IN THE SUPREME COURT OF MISSISSIPPI
NO. 2019-CT-00024-SCT
MICHAEL SHANE BUFORD a/k/a MICHAEL S. BUFORD a/k/a MICHAEL BUFORD
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 09/27/2018 TRIAL JUDGE: HON. JOHN H. EMFINGER TRIAL COURT ATTORNEYS: MATTHEW ALLEN BALDRIDGE JEFFREY DIXON KNIGHT VICKY F. WILLIAMS BRAD MARSHALL HUTTO DEWEY KEY ARTHUR COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES HUNTER NOLAN AIKENS ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD DISTRICT ATTORNEY: JOHN K. BRAMLETT, JR. NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 08/05/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
KING, PRESIDING JUSTICE, FOR THE COURT:
¶1. This Court must decide whether a police officer who has obtained consent to search
the person of another must obtain additional consent to search a specific, innocuous container
found on that person. The Court of Appeals found that the defendant’s consent to the search of his person encompassed the search of a smokeless tobacco can found in his pocket. We
agree and affirm the decisions of the trial court and the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
¶2. In March of 2017, Sybil Brooks hired Jason Sebren to make repairs to a mobile home
that she owned, and she allowed Sebren to live in the mobile home in exchange. Allegedly
unbeknownst to Brooks, Buford began helping Sebren make the repairs, and he and his wife
also moved into the mobile home. Subsequently, Sebren and Brooks had an argument, and
Sebren moved out of the mobile home. Brooks stated that, because she did not have any
agreement with Buford, the next day she told him to leave the mobile home. That same
morning, Brooks also called the Pearl Police Department and stated that people were living
in her rental house who did not have permission to be there.
¶3. Four law-enforcement officers were dispatched to the property. Officer Jeannine
Easterling, who arrived first, testified that she initially knocked on the mobile-home door.1
When Buford opened the door, she identified herself and told Buford why she was there.
Officer Easterling testified that she asked Buford for any documents or proof that he was
supposed to be at the home. Buford could not provide documentation. Officers Brad
Winningham, Marc Gatlin, and Michael Bankston arrived approximately ten to twenty
minutes later.
1 Officer Easterling’s maiden name was Jay. She had recently married at the time of the suppression hearing. For clarity purposes, the Court will refer to her using her married name, Easterling.
2 ¶4. Officer Winningham testified that when he arrived, he asked Officer Easterling if
Buford had been searched. Officer Easterling replied that he had not. Officer Winningham
then asked Buford “did he have any issues with me searching him and he advised he did not.”
Officer Winningham conducted a search of Buford’s person and felt a can of smokeless
tobacco. He opened the tobacco can and observed what he believed to be crystal
methamphetamine.
¶5. Buford was indicted for the possession of more than two grams but less than ten
grams of a Schedule II controlled substance, namely methamphetamine. See Miss. Code Ann.
§ 41-29-139 (Rev. 2018). Prior to trial, Buford filed a motion to suppress all property and
other evidence seized by law enforcement as the fruit of an illegal search and seizure. Buford
argued that the officers failed to obtain a warrant or consent to search his person and the
house where he was residing. Therefore, he contended that the officers conducted an
unlawful detention and arrest and argued that all evidence obtained as a result must be
suppressed.
¶6. During the suppression hearing, Buford testified that Brooks had told him to move out
of the mobile home that morning. Buford stated that he told Brooks that he would be out by
5:00 p.m. that day but that Officer Easterling had arrived before he could move out. Buford
testified that he told Officer Easterling to get a warrant but that Officer Easterling informed
him that she would kick the door in. Buford said that, at that time, he walked to the back
bedroom of the mobile home to talk to his wife. Buford’s wife stated that Brooks would
3 make him pay for the door if the police kicked it in. Buford testified that he went back into
the living room, cracked the door open, and the four police officers “shoved the door in.”
Buford testified that he never gave the officers consent to search the home or his person.
