John Norman Cole v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-KA-01441-SCT
JOHN NORMAN COLE a/k/a BO COLE a/k/a
JOHN COLE
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 09/22/2016
TRIAL JUDGE: HON. MICHAEL M. TAYLOR
TRIAL COURT ATTORNEYS: JASON E. TATE
WILLIAM BRENDON ADAMS
M. A. BASS JR.
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: DEE BATES
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 02/01/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.
ISHEE, JUSTICE, FOR THE COURT:
¶1. John Cole was adjudged guilty by a jury in the Lincoln County Circuit Court for the
unlawful possession of less than thirty grams of marijuana with the intent to distribute, and
the illegal possession of a firearm by a convicted felon. He was sentenced as a habitual
offender. As a result, Cole was sentenced to serve three years for the marijuana-related
charge, and ten years for the possession of the firearm; the sentences were ordered to run
consecutively. Cole filed posttrial motions, all of which were denied. This direct appeal
followed, wherein Cole attacks the admission of certain evidence. Finding no error, we
affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. On August 6, 2015, Agent Hunter Huff of the Mississippi Bureau of Narcotics (MBN)
received information from an anonymous tipster1 that several unidentified individuals were
outside a private residence selling drugs. The tipster conveyed to Huff that the house was
located on, or around, Dr. Martin Luther King Jr. Drive, and had a chiminea (or fire pit) out
front. In response, Huff, along with Captain Billy Ray Warner, Agent Jesse Leggett, and
other officers arrived simultaneously at the location approximately described by the tipster
to investigate the claim. They parked along the public roadway and found six men sitting
near the street. Cole was one of the six, seated to the far right. The scene aligned roughly
with that described by the tipster, according to Huff.
¶3. At that time, the agents immediately observed one of the individuals hide something
under his shirt. Huff, Leggett, and the other agents then approached the men while Huff
began explaining why they were present. When asked to produce the hidden object, the
individual revealed a marijuana joint. The same individual had his foot on top of a CD case
located on the ground, which was found to contain additional marijuana. A second
1
The circuit court held that, although the anonymous tipster’s identity was revealed
during the suppression hearing, and that the tipster had in fact provided reliable information
to officers in the past, the State was barred from subsequently using the anonymous tipster’s
known identity to bolster its position after having proceeded on a theory that the tip derived
from an anonymous source.
2
individual produced from his pocket a bottle housing marijuana. The agents then found
marijuana and a pistol on another individual, Lattrick Williams. Having found narcotics on
at least three of the individuals present, as well as a gun, the agents continued the
investigation and chose to frisk Cole for weapons. But when the agents either attempted, or
initially began, to frisk Cole, he stood, then fled along the roadway.
¶4. Agents on the scene testified that Cole discarded what appeared to be a white hand
towel while running. While pursuing Cole, Officer Barlow of the Brookhaven Police
Department stated that he heard what sounded like metallic clinking along the
pavement—when he looked down, he observed a revolver and alerted the other agents to its
presence. When inspected by Leggett, the towel was found near a firearm. In close
proximity to the pistol was marijuana. Cole subsequently was restrained by the agents,
placed under arrest, and searched. Additional marijuana was found on his person. He was
then taken to jail.
¶5. Once at jail, Cole was Mirandized,2 waived his rights, and spoke with Huff and
Leggett. According to Huff’s and Leggett’s testimony, Cole provided a statement, in which
he allegedly admitted selling the bags of marijuana for $10 each, and that he recently had
purchased the pistol found at the scene for $120. Huff stated on cross-examination, however,
that Cole’s statement was not recorded in any fashion, and that no written report was
constructed by either himself or Leggett detailing Cole’s statement. But Huff also stated that,
as a general practice, MBN does not record every statement of a suspect.
2
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
¶6. During pretrial proceedings, Cole moved to suppress evidence related to the marijuana
and pistol, claiming that the search and seizure were unlawful and, therefore, those items
were “fruit of the poisonous tree.” Cole also sought to have any alleged statements by him
suppressed.
¶7. During the suppression hearing, Cole chose to testify. Cole admitted that he had
waived his Miranda rights and that he had “talked with” the agents, but he denied making
any statements regarding the sale of marijuana. As a result, his testimony varied in some
respects from that to which Huff and Leggett had testified. Even so, Cole admitted that he
had fled because he did not want to go to jail, and that he was in possession of the marijuana
and the pistol before he fled. Following the suppression hearing, the circuit court denied
Cole’s motion to suppress.3
¶8. As a result, Cole proceeded to trial on September 22, 2016. Upon conclusion of trial,
the jury found Cole guilty of both counts charged, and he was sentenced as a habitual
offender. As such, he received a three-year sentence for his possession of less than thirty
grams of marijuana with the intent to distribute, and ten years for being a felon in possession
of a firearm; the sentences were ordered to run consecutively, the entirety of which was to
be served in the custody of the Mississippi Department of Corrections (MDOC).
