Kennedy v. State

909 So. 2d 1128, 2005 Miss. App. LEXIS 33, 2005 WL 43733
CourtCourt of Appeals of Mississippi
DecidedJanuary 11, 2005
DocketNo. 2003-KA-01336-COA
StatusPublished

This text of 909 So. 2d 1128 (Kennedy 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
Kennedy v. State, 909 So. 2d 1128, 2005 Miss. App. LEXIS 33, 2005 WL 43733 (Mich. Ct. App. 2005).

Opinion

BRIDGES, P.J.,

for the Court.

¶ 1. A jury sitting before the Scott County Circuit Court convicted Ollie Kennedy of possession of more than thirty grams of marijuana, a violation of Miss.Code Ann. § 41 — 29—139(c)(2)(A) (Rev.2001). The circuit court sentenced Kennedy to three years in the custody of the Mississippi Department of Corrections. Feeling aggrieved, Kennedy appeals and asserts one instance of error in the circuit court:

I. THE CIRCUIT COURT ERRED IN OVERRULING KENNEDY’S OBJECTION TO THE ADMISSIBILITY OF THE RESULTS OF THE SEARCH AND ARREST.

Finding no error, we affirm.

FACTS

¶ 2. On October 16, 2002, an anonymous person contacted the Morton Police Department and informed authorities that drug activity was taking place outside the Spring Lane Apartments in Morton, Mississippi. Officer Willie Anderson responded. Anderson testified at the trial before the circuit court. Anderson swore that when he arrived at the apartments, he found two vehicles, one parked behind the other. Anderson could not see inside the cars, but he smelled marijuana. Having determined that the smell was distinctly coming from one of the two vehicles, Anderson drew his pistol and asked the occupants of a light blue four-door Ford if anyone inside had a weapon. Ollie Kennedy answered “I do” and gave Anderson a pistol.

¶ 8. Officer Anderson asked Kennedy to get out of the car and Kennedy complied. Anderson put Kennedy in handcuffs and arrested Kennedy. Besides Kennedy, two additional people were inside the Ford. Because Anderson only had two sets of handcuffs — one set already on Kennedy- — ■ he restrained Cleotha White in his remaining set of handcuffs. Anderson could not restrain the remaining passenger, Laranda Jones, so Anderson searched her and found marijuana cigarettes in her possession. Anderson had Jones remain a distance from the Ford.

¶ 4. After Kennedy got out of the Ford, Anderson noticed a clear plastic bag lying on the driver’s side floorboard. Although the bag was empty, Anderson stated that marijuana residue was inside the bag. Anderson searched the back seat and found another pink or red bag that had marijuana inside it. Anderson took Kennedy to the jail and performed an inventory search of Kennedy’s belongings. The inventory search resulted in confiscation of five bags of marijuana, hidden inside the lining of Kennedy’s coat. Those five bags contained 48.9 grams of marijuana.

¶ 5. While in custody, Kennedy received a Miranda warning and later waived those rights and submitted a statement. Kennedy admitted that the Ford and all of the marijuana belonged to him. Kennedy later pled “not guilty” and filed a pretrial motion to suppress evidence of the results of the search of his person and his car. After a hearing on the matter, the circuit court denied Kennedy’s motions to suppress. Ruling the “fruits” of the searches could go into evidence.

¶ 6. At trial, Kennedy again moved to suppress the results of the searches, but the trial court overruled Kennedy’s motion. The State called Brandi Goodman to testify. Goodman is a forensic scientist with the Mississippi Crime lab. Goodman testified that she performed tests on the bags that Officer Anderson found in Kennedy’s car. As for the bag Anderson found lying on the driver’s side floorboard, near Kennedy’s foot, Goodman testified [1130]*1130that she did not find any marijuana in that bag. Regarding the pink bag found near the back seat, 1.5 grams of marijuana were in that bag. However, the circuit court determined that Cleotha White had been convicted for possession of that marijuana, so the jury could not consider that marijuana in deciding Kennedy’s case. Thus, Kennedy was convicted for possessing the marijuana found in his jacket as a result of the inventory search conducted at the Morton Jail. Kennedy filed a motion for new trial, but the circuit court overruled that motion. Aggrieved, Kennedy appeals.

