222 So. 3d 1074
Miss. Ct. App.2016Background
- Around midnight on Nov. 3, 2010, Biloxi PD stopped a vehicle for careless driving; May was a passenger and the driver was arrested for possessing narcotics.
- Officer DeGeorge asked May to exit and sit while arranging towing because May’s license was suspended; May appeared nervous and repeatedly handled his right shoe.
- Officer DeGeorge asked May to remove his shoes; May complied and a Zippo lighter fell from a shoe.
- Officer DeGeorge opened the removable insert of the lighter and found small bags containing marijuana and crack cocaine; May later admitted ownership in a stationhouse statement.
- May was convicted of possession of cocaine and sentenced as a habitual offender to life without parole; he appealed, arguing the search of the lighter violated the Fourth Amendment.
Issues
| Issue | Plaintiff's Argument (May) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether May voluntarily consented to a search extending to the contents of the lighter | Consent to remove shoes was not consent to disassemble/search the lighter; removal occurred under coercive circumstances | May voluntarily removed shoe and thus revealed the lighter; voluntarily revealing the lighter eliminated expectation of privacy | Court: May voluntarily consented to remove his shoes, but that consent did not objectively extend to searching the lighter’s interior; no consent to search lighter was shown |
| Whether officer had probable cause or an applicable exception to search the lighter without a warrant | Officer’s suspicion (nervousness, handling shoe) was only a hunch and did not give probable cause to search a closed container | Officer’s observations justified further inspection; voluntarily revealed lighter made search reasonable (dissent) | Court: No probable cause or plain-view/plain-feel exception existed to justify opening the lighter; search violated Fourth Amendment |
| Whether pro se motion preserved suppression issues or waiver applies | Pro se motion to suppress was sufficient; alternatively, plain-error review warranted because of constitutional error | State argued issues were not sufficiently raised and thus procedurally barred | Court: Motion preserved claim; in any event plain-error review available and applied; conviction reversed and rendered |
Key Cases Cited
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent must be knowing and voluntary; voluntariness judged under totality of circumstances)
- Florida v. Jimeno, 500 U.S. 248 (1991) (scope of consent measured by objective reasonableness—what a typical reasonable person would understand)
- Rooks v. State, 529 So.2d 546 (Miss. 1988) (probable cause requires facts reasonably leading an officer to believe contraband will be found)
- Gales v. State, 153 So.3d 632 (Miss. 2014) (voluntary exposure of incriminating item can eliminate expectation of privacy)
- Ferrell v. State, 649 So.2d 831 (Miss. 1995) (plain-view exception does not authorize exploratory openings of containers that outwardly appear innocuous)
- Anderson v. State, 864 So.2d 948 (Miss. Ct. App. 2003) (observations that a container is "out of place" or nervous behavior alone do not establish probable cause)
- Walker v. State, 881 So.2d 820 (Miss. 2004) (search is not unreasonable if based on probable cause)
- Dies v. State, 926 So.2d 910 (Miss. 2006) (appellate standard for mixed review of Fourth Amendment issues)