¶9. Displeased, Cole moved for a judgment notwithstanding the verdict (JNOV) or, in the
3
For reasons unknown, the circuit court never issued a written order denying Cole’s
motion to suppress—as a result, no such order is found in the record. The circuit court,
however, acknowledged this omission during its in camera proceedings. The circuit court
articulated on the record its denial of the motion, as well its rationale in reaching that
conclusion.
4
alternative, a new trial—neither motion, however, specifically attacked the circuit court’s
admission of the firearm or marijuana. The circuit court ultimately denied all of Cole’s
posttrial motions. Aggrieved, Cole timely filed this direct appeal.
STANDARD OF REVIEW
¶10. “This Court applies a mixed standard of review when considering Fourth-Amendment
issues.” Cook v. State, 159 So. 3d 534, 537 (Miss. 2015) (citing Eaddy v. State, 63 So. 3d
1209, 1213 (Miss. 2011)). “We apply de novo review when determining whether probable
cause or reasonable suspicion exists.” Cook, 159 So. 3d at 537. Our de novo review,
however, is “limited to the trial court’s ‘decision based on historical facts reviewed under the
substantial evidence and clearly erroneous standards.’” Id. (quoting Dies v. State, 926 So.
2d 910, 917 (Miss. 2006)).
DISCUSSION
¶11. In seeking relief from this Court, Cole raises but one error: the circuit court’s denial
of his motion to suppress. Subsumed within this issue, however, is whether Cole’s right to
be free from unreasonable searches and seizures was violated.4
¶12. “Both the Fourth Amendment to the United States Constitution and Article III, Section
23 of the Mississippi Constitution protect an individual’s right to be free from unreasonable
searches and seizures.” Eaddy, 63 So. 3d at 1212 (citing Dies, 926 So. 2d at 917-918); see
4
We note that Cole attacks broadly the denial of his motion to suppress; however,
conspicuously absent from Cole’s brief to this Court is any argument as to the
nonsuppression of his alleged statement to MBN agents. Because “this Court has long held
that issues not raised on appeal are procedurally barred from consideration,” we decline to
address the merits of the circuit court’s ruling as to whether Cole’s alleged statement should
have been suppressed. Flynt v. State, 183 So. 3d 1, 14 (Miss. 2015).
5
also U.S. Const. amend. IV; Miss. Const. art. 3, § 23. “To determine whether the search and
seizure were unreasonable, the inquiry is two-fold: (1) whether the officer’s action was
justified at its inception, and (2) whether it was reasonably related in scope to the
circumstances which justified the interference in the first place.” Gonzales v. State, 963 So.
2d 1138, 1141 (Miss. 2007).
¶13. “As a general rule, the state and federal constitutions prohibit warrantless searches
unless an exception applies.” Eaddy, 63 So. 3d at 1213. Therefore, “[u]nless the State
proves that a warrantless search comes within an exception, all evidence seized from the
search is inadmissible.” Id. A noncustodial investigatory stop, commonly referred to as a
Terry stop, is a recognized exception.5 See Gonzales, 963 So. 2d at 1141.
I. Investigatory Stops
¶14. Before this Court may address the merits of whether the circuit court erred in denying
Cole’s motion to suppress, we first must determine the lawfulness of the investigatory stop,
as any evidence derived from an illegal search or seizure will be deemed tainted as “fruit of
the poisonous tree.” United States v. Mayberry, 193 F. Supp. 3d 724, 731 (S.D. Miss. 2016).
¶15. With that in mind, it is well-settled that “[p]olice officers may detain a person for a
brief, investigatory stop consistent with the Fourth Amendment when the officers have
‘reasonable suspicion, grounded in specific and articulable facts[,]’ [which] allows the
officers to conclude the suspect is wanted in connection with criminal behavior.” Eaddy, 63
So. 3d at 1213; see also Terry, 392 U.S. at 21.