ANALYSIS

I. DID THE CIRCUIT COURT ERR IN OVERRULING KENNEDY’S OBJECTION TO THE ADMISSIBILITY OF THE RESULTS OF THE SEARCH AND ARREST?

¶ 7. Kennedy argues that the circuit court should have suppressed the evidence that was obtained from the search of his car and his person at the jail. In examining Kennedy’s assertion, we are mindful that a trial judge has a great deal of discretion as to the admissibility of evidence. Evans v. State, 725 So.2d 613 (¶ 232) (Miss.1997). Unless the trial judge abused his discretion and caused Kennedy to suffer prejudice, this Court will not reverse the judge’s ruling. Id. (quoting Fisher v. State, 690 So.2d 268, 274 (Miss.1996)).

¶ 8. Evidence obtained from an illegal arrest or detention is inadmissible at trial. Davis v. Mississippi, 394 U.S. 721, 724, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The prosecution argued that probable cause for the search existed according to the plain view doctrine. The plain view doctrine is an understanding that if a law enforcement officer has a right to be where he is and observes evidence that can be seized, that evidence may be seized and introduced into evidence. Harris v. U.S., 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

¶ 9. Here, Anderson testified that he could smell marijuana coming specifically from Kennedy’s car, rather than the ear parked nearby. Kennedy argues that Anderson could not have determined that the smell of marijuana was coming from his car. Kennedy also relies on Johnson v. U.S., 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). Kennedy argues that, according to Johnson, the search of his car was illegal.

¶ 10. In Johnson, police obtained information that unknown people were smoking opium in a hotel room. Narcotics agents went to the hotel, smelled opium coming from a room, and knocked on the door. Someone responded, but denied smoking opium. The narcotics agents informed the person that he was under arrest and proceeded to search the hotel room. The Supreme Court held that probable cause to arrest the defendant did not exist until after the search. Further, the opium smell did not justify the search because the narcotics agents did not know who was in the room.

¶ 11. The State counters Kennedy’s reliance on Johnson by pointing out that the search in Johnson was of an occupied dwelling, where a warrant is necessary. The law enforcement officers in that case had time and sufficient evidence to obtain a search warrant. The State points out that cars, due to their mobility, can be searched without a warrant. Moore v. State, 787 So.2d 1282(¶20) (Miss.2001). Moore also allowed probable cause based on a totality of circumstances. Id. In Fultz v. State, 822 So.2d 994 (Miss.Ct.App.2002) this Court ruled that a law enforcement officer had probable cause to search a truck based on plain smell. Further, a law enforcement officer has probable cause to arrest where that officer had reason to [1131]*1131believe the person proposed to be arrested committed a felony. Thomas v. State, 645 So.2d 1345, 1347 (Miss.1994).

¶ 12.

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Related

Johnson v. United States
333 U.S. 10 (Supreme Court, 1948)
Harris v. United States
390 U.S. 234 (Supreme Court, 1968)
Davis v. Mississippi
394 U.S. 721 (Supreme Court, 1969)
Fisher v. State
690 So. 2d 268 (Mississippi Supreme Court, 1996)
Thomas v. State
645 So. 2d 1345 (Mississippi Supreme Court, 1994)
Evans v. State
725 So. 2d 613 (Mississippi Supreme Court, 1997)
Moore v. State
787 So. 2d 1282 (Mississippi Supreme Court, 2001)
Fultz v. State
822 So. 2d 994 (Court of Appeals of Mississippi, 2002)

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Bluebook (online)
909 So. 2d 1128, 2005 Miss. App. LEXIS 33, 2005 WL 43733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-state-missctapp-2005.