Search incident to arrest of vehicle can take place after subject is in police car

Facts

John Phinizee owned and operated Bernard’s Pool Hall (Bernard’s or the pool hall) in Crawford, Mississippi. His 2003 arrest was the product of an ongoing investigation which began in 1999. The circumstances leading up to his arrest are as follows.

In 1999, an officer of the Lowndes County Narcotics Unit (LCNU) made an undercover purchase of 40 dollars worth of cocaine from Bernard’s Pool Hall. No arrest was made at the time.

In 2001, officers of the LCNU received a letter from a concerned citizen stating that a man by the name of John was selling drugs from Bernard’s.

Again, in 2002, Officer Larry Swearingen of the LCNU received a letter from a concerned citizen stating that Phinizee was selling cocaine and marijuana from Bernard’s. Shortly thereafter, Swearingen talked with Phinizee at Bernard’s but no arrest was made at the time.

In 2003, Georgia Whitmore’s husband came to Swearingen’s office and stated that his wife was regularly purchasing crack cocaine from Phinizee at Bernard’s Pool Hall and sometimes at one of the Citco stations in Columbus, Mississippi. He stated further that his wife had been buying from Phinizee for a long time and was addicted to cocaine.

Two months later, Whitmore’s husband called Swearingen and informed him that Whitmore planned to meet Phinizee to buy cocaine the next day between 7:00 a.m. and 9:00 a.m. at one of two Citco stations, located either on Highway 45 North or at the intersection of Military Road and Martin Luther King Drive. Whitmore’s husband supplied the tag number of Phinizee’s vehicle, which he described as a black extended-cab Chevrolet truck. Whitmore’s husband also stated that his wife would be driving a maroon 2000 Prism. .

The following day, Swearingen conducted surveillance and observed Whitmore arrive at the gas station, park her car, and make a call from a pay phone located directly behind a barbeque pit near the gas station. After completing the phone call, Whitmore got back in her car and drove around to the front of the barbeque pit.

A few minutes later, Phinizee arrived at the gas station in a black Chevrolet truck. Swearingen then observed Phinzee and Whitmore exit their respective vehicles and make an exchange which he believed to be a drug transaction. Whitmore then left the gas station and was pulled over a short distance therefrom at approximately 8:45 a.m.

Whitmore was searched and a Trophy chewing tobacco pouch containing cocaine was found in her brassiere. Upon her arrest, she gave a written signed statement that she had purchased cocaine from Phinizee for a couple of years, and that she had in fact just bought cocaine from him that morning. She also stated that she had purchased cocaine from Phinizee at least a hundred times at Bernard’s over the past few years.

Officer Swearingen and Officer Joey Brackin returned to the Citco station to arrest Phinizee. A few minutes after they arrived, Phinizee pulled into the parking lot and was arrested as he exited his vehicle. Swearingen testified that he looked into Phinizee’s truck and was able to see numerous Trophy chewing tobacco pouches identical to the one taken from Whitmore’s bra. He then searched the interior of the truck and found cocaine inside one of the tobacco pouches. Phinizee’s vehicle was towed and he was taken to the sheriff’s office for processing.

After these events transpired, Swearingen submitted an affidavit for a search warrant of Bernard’s Pool Hall. The ensuing search of the pool hall yielded marijuana and cocaine. Once back at the station, Phinizee admitted that he had been selling drugs from Bernard’s Pool Hall and gave a signed written statement to that effect after signing a waiver of rights.

Phinizee was convicted of sale of cocaine and possession of cocaine with intent to distribute and sentenced to 60 years. On appeal, he argued the search of his truck and business was illegal and this his statements should have been suppressed. MCOA affirmed.

Analysis

A. Search incident to arrest

In Townsend, MSC said that the warrantless search of an automobile incident to arrest is proper where the police have made a lawful custodial arrest of the occupant of the automobile. A search incident to arrest justifies the contemporaneous warrantless search of the arrestee and the area within the arrestee’s immediate control. The United States Supreme Court in Belton v U.S., 453 U.S. 460 (1981), has further explained that the scope of a search incident to arrest extends to the entire passenger compartment of the automobile as well as any containers found therein.

Phinizee contends that the search of his truck was impermissible because he was no longer in his vehicle when Swearingen searched the interior of his truck. In Sanders v State, 403 So. 2d 1288 (1981), MSC upheld the search of an automobile after the arrestee had been placed in the squad car.

B. Inventory Search

We also find the search of Phinizee’s truck and the seizure of the cocaine permissible as an inventory search. In Franklin v State, 587 So. 2d 905 (Miss. 1991), the MSC said that an inventory of automobile made on the scene is proper where vehicle is impounded and wrecker is en route.

C. Automobile exception

We also find the search of Phinizee’s truck and the seizure of the cocaine permissible under the automobile exception. Swearingen witnessed Phinizee sell cocaine to Ms. Whitmore out of his truck, thus probable cause existed that Phinizee’s vehicle was evidence of crime or that it contained contraband.

D. Search warrant for pool hall based on probable cause

In Zinn, we said a search warrant is validly issued when based upon probable cause. Under Mississippi law, probable cause is determined by assessing the totality of the circumstances.

Swearingen submitted underlying facts and circumstances to support the issuance of the warrant. The information consisted of (1) the April 1999 undercover purchase of cocaine at the pool hall, (2) the July 2001 and April 2002 letters from concerned citizens stating that Phinizee was selling drugs from the pool hall, (3) the October 2003 conversation that Swearingen had with Whitmore’s husband, (4) the December 8, 2003, phone call between Whitmore’s husband and Swearingen, (5) Swearingen’s personal observation of the December 9 drug transaction between Phinizee and Whitmore, (6) Whitmore’s statement admitting that she purchased cocaine from Phinizee earlier that morning at the Citco station and that she had purchased cocaine from Phinizee at the pool hall at least one hundred times over the past few years, and (7) the cocaine found in Phinizee’s truck earlier that day.

We find substantial evidence in the affidavit to support the justice court judge’s finding of probable cause to issue a warrant for the search of Bernard’s. While the affidavit does contain information from unnamed informants it also contains information based on personal observations of police officers involved in the case which corroborates the information received from anonymous sources.

Under the totality of the circumstances, we find sufficient evidence to support a finding that cocaine would be found in the pool hall.

E. Phinizee’s statement to police

Having found no illegality in the search and seizure of Phinizee’s truck and Bernard’s Pool Hall, we quickly dispose of Phinizee’s final claim that the statements he made to police after his arrest are fruits of the poisonous tree. As no evidence was obtained in violation of Phinizee’s Fourth Amendment rights, there exists no poisonous tree from which Phinizee may claim any fruits have been derived. This issue is without merit.

Thoughts

In Gant, the U.S. Supreme Court said that a search incident to arrest can be performed on a vehicle when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. This restriction of search incident to arrest for vehicles would not have impacted this case as Phinizee was arrested on a drug charge.

 

https://courts.ms.gov/images/Opinions/CO43837.pdf