Neely v. State Ex Rel. Tate County

628 So. 2d 1376, 1993 WL 511161
CourtMississippi Supreme Court
DecidedDecember 9, 1993
Docket91-CA-0304
StatusPublished
Cited by17 cases

This text of 628 So. 2d 1376 (Neely v. State Ex Rel. Tate County) 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
Neely v. State Ex Rel. Tate County, 628 So. 2d 1376, 1993 WL 511161 (Mich. 1993).

Opinion

628 So.2d 1376 (1993)

Edward Earl NEELY
v.
STATE of Mississippi, ex rel. Tate County, Ms.

No. 91-CA-0304.

Supreme Court of Mississippi.

December 9, 1993.

James D. Minor, Oxford, for appellant.

*1377 Michael C. Moore, Atty. Gen., James M. Hood, III, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and BANKS and McRAE, JJ.

BANKS, Justice, for the Court:

I.

This forfeiture case requires that we construe the "close proximity" statutory presumption of forfeitability with regard to money found on the Neely's person and drugs found in his vehicle. Neely also challenges the stop and search of his vehicle and the evidentiary support for the conclusion that the substance found was cocaine. We hold that the confidential informant's (CI) tip justified the stop and search, that Neely's admission as to the nature of the substance was sufficient for the finding that the substance was cocaine. We conclude that if the "close proximity" presumption arose it was sufficiently rebutted. Accordingly, we affirm in all respects, except for the forfeiture of the money.

II.

Following the arrest of Edward Earl Neely for trafficking crack cocaine, the State of Mississippi filed this civil action, a Petition for Forfeiture pursuant to Miss. Code Ann. § 41-29-101 et seq. (Supp. 1993). The State sought forfeiture of Neely's red 1984 Chevrolet Camaro and the property found in the car, namely $1,270 in U.S. currency, on the grounds that the vehicle and cash had been used, or were intended for use, in drug trafficking in violation of this State's controlled substances statutes.

On January 25, 1991, a hearing was held to determine if the property of Edward Earl Neely, charged with possession of a controlled substance with intent to sell, was subject to forfeiture. His trial on the criminal charge of possession with intent to distribute was scheduled for May 13, 1991.

The State called Deputy Larry Hulette of the Tate County Sheriff's Department, Officer Marlin Stanford, Officer Lonnie Broadway, as well as, Chief Deputy Eddie Hadskey. Hulette testified on June 12, 1990, he received a telephone call from a confidential informant, whose tips Hulette had successfully used in the past. The CI told Hulette that Neely was dealing crack and that Neely would be making a delivery that night. The CI also told Hulette that Neely would be travelling east on Arkabutla Road with crack in his vehicle. Acting on the CI's tip, Hulette drove to Arkabutla Road.

Based on testimony of the State's witnesses adduced at the January 25th forfeiture hearing, the events transpired as follows. Hulette spotted Neely's vehicle and radioed for back-up. Neely was headed east on Arkabutla Road, but turned around in front of Hulette and headed westward. Hulette flashed his patrol lights. Neely drove about a mile and a half before he pulled into a driveway. Neely got out of his car and was met half-way by Hulette. Having heard Hulette's call for assistance Officer Stanford arrived on the scene shortly after Neely got out of his car.

When Hulette met Neely near his car, Hulette asked to see Neely's license. Neely produced his license. Hulette testified that he asked Neely for permission to search his car. Stanford corroborated Hulette's testimony.

Hulette conducted the search while the other officers watched Neely. Hulette found a matchbox in Neely's vehicle between the passenger seat and the console with what appeared to be two rocks of crack. Hulette showed the contents of the matchbox to Stanford. Around that time, Neely stated that he didn't sell cocaine. Rather, he had bought it for his personal use. Neely was arrested and given his Miranda rights.

Stanford, whose shift was winding up, left the scene. Hulette transported Neely to the Tate County Jail. Broadway stayed behind to wait for a tow truck to pull Neely's car to the sheriff's department. When the tow truck arrived and picked up the vehicle, Broadway followed it to the sheriff's department. *1378 The sheriff's office held the property from that date forward.

Meanwhile at the jail, Neely was searched and police found $1,270 in Neely's pocket, Hadskey testified. Neely was charged with possession of a controlled substance. Neely was given his Miranda rights again. Hadskey testified that Neely signed a Miranda waiver. He also signed two seizure forms for his car and $1,270. Neely was questioned about the two rocks of crack. He said the crack belonged to him but he didn't sell cocaine. Neely told the officers that he had been using crack for about four months and that family problems drove him to use the drug.

The State called its other witness Ronnie Taylor, sales manager of vehicles for Moore's Chevrolet-Olds, Inc., of Senatobia for eight years and an employee of the dealership for nineteen years. The trial court declared Taylor to be an expert in the field of the resale value of Chevrolet vehicles. Taylor testified that the NADA Guide Book value for the vehicle was $3,675 but, in his personal opinion, the car was worth "a little less" as the vehicle had some damage.

On cross, Taylor said he had no knowledge that the car was seized when he examined it. Taylor testified that the $3,675 figure was taken from the January 14, 1991, NADA Guide Book. According to the September 1990 NADA Guide Book, the same vehicle had a value of $5,500.

Neely moved for a directed verdict on the ground that the State had failed to prove a controlled substance was found in the vehicle and, therefore, the vehicle and money were not subject to forfeiture under our statutes. Neely also moved for dismissal on the ground that the search and seizure of the contraband was unconstitutional.[1] The State responded that there was testimony from the State's witnesses that Neely admitted that the substance in the vehicle was crack cocaine and "there was plenty of testimony it was found in the automobile." The State never responded to the search and seizure contention.

The court denied Neely's motion for directed verdict (failure to prove controlled substance in the vehicle) and motion to dismiss (failure to prove consent where no probable cause to search existed). The court determined that the directed verdict was not warranted as the State was entitled to all reasonable inferences drawn from the evidence that the substance found in the vehicle was crack. Regarding the search and seizure, the court found (1) that Hulette received information from a CI regarding Neely; (2) that the CI had been used with success in prior arrests; (3) that Neely was driving on a road and in the same direction that the CI told Hulette Neely would be driving; and (4) because of this, Hulette had probable cause to stop the vehicle. Furthermore, the court found that based on Hulette's testimony Neely gave consent to search the vehicle.

Neely testified on his own behalf as the only witness in his case-in-chief. Neely claimed he was headed back home, west of Coldwater, when he was stopped by Hulette. According to Neely, he was pulled over by Hulette, who asked to see his driver's license. Neely stepped out of his vehicle. At that time, Hulette began to search his car. At no time did Neely consent to this search.

On cross examination, Neely stated every officer, except Hulette, who testified that he consented to the search was not present for the search. He therefore denied ever giving his permission to search the car in their presence.

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Cite This Page — Counsel Stack

Bluebook (online)
628 So. 2d 1376, 1993 WL 511161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/neely-v-state-ex-rel-tate-county-miss-1993.