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You don’t need probable cause or a warrant if you have consent

Facts

In 2003, Walthall County District Five Supervisor Clifton “Pop” Carr arrived at work to find that two buildings on the district’s property had been burglarized. Carr testified that the doors to the district’s main shop and a smaller tool shed had been pried open, and that several items had been removed from the buildings.

Billy Wayne Thornhill, a deputy sheriff with the Walthall County Sheriff’s Department, testified that when he arrived at the scene that morning, county employee Brad Dunaway directed him to two or three shoe prints in the area near the two buildings. Thornhill testified that upon discovering the shoe prints, he called Investigator Truett Simmons to the scene.

When Simmons arrived at the scene, he asked Thornhill to make a plaster cast of a shoe print that appeared in some newly poured asphalt. Simmons testified that the shoe print featured a K-Swiss emblem; furthermore, he testified that none of the county employees were wearing K-Swiss shoes at the time.

Deputy Sheriff Kenny Martin testified that later that day, he received a call reporting that Donnifer Peters had assaulted his wife, Kimberly Peters. Martin testified that the department had an outstanding warrant on Peters stemming from a charge of simple assault, and that he went to Peters’s residence that day to execute the warrant. Martin stated that when he arrived at Peters’s residence, Peters was sitting in a car that was parked in the yard.

When told of the warrant, Peters said, “Hell no, I ain’t going no f—— where,” and started the car. At this point, Martin testified, the officers used pepper spray in an attempt to stop Peters from escaping. After being sprayed, Peters managed to drive a short distance before hitting a pine tree; he was taken into custody shortly thereafter.

After Peters was taken into custody, the sheriff’s department received written consent from Kimberly Peters, the owner of the car, to search the automobile. Recovered from the automobile were a small crowbar, wire cutters, vice grips, a yellow-handled screwdriver, a red-handled screwdriver, and a pair of sunglasses.

Dunaway testified that the sunglasses belonged to him, that he kept them in the glove compartment of a truck kept in the district’s main shop, and that the sunglasses were missing after the burglary. Dunaway also identified the wire cutters and the red screwdriver as items that had been kept in the shop. Dunaway stated that he recognized the wire cutters in particular because they possessed a number of distinguishing marks. Lastly, Dunaway testified that he did not recognize the crowbar taken from Peters’s car.

Upon Peters’s arrival at the Walthall County Jail, Deputy Thornhill noticed that Peters was wearing large K-Swiss shoes. Thornhill testified that he ordered Peters to remove his shoes, and then took the shoes into evidence so they wouldn’t get lost. At trial, footwear impression and examination expert witness Joe Andrews testified that the cast taken by Deputy Thornhill possessed “all the class characteristics” of the right shoe taken from Peters at the jailhouse. However, Andrews testified that due to a lack of detail in the cast, he was unable to make a more conclusive statement.

Peters was convicted of burglary and possession of a burglary tool and was sentenced to 12 years. On appeal, he argued the search of his shoes and the car was illegal. MCOA affirmed.

Analysis

A. Evidence taken from the car

A search conducted pursuant to voluntary consent obviates the need for either probable cause or a warrant. MSC said in Mettetal v. State, 615 So. 2d 600 (Miss. 1993), that consent 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.

Though Peters asserts that the automobile was within his exclusive possession and control at the time of the search, the record does not support this contention; Kimberly Peters consented to the search some thirty minutes after her husband was taken into custody. Furthermore, Peters put forth no evidence that, as the titled owner of the vehicle, Kimberly did not possess common authority, mutual use, and joint control over it.

B. Peters’s shoes

Peters also asserts that his shoes were seized illegally by Deputy Thornhill. However, MSC said in Brown that it is a long-standing rule in this, and other jurisdictions that, pursuant to a lawful arrest, law enforcement officials may seize personal effects and clothing from one who has been arrested.

Such a search allows police to discover weapons and means of escape; to prevent means of injury to the prisoner and others; to discover necessary medical requirements; to discover evidence in connection with the charge for which accused was arrested; to discover wounds and need for immediate first aid, and to preserve the property of the defendant. Peters’s contention that Deputy Thornhill illegally seized his shoes is wholly without merit.

 

https://courts.ms.gov/images/OPINIONS/CO32270.PDF