5
See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
6
A. Reasonable Suspicion
¶16. Generally, there are two sources from which grounds for reasonable suspicion may
be established: “either the officers’ ‘personal observation’ or an informant’s tip.” Eaddy, 63
So. 3d at 1213 (citing Florida v. J.L., 529 U.S. 266, 270, 120 S. Ct. 1375, 146 L. Ed. 2d 254
(2000)). “The officer’s personal observation includes information from other law-
enforcement personnel.” Eaddy, 63 So. 3d at 1213. “And an informant’s tip may provide
reasonable suspicion if accompanied by some indication of reliability; for example, reliability
may be shown from the officer’s independent investigation of the informant’s information.”
Id. (citing J.L., 529 U.S. at 270).
¶17. That said, the scope of an investigatory stop is not unlimited. Eaddy, 63 So. 3d at
1213. Rather, “[t]he scope of a search or seizure must relate to the initial circumstances that
called for police action.” Id. at 1214. And “[w]hen police detention exceeds the scope of
the stop, the stop becomes a ‘seizure,’ and the State must show probable cause.” Id.
¶18. Applied here, Cole argues that the agents’ actions were not justified at the inception
of the stop because “they did not possess a reasonable belief that Cole was armed,” and
therefore, “lacked authority to conduct a Terry pat-down for weapons.” Unclear, however,
is whether Cole is arguing that the inception of the stop began with the agents’ initial
approach of the group, or when Huff attempted to frisk Cole’s person. Regardless, to assess
whether the agents’ stop was justified at its inception—be it the overall group or of Cole
himself—we must review which facts, including any rational inferences drawn therefrom,
were known to the agents beforehand. Terry, 392 U.S. at 21.
7
¶19. From the record, testimony reveals the following:
(1) Agent Huff received an anonymous tip regarding “narcotics activity in a
certain location on or about, near Martin Luther King Street . . . [at] a certain
house on the street, [perhaps] the third or fourth on the left;”
(2) The tip, as relayed by Huff to the other agents, conveyed “information
about some subjects who were sitting outside of a residence, at or near a
residence with a chiminea out front on Martin Luther King, [and that] said
subjects would pull up in vehicles and purchase drugs from people at that
residence;”
(3) MBN’s “[s]tandard procedure” for tips implicating “a location that may
have drug activity” is to “generally try to get multiple agents, at least three [to]
four, [and] go to that residence” to investigate;
(4) The agents arrived at a location “where a chiminea was right next to it in
a driveway,” which had “individuals sitting outside[;]”
(5) The agents “parked on the shoulder of the road,” and “could see several
subjects there at the end of the driveway [of] the residence, maybe five or six
sitting down.” As the agents exited their vehicles, Warner observed the first
individual “stuffing something under his shirt,” which “raised suspicion[.]”
The agents then “started to walk across the street” toward the individuals;
(6) Having already observed one of the individuals hide something under his
shirt, the agents approached the individuals and informed the individuals that
they had received a “complaint that there might be narcotics activity” at that
location, and that they “were there to investigate it;” and
(7) Huff then began to question the individual who was observed stuffing
something under his shirt about “why or what he was putting under his shirt.”
Thus, up to the point that the agents arrived at the location and parked their vehicles, they
were merely acting upon information provided through an anonymous tip.
¶20. Where an anonymous tip is involved, the “tipster’s ‘veracity,’ ‘reliability,’ and ‘basis
of knowledge’ are relevant considerations in establishing reasonable suspicion.” Cooper v.
State, 145 So. 3d 1164, 1168 (Miss. 2014) (citing Alabama v. White, 496 U.S. 325, 328–329,
8
110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990)). The Supreme Court has held, however, that “an
anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity[.]”
White, 496 U.S. at 328–329. But even so, “there are situations in which an anonymous tip,
suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable
suspicion to make the investigatory stop.’” J.L., 529 U.S. at 270 (quoting White, 496 U.S.
at 327). Therefore, “[r]easonable suspicion is dependent upon the content of the information
possessed by the detaining officer as well as its degree of reliability.” Cooper, 145 So. 3d
at 1168. And as this Court has reiterated, “[b]oth factors—quantity and quality—are
considered in the ‘totality of the circumstances.’” Id. (citing Williamson v. State, 876 So.
2d 353, 355 (Miss. 2004)).
¶21. As to the anonymous tipster in this case, the circuit court specifically found:
[K]nowing the source of [the tip],6 the agents had maybe a basis of a history,
track record of reliability, [but] what the agents lacked at that point . . . was
any demonstration that the tipster was in a position to know and had
knowledge and—although it may have been a reliable person, it was a reliable
person communicating second, third, fourth-hand hearsay . . . and it’s not at all
clear from the tip or from any of the subsequent testimony that the tipster was
in a position to have firsthand or reliable knowledge of any of the things about
which he communicated to the officer.
