Simmons v. State

301 So. 2d 565
CourtMississippi Supreme Court
DecidedOctober 14, 1974
Docket47554
StatusPublished
Cited by8 cases

This text of 301 So. 2d 565 (Simmons v. State) 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
Simmons v. State, 301 So. 2d 565 (Mich. 1974).

Opinion

301 So.2d 565 (1974)

Wallace Daniel SIMMONS
v.
STATE of Mississippi.

No. 47554.

Supreme Court of Mississippi.

October 14, 1974.
Rehearing Denied November 4, 1974.

*566 Charles J. Weeks, Pascagoula, for appellant.

A.F. Summer, Atty. Gen., by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

SUGG, Justice:

Defendant and Marsha Gail Wilson were indicted by a grand jury in Jackson County for possession of 1,000 amphetamine tablets with intent to sell. A severance was granted on motion of Marsha Gail Wilson, and defendant was tried separately, convicted and sentenced to serve a term of 5 years in the state penitentiary.

On appeal defendant contends that the amphetamines were obtained as a result of an illegal search and seizure and should have been excluded; that his motion for a directed verdict at the close of the State's case should have been sustained; that the evidence did not show possession with intent to sell, but at the most, only constructive possession; and, that the verdict of the jury was against the overwhelming weight of the evidence.

Defendant was arrested by Terry Bulloch, a member of the Pascagoula Police Department, after the officer stopped defendant for the purpose of checking to ascertain whether or not defendant's station wagon was a stolen vehicle. Bulloch stated that he observed defendant's station wagon traveling in a westerly direction with a California tag on it. He noticed that the tag appeared to be very bright or clean and that the vehicle was very dirty. On this basis, he determined that he would stop the vehicle and check to see if either the tag was stolen or the vehicle was stolen. He radioed for a check on stolen vehicles and since the vehicle was nearing the city limits he stopped it so that he could obtain the report before the vehicle left the city.

After stopping the vehicle, Bulloch asked the defendant for his driver's license, frisked the defendant and found a large pocket knife in defendant's right rear pocket. He checked defendant's driver's license, which was in order, checked the automobile registration and found that the automobile did not belong to defendant. He described the knife as a large, foldup pocket knife with a switch release which would lock it closed or lock it open. He further *567 stated that it was a standard pocket knife with rather large dimensions, and upon finding the knife, charged defendant with carrying a concealed weapon.

By this time Captain Howard, another officer of the Pascagoula Police Department, had arrived at the scene and approached the vehicle on the right hand side. Marsha Gail Wilson was seated on the right front seat. Captain Howard requested Marsha Gail Wilson to exit the vehicle, and when she did so, he observed the top of a plastic bag protruding above her cut off blue jeans. After several requests, Marsha Gail Wilson handed Captain Howard a plastic bag which contained 1,000 amphetamine pills which were packaged in smaller bags with 50 pills to each bag.

On the evening in question defendant and Marsha Gail Wilson met at the home of Chris, an acquaintance of both parties. When Marsha Gail went to the home of Chris, she did not know the defendant was there, but the purpose of her visit was to request Chris to carry her to her home. She had known the defendant for approximately one week and he offered to take her home. Both the defendant and Marsha Gail testified that they left Chris' home and went to the home of a man named Chopper and finding no one at home, drove to the beach and parked the vehicle. While parked on the beach two officers searched the car while the occupants were sitting on the hood of the car. They returned to Chopper's home, found him at home, left Chopper's home, and followed the vehicle operated by Chopper to the place where they were stopped by Bulloch. Marsha Gail and defendant agreed on the above facts, but their testimony varies significantly in other details.

Marsha Gail testified that when they went to Chopper's home the second time defendant went in for a couple of minutes, returned to the vehicle and stated that they were to follow Chopper to Gautier because defendant wanted to get rid of something. She further testified that when the blue lights on Bulloch's car were activated she turned around to look at the officer's car and defendant handed her two bags, one of which had some pills in it and told her to "stick them in your pants." She stated that she was scared and complied with the request of defendant.

Defendant testified that they went to Chopper's house the first time at the request of Marsha Gail and on the way to Chopper's house she told him that she was fooling around with drugs and was "holding drugs." He explained that the term meant that she had drugs in her possession. He denied that he went into Chopper's house on the second trip to the house but contended they followed Chopper at the request of Marsha Gail. He denied that he handed the bags to Marsha Gail, but stated that they were her property and that he had never had them in his possession.

Appellant's first contention is that the amphetamines were obtained as a result of an illegal search and seizure and therefore should not have been admitted as evidence.

This contention requires consideration of the standing of the defendant to object to the introduction of the evidence which was obtained as set forth above. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court stated:

However, we have also held that rights assured by the Fourth Amendment are personal rights, and that they may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure. See, e.g., Jones v. United States, 362 U.S. 257, 260-261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, 701, 702, 78 A.L.R.2d 233. At one time, a defendant who wished to assert a Fourth Amendment objection was required to show that he was the owner or possessor of the seized property or that he had a possessory interest in the searched premises. In part *568 to avoid having to resolve the issue presented by this case, we relaxed those standing requirements in two alternative ways in Jones v. United States, supra. First, we held that when, as in Jones, possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challege the admission of the evidence. Second, we held alternatively that the defendant need have no possessory interest in the searched premises in order to have standing; it is sufficient that he be legitimately on those premises when the search occurs... . (390 U.S. at 389, 390; 88 S.Ct. at 974; 19 L.Ed.2d at 1256, 1257).

Possession of the amphetamines which were seized was an essential element of the offense with which the defendant was charged. The right of defendant to challenge the admission of the evidence would be unquestioned under Simmons and Jones except for the fact that Marsha Gail Wilson voluntarily testified that the amphetamines had been given to her by the defendant, were in her possession at the time of the search and that she gave them to a policeman. If she had not testified voluntarily, the evidence would have been inadmissible on objection of the defendant.

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301 So. 2d 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-state-miss-1974.