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Tag must be conspicuously displayed on vehicle

Facts

While waiting in the median on Highway 78 near Olive Branch, Mississippi, Highway Patrol Trooper M/Sgt. Gayle McMullin observed an east-bound, blue Dodge Durango, which appeared to have no tag displayed. McMullin stopped the Durango and engaged the driver, identified as Hector Hernandez Gonzales, in a conversation concerning his travel route.

McMullin noted on her initial, written report that, as she questioned Gonzales about his destination, she became suspicious because his demeanor changed. Specifically, she reported that the driver appeared “very nervous” and looked to the passenger, Juan Gonzalez Torres, when questioned about his direction of travel. McMullin was later to testify, “When I asked him which route he was going, he looked over to the passenger, like to get an idea of where to go or what to say, and by his body language and his nervousness and the odor of marijuana, I called for a canine.”

McMullin notified Gonzales that she pulled the vehicle over because there was no tag displayed on the vehicle. Gonzales pointed out the temporary paper tag posted on the lower left hand corner of the rear window of the vehicle. McMullin testified that she did not see the paper tag until the driver pointed it out to her and she shined her flashlight on the area. McMullin then radioed Trooper Brian Magee, the canine officer, for backup while she compared the papers Gonzales had given her with the information on the tag. By the time she finished writing out the tag citation, Magee and the canine arrived.

The driver, Gonzales, and passenger, Torres, consented to a vehicle search. Magee found marijuana residue and loose marijuana in the center console area of the vehicle, necessitating a further search. The canine alerted to the back rear passenger door. The vehicle was then taken to a secure location and searched further. The officers found a suitcase in the back seat which contained twenty-five bundles, or roughly sixty pounds, of marijuana.

Gonzales and Torres were convicted of possession of controlled substance with intent to distribute and sentenced to 15 years. On appeal, they argued there was no reasonable suspicion for the stop. MSC affirmed.

Analysis

The defendants assert that their vehicle had a tag in plain view and, therefore, McMullin had no reasonable suspicion that the vehicle had no tag; and because McMullin had no probable cause or reasonable suspicion to pull them over, all fruits of the illegal stop should be suppressed. Accordingly, we shall set forth the specific facts and circumstances of the stop.

McMullin repeatedly stated that she pulled over the defendants’ vehicle because it appeared not to have a tag. Specifically, she testified that upon approaching the driver, she “did not see a tag at all.” Although no evidence of tint rating was elicited at the suppression hearing, testimony indicated that the windows of the Dodge Durango were very dark. McMullin testified, “After I told Mr. Gonzales the reason for the stop, he pointed out to me that he did have a paper tag on the back window, but I did not see it. The window was very tinted, and I did not see it until I walked back there and looked at it with my flashlight.”

Throughout the record, McMulllin never wavered in this assertion. In her initial written report, she specifically noted that the Dodge had “no tag displayed.” Additionally, at the suppression hearing, McMullin repeatedly testified to this fact. Two photographs of the back of the vehicle showing the tag were introduced. The first was taken from the angle of the Trooper’s car behind the Durango at the time of the traffic stop. While a white rectangle is visible in the lower left hand corner of the back glass, the numbers or any identifying marks are illegible from that distance. Additionally, it is evident that at least one other set of trooper car lights are shining in that direction, thereby illuminating the windows further. No other tag is displayed on the back tailgate.

The second photograph is a close-up picture of the tag with the numbers clearly visible. It appears that, in this photograph, one light is concentrated in the tag area. McMullin and Magee noted that the photographs admitted into evidence were taken with many lights shining onto the paper tag, without which the tag was indistinguishable. Interestingly, Trooper McMullin issued a citation to Gonzales for having no tag displayed, even though she noted the temporary tag number on the ticket.

The State contends that, even if the vehicle had a valid tag, it was not “conspicuously displayed,” as required by the statute. Thus, the State argues, Trooper McMullin was within her authority to pull the vehicle over to check for a tag, and to check the expiration of the tag (if found) or to see if it was valid. Therefore, the State maintains, the stop was legal and not at odds with the Fourth Amendment. We agree.

The statute at issue provides that vehicles operated on Mississippi’s highways must have tags “conspicuously displayed on the vehicle being operated in such a manner that it may be easily read.” Miss. Code Ann. § 27-19-323(Rev. 2006). In light of this clear statutory language, it is not enough that the vehicle actually had a tag. If the tag was not “conspicuously displayed” and “easily read,” Trooper McMullin was fully justified in making the stop.

Gonzales and Torres argue that because McMullin’s written report regarding the incident contained no references to her detection of the odor of marijuana, the stop was pretextual. The defendants cite U.S. Supreme Court case Whren v. United States, 517 U.S. 806 (1996), and federal 5th Escalante in support of their position that the traffic stop was illegal. However, both Whren and Escalante are distinguishable from this case.

In each of those cases, the officer had a suspicion that some type of criminal activity was occurring but was not aware of what that activity was. The officer therefore used the pretext of a traffic stop to further his investigation. In the present case, however, the trial court found that McMullin reasonably suspected the Dodge Durango had no tag. The record contains ample evidence to support that finding, and it will not be disturbed on appeal.

The defendants also cite cases in which this Court and the Court of Appeals have ruled that actions which do not constitute criminal offenses are not objective bases for a stop, and, therefore, the stops are illegal. See MSC McNeely v. State, 277 So. 2d 435 (Miss. 1973) and MCOA Couldery. In Couldery, the officer initiated a traffic stop for driving in the left-hand lane on the interstate. After reviewing the statutory offenses the officer put forth as the basis for the citation, the Court concluded that the actions of the driver did not constitute a criminal offense – that driving in the left-hand lane on the interstate was not illegal. Therefore, the officer’s misapprehension of the law precluded the stop from being valid.

Here, McMullin noted in her initial, written report and testified at the suppression hearing that the purpose for the stop was “no valid tag displayed.” Highway Patrol officers have been given the statutory authority to enforce all traffic laws, rules and regulations of the State of Mississippi. See Miss. Code Ann. § 45-3-21(1)(a) (2007)(Rev. 2004). Failure to conspicuously display a tag in such a manner that it may easily be read is an offense under Mississippi Code Section 27-19-323 (Rev. 2006). Moreover, Mississippi Code Section 27-19-40 regulates “special in-transit tags” like that at issue here, and requires that such tag be “properly displayed” and “displayed in plain view.” See Miss. Code Ann. § 27-19-40(1), (1)(c), (4)(Rev. 2006).

McMullin testified she stopped the Dodge Durango because she suspected a violation of these laws. The statutes require not only the existence of a valid tag, but also that the tag be displayed in plain view. Evidence was produced that the Dodge Durango’s windows were tinted, making the tag difficult to see or read. Indeed, even though a valid tag was taped inside the back window of the vehicle, the trooper issued a traffic citation for violation of the statute.

From the evidence in the record, we cannot say that the trial court committed clear error in finding reasonable suspicion to make the stop. Thus, the stop was justified at its inception, and the State has satisfied the first prong. Additionally, because the subsequent search of the vehicle was incidental to the officer smelling marijuana emanating from the vehicle, and valid consent to search was given by the defendants, an analysis of the second prong is unnecessary. Having found the initial stop reasonable, we affirm the trial court’s admission of evidence.

 

https://courts.ms.gov/images/Opinions/CO43551.pdf