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Voluntary statement is not interrogation

Facts

Sarah and Bobby Childress were the operators of a pharmacy in Houlka that was burglarized on the night of February 6, 1997, or early the next morning. Evidence indicated that entry was by means of a pick-up truck being driven through the rear door of the pharmacy. Several footprints were also found at the scene including at least one on the pharmacy’s rear door. The truck was stolen and had been left at the scene.

Later in the morning after the burglary, law enforcement officers serving an unrelated chancery court commitment writ on William “Chip” Bryant, took him into custody for transportation to a mental health center to undergo a mental evaluation. Bryant was at the house of his father, Curtis Bryant. At least one officer indicated that they were already suspicious of Chip, since they told his father about the burglary and another officer remained in the house, with the permission of Curtis Bryant to “look any way we wanted to” for evidence about the burglary.

While there, one of the deputies saw a pair of boots with distinctive soles that he thought resembled the boot-prints at the scene of the Houlka Pharmacy burglary. The boots were seized and taken to an officer at the scene of the pharmacy burglary. Chip Bryant, who was not then charged with the burglary, was given notice of his constitutional rights under Miranda v. Arizona and transported to the mental health facility.

Responding to an anonymous tip, several officers returned to Curtis Bryant’s house a week after the burglary. The defendant’s brother, Jimmy Bryant, answered the knock at the front door, saw the officers, then ran to the back and threw a bag in the refrigerator. Two deputies testified that permission to search the house was granted by the father, Curtis Bryant. This search discovered two plastic bags containing contraband drugs. One bag was in the refrigerator, and the other was in the attic. The drugs were later identified as being from the Houlka Pharmacy.

Chip Bryant left the medical facility to which he had been taken for mental evaluation. A sheriff’s deputy testified it was his understanding that Bryant had escaped. Bryant was found in Alabama. Chickasaw County deputies returned him to Mississippi. Bryant made an inculpatory statement while being booked in Mississippi.

Bryant was convicted of burglary and sentenced to seven years. On appeal he argued his statement and the boots and drugs should have been suppressed. MCOA affirmed.

Analysis

A. Admissibility of boots from first entry by police

(There was no motion to suppress in this case. Thus, MCOA only had trial court testimony and this issue was presented as an ineffective assistance of counsel for not asking for a motion to suppress before trial. Thus, the following is MCOA’s attempt to view this from both consent and plain view…they come to no conclusion on either consent or plain view but it becomes irrelevant as they ruled that defense attorney not asking for a motion on this before trial did not rise to ineffective assistance of counsel )

When that commitment writ was being served, an officer noticed some boots that Curtis Bryant purportedly said belonged to his son the defendant.

When the elder Bryant testified, he said he had actually told the officer that he did not know whose boots they were. The reasons for the officer’s suspicion were never articulated at trial, but the officer seized the boots at that time.

Curtis Bryant made it clear that the boots were not given to the deputies but that deputy Porter simply took them. Deputy Ward actually seized the boots when he saw them next to the bed in which the officers found Chip Bryant. Ward then handed the boots to Porter.

Resolving an initial matter, we find that a sufficient predicate was laid to establish the house searched belonged to Curtis Bryant. This was done through the testimony of Deputy Porter that he had known Curtis Bryant for many years and knew the house belonged to Mr. Bryant.

Deputy Porter testified that Chip Bryant stayed at his father’s house when he was in the area and had been there approximately two days when the deputies arrived. He slept on the couch most of the time though there was also a bed he used.

Deputy Porter testified that when they arrived to get Chip Bryant, the following occurred: “We was informed that he [Chip Bryant] was already up, and at that time I advised him [Curtis Bryant] about the drugstore, and we was told to go ahead and get him out of the house and look anyway we wanted to, so that’s what we did.” By Curtis Bryant’s consenting to search the house, it did not matter whether there was probable cause that would have permitted a warrant. There was no evidence as to the reason that Bryant was suspected, but with consent such evidence becomes irrelevant for the validity of the search.

Once the owner of the house gave consent to the search, even if his son stayed at the house when he was in town, that is sufficient. The U.S. Supreme Court in United States v. Matlock, 415 U.S. 164 (1974), held that all people with interests in the home need not consent; one is enough. Being validly in the house, the officer found the boots. The owner of the boots, the defendant, was not asked if they could be taken.

(MCOA did not decide whether consent was valid but moved on to an alternative theory, plain view)

Plain view seizure would be appropriate if the officer, being in a place he was allowed to be, saw something that was immediately apparent (probable cause) as contraband or evidence of a crime.

We can not tell if seizure of the boots was based on a hunch, on something unique about the soles that created probable cause when they were discovered, or on something in between.

B. Consent for second entry when drugs were found

The sheriff, Jimmy Simmons, did not testify. He is the person who apparently spoke with the defendant’s father Curtis Bryant and got permission to search. However, he was not the only possible witness with first hand knowledge. Two officers testified relevant to the search. Their accounts are similar.  Both versions still left the sheriff and Porter together.

Porter testified that Curtis Bryant came up and gave us permission to search any way we wanted to.

Deputy Myers indicated the sheriff talked with Curtis Bryant and then informed “us” there was permission to search. Porter’s evidence was from direct, personal knowledge of permission being granted by someone with authority to do so. Myers’s statement of the senior Bryant’s encouragement of the search was also from first-hand knowledge.

Bryant argues that the absence of a written consent form left the factual question more open than is often the case. Still, adequate evidence was introduced.

C. Statement by Chip to police in booking

Deputy Ward stated: He asked me, he said, “How could you charge me with stealing that truck”; and I told him, I said, “Well, when you took the truck and carried it over there and rammed it into that building, you didn’t have permission to do so by Randy Wilson”; and I said, “To me that’s stealing a truck.” He said, “Well, I think all you can charge me with is unauthorized use of a motor vehicle.” You know, that’s the statement he made to me; and I just told him, you know, the jury would have to decide that.

Deputy Porter, who was at his desk nearby, overheard the conversation and corroborated Deputy Ward’s testimony.

Bryant was not being interrogated. It was he who initiated the conversation, not law enforcement officers. The U.S. Supreme Court in Edwards v Arizona, 451 U.S. 477 (1981), said that invoking the right to counsel does not protect an accused who volunteers a statement.

The U.S. Supreme Court in Rhode Island v. Innis, 446 U.S. 291 (1980), said that the request for counsel applies only to custodial interrogation. Volunteering information is not compulsion. Since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

Thoughts

For consent searches, the rule in Matlock is still good law. However, after SCOTUS Georgia v. Randolph, 547 U.S. 103 (2006), if Chip had objected on the scene to the boots being taken, police would have had a harder time using consent. Randolph held that a physically present inhabitant’s express refusal of consent to a police search applies to him, regardless of the consent of a fellow occupant.

 

https://courts.ms.gov/images/Opinions/Conv7337.pdf