Petition for Writ of Certiorari — Kendall Martin, Petitioner v. Mississippi

No.

IN THE

SUPREME COURT OF THE UNITED STATES

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YPETITIONER

(Your Name)

vs.

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RESPONDENT(S)

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ON PETITION FOR A WRIT OF CERTIORARI TO

f'Aiiigyt Suy(t(flQ' Co,rf

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

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(Your Name)

P.O. O D A )'fl9

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QUESTION(S) PRESENTED

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LIST OF PARTIES

ku All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

11

S€,e attaka OLfl4

TqMcj

of Ad4ohe5,

STATUTES AND RULES

and ,c,orporafe0

Toik' o4 Fh414Wrlh€.c,

OTHER

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TABLE OF AUTHORITIES

FEDERAL CASES

Delaware v. Prouse, 440 U.S. 648,653.99 S.Ct. 1391 (1979)......................................13, 14

Illinois v. Ward/ow, 528 U.S. 119, 123-24, 120 S.Ct. 673 (2000) .......................................13

Ornelas v. United Stciie.s, 517 U.S. 690. 699, 116 S.Ct. )657-1 1663(1996) .............................. . 13

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868(1968)...............................................................13

US. v. Grant, 349 F.3d 19 2, 196-97 (5th Cir. 2003)..........................................................16

U.S. v. Jensen, 462 F.3d 399, 404 (5th Cir. 2005)..............................................................16

Whrenv. United States, 517 U.S. 806,810, 116 SQ. 1769(1996).........................................14

STATE CASES

Barker v. State, 241 So. 2d 355, 358 (Miss. 1970)...............................................................13

Clark v. Stale, 960 So. 2d 521, 524.................................................................................18

Coulderv. State, 890 So. 2d 956, 960-61 (Miss, Ct.App. 2004)..........................13, 15, 16, 17

Dies v. State, 926 So. 2d 910,917.....................................................................12, 13

Ellis v. State, 485 So.2d 1062. 1063 (Miss. 1986)..................................................................18

Floyd v. City of Grysia/Springs, 749 So. 2d 110, 113.......................................................13. 14

Howard v. State, 987 So. 2d 506. 509-10 ............... ......... ......... ............. ... ................ .........13

McFarThi v. State, 883 So. 2d 594. 598............................................................................13

Rainer v. State. 944 So. 2d 115, 118.......................................................................13, 14, IS

Smithy. State, 477 So. 2d 191. 195-96 (Miss. -1985) ......... ............ ................................. ....... 18

Vince v. State, 844 So. 2d 510, 517...................................................................................18

STATE STATUTES a04

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Mississippi Code Annotated Section 41-29-147.. ........ ............ ........ .. ...... .... .................. ......... .3

Section 23 of the Mississippi Constitution of 1890.................................................................H

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TABLE OF CONTENTS

OPINIONS BELOW

.

1

JURISDICTION...................................................................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................................. 3

STATEMENT OF THE CASE ............................................................................................ 14

REASONS FOR GRANTING THE WRIT..........................................................................

CONCLUSION....................................................................................................................

INDEX TO APPENDICES

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APPENDIXA

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IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ ] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

to

[ ] reported at

; or,

11] has been designated for publication but is not yet reported; or,

Ellis unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

to

[ ] reported at

; or,

II] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix P

to the petition and is

; or,

[ ] reported at Al o. .°15' K

oo '1

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the f'V\ 115 T1 7h PP

'k rt

appears at Appendix P

to the petition and is

3t) I s- KJ 0

[ ] reported at IV

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

court

U,

JURISDICTION

[ ] For cases from federal courts:

The. date on which the United States Court of Appeals decided my case

was

[ ] No petition for rehearing was timely filed in my case.

[ ] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date:

order denying rehearing appears at Appendix

,

and a copy of the

[ ] An extension of time to file the petition for a writ of certiorari was granted

to and including

in Application No.

(date) on ____________________ (date)

A______

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was 10

A copy of that decision appears at Appendix f

1g

I'-!

[ ] A timely petition for rehearing was thereafter denied on the following date:

- I

appears at Appendix

- _

,

P

and a copy of the order denying rehearing

II] An extension of time to file the petition for a writ of certiorari was granted

to and including

(date) on

(date) in

Application No. ..A_______

_________________

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

11

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

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STATEMENT OF THE CASE

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REASONS FOR GRANTING THE PETITION

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Around 4:55 p.m. on March 27. 201 3, Kendal! Martin ("Martin) was traveling eastbound on

1-20 near the 66 mile marker in a 2013 Chevy SU\'. (Tr. 124), Martin was travelling in the right-ha

nd lane

behind a tanker truck. (See video Exhibit of Traffic Stop at 16:55). Officer Jason

Johns ("Officer

Johns") of the Flowood Police Department was working with the Drug Task Force

of the Rankin County

Sherriffs Department that afternoon. (Tr. 123). At trial Officer Johns claimed that he

cross over the white fog line twice, once before the tape began and once after

saw Martin's vehicle

he had already allegedly

decided to stop Martin's vehicle.' jr. 126-127) Officer Johns testified that he did

not activate his blue

lights when he initially witnessed Martin cross the fog line, he instead pulled up beside Martin'

s vehicle to

allegedly "make sure he was wearing his seatbelt" and to see if there were any other

vehicle. jr. 125). Officer Johns testified that he then pulled in behind Martin

occupants in the

and cut his blue lights on

and pulled him over. (Tr. 126). When asked whether his observation of Martin

initially crossing the fog

line was recorded on his dash camera, he testified that it only goes back fifteen

seconds before he activated

his blue lights and that the initial infraction for which he allegedly initiated

the stop was not recorded

because it occurred before the recording began. (1'r. 126).