¶7. The trial court asked Officer Winningham what basis he had to search Buford’s
person. He responded that he “had consent to search him for anything illegal and he
authorized me to do so.” The court again asked Officer Winningham what he had asked
Buford. Officer Winningham responded, “I asked him does he have any issues with me
searching him and he said, ‘No, I do not,’ and he put his hands out like this. (indicating.).”
On cross-examination, Officer Winningham stated that he did not specifically ask for consent
to search the tobacco can but said that he “asked him did he have any issues with me
searching anything on him which would include that.” Officer Winningham again testified
that he had obtained consent to search “[a]ll items on [Buford] . . . but . . . not individual
items. I didn’t ask him individually for that can, no, sir.” The trial court denied Buford’s
motion to suppress evidence.
¶8. Buford was convicted as charged and sentenced as a subsequent drug offender and as
a habitual offender to serve a term of sixteen years in the custody of the Mississippi
Department of Corrections.
¶9. The Court of Appeals found that Buford had consented to the search and that the
consent had encompassed the smokeless tobacco can. Buford v. State, No. 2019-KA-00024-
COA, 2020 WL 5793287, at *6 (Sept. 29, 2020). Therefore, it affirmed his conviction. Id.
4 Buford filed a petition for writ of certiorari with this Court and argued that the trial court and
the Court of Appeals had erred by denying his motion to suppress evidence.
ANALYSIS
¶10. The Constitution of the State of Mississippi protects people “in their persons, houses,
and possessions, from unreasonable seizure or search.” Miss. Const. art. 3, § 23; see also
U.S. Const. amend. IV. “Section 23 of the Mississippi Constitution provides greater
protections to our citizens than those found within the United States Constitution.” Graves
v. State, 708 So. 2d 858, 861 (Miss. 1997).
¶11. Unreasonable-search-and-seizure claims require a mixed standard of review. Eaddy
v. State, 63 So. 3d 1209, 1212 (Miss. 2011) (citing Dies v. State, 926 So. 2d 910, 917 (Miss.
2006)). “Whether probable cause or reasonable suspicion exists is subject to a de novo
review. But the Court limits the de novo review of the trial court’s determination to
‘historical facts reviewed under the substantial evidence and clearly erroneous standards.’”
Id. (quoting Dies, 926 So. 2d at 917). “In determining whether evidence should be
suppressed, a trial court’s findings of fact will not be disturbed on appeal absent a finding
the trial court ‘applied an incorrect legal standard, committed manifest error, or made a
decision contrary to the overwhelming weight of the evidence.’” Crawford v. State, 192 So.
3d 905, 923 (Miss. 2015) (quoting Simmons v. State, 805 So. 2d 452, 482 (Miss. 2001)). “In
reviewing the denial of a motion to suppress, we must determine whether the trial court’s
findings, considering the totality of the circumstances, are supported by substantial credible
5 evidence.” Moore v. State, 933 So. 2d 910, 914 (Miss. 2006) (citing Price v. State, 752 So.
2d 1070, 1073 (Miss. Ct. App. 1999)).
A. Illegal Detention
¶12. Buford contends that the Court of Appeals overlooked his argument that his purported
consent was given during a period of illegal detainment and, therefore, was ineffective. The
Court of Appeals found that, because Buford’s account of events was not corroborated and
because he had not presented evidence that he was not free to leave the mobile home during
questioning, he had not been illegally detained. Buford, 2020 WL 5793287 at *3-4.
¶13. This Court initially must consider whether a detainment occurred in this case. A
person “may not be detained even momentarily without reasonable, objective grounds for
doing so . . . .” Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (Miss.
1983) (citing United States v. Mendenhall, 446 U.S. 544, 556, 100 S. Ct. 1870, 64 L. Ed. 2d
497 (1980)). “[A] show of official authority such that ‘a reasonable person would have
believed he was not free to leave’” amounts to a seizure under the Fourth Amendment. Id.
at 502 (quoting Mendenhall, 446 U.S. at 554). However, “[a]s long as the person to whom
questions are put remains free to disregard the questions and walk away, there has been no
intrusion upon that person’s liberty or privacy as would under the Constitution require some
particularized and objective justification.” Mendenhall, 446 U.S. at 554. Thus, the applicable
test is whether “in view of all of the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.” Id.
