Facts
Jeremy Stevens and Brandon Wigley were suspected of dealing marijuana. In 1998, the Warren County Sheriff’s Department set up a “sting” operation in which undercover officer Tim Williams attempted to buy $40 of marijuana from Stevens. Stevens offered to find some marijuana for Williams if he would front him $40. Stevens was given $40 to make the buy.
Wigley picked up Stevens, and after an unsuccessful trip to Delta, Louisiana, the pair headed to Hinds County. The Hinds County Sheriff was called, and arrangements were made for Hinds County officials to assist the Warren County investigators in the undercover operation. Stevens and Wigley arrived in Clinton and proceeded to James White‘s apartment where they bought marijuana. Later Wigley’s car was pulled over, and the two were arrested at the Hinds/Warren County line.
Both the White residence and Wigley’s car were placed under surveillance after the buy took place. The officers watching White’s apartment grew concerned that he might be tipped off as a result of Stevens’s and Wigley’s arrests.
Detective Jeff Crevitt testified that some friends of Jeremy’s at Jeremy’s trailer were expecting Stevens and Wigley to return to Warren County. Hinds County Judge Chet Henley was contacted by Officer Larry Iles by telephone, and an oral/telephonic search warrant was procured for the White residence. A search of the apartment yielded marijuana, pagers, cell phones, bank statements, a Crown Royal bag, a gun and the $40 given to Stevens to make the buy.
White was convicted of possession of marijuana with intent to distribute and sentenced to nine years. On appeal, he argued the telephonic warrant was not allowed in Mississippi. MSC agreed with White as to the telephonic warrant but affirmed based on good faith by law enforcement.
Analysis
A. Telephonic search warrant
White argues that to uphold the “telephonic search warrant” would be a violation of the Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution. Though Rule 41 of the Federal Rules of Criminal Procedure sets out procedures to obtain a telephonic search warrant, we have no such rule, and our state constitution says nothing about such warrants.
This court finds that the search was a warrantless search, as Mississippi has yet to recognize the viability of telephonic warrants. The current status of our law requires the affiant’s and the affidavit’s presence before the issuing magistrate before a search warrant may properly issue. See Miss.Code Ann. § 41-29-157(a)(2) (2001). The form of an affidavit for a search warrant also indicates the presence of the affiant at issuance. See Miss.Code Ann. § 99-25-15 (2000).
Thus, by requiring a sworn affidavit before issuance of a warrant, we insure the affidavit is free from facts which might be discovered later and included in a subsequently filed affidavit to support the finding of probable cause.
In this case, no recording was made of the phone call in which this search warrant was authorized, and no paper copy of the search warrant existed at the time of the search. There does exist a document made under oath in this record which resembles a search warrant affidavit, executed by the narcotics officer the day after this search. Also in the record is a warrant bearing the judge’s signature which also was executed the day afterwards.
The several states that have accepted telephonic warrants require specific procedures most of which were not met here. The Federal Rules of Criminal Procedure allow for such warrants, and map out a procedure complying with constitutional mandates. See Fed.R.Crim.P. 41. Further, more than one-third of the States have expressly adopted such warrants by statute, court rule or case law.
Nonetheless, that is not the current state of the law in Mississippi. We note that in our sister states telephonic search warrants are primarily a creature of statute. Where they have been accepted in the ordinary course of police investigation, certain specific safeguards exist in these jurisdictions to insure authenticity and proper issuance upon the finding of probable cause.
Typical of these safeguards are the requirements: (l) that the entire telephone conversation be recorded; (2) that the officer seeking the warrant is placed under oath by the impartial magistrate while the officer relates the facts supporting a finding of probable cause; and (3) that a paper copy is prepared and provided to the premises owner-either by means of facsimile machine or by requiring the magistrate to read aloud word-for-word the contents of the search warrant he or she has authorized for copying by the officer executing the warrant.
We decline to accept telephonic search warrants as valid. We hold that it is for the Legislature to create a statutory procedure for telephonic search warrants providing a constitutionally sound method to procure such a search warrant to properly issue using existing procedure.
B. Good faith
Nonetheless, while the search was a warrantless search, it is possible that a warrantless search can be found reasonable. The United States Supreme Court in U.S. v. Leon, 468 U.S. 897 (1984), has found that the Fourth Amendment exclusionary rule should not be applied to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid.
The Leon Court did enumerate four circumstances under which any officer should know better than to proceed on a warrant, no matter what the magistrate tells him:
[1] the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;
[2] the issuing magistrate wholly abandoned his judicial role;
[3] a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or
[4] a warrant may be so facially deficient— i.e., in failing to particularize the place to be searched or the things to be seized— that the executing officers cannot reasonably presume it to be valid.
None of the enumerated-above restrictions on its application is present on the facts before us.
In the present case, the officers had obtained warrants via telephone from another judge on previous occasions, leading them to mistakenly believe that this procedure was valid. The officer stated that a district attorney had informed them in police procedures training that such warrants were permissible under appropriate circumstances.
Further, the officer stated that he had obtained such a warrant on one or two prior occasions. Beyond that, the oral statement was given under oath to a neutral magistrate. More importantly, the following morning, the officer filled out a written warrant and record of the telephone conversation and presented it to the authorizing judge. Thus, a follow up procedure utilizing some, though admittedly not all, of the generally recognized safeguards was used here.
Instead of immediately entering the apartment and conducting a warrantless search, these officers “did their duty” by pursuing a more careful, prudent course. Thus, the officers had a reasonable good faith belief that they were executing a valid warrant, and the exclusionary rule should not operate in this case.
We find that the conclusions these officers made in the field with limited time and information to be reasonable under the circumstances. The officers were attempting to prevent the destruction of evidence instead of effectuating arrest and seizure. We conclude that the officers reasonably believed in good faith they had a valid telephonic search warrant and were acting reasonably. Therefore, we find that Leon is applicable.
The trial court, even in the absence of a state statute regarding telephonic search warrants, properly upheld the search as a reasonable warrantless search. Thus, the trial court is affirmed.
Thoughts
The last thing I see on attempt to allow electronic warrants in Mississippi is a house bill which died in committee in 2019. See here. Additionally, Oxford, MS., may be about to enter a pilot program. See here.