Facts
In 1995, the Mississippi Bureau of Narcotics, along with the Mississippi Department Of Transportation, were conducting a drug interdiction detail along Interstate 20 in Scott County. They were also checking commercial vehicles for Department of Transportation violations. A semi-truck was observed which had improper blue lights on the rear of the truck. The truck was pulled over and eventually searched.
The driver of the truck was Marie Gazaway. Her husband, Timothy Gazaway, was in the sleeper compartment of the truck when it was pulled over. Luis Hawkins, an officer of the Mississippi Bureau of Narcotics, approached Mrs. Gazaway and asked if she would consent to have her truck searched and she agreed. After having asked Mr. Gazaway to step down, Hawkins then preceded to search the truck. Hawkins found a container in the sleeper compartment of the truck which contained marijuana.
James Richardson, an officer with the Mississippi Department of Transportation, dealt with Mr. Gazaway while Hawkins conducted his search. He asked Mr. Gazaway to both take his hands out of his pockets and to empty his pockets. Mr. Gazaway was observed throwing a small package from his pocket into the truck. The package was recovered and discovered to contain crystal methamphetamine.
Mr. Gazaway was placed under arrest, searched, and read his Miranda rights. The search incident to arrest resulted in the discovery of more marijuana. He then told the officers that all of the drugs found belonged to him. Mrs. Gazaway was neither arrested nor indicted. Officers then asked Mrs. Gazaway to write out her consent, which she did.
Gazaway was convicted of possession of methamphetamine and possession of marijuana and sentenced to three years. On appeal, he argued the consent of his wife was not valid. MCOA affirmed.
Analysis
The United States Supreme Court has long recognized that a voluntary consent to a search eliminates an officer’s need to obtain a search warrant. See Davis v. United States, 328 U.S. 582 (1946).
Also, consent to search voluntarily given without coercion may be given by a third party who possessed common authority, mutual use and joint control over property not in the exclusive control or possession of the defendant and where the defendant had no reasonable expectation of privacy. See MSC Mettetal v. State, 615 So. 2d 600 (Miss. 1993).
There are in fact three searches and three seizures in this case.
The first search occurred when Officer Hawkins searched the truck. It was there he found and seized a container which held marijuana. The second search occurred when Mr. Gazaway was asked to step down from the truck. At the time, Mr. Gazaway had his hands in his pockets. Officer Richard, who was dealing with Mr. Gazaway, asked him not only to remove his hands from his pockets but to also empty his pockets. Officer Richardson testified he asked Mr. Gazaway to do this for Mr. Gazaway’s safety as well as the safety of the officers present. When Mr. Gazaway was emptying his pockets, he attempted to throw a small plastic bag into the truck. This was seized and later determined to contain crystal methamphetamine. Mr. Gazaway was then placed under arrest. The third search and seizure occurred after Mr. Gazaway was placed under arrest. He was read his Miranda rights and a search of his person was conducted. Officer Richardson found more marijuana in one of Mr. Gazaway’s outer pockets. Mr. Gazaway then confessed to owning all of the controlled substances found and was taken to Scott County Jail.
The first search of the truck is the determinative factor in this case. It follows that if this was a proper and reasonable search the following two searches of Mr. Gazaway himself should not have to be addressed. This is based on the fact that since marijuana was found in the truck, Mr. Gazaway would have eventually been arrested, resulting in a search incident to arrest and the seizure of the crystal methamphetamine and other marijuana allegedly found only because of an illegal search. Once the marijuana was found, only one of two things would have happened, both with the same results. If no one claimed the marijuana, both Mr. and Mrs. Gazaway would have been arrested and searched. If Mr. Gazaway claimed the marijuana, which he actually did in this case, he would have been arrested and searched. Since both scenarios result in Mr. Gazaway being searched, whether or not the two searches following the search of the truck were proper are moot issues since he would have been searched anyway if the first search was proper.
Mr. Gazaway argues that the consent obtained from his wife was not valid based on various reasons. He argues the State never demonstrated that Mrs. Gazaway actually knew of her right to refuse the search. Mr. Gazaway points to the inconsistencies in the testimony of Officer Hawkins, who obtained the consent, in the preliminary hearing and suppression hearing. He also points to the fact that Officer Hawkins testified at the preliminary hearing that no oral consent was given. We are satisfied, however, that the consent was valid.
First, Mr. Gazaway has failed to meet his burden to show that his wife did not know of her right to refuse. The only persons who testified on this matter at the preliminary hearing, the suppression hearing, and trial are the officers involved. Although there are inconsistencies between the preliminary hearing and suppression hearing of when, how, and in what form the consent was obtained, there are no inconsistencies when it comes to whether any coercion or intimidation was used to obtain the consent. All officers testified no threats or coercion were used to obtain the consent. Since Mrs. Gazaway did not testify, we have nothing to counter the officers’ testimony.
Second, the written consent of Mrs. Gazaway evidences the fact that her consent was voluntary. She specifically says so in her statement. She signed the statement and there is nothing suggesting that this document was forged or obtained through duress. Furthermore, Officer Palmer signed the same document stating Mrs. Gazaway had written it of her own free will.
Finally, although Officer Hawkins when specifically asked at the preliminary hearing if Mrs. Gazaway had given an oral consent said she had not, he had early in the same testimony, at that same hearing, said that in fact she had. Officer Hawkins’s testimony at the preliminary hearing, suppression hearing, and trial is consistent that an oral consent was given first before the search of the truck. His inconsistencies arise about when the written consent was given and whether or not it was on a pre- printed form. We are satisfied that a valid oral consent was given before the search of the truck and that a valid written consent was given after the search of the truck.
We also find that this was a proper consent given by a third party who possessed common authority, mutual use, and joint control over the truck. Mr. and Mrs. Gazaway are married, Mrs. Gazaway was driving the truck at the time of this incident, and she also referred to the truck as “my truck” in her written consent statement. This assignment of error is without merit.