Therefore, reviewing this finding by the circuit court, in light of the previous holdings by the
Supreme Court and this Court, we find the tip here, alone, did not possess sufficient “indicia
of reliability” to provide the agents with reasonable suspicion to stop the group, or any of its
6
See supra, n.1.
9
individual members.7 Cooper, 145 So. 3d at 1168.
¶22. But in this case, the tip was not the sole basis for the agents’ actions—here, the agents
personally observed what they deemed “suspicious” behavior as soon as they arrived on the
scene, thereby establishing an independent ground for reasonable suspicion. See Eaddy, 63
So. 3d at 1213. Therefore, based upon the agents’ personal observation of suspicious activity
(an individual within the group of interest hiding something under his shirt), as well as their
corroboration of certain (albeit, vague) details provided in the tip (approximate location and
existence of the group), we hold that, objectively speaking, the agents possessed specific,
articulable facts constituting a reasonable suspicion that criminal activity was afoot. See
Terry, 392 U.S. at 21.
¶23. As a result, then, we find that, at minimum, the agents were justified in their stop of
at least the first individual observed acting suspiciously. See id. We acknowledge, however,
that “[t]he Supreme Court has never viewed Terry as a general license to detain everyone
within arm’s reach of the individual whose conduct gives rise to reasonable suspicion,”
which here, would be the individual first observed stuffing something under his shirt. United
States v. Hill, 752 F.3d 1029, 1037 (5th Cir. 2014) (quoting United States v. Navedo, 694
7
See, e.g., McClellan v. State, 34 So. 3d 548, 552 (Miss. 2010) (valid investigatory
stop where officers further investigated “vague” information received from informant before
making the stop); Burchfield v. State, 892 So. 2d 191, 194–95 (Miss. 2004) (reasonable
suspicion for investigatory stop supported by store clerk’s tip that described defendants who
had purchased precursors and by officer’s personal observation of defendants’ purchases in
vehicle described by clerk); Williamson, 876 So. 2d at 356 (reasonable suspicion for
investigatory stop supported by tip from unnamed informant who described, in relevant part,
the defendant and his vehicle and tag number, and by officer’s subsequent verification of
number). Eaddy, 63 So. 3d at 1213.
10
F.3d 463, 468 (3d Cir. 2012)). Therefore, we must review the remaining details of the stop
in order to ascertain whether a “seizure” of Cole took place, thus implicating the Fourth
Amendment.
B. Seizure
¶24. Having established that the agents possessed reasonable suspicion to initiate a Terry
stop, we must now determine if and when Cole was “seized” within the meaning of the
Fourth Amendment.
¶25. “A seizure begins when ‘all the circumstances surrounding the incident’ are such that
‘a reasonable person would have believed that he was not free to leave.’” Hill, 752 F.3d at
1033 (quoting INS v. Delgado, 466 U.S. 210, 215, 104 S. Ct. 1758, 80 L. Ed. 2d 247 (1984)).
And as the Supreme Court stated in Terry, “[o]nly when the officer[s], by means of physical
force or show of authority, [have] in some way restrained the liberty of a citizen may we
conclude that a ‘seizure’ has occurred.” Terry, 392 U.S. at 19, n.16. But, because “[t]he
constitutional requirements for an investigative stop are less stringent than those for a full
arrest,” “a person may be detained short of a full arrest for investigatory purposes.” Dies,
926 So. 2d at 918. Therefore, “[Cole] must have been ‘seized’ or ‘temporarily detained’ by
[the agents] before his flight . . . to trigger Fourth Amendment protection.” Cooper, 145 So.
3d at 1171.
¶26. Here, the record reflects that, after observing the first individual stuffing something
under his shirt, the agents approached the group, explaining the purpose for their presence.
Huff then began to question the individual who was observed stuffing something under his
11
shirt about “why or what he was putting under his shirt.” The individual revealed that he had
concealed a marijuana joint. The same individual was concealing additional marijuana
located on the ground. The discovery of marijuana on the first individual was treated by the
agents as an initial verification of the information received in the tip (i.e., possible
distribution of narcotics). Warner testified that once they discovered contraband on the first
individual, “everybody else [was] starting to get a little nervous,” so they asked generally
whether the remaining individuals were in possession of any narcotics.