6 ¶14. Buford argues that, “[a]t the time Buford allegedly provided consent, police had far
exceeded the permissible scope of the investigatory detention at issue—to investigate
Brooks’ complaint that Buford was trespassing and should be removed from the trailer.”
Officer Easterling testified that, when she arrived at the mobile home, she began speaking
to Buford at the door and that the two then moved into the living room. She stated that
Buford did not ask for a search warrant or tell her not to come into the residence. She
explained: “I told him why I was there. I identified myself, asked him a question. We were
standing in the doorway of the trailer on a small step. We proceeded into the living room
through the doorway. The door stayed open the whole time.” Officer Easterling asked Buford
if he could produce any documentation to show that he was authorized to be at the mobile
home. Buford failed to produce any such documentation.
¶15. Buford asserts that when he could not produce documentation showing that he was
authorized to be at the mobile home, Officer Easterling had employed the “least intrusive
means” to investigate Brooks’s complaint and her suspicions should have been considered
justified. Therefore, Officer Easterling should have told Buford to leave and ended the
detention. Because Buford had no right to be at the mobile home, we disagree. Buford
admitted that Brooks had allowed Sebren to live in the mobile home and did not testify that
she had authorized Buford to live there as well. Buford also admitted that Brooks had told
Buford to leave the mobile home when Sebren moved out. Yet Buford did not leave the
mobile home at that time. Brooks, the undisputed owner of the mobile home, had called the
7 Pearl Police Department and had stated that people were living in her mobile home who did
not have a right to be there. Consequently, the police officers arrived at the mobile home in
response to a trespassing call. The officers testified that Buford could not produce
documentation that he was authorized to be at the mobile home. Buford does not dispute that
contention. Accordingly, Buford had no right to be at the mobile home at that time. Buford
cannot complain about the officers’ continued presence at the mobile home in response to
a trespassing call when he was not authorized to be there.
¶16. Further, Buford did not testify that he attempted to leave the mobile home and was
prevented from doing so. In fact, the officers were responding to a trespassing call; therefore,
the officers arrived with the intent to get Buford to leave the mobile home.
¶17. Although Buford argues that he had been “surrounded by four police officers in a
rapidly escalating environment of intimidation[,]” as this Court has stated, “[i]t would be
unrealistic to characterize every encounter between a citizen and a police officer as a
seizure.” Jones v. State ex rel. Miss. Dep’t of Pub. Safety, 607 So. 2d 23, 27 (Miss. 1991)
(citing Mendenhall, 446 U.S. at 555). “Consideration must be given to whether the
circumstances were coercive, which necessitates attention to whether the person was
confronted with many officers or a display of weapons, whether he was in custody and, if so,
whether the circumstances of the custody were coercive . . . .” Id. “[S]ince Terry, [the U.S.
Supreme Court has] held repeatedly that mere police questioning does not constitute a
seizure.” Gales v. State, 153 So. 3d 632, 639 (Miss. 2014) (second alteration in original)
8 (internal quotation marks omitted) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct.
2382, 115 L. Ed. 2d 389 (1991)).
¶18. Officers may engage in voluntary conversation “no matter what facts are known to the
officer since it involves no force and no detention of the person interviewed . . . .” Singletary
v. State, 318 So. 2d 873, 876 (Miss. 1975). Officer Easterling’s testimony was corroborated
by Officer Gatlin’s testimony that when he arrived at the scene, Officer Easterling, Buford,
and Buford’s wife were “right inside the doorway, which is the living room of the trailer, and
they were talking in the living room.” Officer Gatlin testified that he asked Buford why he
was at the property. He stated that Buford said he had an agreement with the homeowner that
if he helped with repairs he could live there. Yet Officer Gatlin stated that Buford could not
produce any kind of lease agreement or paperwork, and he didn’t “think [Buford or his wife]
knew the homeowner’s name.” The evidence supports that the officers, in response to a
trespassing call by the lawful owner, were engaged in voluntary conversation with Buford
at a mobile home where Buford was not authorized to be. Because an illegal detention did
not occur in this case, this issue is without merit.
