In 1997, Officer Mark Fulco of the Amory Police Department, Monroe County, received a radio dispatch directing him to the Tenn-Tom Inn to investigate an anonymous report of a domestic disturbance. Once Fulco arrived at the Tenn-Tom Inn, he observed a lone car occupied by four individuals, three males and one female, parked in the Tenn-Tom Inn parking lot.
Charlie Curtis Northington was sitting in the driver’s seat. As Fulco approached the vehicle he told the occupants to place their hands where he could see them. Fulco then observed Northington bend over the seat on the driver’s side of the car as if he were stuffing something under the seat. At about that same time Lieutenant Will Stevens arrived at the scene, and the two officers approached the vehicle from both the passenger’s and driver’s sides.
As Stevens approached from the passenger’s side, he observed an approximate half-case of beer on the rear floorboard of the vehicle. Monroe County is a dry county. Fulco then asked the occupants to exit the vehicle, and Northington was placed under arrest for possession of alcohol in a dry county. Fulco then instituted a pat down search of Northington’s person.
As Fulco patted Northington down, he felt a plastic wrapper in the inside pocket of the blue jean jacket worn by Northington. Officer Fulco removed the tightly wrapped cellophane cigarette wrapper wherein two rocks of crack cocaine were discovered. Fulco testified that once the cocaine was discovered Northington made a voluntary statement that the jacket was not his and that some unknown male had given it to him.
Northington testified that his wife, Alison Marie Northington, handed him her blue jean jacket to wear because it was very cold outside. While driving to get diapers, Northington stopped to pick up three hitchhikers and took them to an area motel, the Tenn-Tom Inn.
Northington denies having stated to Fulco at the time of his arrest that he got the jacket from an unknown male. He was convicted of possession of cocaine and sentenced to three years. On appeal, he argued there was no breach of peace and he was not in possession of the alcohol. MCOA affirmed.
A. Breach of peace
Northington begins his argument by stated that under Miss. Code Ann. § 99-3-7 (1) (Rev. 1994), an officer or private person may arrest any person without warrant for a breach of peace threatened or attempted in his presence. Northington argues that since there was no breach of peace threatened or attempted in the presence of Fulco, there was no justification for his arrest without a warrant.
In Smith v State, 228 Miss. 476 (1956), MSC said that at common law a peace officer could arrest without a warrant for a misdemeanor committed in his presence if a breach of the peace were involved. The legislature, by § 2470, Mississippi Code of 1942, extended the authority to make arrests without a warrant to indictable offenses committed or attempted in the presence of the officer whether or not a breach of peace is involved.
The mere act of an officer, while investigating a reported domestic disturbance call, in approaching a lone car occupied with four individuals at the precise location reported to him via dispatch does not constitute the unlawful presence of that officer in investigating the reported disturbance. Such activity in conducting an investigation is not unlawful where it is undertaken in good faith for that specific purpose.
Once Fulco and Stevens saw the one-half case of beer lying on the rear floorboard, in open sight of the officers eyes, while investigating in good faith a reported domestic disturbance at the Tenn-Tom Inn, probable cause for an arrest was met. Proof that the officers approached Northington’s vehicle for any other purpose than to conduct a good faith investigation has not been shown.
B. Constructive possession
Northington further argues that he did not have constructive possession of the alcohol as is evidenced by the fact that the beer was located on the rear floorboard near two passenger hitchhikers whom he had just picked up and offered a ride. Northington reasons that without probable cause to arrest him for possession of alcohol in a dry county, which he asserts fails to meet the elements of constructive possession, any subsequent incriminating evidence found as a result of his arrest, in this case the crack cocaine, is inadmissible.
Northington argues that proof of constructive possession is required before an officer may make a lawful arrest based on probable cause. We disagree. The issue of whether an individual is in constructive possession of alcohol in a dry county need not arise in the officer’s determination of whether probable cause exists to effectuate a lawful arrest. Once the alcohol was observed by the officers, which was clearly visible to them as it lay on the rear floorboard of Northington’s vehicle, then the issue of probable cause had been met to support an arrest for possession of alcohol in a dry county.