¶27. In response, a second individual produced from his pocket a bottle housing marijuana,
which the agents found to further verify the information they had received. The agents stated
that, during this entire time, Cole remained seated, had not asked to leave, was not under
arrest, and had not been placed in handcuffs. The agents then found marijuana and a pistol
on the third individual, Williams. Having found narcotics on at least three of the individuals
present, as well as a gun, the agents continued their investigation and determined that Cole
needed to be frisked for weapons as well. Leggett and Warner stated that it was only after
the gun was found on Williams that Cole was no longer free to leave—that is, he was
temporarily detained.
¶28. In his brief, however, Cole asserts that “once the officers arrived on the scene and
questioned the first individual, [he] was under arrest and not allowed to leave.” We disagree
that Cole was under arrest, as this Court, in Jackson v. State, 335 So. 2d 116, 118-19 (Miss.
1976), defined what constitutes an arrest:
An arrest is not consummated until there has been a taking or possession of a
person by manual caption, or submission on demand; and although a manual
12
touching is unnecessary unless there is resistance to an arrest, there must be
restraint of a person to establish an arrest.
See also California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 147, 113 L. Ed. 2d 690
(1991) (holding that “[a]n arrest requires either physical force . . . or, where that is absent,
submission to the assertion of authority.”). Thus, in light of Jackson and Hodari, we cannot
conclude that Cole was under arrest, as Cole points to nothing in the record showing that
when the agents arrived he was physically placed under arrest, or that he personally
submitted to any show of authority. Instead, testimony from the agents reveals that Cole did
nothing but remain sitting until it was determined that he needed to be frisked for weapons.
And from his own testimony given at the suppression hearing, Cole stated that, prior to
fleeing, he “hadn’t made any attempt to leave,” and that “[n]o one told [him he] was under
arrest.”
¶29. Still, viewing “all of the circumstances surrounding the incident,” we must determine
whether a “reasonable person” in Cole’s position would have felt free “to disregard the police
and go about his business” prior to the agents’ discovery of a weapon and their subsequent
decision to frisk him. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64
L. Ed. 2d 497 (1980); Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d
389 (1991). Under the facts of this case, we cannot find that a reasonable person would have
felt such freedom.
¶30. And so, though not placed under arrest at the moment the agents began questioning
the first individual, we nonetheless agree with Cole that he was temporarily detained once
that initial questioning began. Even so, we still hold that both the inception of the stop—and
13
its accompanying detention—were lawful under Terry. This is because the anonymous tip
implicated a group of individuals possibly distributing narcotics. The agents, when
approaching the group of interest, then personally observed an individual within the group
of interest acting suspicious. When investigated further, the agents discovered marijuana on
at least three individuals. Treating those discoveries as verification of the information
received in the tip, and coupled with their independent observations, we hold that the agents
were justified in their temporary detention of the remaining individuals comprising the group
“for purposes of investigating possibl[e] criminal behavior[.]” Terry, 329 U.S. at 22.
¶31. That said, we know that Cole definitively was detained after the discovery of the
weapon because Warner articulated to the other agents, and in Cole’s presence, that Cole
then needed to be frisked for weapons. In light of what the agents had discovered up to that
point in their investigation (narcotics and a firearm), we also find that the agents were
justified in their decision to frisk Cole. This is because “[t]he officer need not be absolutely
certain that the individual is armed; the issue is whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or that of others was in
danger.” Terry, 329 U.S at 27. Based upon the facts of this case, we find that a reasonably
prudent man would be justified in that belief.
¶32. To that end, the Supreme Court in Terry further held:
When an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous
to the officer or to others, it would appear to be clearly unreasonable to deny
the officer the power to take necessary measures to determine whether the
person is in fact carrying a weapon and to neutralize the threat of physical
harm.
14
Terry, 392 U.S. at 24. Therefore, we hold that the agents were entitled “to conduct a
carefully limited search of the outer clothing of [Cole] in an attempt to discover weapons
which might be used to assault [the agents].” Id. at 30. And as the Terry Court stated,
“[s]uch a search is a reasonable search under the Fourth Amendment[.]” Id. at 31. And so,
this Court holds that the agents’ investigatory stop was lawful under Terry, both at its
inception, and in its scope. For purposes of thoroughness, however, we choose to further
address the “scope” of the stop, as it implicates a subissue raised by Cole.
C. Scope of Stop
¶33. As to the scope of the stop, Cole argues that, even if the agents possessed a reasonable
suspicion justifying a brief investigatory stop, “their conduct was not reasonably related to
the reason that justified the stop[.]” He reasons, then, that their conduct exceeded the
permissible scope of the investigatory stop. As noted above, “[t]he scope of a search or
seizure must relate to the initial circumstances that called for police action.” Eaddy, 63 So.