¶19. Buford further contends that he asked the officers for a warrant and that the officers
had “shoved” their way into the mobile home. As the Court of Appeals stated, no evidence
outside of Buford’s testimony supports that version of events. “The trial judge has sole
authority in determining witness credibility. Such a determination should not be overturned
without a substantial showing that the trial judge was manifestly wrong.” Jones, 607 So. 2d
9 at 28 (citing Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987)).
¶20. Buford next argues that he had been detained because Officer Gatlin’s body-camera
recording shows that he had been handcuffed prior to being searched. We disagree with
Buford’s portrayal of the body-camera footage. Officer Gatlin testified that, before he
manually activated his body camera, one of the other officers asked if he could search Buford
and that Buford responded yes. He stated that Officer Winningham found a tobacco can in
Buford’s right front pocket, opened the can, and saw what appeared to be crystal
methamphetamine. Officer Winningham then passed the can over to Officer Bankston who
also opened the can and held up the bag of crystal methamphetamine. At that time, Officer
Gatlin manually activated his body-camera video.2 The body-camera video started at 2:32
p.m. Officer Gatlin stated that he had arrived at the location at approximately 2:25 p.m.
Officer Gatlin testified that when his body camera is turned on, it captures the preceding
thirty seconds of footage. When the video begins, Officer Bankston is seen holding the
crystal methamphetamine, and Buford is in handcuffs.
¶21. Thus, the recording appears to begin after Officer Winningham had discovered the
tobacco can in Buford’s pocket and supports Officer Gatlin’s testimony that Officer
Winningham had found the crystal methamphetamine and then had passed the tobacco can
containing the substance to Officer Bankston. Additionally, Officer Winningham testified
2 Officer Gatlin testified that the body cameras are automatically turned on when the blue lights in officers’ vehicles are activated. However, because this was not an emergency situation, Officer Gatlin had not activated his blue lights before arriving at the location.
10 that, after he found the methamphetamine on Buford’s person, he closed the can and handed
it to Officer Bankston so he could arrest Buford and put him in handcuffs. Officer
Winningham testified that Buford was handcuffed only after he found and opened the
tobacco can. Officer Winningham seems to be adjusting the handcuffs shortly after the video
begins. Also, when asked if Buford was handcuffed while he was being searched, Officer
Easterling responded, “I don’t recall. I do not believe so, but I don’t recall. I do not think he
was handcuffed at that time, no.”
¶22. In contrast, counsel for Buford asked Officer Gatlin if Buford had been handcuffed
while Officer Winningham was searching him, and Officer Gatlin responded, “Yes sir, I
believe so. I—I can’t recall.” However, because the trial court’s findings were supported by
substantial evidence, its decision will not be disturbed.
¶23. The totality of the circumstances establish that the officers arrived at the mobile home
in response to a trespassing call from the owner of the property and engaged in a voluntary
conversation with Buford in an attempt to resolve the situation. Buford also had no right to
be at the mobile home. Therefore, because substantial evidence supports the conclusion that
Buford was not illegally detained, this issue lacks merit.
B. Consent
¶24. Buford next argues that his consent to the search of his person did not extend to the
closed tobacco can found in his pocket. “Mississippi has long recognized that a defendant
can waive his or her rights under the warrant requirement by consenting to a search.” Graves,
11 708 So. 2d at 863. “[A] search conducted pursuant to a valid consent is constitutionally
permissible.” Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S. Ct. 2041, 36 L. Ed. 2d
854 (1973). Consensual searches have long been approved “because it is no doubt reasonable
for the police to conduct a search once they have been permitted to do so.” Florida v.
Jimeno, 500 U.S. 248, 250-51, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991) (citing
Schneckloth, 412 U.S. at 219).
¶25. It is important to note that the search performed by Officer Winningham was based
only on the premise of consent. The trial court asked Officer Winningham what basis he had
to search Buford and if he was conducting a pat down for weapons. Officer Winningham
stated that Buford was trespassing and that he was not conducting a pat down but that he
“had consent to search him for anything illegal and he authorized me to do so.”3
¶26. Buford asserts that a reasonable person who consented to a search of his person would
not have understood that he also was consenting to a search of the contents of any closed
containers on his person. “The standard for measuring the scope of a suspect’s consent under
the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical
reasonable person have understood by the exchange between the officer and the suspect?”
