In 1998, Hinds County Sheriff’s Deputy Donnie Newman stopped at the Pit Stop Grocery in Raymond, Mississippi, on Highway 18 to fuel his police cruiser. After filling the tank, Newman paid for his purchase and spoke briefly with the attendant on duty. Newman heard someone calling for his attention as he walked back to the patrol car.
It appears that while sitting in the driver’s seat of his 1987 Dodge Ram along with his wife and two sons, Richard Jones twice called out to the deputy asking him to approach the truck. Newman walked over to the truck to see what Jones wanted. Jones has a history of conflict with the Hinds County Sheriff’s Department over what he believes to be its involvement in the death of his oldest son in 1996.
In a quiet voice, Jones asked, “Why did you kill my son?”, referring to the automobile wreck that claimed his son’s life two years earlier. In response, Newman instructed Jones to take his family and leave the premises. Again, Jones asked about the death of his son. Newman explained that he was not even on duty at the time and again instructed Jones to leave.
According to Newman, Jones responded by cursing and calling the deputy a “child killing motherfucker”, whereupon Newman said, “Richard, I am going to give you one more chance. You need to drive out of here with your family. No use in starting a scene here.” At this point, Jones allegedly stuck his head out of the window and began yelling profanity and accusing Newman of having a hand in his son’s death.
At this time, Deputy Newman instructed Jones to get out of his truck. When Jones asked why, Newman responded, “You are under arrest.” At which, Jones’s wife screamed, “Don’t get out. He is going to kill you.” Newman again instructed Jones to step out of the vehicle. When Jones did not, Newman repeatedly attempted to pull open the driver’s side door while instructing Jones to “Get out of the truck.”
According to Deputy Newman, Jones finally threw the door open with all of his strength, knocking the deputy back three or four feet. Once he regained his composure, Newman claims he was confronted by Jones standing next to his truck with fists raised yelling, “Let’s get it on.” As Newman approached, Jones dropped his fists and said, “Motherfucker, hit me. That’s all I want you to do. Just lay a hand on me.”
A brief scuffle ensued as Newman wrestled to put handcuffs on Jones. Finally, Newman was able to cuff Jones and place him in the back of the patrol car. Newman also claims that Mrs. Jones joined in the altercation while the deputy was attempting to handcuff her husband.
Although he offered inconsistent statements, Newman testified at trial that he had seen the butts of some guns behind the passenger seat of Jones’s truck. Once Jones was safely stowed in the patrol car, Newman returned to the truck. Mrs. Jones and Richard Lee Jones (and Deputy Newman’s statements at the preliminary hearing) assert that Newman asked whether there were any guns in the vehicle before asking that the weapons be turned over.
After a short bout of verbal fencing with both Mrs. Jones and the eldest son, Newman confiscated three weapons (a 12-gauge shotgun, an AR-15 Colt automatic rifle, and a nine-millimeter Smith & Wesson handgun). He checked to see if the guns were stolen; they were not. When Newman’s lieutenant arrived, the deputy was instructed to give the guns back to Mrs. Jones who took them home.
Jones was convicted of simple assault on a law enforcement officer and possession of a firearm by a convicted felon and sentenced to eight years. On appeal, he argued the arrest was unlawful. MSC agreed with Jones and reversed.
A. Initial arrest
In Terry v. State, 252 Miss. 479 (1965), officers initiated an arrest with no evidence of a crime. The sheriff had no right to arrest defendant unless it was evident to him at the time that some breach of the peace was being threatened or a crime was being committed in his presence.
The threshold question is whether Newman had probable cause to initiate an arrest. No one from the convenience store asked that Jones be removed. A determination of when the arrest began controls the outcome on this issue. From the evidence, it appears as though Newman tried to initiate an arrest before a crime had been committed by asking Jones to get out of his vehicle merely because Jones would not leave the convenience store.
The only acts Jones engaged in before the arrest which could possibly have warranted an arrest consisted of his profane remarks. There is no evidence in the record that would suggest that Jones could have initially been arrested for anything other than the verbally accusatory and profane remarks. The evidence suggests that Newman did not see the guns or inquire about the guns until after Newman told Jones he was under arrest.
This situation forces this court to consider the type of “profanity” which would warrant an arrest. Miss. Code Ann. § 97-29-47 (2000) proscribes the use of profanity in a public place. We have not had an opportunity to interpret the statute; however, the Mississippi Court of Appeals has recently had an occasion to define what it believes the use of “profanity” sufficient to warrant an arrest entails.
In Brendle, Brendle was convicted of public profanity under Miss. Code. Ann. § 97-29-47 and resisting arrest. The Court of Appeals relied on other jurisdictions and the United State Supreme Court opinion of Cohen v. California 403 U.S. 15 (1971), in overturning Brendle’s conviction.
MCOA found that Brendle did not use fighting words that would incite violence and therefore his subsequent arrest was not lawful. However, this court is now reluctant to adopt the reasoning of MCOA under these facts, and finds the reasoning in Terry v. State to be dispositive of this issue. Based upon a careful review of the record, this court finds that Newman, did not have sufficient evidence to believe that a breach of the peace was being threatened or a crime was about to be committed. Accordingly, all evidence of acts of resisting the unlawful arrest should be excluded.
B) The legality of the search and seizure
The second motion to suppress deals with the legality of the search and seizure of the weapons in the truck. The State contends that the search was both incident to an arrest and falls within the “plain view” exception. However, Jones argues that neither of these warrantless search exceptions apply.
First, Jones points out that he was handcuffed and safely locked in the backseat of the patrol car when Newman seized the weapons.
We said in Ferrell v. State, 649 So. 2d 831 (1995), that in the case of a search incident to arrest, the exception to the warrant requirement is founded upon the reasonable concern that the arrestee might have a weapon on his person or within reach, and that he may attempt to destroy evidence which is within grasp. Jones neither posed a danger nor had the ability to destroy evidence. Therefore, the seizure does not come within the bounds allowable under a search pursuant to an arrest.
At trial, Newman did testify that he saw the guns while standing next to the vehicle which would allow their seizure under the plain view exception. However, the discrepancies between his description of where the guns were and that of the Jones family are troublesome, as is the fact that details of Newman’s story changed from the preliminary hearing to the trial.
At first, he described himself asking Richard Lee Jones whether there were guns present in the car, without ever mentioning having seen them. At trial, he remembers seeing them before he made his arrest. As we must view the evidence “in the light most consistent with the verdict,” it appears as if the warrantless seizure comes within the plain view exception. (this didn’t matter as they reversed because of illegal arrest and other matters.)
Don’t get lost in “fighting words” or “breach of peace” tests. The main thing to remember is that when you make arrests like this, focus in your police report on the conduct, behavior, and demeanor of the subject. People have first amendment rights to a big vocabulary. They don’t have the right to get in your face, elevate their voice to cause a disturbance, threaten you, etc.