Mr. Millsap if there would be any reason the dog would have indicated on the vehicle or if there were any illegal narcotics in the vehicle. He testified that Millsap’s response was “Yes” and after asking how much Millsap responded with “A lot.” Hodge then asked what he meant by a lot, and Millsap responded with “Well, it should be between 104 and 106 pounds.”

Hodge stated that he handcuffed Millsap and the passenger in the car, Alicia Stone, in order to safely search the car. When he opened the trunk he found two duffel bags filled with a green leafy substance, compressed and wrapped in clear plastic wrap, later determined to be marijuana with a weight of forty-six kilograms or approximately 101 pounds.

At the police station, Officer Don Sumrall advised Millsap of his Miranda rights and gave him his rights advisement form. Millsap signed the waiver and explained to the officers that he traveled from Severeville, Tennessee to Houston, Texas to pick up the marijuana.

Millsap was convicted of possession of a controlled substance and sentenced to 20 years. On appeal, he argued his statement should have been suppressed and the evidence was illegally obtained. MCOA affirmed.


A. Statement made before arrest

Millsap contends that once Hodge had probable cause that a crime was occurring, when the dog indicated there were drugs in the car, then Hodge should have given the appropriate Miranda warning to Millsap. Essentially, Millsap argues that the police are required to deliver the Miranda warnings at such time as they have probable cause for arrest.

The U.S. Supreme Court in Berkemer v. McCarty, 468 U.S. 420 (1984), held that pre-arrest statements are admissible because routine traffic stops do not constitute custodial interrogation for purposes of Miranda.

In the case at bar, we find nothing in the record to indicate that Millsap should have been given Miranda warnings at any point prior to the time Officer Hodge placed him under arrest.

Once Hodge had legally detained Millsap, several facts immediately caused him to become suspicious, provoking his further investigation: (1) Millsap was driving a rented vehicle and his name was not on the contract; (2) the person whose name was on the contract was not in the vehicle; (3) a piece of paper lying on the dashboard with instructions to call a friend’s father, who was a deputy sheriff, in case of emergency; and (4) Millsap appeared to be very nervous, hesitated before answering questions and did not look at Hodge when answering the questions. Once Hodge began to investigate further, several other facts indicated to him that something suspicious was going on: (5) the passenger’s statement and Millsap’s statements had several inconsistencies; (6) when Hodge asked Millsap whether he had any dead bodies, drugs, contraband, or hand grenades in the vehicle Millsap’s response focused on drugs.

Hodge was justified and reasonable in his continued investigation, and the situation did not escalate to a custodial setting. Millsap failed to demonstrate that he was subjected to restraints analogous to those associated with a formal arrest at any time between the initial stop and the arrest. Thus, Millsap was not taken into custody for the purposes of Miranda until Millsap was arrested.

The U.S. Supreme Court in Hoffa v. United States, 385 U.S. 293 (1966), said that the police are not required to deliver the Miranda warnings at the precise moment they have probable cause for arrest.

The traffic stop itself does not constitute an arrest or custodial interrogation requiring Miranda warnings, and the mere fact that the dog indicated there were drugs in the trunk, which gave Hodge probable cause, did not require Hodge to stop and arrest Millsap at that point. The statements Millsap made prior to that point were admissible against him.

B. Search of trunk

The U.S. Supreme Court in California v. Acevedo, 500 U.S. 565, (1991), said that under the automobile exception police may conduct a warrantless search of an automobile and any containers therein if they have probable cause to believe that it contains contraband or evidence of crime.

A probable cause determination should be based on the totality of the circumstances.

In Seals, the federal 5th said that a dog sniff does not constitute a search or seizure under the Fourth Amendment. However, once the dog alerted to the trunk of the car, probable cause to search the vehicle was established. Furthermore, once an officer obtains probable cause to search a vehicle, then probable cause exists to search all compartments of the vehicle and all containers

Thus, if officers have probable cause to believe that contraband is in only one part of a car, then they are limited to that area. If, on the other hand, officers have probable cause to believe that contraband is located somewhere in a car, but they don’t know exactly where, then they can search the entire vehicle.

Since the dog indicated the trunk of the car, the officer had probable cause to search the entire trunk. Finally, the officer was also justified in opening the bags containing the marijuana, due to his probable cause to believe that drugs were located in the car, which extended to the entire trunk and all containers found therein. Based on the totality of the circumstances and Hodge’s experience and observations, a determination that sufficient probable cause existed and was warranted by the trial court.