Harper v. State

722 So. 2d 1267, 1998 WL 710673
CourtCourt of Appeals of Mississippi
DecidedOctober 13, 1998
Docket97-KA-00249 COA
StatusPublished
Cited by1 cases

This text of 722 So. 2d 1267 (Harper v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harper v. State, 722 So. 2d 1267, 1998 WL 710673 (Mich. Ct. App. 1998).

Opinion

722 So.2d 1267 (1998)

Bennie HARPER, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-00249 COA.

Court of Appeals of Mississippi.

October 13, 1998.

*1268 P. Shawn Harris, Attorney for Appellant.

Office of the Attorney General By Charles W. Maris, Jr., Jackson, Attorney for Appellee.

Before BRIDGES, C.J., COLEMAN AND HERRING, JJ.

HERRING, J., for the Court:

¶ 1. Bennie Harper appeals to this Court from his conviction in the Circuit Court of Scott County, Mississippi, of possession of more than one kilogram of marijuana with intent to sell. Harper challenges his conviction on the grounds that the trial court erred in denying a request to suppress (1) evidence and (2) a statement by Harper obtained by agents during and shortly after his arrest. We find that the statement was not freely and voluntarily given and therefore reverse and remand for a new trial.

A. THE FACTS

¶ 2. On July 12, 1996, several agents from the Mississippi Bureau of Narcotics met with a confidential informant and conducted a preliminary meeting relating to a proposed drug buy from a suspected dealer, Bennie Harper. After searching the informant and his vehicle, the agents installed a transmitter in the vehicle and instructed the informant to place a telephone call to Harper's pager from a local pay telephone. The informant called *1269 Harper's pager number, and shortly thereafter, he received a call back from Harper. Harper directed the informant to travel to the 35 Quick Stop near Forest, Mississippi. As the informant complied with Harper's instructions, the agents followed him to the parking lot of the Quick Stop where they overheard a conversation between the informant and an unidentified individual over the transmitter.

¶ 3. The informant then contacted the agents and notified them that Harper was traveling in their direction. The agents, who were pulled over onto the shoulder of the roadway, observed the suspect as he drove down the road and then stopped on the side. The informant followed the suspect in his vehicle to the location on the roadside where Harper had parked. At that point, the informant got out of his vehicle and walked toward Harper's vehicle. At the trial, Agent Jimmie Nichols testified that the informant appeared to enter Harper's vehicle and, after a few minutes, returned to his vehicle. Once inside his own vehicle, the informant notified the agents that Harper possessed the drugs, and they proceeded to arrest Harper. Although the record is not clear, it appears that the informant did not actually purchase any drugs from Harper. When the agents removed Harper from his vehicle, they noticed an open bag on the rear floorboard which contained what appeared to be several "bricks" of marijuana. After the agents removed the evidence from the vehicle, they traveled to another location to elude the detection of other suspected drug dealers in the area. Harper subsequently gave a statement to the agents in which he admitted his involvement in the transaction.

¶ 4. Following a trial in the Circuit Court of Scott County, a jury found Harper guilty of possession of more than one kilogram of marijuana with intent to sell. Harper was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections and ordered to pay a $10,000 fine.

B. THE ISSUES

¶ 5. Harper raises the following issues which are taken verbatim from his brief:

The Court erred by not granting the Appellants [sic] motion for directed verdict and her [sic] request for a peremptory instruction. The Court further erred in not sustaining the motion for a new trial as the Court erred in admitting the evidence which was the product of an illegal search. The Court further erred in admitting the confession of the Appellant, as it was the product of coercion and promises of leniency.

¶ 6. Although Harper, in his statement of issues, raises three assignments of error, he does not address and states no authority for his contention that the trial court erred in not granting his motion for a directed verdict or his request for a peremptory instruction. Thus, we will not address this matter on appeal. De La Beckwith v. State, 707 So.2d 547, 597 (Miss.1997); Holloman v. State, 656 So.2d 1134, 1140 (Miss.1995).

C. ANALYSIS

I. DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE THE MARIJUANA WHICH THE NARCOTICS AGENTS RECOVERED FROM BENNIE HARPER'S VEHICLE?

¶ 7. Harper asserts that the trial court erred in failing to suppress the marijuana recovered from the rear floorboard of his vehicle. He contends that the agents had removed him from the vehicle and secured him. Thus, no exigent circumstances existed to justify a warrantless search of the vehicle. Harper also alleges that the recovered evidence was not within the agents's plain view because of its location and the fact that the vehicle had tinted windows. As a result, Harper claims that the unauthorized search violated his constitutional right to be free from unreasonable searches pursuant to the Constitution of the United States and the Mississippi Constitution of 1890.

¶ 8. The Fourth Amendment of the United States Constitution, as well as Article Three, Section Twenty-six of the Mississippi Constitution guarantee to every person the right to be free from unreasonable searches and seizures. Despite the constitutional preference for searches conducted pursuant to an authorized *1270 search warrant, both the United States Supreme Court and the Mississippi Supreme Court have recognized certain exceptions to the warrant requirement. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Graves v. State, 708 So.2d 858, 862-63 (Miss.1997). Some of the more established exceptions recognized by the Mississippi Supreme Court include "search incident to arrest, search of a vehicle, plain view, stop and frisk, hot pursuit and emergency search, administrative search...." Graves, 708 So.2d at 862-63 (footnotes omitted).

¶ 9. The Mississippi Supreme Court recently addressed a somewhat similar situation concerning the automobile exception to the warrant requirement. Jackson v. State, 689 So.2d 760, 764-66 (Miss.1997). In that case, a confidential informant notified law enforcement officers that three vehicles would be traveling in tandem through the Mississippi Gulf Coast on Interstate 10 and that the third vehicle would contain a package of drugs. Id. at 764. Although the officers admitted that they had sufficient time to request a search warrant, an investigating officer testified that he stopped the vehicles, conducted a search, and located the drugs without obtaining a warrant. Id. at 764-65.

¶ 10. On appeal, the supreme court found that the officers had sufficient probable cause to stop the vehicles and to search the suspects based on the information they received from the informant coupled with their personal observations which corroborated the informant's details. Id. at 765. The court noted that "police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it may conduct a warrantless search of the vehicle as thorough as a magistrate could authorize by warrant." Id. (quoting Fleming v. State, 502 So.2d 327, 329 (Miss.1987)).

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Bluebook (online)
722 So. 2d 1267, 1998 WL 710673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harper-v-state-missctapp-1998.