White v. State

746 So. 2d 953, 1999 WL 228850
CourtCourt of Appeals of Mississippi
DecidedApril 20, 1999
Docket96-KA-01335-COA
StatusPublished
Cited by4 cases

This text of 746 So. 2d 953 (White 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
White v. State, 746 So. 2d 953, 1999 WL 228850 (Mich. Ct. App. 1999).

Opinion

746 So.2d 953 (1999)

Robert WHITE a/k/a Robert Lee White, Appellant,
v.
STATE of Mississippi, Appellee.

No. 96-KA-01335-COA.

Court of Appeals of Mississippi.

April 20, 1999.
Certiorari Denied October 7, 1999.

*954 Donna J. Hodges, Jackson, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred III, Attorney for Appellee.

BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.

THOMAS, P.J., for the Court:

¶ 1. Robert White appeals his conviction of possession of cocaine and possession of a firearm by a convicted felon, raising the following issues as error:

I. THE TRIAL COURT ERRED IN ALLOWING INTRODUCTION OF EVIDENCE SEIZED PURSUANT TO THE SEARCH WARRANT WHICH WAS ISSUED AS A "KNOCK-AND-ANNOUNCE" WARRANT, BUT WAS EXECUTED AS A "NO-KNOCK" WARRANT, IN THE ABSENCE OF EXIGENT CIRCUMSTANCES ON THE PARTICULAR FACTS OF THIS CASE.

II. THE TRIAL COURT ERRED IN REFUSING TO ALLOW A CONTINUANCE TO ALLOW THE DEFENDANT TO RETAIN COUNSEL OF HIS CHOICE FOR TRIAL.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In February of 1996, David Sullivan was serving as the director of the Central Delta Drug Task Force. Sullivan began an investigation of Robert White after receiving intelligence reports from various law enforcement agencies in Sunflower County, Mississippi. Through a confidential *955 informant it was discovered that White was selling crack cocaine from his residence at 215 Southwest Plaza, Indianola, Mississippi. Sullivan also learned that a previous search of this residence by the Task Force had turned up firearms and a small quantity of cocaine. A controlled buy was arranged in which the confidential informant purchased $50 worth of crack cocaine from the residence.

¶ 4. A second informant advised the Task Force that White had fortified his residence by placing a six foot wood fence around the rear of the residence and a six to eight foot electrified fence around the front of the residence. The informant advised that the front fencing contained razor wire on top. The source conveyed to the Task Force that to enter the residence one had to proceed through a large electric gate in the front of the home. The informant further advised that each window and each door of the house had security bars, and that White had purchased a rottweiler which ran loose in the yard area. The source also had observed several drug transactions at the residence which were completed through a steel security door which contained a slot located around the door knob area. The source said that the security door was secured by three dead bolt locks, and that the individuals dealing the drugs inside the residence would not open the door during the transactions. It was determined through this source that the business hours of this house were approximately 10:00 a.m. to 10:30 p.m. Sullivan personally observed the house in question, discovering it to be a single family brick dwelling, with an unenclosed carport, with a front door, a back door, and a carport door, each having a steel security door.

¶ 5. A decision was made to infiltrate the house and conduct a search of the residence. On March 7, 1996, Sullivan conducted a meeting with at least fifteen law enforcement officers. All relevant information was presented by affidavit to Justice Court Judge Charlotte Buchanan in order to obtain a search warrant. The affidavit specifically asked "Affiant also requests that this warrant be titled a No-Knock Search Warrant for the purposes of securing individuals at the residence and to prevent destruction of evidence prior to officers being able to gain entry. Also based on affiant's experience as a narcotics investigator this will afford additional safety for approaching officers at the time the warrant is executed." A search warrant was issued; however, it contained the following language "THEREFORE, you are hereby commanded to proceed at any time in the day or night to the place described above and to search forthwith said place for the things specified above, making known to the person or persons occupying or controlling said place, if any, your authority and purpose for so doing, before making a search or forcible entry prior to said search...."

¶ 6. Ideally Sullivan wanted to arrive at the home at a time when the gate was open. A drive-by was conducted ten minutes before the raid, and the gate was open. However, when the raid actually commenced, the gate was closed. The raid began around 9:30 p.m. and consisted of a caravan of five vehicles. As Sullivan drove toward the residence, he saw that the gate was closed. Sullivan believing he was now committed, decided to open the gate with any means possible. Sullivan drove his Dodge Ram through the front gate. Three teams exited the vehicles in order to cover each door. A sledge hammer was used in an attempt to enter through the front, but this attempt was unsuccessful. A hydraulic press was used on the carport door which successfully opened the door. At the same time the officers were trying to gain entry into the house other officers broke out windows and sprayed mace in both the master bedroom and kitchen. During the raid officers continuously shouted "Search warrant, Sheriff's Department," and "Search warrant, Police."

¶ 7. White was apprehended as he came out of his bedroom. White was carrying *956 an automatic pistol. The pistol was not loaded, and its slide was locked to the rear. Officers told White to drop the gun. White complied and was taken into custody. White's wife and daughter were secured in the hallway of the home. A search of the house produced cocaine residue, weapons, and various items associated with drug trafficking.

¶ 8. White was indicted for possession of cocaine with the intent to sell, assault on a police officer, and possession of a firearm by a convicted felon. A trial was commenced on June 25, 1996. At the close of the State's case-in-chief, the trial court granted a directed verdict of not guilty of possession with intent to deliver, allowing only the lesser-included-offense of simple possession to go the jury. The trial court also directed a verdict of not guilty of assault on a police officer. The jury returned a verdict of guilty for possession of a controlled substance and possession of a firearm by a convicted felon.

ANALYSIS

I.

THE TRIAL COURT ERRED IN ALLOWING INTRODUCTION OF EVIDENCE SEIZED PURSUANT TO THE SEARCH WARRANT WHICH WAS ISSUED AS A "KNOCAND-ANNOUNCE" WARRANT, BUT WAS EXECUTED AS A "NKNOCK" WARRANT, IN THE ABSENCE OF EXIGENT CIRCUMSTANCES ON THE PARTICULAR FACTS OF THIS CASE.

¶ 19. White argues that the trial court erred in admitting evidence seized pursuant to the search warrant in this case due to the unreasonableness of the search and seizure. White complains that as a result of the failure to "knock-and-announce" in the absence of exigent circumstances, the trial court should have found the search to be unreasonable and exclude all evidence seized as a result.

¶ 10. White makes several arguments why the evidence seized as the result of the warrant should have been excluded. First, White points out that while Mississippi at one time had a statute, Miss.Code Ann. § 41-29-157(c) (Rev.1993), which specifically allowed "no-knock" searches, the particular subsection allowing "no-knock" searches was automatically repealed after July 1, 1974 and is no longer in effect. White contends that in the absence of such a statute a "no-knock" warrants cannot be issued.

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