3d at 1214. And “[w]hen police detention exceeds the scope of the stop, the stop becomes
a ‘seizure,’ and the State must show probable cause.” Id. On these facts, then, the initial
circumstance calling for police action was an anonymous tip conveying possible narcotics
activity, and the permissible scope of that detention was to investigate and determine whether
narcotics activity was taking place.
¶34. As to this subissue, Cole attempts to analogize his case with that of Carr v. State, 770
So. 2d 1025 (Miss. Ct. App. 2000). In Carr, officers received a report of an auto burglary.
Id. at 1027. While patrolling the area where the crime reportedly occurred, officers observed
15
Carr riding a bike along the roadway, with a cordless telephone in hand and a flashlight
protruding from his pants pocket. Id. One of the officers asked Carr to stop. Id. Carr
apparently complied with the request initially, but then fled on foot as the officer approached.
Id. In response, the officers gave chase, captured Carr, searched his person, and detained
him upon finding gold jewelry and another person’s checkbook. Id. It was determined that
the phone, flashlight, jewelry, and checkbook all were taken from a burglarized residence.
Id. As a result, Carr was convicted for burglary of a dwelling. Id.
¶35. On appeal, Carr argued that the items seized from his person should have been
suppressed, as he was searched without having given consent, and his arrest was undertaken
without a warrant or probable cause. Id. In reviewing the evidence, the Court of Appeals
agreed and held:
The evident problem in this case is that the search of Carr’s person that
produced much of contraband was, beyond question, substantially more
intrusive than a Terry patdown for weapons . . . . The fact, standing alone, that
Carr fled rather than voluntarily submit to the officer’s verbal command to
stop justified further investigatory work by the officer, but it did not give rise
to reasonable cause to arrest. Absent a lawful arrest, there could, of course, be
no search incident to arrest.
Id. at 1028. Therefore, the Court of Appeals held that Carr’s motion to suppress the evidence
should have been granted. Id.
¶36. In applying Carr to his case, Cole argues that “[t]he [agents] inquiring with the
individuals outside of a house on Martin Luther King, Jr. Drive and finding marijuana on one
person [did] not give the [agents] reasonable cause to search or arrest [him].” Comparing
Carr to Cole’s case, however, we find the present matter is distinguishable.
16
¶37. First, Cole seemingly ignores all the events that transpired between the moment that
marijuana was discovered on the first individual and the ultimate decision that he needed to
be frisked. Thus, Cole’s contention that marijuana being found on “one person [did] not give
the [agents] reasonable cause to search or arrest [him]” is inaccurate—the record reveals that
at least three individuals were found to be in possession of marijuana prior to the decision
to frisk him. Secondly, having discovered contraband and a weapon on other individuals in
the group of interest, reasonable suspicion was further established by the agents to lawfully
detain Cole, in accord with Terry. See Terry, 392 U.S. at 30. And lastly, unlike Carr, Cole
temporarily was detained prior to fleeing from the agents. See Carr, 770 So. 2d at 1027.
¶38. As such, we hold that Carr is not analogous to Cole’s case, as Carr did not involve
an anonymous tip, implicate a group rather than an individual, or involve independent police
investigation before a suspect was placed into custody. See generally Carr, 770 So. 2d 1025.
Thus, while Carr involved an arrest and search without independent investigation or
probable cause, such is not the case here.
¶39. Therefore, we cannot hold here that the scope of the investigatory stop was exceeded
by the agents’ conduct. The agents were there to investigate possible narcotics activity.
Through their investigation, they discovered marijuana and a firearm. Having discovered a
firearm, the agents were justified in their decision to conduct a Terry frisk of Cole’s person
in order to determine whether he possessed a weapon that could be used to assault the agents.
See Terry, 392 U.S. at 30. So, again, we find that the agents’ stop was lawful both at its
inception and in its scope.
17
D. Unprovoked Flight
¶40. Cole further maintains that Carr affirms that the agents’ conduct here exceeded the
permissible scope of the stop, notwithstanding his “alleged flight.”
¶41. To begin, we acknowledge that the record testimony is unclear as to whether Cole
actually was frisked prior to his flight, but whether a frisk occurred is not dispositive to our
analysis.8 That said, from all of the agents’ testimony in the record, it appears that as the
agents—or at the least, Huff—attempted to approach Cole to frisk him, Cole, who was acting
nervously at that time, stood and then fled. It is also unclear from the record whether Cole
was instructed to stand, or if he did so under his own volition—regardless, Cole stated that
as he stood, Huff instructed him to place his hands behind his back. Cole then testified that
Huff grabbed one of his hands and placed his other hand on Cole’s waist. According to Cole,
that is “when the pistol fell down [his] leg.” The Court can only presume that after the pistol
“fell down [Cole’s] leg,” he chose to flee. When asked why he fled, Cole stated that he felt
like he was “about to be placed under arrest,” and that he “didn’t want to [go] to jail.” Id.
at 50-51.
