Milliorn v. State

755 So. 2d 1217, 1999 WL 1454858
CourtCourt of Appeals of Mississippi
DecidedAugust 17, 1999
Docket97-KA-00940-COA
StatusPublished
Cited by5 cases

This text of 755 So. 2d 1217 (Milliorn 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
Milliorn v. State, 755 So. 2d 1217, 1999 WL 1454858 (Mich. Ct. App. 1999).

Opinion

755 So.2d 1217 (1999)

Patrick Michael MILLIORN, Appellant,
v.
STATE of Mississippi, Appellee.

No. 97-KA-00940-COA.

Court of Appeals of Mississippi.

August 17, 1999.

*1219 Cynthia Ann Stewart, Jackson, Attorney for Appellant.

Office of the Attorney General by Charles W. Maris Jr., Attorney for appellee.

MODIFIED OPINION ON MOTION FOR REHEARING

SOUTHWICK, J., for the Court:

¶ 1. The original opinion is withdrawn and this opinion substituted on rehearing. The motion for rehearing is denied. Patrick Milliorn was convicted by a Scott County Circuit Court jury of possession of more than one kilogram of marijuana with the intent to distribute. On appeal he argues that he was arrested without probable cause, that a search violated his constitutional rights, and that his resulting confession was tainted by the preceding illegality. We disagree with his assertions and affirm.

THE FACTS

¶ 2. On January 23, 1994, Highway Patrol Officer Walter Davis stopped Patrick Milliorn in Scott County for speeding. Milliorn gave the officer his New Mexico driver's license and the rental papers for the car which he was driving. At the window of Milliorn's vehicle, the officer noticed the odor of alcohol coming from within. He asked Milliorn to take a hand held breathalizer test. Milliorn complied. He registered .04 on the test, which indicates no illegal intoxication

¶ 3. The officer observed a pair of pants and a suit coat hanging in the back seat of Milliorn's vehicle. He questioned Milliorn about the contents of the trunk and whether or not he had any additional luggage. Milliorn responded that he did not have any additional luggage and that he had not been into the trunk. What happens next is in dispute. The differing factual accounts regarding whether there was consent to search and when Milliorn was arrested and for what offense, will be discussed under the issues to which those facts relate. At this time it is enough to say that the trunk of Milliorn's vehicle was opened and inside were several large plastic bags which were later determined to contain marijuana. The officer handcuffed Milliorn and placed him inside his patrol car. He was then informed of his constitutional rights arising from this arrest.

¶ 4. At the police station, officer Leonard Harrison of the Mississippi Bureau of Narcotics again informed Milliorn of his constitutional rights and then took a statement. Harrison's testimony at trial revealed only one potentially incriminating admission, which was that Milliorn refused to assist in arresting others since he was going to jail regardless.

DISCUSSION

1. Probable cause to arrest Milliorn

¶ 5. Milliorn's counsel filed a motion to suppress on October 6, 1995, almost two years before the trial commenced on *1220 June 18, 1997. The motion alleged that the officer did not have probable cause to stop Milliorn, that the stop was pretextual, that Milliorn was improperly detained, and that the search of the vehicle violated the defendant's constitutional rights. There is no record of a hearing on the motion until after the arresting officer had testified at the 1997 trial and a second officer had begun his testimony. On rehearing Milliorn's counsel argues that the practice of this circuit judge is to await trial to hear motions to suppress. We accept the assertion as accurate, but that does not relieve counsel of bringing the suppression matter to the court's attention prior to or at the time that any challenged evidence is introduced, or else making an objection to that evidence. Admitting evidence addressed in a pending suppression motion that has not been brought on for hearing preserves no allegation of error, absent an objection lodged at the time.

¶ 6. The arresting officer testified first without objection that after Milliorn took the breathalyzer test and while both were seated in the police car, the officer asked if he could look inside the trunk of Milliorn's rental car. The officer testified that Milliorn said that he did not care. Milliorn at the subsequent suppression hearing denied that he gave the officer his consent to search the vehicle.

¶ 7. The officer asked Milliorn to get out of the patrol car and walk over to the vehicle with him. At that point, the officer took the keys out of the ignition and attempted to open the trunk with them. When that was unsuccessful, the officer noticed that Milliorn put his hands inside his front pockets. It was not until that moment that the officer had any concerns about his safety. Thereafter, he asked Milliorn to put his hands on the car, and the officer proceeded to conduct a pat down. The pat down revealed a large, double folding pocket knife. At that point, Officer Davis informed Milliorn that he was under arrest. Presumably that was based on having a concealed weapon, though Milliorn was not subsequently charged with that. However, in short order much happened to change the investigation. Milliorn then suggested to the officer that he could open the trunk using a button inside the car. The button did in fact open the trunk. Seven plastic bags were then discovered that were later found to weigh over 200 pounds.

¶ 8. All of the foregoing was admitted without objection. The officer was not allowed to state that the plastic bags appeared to contain marijuana. A witness from the state crime lab later made the identification.

¶ 9. When the second officer began to testify about a statement made by Milliorn at the police station, the court stopped the proceedings without any defense objection and asked that the jury retire from the courtroom. Perhaps this course was earlier established off the record by agreement of the judge and counsel. Counsel on rehearing states as much. The judge stated that the jury was excused in order "to explore the admissibility of the statement." The officer was Leonard Harrison. The State questioned him on the taking of the statement and tried to show that it was voluntarily given after adequate warnings of constitutional rights. Milliorn was then called as well. His testimony went far beyond just the hearing on the admissibility of the police station statement, but also addressed the events at the roadside when the marijuana was first discovered.

¶ 10. When all the testimony on suppression was concluded, Milliorn's attorney argued that the permissible scope of a search incident to a traffic stop was exceeded, and that everything else that followed including the statement at the police station was a product of that illegality. The court found that the stop and the search were lawful, and that the statement was voluntarily given.

*1221 ¶ 11. The specific question in this first issue is whether the arrest was unlawful. The search is discussed in two subsequent issues. At this hearing the defense argued that the statement was the fruit of an illegal search incident to arrest, not that the arrest itself was improper. The court never made a ruling on the propriety of the arrest as he was not asked to do so.

¶ 12. A party is obligated to seek a ruling on an objection or motion. "Our rule is that a party making a motion must `follow up that action by bringing it to the attention of the judge and by requesting a hearing upon it.' Sharplin v. State, 357 So.2d 940, 942 (Miss.1978). It `is the responsibility of the movant to obtain a ruling from the court on motions filed by him, and failure to do so constitutes a waiver of same.' Martin v. State, 354 So.2d 1114, 1119 (Miss.1978)." Billiot v. State, 454 So.2d 445, 456 (Miss.1984).

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Bluebook (online)
755 So. 2d 1217, 1999 WL 1454858, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milliorn-v-state-missctapp-1999.