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upon search incident to arrest, a subject is charged with a new crime

Facts

In 2005, Chad Bell, a deputy with the Lowndes County Sheriff’s Department, observed a vehicle accelerating onto Lehmberg Road in Lowndes County, Mississippi, at a high rate of speed. Bell followed the vehicle and noticed the vehicle did not have a working light illuminating the license tag. Bell determined the vehicle was driving 52 MPH hour in a 40 MPH zone.

Bell stopped the vehicle and recognized the driver as Major Lee. Bell noticed Lee was unusually nervous because his hands were shaking, and a vein in his neck was bulging. Bell then asked Lee to exit the vehicle. Bell questioned Lee as to whether Lee possessed any guns, knives, marijuana, cocaine, methamphetamine, heroin, or ecstasy. Lee responded in the negative.

Lee consented to a search of the car. Prior to searching the vehicle, Bell again told Lee he was not obligated to consent to the search. Lee again consented to the search. Prior to the questions and the search, Deputy Sheriff Darrell Nabors had arrived on the scene.

Nabors testified at the suppression hearing that he noticed Lee’s license tag light was not functioning and that the vehicle appeared to be speeding. Nabors saw Bell following Lee’s vehicle, and followed suit. Upon arriving at the scene, Nabors testified he heard Bell ask Lee whether he had any drugs or weapons and whether Bell could search Lee’s vehicle.

Nabors heard Lee consent to the search two times. Nabors stood with Lee as Deputy Bell searched the vehicle. Nabors stated Lee was acting nervous and kept attempting to put his hands in his pockets.

Upon searching the car, Bell found a clear film cannister containing marijuana. Lee was then placed under arrest, and a search incident to arrest of Lee’s person was conducted by both Bell and Nabors.

Nabors found a magnetic key holder in the left front pocket of Lee’s pants. Nabors stated the key holder contained a white powder substance, which he thought was cocaine. The crime lab identified the substance as .42 gram of cocaine.

Lee was convicted of possession of cocaine and sentenced to 16 years as a habitual offender. On appeal, he argued the traffic stop was illegal. MCOA affirmed.

Analysis

In Whren v. United States, 517 U.S. 806 (1996), the U.S. Supreme Court stated that the action of an officer stopping a vehicle is reasonable when there is probable cause to believe that a traffic violation has occurred.

Bell witnessed Lee driving fast, paced Lee’s vehicle at twelve miles over the posted speed limit, and noticed that Lee’s license tag light was out. Mississippi law provides that vehicles must adhere to set speed limits and that license tags must be visible at night at a distance of sixty feet. See Miss. Code Ann. § 63-3-501 (Supp. 2011); Miss. Code Ann. § 27-19-31 (Supp. 2011).

Noticing Lee appeared unusually nervous; his hands were shaking; and a vein in his neck was bulging, Bell asked Lee to step out of the vehicle. Bell also recognized Lee from a prior arrest. Bell then received Lee’s consent to search the vehicle.

Lee denies ever consenting to the search of his vehicle. In determining whether a consent to search was voluntarily given and not the result of coercion, the MSC in Jackson v State, 418 So. 2d 827 (Miss. 1982), said that we look to the totality of the circumstances.

Both Bell and Nabors testified Lee twice consented to the search of his vehicle, even after Bell told Lee he could refuse. Under the totality of the circumstances, we find Lee’s consent was not obtained by coercion.

After finding the marijuana in Lee’s vehicle, Bell placed Lee under arrest. At that point, Nabors began to search Lee’s pockets for contraband and found what he thought was cocaine. Since Bell had probable cause to arrest Lee for possession of marijuana, Bell was legally allowed to perform a search incident to that arrest.

In Williams, we said that it is of no moment that the evidence obtained as a result of the search incident to defendant’s arrest for a particular crime is not related to that charge, but created probable cause for a subsequent arrest on a wholly different charge.

 

https://courts.ms.gov/images/Opinions/CO74557.pdf