¶42. To this end, Cole asserts that his “refusal to cooperate, without more, [did] not furnish
the minimum level of objective justification needed for a detention or seizure.” See Illinois
8
For purposes of a Terry frisk, an officer is entitled “to conduct a carefully limited
search of the outer clothing of [a suspect] in an attempt to discover weapons which might be
used to assault [the agents].” Terry, 392 U.S. at 30. As such, because it is unclear whether
a frisk occurred in part, or at all, we conclude that the Terry frisk was not completed.
Therefore, because Cole fled before the Terry frisk presumably was completed, we find that
the agents were “justified in [their] pursuit of [Cole] for the purpose of completing [their]
Terry stop.” Cooper, 145 So. 3d at 1173.
18
v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). The Supreme
Court in Wardlow went further, however, and articulated the differences between a suspect’s
refusal to cooperate and his unprovoked flight. Wardlow, 528 U.S. at 124-25. Specifically,
the Court stated:
Headlong flight—wherever it occurs—is the consummate act of evasion: It is
not necessarily indicative of wrongdoing, but it is certainly suggestive of such
. . . . But unprovoked flight is simply not a mere refusal to cooperate. Flight,
by its very nature, is not “going about one’s business[;]” in fact, it is just the
opposite. Allowing officers confronted with such flight to stop the fugitive
and investigate further is quite consistent with the individual’s right to go
about his business or to stay put and remain silent in the face of police
questioning.
Id. (emphasis added). Thus, whether Cole had been frisked prior to his flight, he was up to
that point lawfully detained under Terry and temporarily not free to leave. See generally
Terry, 392 U.S. 1. His unprovoked flight, however, was without question a “consummate
act of evasion,” designed to prevent his further detention and carried out by his desire to
avoid jail. Wardlow, 528 U.S. at 125.
¶43. Therefore, we find that Cole’s flight—having been lawfully detained on grounds of
reasonable suspicion—provided the agents with further justification to pursue him for
purposes of completing their Terry stop. See Cooper, 145 So. 3d at 1173.
II. Probable Cause to Arrest
¶44. Despite compounding the circumstances of the investigatory stop with Cole’s flight,
Cole still maintains that the agents lacked probable cause to arrest him, and then search for,
and later seize, the marijuana and firearm. In Cole’s view, he had “the right to resist an
unlawful arrest.” We can only assume that Cole’s reference to an “unlawful arrest” is based
19
upon his belief that he was “about to be placed under arrest” following the determination that
he needed to be frisked. For a variety of reasons, however, we find this argument
unpersuasive.
¶45. First, as noted above, Cole admitted that he had not been placed in handcuffs, and that
no one had told him that he was under arrest. See Jackson, 335 So. 2d at 118-19. Rather,
up to the point that he fled, the agents merely were trying to conduct a Terry frisk of Cole’s
person, which we have held was justified under the circumstances. Second, this Court has
found that where a Terry stop has not been completed due to a suspect’s flight, the officers
are provided with further reasonable suspicion to justify pursuit. See Cooper, 145 So. 3d at
1173; see also Carr, 770 So. 2d at 1028. But third—and most important, however—is that
this Court ultimately has held “that if a suspect flees from the police when he has been
detained on reasonable suspicion, the officers acquire probable cause to effectuate an
arrest.” Dies, 926 So. 2d at 920 (citing Mitchell v. State, 792 So. 2d 192, 204 (Miss. 2001))
(emphasis added); see also Sibron v. New York, 392 U.S. 40, 66–67, 88 S. Ct. 1889, 20 L.
Ed. 2d 917 (1968).
¶46. Therefore, based upon the totality of the circumstances surrounding the stop, we find
that the agents’ decision to conduct a Terry frisk of Cole’s person was justified. And so,
Cole’s subsequent, unprovoked flight from his lawful, temporary detention provided the
agents with further reasonable suspicion to pursue him—and ultimately—the probable cause
necessary to effectuate an arrest. See Dies, 926 So. 2d at 920. Thus, we find Cole’s
arguments as to this subissue without merit—but our analysis does not end there.
