Conway v. State

397 So. 2d 1095
CourtMississippi Supreme Court
DecidedNovember 12, 1980
Docket51741
StatusPublished
Cited by35 cases

This text of 397 So. 2d 1095 (Conway v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conway v. State, 397 So. 2d 1095 (Mich. 1980).

Opinion

397 So.2d 1095 (1980)

John CONWAY and Robert O'Brien
v.
STATE of Mississippi.

No. 51741.

Supreme Court of Mississippi.

March 12, 1980.
Rehearing Denied April 16, 1980.
Addendum November 12, 1980.

James H. Heidelberg, Fielding L. Wright, Jr., Pascagoula, for appellant.

A.F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, SUGG and BOWLING, JJ.

BOWLING, Justice, for the Court:

Appellants, John Conway and Robert O'Brien, were indicted and convicted in the Circuit Court of Jackson County for the possession of a controlled substance (methamphetamine) with intent to deliver in violation of Mississippi Code Annotated section 41-29-139 (1972 as amended). The jury returned a verdict of guilty as charged against both defendants. Each was sentenced to serve a term of twenty years with the Mississippi Department of Corrections, and a fine of $15,000 was imposed on each.

On appeal, appellants alleged two assignments of error, namely:

1. The trial court erred in overruling defendants' motion to suppress; and

2. That an alleged remark made by the district attorney in his argument to the jury constituted reversible error.

*1096 The motion to suppress was directed toward the methamphetamine substance secured from an automobile as hereinafter related. The motion contended that the evidence should have been suppressed because of both an illegal arrest and an illegal search.

There is practically no dispute in the facts of the occurrences leading to appellants' arrest. Testimony was received on the motion from three participating officers. There were five officers involved in the matter; however, it was stipulated that the testimony of the other two would be cumulative. The principal participant and the guiding figure in the entire matter was one Don Richards, who at the time was District Supervisor for the Gulfport office of the Mississippi Bureau of Narcotics. His testimony and the testimony of the other officers was that information had been received that a shipment of methamphetamine would arrive in the Jackson County area on the weekend of July 1 and 2, 1978, which dates were a Saturday and Sunday. On information from an informant, a search warrant was secured for a residence in Pascagoula where there lived Matthew Dixon and Richard Johnson and their respective wives. The activities surrounding the search of this residence took place late at night on July 1 and the early morning of July 2. During the course of the search of the residence, appellant John Conway came to the location where he and Agent Don Richards became acquainted.

The officers received information from Johnson that he had carried a man named "Obie" to Mobile, Alabama, on Saturday, July 1, for the purpose of the latter flying to Philadelphia, Pennsylvania, to secure the drugs, and returning on Sunday afternoon to Mobile, where he would be met by someone then unknown.

At noon on Sunday, July 2, the officers met for lunch in Pascagoula to discuss what action to take regarding the information received. As stated, the identity of the person who was to pick up "Obie" in Mobile at the air terminal was unknown. There was doubt that the delivery of the substance would take place due to publicity regarding the arrests the night before. During the afternoon of Sunday, the agents, under Richards' direction, decided to take a chance and go to the Mobile air terminal to conduct surveillance and try to ascertain whether or not the drug would be brought in by "Obie," who would meet him, and what action they would then take.

Late in the afternoon, appellant, John Conway, was observed driving into the air terminal parking lot and entering the terminal. Dixon was also observed arriving in another vehicle and entering the terminal. They were observed talking to each other. At approximately 5:30 P.M., a plane arrived from Philadelphia, by way of Atlanta, "Obie," who was later identified as appellant Robert O'Brien, got off the plane carrying a small suitcase and met appellant Conway and Dixon. The three then went to the parking lot with "Obie" getting into Conway's vehicle with the bag. Both vehicles then headed toward Mississippi. The officers began surveillance of the two vehicles with the admitted intention of stopping them at some point after reaching the State of Mississippi. Shortly after crossing the state line, and before the officers had made any move to stop the vehicles, Conway and Dixon stopped on the side of the road, got out of their cars and approached each other. The officers, under the direction of Richards, immediately stopped both in front of and behind the two suspect vehicles. Upon approaching the Conway vehicle, one officer observed several small plastic bags in a larger plastic bag — all containing a white powdery substance — laying on the rear floorboard of the car in plain view. Conway, O'Brien and Dixon were immediately arrested and placed in the custody of the officers. The substance laying on the floorboard was seized.

One officer was left with the two vehicles, which were later towed by wreckers to Pascagoula. A search warrant for the vehicles was secured. Pursuant to this warrant, the suitcase that had been carried from the air terminal by appellant O'Brien was seized, opened, and a relatively large *1097 amount of methamphetamines found therein. The evidence indicated that the drug was worth a considerable sum of money.

Appellants contend that their warrantless arrest was invalid. It is strongly urged that the officers had ample time and opportunity to apply for and secure a valid arrest warrant, and that without such warrant they did not have probable cause to make the arrests. The answers to these contentions are clear. During the early part of the morning of Sunday, July 2, the officers learned from Johnson, who had recently been arrested at his residence, that on July 1 he had taken a person known only to him as "Obie" to Mobile to catch a plane. Although the officers met appellant Conway at the time of Johnson's arrest, no information was secured by the officers at any time that Conway was the person who would meet "Obie" the next day in Mobile. No information was received by the officers that Dixon would also appear at the air terminal with Conway. The officers were more or less "shooting in the dark" when they decided on Sunday afternoon to go to Mobile, as they anticipated that the person known as "Obie" and never seen by them would be warned not to return to Mobile with the supply of drugs. The only warrant that the officers could possibly have secured would have been a so-called "John Doe" warrant. This was impractical because of the time element involved in traveling to Mobile and setting up surveillance prior to the arrival of the plane. The first identification of the personalities involved in picking up "Obie" was when Conway and Dixon arrived shortly before the plane was due. Conway and Dixon were then observed meeting "Obie," who was carrying a small bag and all three were seen getting into the Conway and Dixon vehicles and heading toward Mississippi. The officers had no alternative but to follow, readily admitting that they intended to stop the two vehicles after reaching the Mississippi state line. The vehicles were not stopped by the officers, and it is clear from the record that an arrest was not made until the powdery substance was seen on the floorboard of the Conway vehicle. It is abundantly clear that under the authorities the officers had probable cause to arrest appellants and Dixon without a warrant.

In United States v. Burnett,

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397 So. 2d 1095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conway-v-state-miss-1980.