You don’t have to physically arrest someone the moment you have probable cause to do so


In 1995, Officer Wayne Perkins of the Southaven Police Department was driving when Abubakr Williams‘s vehicle suddenly pulled out in front of him, causing him to swerve to avoid a collision. Perkins then called in Williams’s license plate number and pulled him over, asking to see his driver’s license.

At that time, Officers Malone and Gwatney arrived at the scene. After Williams got out of his car, Perkins patted Williams down, checking for weapons. He testified that during the pat down, he noticed something in Williams’s shirt pocket, and when he asked Williams what it was, Williams told him it was a marijuana joint.

After this admisison, Perkins pulled the joint out of Williams’s pocket, and upon being asked if he had anything else in the car or on him, Williams replied that he did not. Williams consented to Perkins searching his car and nothing was found. Perkins walked back over to Williams.

At that point, Perkins asked Williams to pull his hands out of his pockets, but Williams only pulled out his right hand. When Perkins reached over and pulled Williams’s left hand out of his pocket for him, a bag was sticking out. Perkins confiscated the bag, which contained crack cocaine. Officers Malone and Gwatney then told Williams to place his hands on the car, and Williams resisted.

There was an intense struggle at that point, and Williams managed to get back into his vehicle and flee the scene. Although the officers were unable to apprehend him at that time, Williams was later found and arrested.

Williams was convicted of possession of a controlled substance and resisting arrest and sentenced to three years. On appeal, he argued the frisk exceeded the limits of Terry and that his statement was taken without Miranda warnings. MCOA affirmed.


A. Search incident to arrest

Officer Perkins testified that upon initial contact with Williams, he performed a pat-down for weapons only. This was a non custodial, temporary detention, otherwise known as a Terry stop. Terry v. Ohio, 392 U.S. 1 (1968). While conducting this pat down, Perkins felt something in Williams pocket which did not appear to be a weapon.

When Perkins asked Williams what the object was, Williams voluntarily told the officer it was a marijuana cigarette. Williams was not required to answer this question, but when he did, he effectively confessed his guilt of possession of marijuana. Williams contends that the following search conducted by Perkins, resulting in the finding of the crack cocaine, was performed without proper probable cause, and exceeded the limits set by Terry.

In order for an officer to make an arrest, he must first have probable cause. Probable cause exists where the facts and circumstances within the arresting officer’s knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

Williams’s voluntary statement, admitting he was in possession of marijuana, provided Perkins with the necessary probable cause to arrest him for that particular crime. Since Perkins had probable cause to arrest Williams for possession of marijuana, he was legally allowed to perform a search incident to that arrest.

There is no violation of the Fourth Amendment when a person, placed under lawful arrest, is subjected to a full search of his person. A search incident to a valid arrest is not limited to a Terry type search.

In Ellis v. State, 573 So. 2d 724 (Miss. 1990), MSC held that since the police officer had probable cause to arrest the defendant, the officer was justified in searching for more than weapons, and the narrow limits of a Terry search did not apply. This court finds that Williams’s admission of possession of marijuana gave the officers probable cause to arrest him for that crime, thereby allowing a search incident to that arrest, which in turn yielded the crack.

The actual, physical arrest did not take place until after Perkins searched Williams and found the crack cocaine. However, In Rawlings v. Kentucky, 448 U.S. 98 (1980), the U.S. Supreme Court  held where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa so long as the fruits of the search were not necessary to support probable cause to arrest.

Thus, it does not matter that the evidence obtained as a result of the search incident to defendant’s arrest for a particular crime (crack cocaine) is not related to the charge for which he was arrested (marijuana), but created probable cause for a subsequent arrest on a wholly different charge.

B. Miranda

The initial confrontation between Perkins and Williams after Perkins pulled Williams over in his car was a Terry stop and pat down for weapons. It was during this Terry stop that Perkins asked Williams what was in his pocket (referring to what turned out to be a marijuana cigarette) and Williams voluntarily told the officer that the object was marijuana.

A Terry detention, by definition, is not a custodial arrest, and Miranda only applies when a person is under custodial interrogation. The danger Miranda was designed to prevent is not present in a Terry stop situation, therefore excluding the stop from the scope of Miranda. Therefore, since Williams voluntarily admitted he was in possession of marijuana during a non custodial, temporary detention, and not under custodial arrest, the absence of Miranda warnings do not preclude the admissibility of any statement freely and voluntarily given during such investigation.

In discussing the interaction after Perkins had already taken possession of the marijuana, Williams further argues that he should have been read the Miranda warnings before Perkins asked him if he was in possession of any other drugs. The fact that Perkins might have asked Williams this question is completely irrelevant since Perkins had the legally authority to search Williams entire person at that point, as he proceeded to do.

Perkins was under no legal obligation to read Williams the Miranda warnings prior to performing the search that uncovered the crack cocaine.