20
A. Abandoned Contraband
¶47. Having determined that the agents possessed probable cause lawfully to arrest Cole,
we find it necessary to address the contraband abandoned by Cole while fleeing, as he sought
to have those abandoned items suppressed.
¶48. We reiterate, however, that at the moment Cole fled, he was temporarily
detained—that is, he was being frisked, or about to be frisked. As such, Cole was neither
under arrest nor in custody when he discarded the contraband in his possession. Jackson,
335 So. 2d at 118-19.
¶49. As to abandoned contraband, we find controlling this Court’s previous holding in
Harper v. State, 635 So. 2d 864 (Miss. 1994). In Harper, this Court held that abandonment
of objects during flight removes any protection of the law as to unreasonable searches and
seizures. See id. Specifically, this Could stated: “[Harper] was not restrained or stopped at
the time he threw down the [contraband], and the [contraband], therefore was abandoned and
not the fruit of an unlawful seizure or arrest.” Id. at 867. The Harper Court’s reasoning,
however, was guided by the principle set forth in Hodari, which held that evidence seized
after being abandoned by a fleeing suspect is not tainted as fruit of an illegal seizure. Id.
(citing Hodari, 499 U.S. at 629).
¶50. And so, taken together, Hodari and Harper conclusively demonstrate that the
abandoned contraband in this case was seized lawfully by the agents.9 Again, the record
testimony reveals that Cole discarded what appeared to be a white hand towel while running
9
See generally, Hodari, 499 U.S. 621; Harper, 635 So. 2d 864.
21
along the roadway. While pursuing Cole, Barlow stated that he heard what sounded like
metallic clinking along the pavement, and that when he looked down, he observed a revolver
and alerted the other agents to its presence. When inspected by Leggett, the towel was found
near a firearm. In close proximity to the pistol was said to be marijuana. The firearm and the
marijuana were said to be “in the street.”
¶51. Therefore, in light of these facts, we conclude that Cole was not considered arrested
under the Fourth Amendment until he was captured by the chasing agents and placed into
custody. See Jackson, 335 So. 2d at 118-19; see also Hodari, 499 U.S. at 626. This is
because Cole was in no way restrained during his flight, and therefore, “no arrest occurred
within the confines of the Fourth Amendment.” Harper, 635 So. 2d at 866 (citing Hodari,
499 U.S. at 626). Furthermore, because “a person relinquishes any privacy rights” as to
property that is abandoned or discarded when fleeing from police, Cole cannot rely upon the
Fourth Amendment for protection. Johnson v. State, 22 So. 3d 1229, 1234 (Miss. Ct. App.
2009). What is more, by abandoning this contraband on a roadway, Cole “placed his items
on public property, which also diminishe[d] his Fourth Amendment protections against
unreasonable searches and seizures.” Id. at 1235 (citing Katz v. United States, 389 U.S. 347,
351, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)).
¶52. As such, we hold that the circuit court did not err in admitting into evidence the
firearm and marijuana found in the street because Cole surrendered his Fourth Amendment
protections as to those items.
B. Search Incident to Arrest
22
¶53. Lastly, because we find that the pursuit, seizure, and ultimate arrest of Cole were
legal, it necessarily follows that the additional marijuana found on his person was lawfully
obtained—therefore, it was not fruit of the poisonous tree. That is because a “custodial arrest
of a suspect based on probable cause is a reasonable intrusion under the Fourth
Amendment[.]” Riley v. California, 134 S. Ct. 2473, 2483, 189 L. Ed. 2d 430 (2014).
“[T]hat intrusion being lawful, [then,] a search incident to the arrest requires no additional
justification.” Id. As such, we can find no error by the circuit court.
CONCLUSION
¶54. In sum, we hold that, under Terry, the agents possessed a valid, reasonable suspicion
that Cole was engaged in criminal activity and possibly armed. We base this conclusion
upon the information contained in the anonymous tip and the agents’ independent
observation and investigation. Therefore, it follows that Cole was lawfully and temporarily
detained for the purpose of the agents to complete their Terry stop. That being so, we also
hold that the agents acquired the probable cause necessary to arrest Cole when he fled. And
because Cole abandoned the contested contraband in a public street, Cole had no reasonable
expectation of privacy in those items. Moreover, once Cole was captured and placed into
custody, the additional marijuana found on his person was lawfully seized. Therefore,
evidence of the seized contraband was admissible against Cole, and not the fruit of an illegal
search or seizure.
¶55. For those reasons, the circuit court did not err in denying Cole’s motion to
suppress—therefore, we affirm the judgment of the circuit court.
23
¶56. AFFIRMED.
WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.
24