Jimeno, 500 U.S. at 251 (quoting Illinois v. Rodriguez, 497 U.S. 177, 183-89, 110 S. Ct.
2793, 111 L. Ed. 2d 148 (1990)). Therefore, the question this Court must answer is whether
3 Thus, Buford’s reliance on Anderson v. State, 16 So. 3d 756 (Miss. Ct. App. 2009), in which an officer conducted a pat-down search for weapons, is misplaced.
12 it was reasonable for Officer Winningham to consider Buford’s general consent to the search
of his person to include consent to examine a smokeless tobacco can found in his pocket.
¶27. Officer Winningham stated that he did not specifically ask Buford if he could search
the contents of the tobacco can. He stated that he asked Buford if he had any issues with
Officer Winningham’s searching him, and Buford responded that he did not. The United
States Supreme Court has rejected the assertion that police must separately request
permission to search each closed container found during a general search. Id. at 252. Because
a reasonable person would be “expected to know that narcotics are generally carried in some
form of container[,]” we disagree with Buford’s contention that his general consent to the
search of his person did not encompass the search of the tobacco can. Jimeno, 500 U.S. at
251.
¶28. Buford heavily relies on May v. State, in which a police officer asked a passenger in
a vehicle that had been pulled over “if he would mind removing his shoes.” May v. State, 222
So. 3d 1074, 1077 (Miss. Ct. App. 2016). The defendant stated that he did not mind and
removed his shoes. Id. The officer then searched a lighter that fell out of the defendant’s shoe
and discovered a bag containing marijuana. Id. The Court of Appeals found that a reasonable
person would not have understood that requesting a person to remove his shoes was a request
to search the contents of any object contained in the shoes. Id. at 1081.
¶29. In May, the officer did not request consent to search the defendant but simply asked
the defendant to remove his shoes. Here, Officer Winningham asked for, and was granted,
13 general consent to search Buford’s person. As Buford was wearing only a pair of shorts, it
cannot be said that he retained a reasonable expectation of privacy in the contents of a
tobacco can found in his pocket. Additionally, “[i]f the consent occurred while the defendant
was being generally cooperative, the consent is more likely to be voluntary; however, if the
defendant agreed and then changed his mind, the consent should be suspect.” Graves, 708
So. 2d at 863 (citing Jones, 607 So. 2d at 27). Officer Easterling testified that “[Buford] was
actually very nice. He wasn’t rude. He was friendly. He answered every question I had;
actually, kind of approachable.”
¶30. We note that the Court of Appeals also found that “there is sufficient evidence
supporting a determination that no impermissible search and seizure of the tobacco can and
its contents took place because the tobacco can was in ‘plain feel’ in Buford’s pocket.”
Buford, 2020 WL 5793287, at *5 (citing Nowell v. State, 246 So. 3d 77, 82 (Miss. Ct. App.
2018)). We agree with Buford’s contention that the “plain feel” doctrine does not apply in
this case. “If a police officer lawfully pats down a suspect’s outer clothing and feels an object
whose contour or mass makes its identity immediately apparent, there has been no invasion
of the suspect’s privacy beyond that already authorized by the officer’s search . . . .”
Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993)
(emphasis added). Officer Winningham could not have felt the smokeless tobacco can and
determined that its identity was methamphetamine. Even so, we find that Buford’s general
consent to the search of his person extended to the search of the smokeless tobacco can found
14 in his pocket.
CONCLUSION
¶31. The totality of the circumstances support the conclusion that Buford was not
authorized to be at the mobile home, that the officers arrived in response to a trespassing call,
and that the officers proceeded to engage in a voluntary conversation with Buford regarding
his presence at the location. Additionally, substantial evidence shows that Buford consented
to a general search of his person. For these reasons, we affirm the decisions of the trial court
and the Court of Appeals to deny Buford’s motion to suppress.
¶32. AFFIRMED.
RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.