The dash camera video of the stop began

recording at 16:55:51. (See Video of Traffic Stop). The recordi

ng begins by showing Officer Johns'

vehicle in the left-hand lane traveling eastbound with a tanker truck

beside him in the right-hand lane. (id)

The video then shows Officer Johns slow down after having obvious

ly passed Martin's vehicle and reduce

his speed even further to get behind Martin's vehicle. (Id.) Finally,

the video shows Officer Johns pull in

behind Martin and pull him over, Id.

At the suppression hearing and at trial, the only reason that Officer

Johns gave for pullin g over

Officer Johns testified that at the suppression hearinc on iebruar 17. 2015.

that h i s dash, cam recorder cues haci

twenty seconds a fter he activated his blue tights. (Ti, 2S

.7

Martin was that he allegedly, crossed the fog line. Fr. 28, 126. 146). Other than Officer John's statement,

the state submitted no evidence which corroborated his testimony that he witnessed Martin cross the fog

line prior to the recording. The dash camera in Officer Johns vehicle clearly contradicts Officer Johns

testimony. (See Video of Traffic Stop, Tr. 126-127).

Officer Johns admitted that he had not determined to stop Martin until after he pulled along beside

him and looked in his vehicle. (ir.152). At trial. Officer Johns also reluctantly admitted to saying on the

recording that, "I wasn't even going to stop that mother fucker. and I said, no, I'm going to stop him." jr.

151). Officer Johns was ultimately asked whether his stop was the result of racial profiling based on his

report of the incident and his description of the events, jr. 52). Specifically, the following exchange took

place when Officer Johns was subjected to cross-examination at trial;

Q.

I'm asking you were you or were you

.I'm

.

..

not going to pull my client over after you saw

him cross the fog line the first time?

A. I don't know. Probably I might have

let him go, but when he hit it again, 1 mean,

that did it.

Q. Yes, sir. But isn't it true that had

you not pulled alongside my client and in the

video that we just watched. in fact, my client

was behind you and came into view, which

indicates that yOur patrol vehicle was ahead of

my client's vehicle?

A. Because! activated

--

Q. Yes, sir.

A,

--

and it backs up when I record.

Q. What I'm savintt is. when m clients

vehicle first comes into frame.

A.

Q.

--

Right.

your vehicle was at least two car

lengths ahead of my client. He passes you in

the video we just watched?

A. I was beside him.

Q. No, sir, not when the video first

starts playing, you're not beside him. He is

behind you, because you see him come into frame.

and he actually passes you. Then you get behind

him, and that's when we see him cross the log

line

--

A. Because he's slowing down, because I'm

beside him.

Q. Okay. So isn't it true, Officer

Johns, that you told the investigator that you

called, "1 wasn't even going to stop that mother

fucker. and I said, no. I'm going to stop him"?

A. Do what?

Q. Did you or did you not tell Officer

Vaughan on the phone. "1 wasn't even going to

stop that mother flicker, and I said, no, I'm

going to stop him'?

A. I didn't tell Officer Vaughan that on

the phone. Officer Vaughn was on the stop after

he was arrested.

Q. So you told that personally to Officer

Vaughan?

A. Things were said between me, him, and

another deputy out there that has nothing to do

with him. It was a conversation between us

after his arrest.

Q. Yes, sir. And what I'm asking is,

isn't it true that that's what you said?

A. Yeah, that's true.

Q. So, Officer Johns, it's true, then.

that you were not going to pull him over when

you first saw him cross the fog line. You pull

up next to him. You identify him as a black

male driving an out-of-state vehicle, and then

You decide to get back behind him for what

reason? Because he had not crossed the fog line

before you got back behind him.

A. Are you saying I stopped him, because

he's a black male.

Q. Officer Johns, I've read your own

words, and I'm asking you to explain to this

jury that you have said I was not going to pull

him over when he first crossed the fog line. We

see your vehicle then get into the lefi lane and

pass him. For what reason would you ha'e slowed

down to get back behind my vehicle but for

a,

-J

seeing who my client was?

A. Because when I saw the violation.

that's what brought my attention to him. Then I

pulled up alongside of him, which I normally do

on every stop on 1-20, and then I backed behind

him. When I was behind him observing his

driving behavior, because I seen him run on the

line and over it the first time, and then the

second time he did the same violation, other

than he did not cross all the way on the

shoulder, .1 stopped him. That's public safety.

That's just like me saying, well, why don't you

stop everybody you see speeding? Well. I don't

pull everybody over doing a mile over the speed

limit, that's discretion. I have the discretion

to stop you or let you go depending on the

violation, it's at my discretion.

(Tr. 150-153).

Nowhere in Officer John's testimony did he allege

driving erratically or committing any other traffic

offense other crossing the fog line before the

began. The testimony elicited from Officer Johns

intend on stopping Martin, or as he referred to

that he witnessed Martin appearing intoxicated,

recording

on cross-examination clearly shows that he did not

him "that mother fcker," until after he had

pulled beside

him and saw that he was black.

After Martin pulled over, Officer Johns testified

asked Martin for his driver's license and insurance, (Tr.

that he walked to the passenger-side windo

w and

128). Officer Johns testified at trial that he smelle

d

a faint odor of marijuana and a strong odor of air fresheners.2 Jr. 11 28) Martin provided a valid driver's

license and insurance, and he said that he was traveling from Texas to Alabama. jr. 129)

Officer Johns continued to ask Martin about issues that have nothine to do with the initial stop,

including Martin's trip itinerary and his training for a truck driving school Martin attends. (See Transcript

of Traffic Stop p. 2-3). Officer Johns then says that he is not going to give Martin a ticket for crossing the

fog line. (See Transcript of Traffic Stop p. 5)

However, instead of ending the stop after Officer Johns had decided not to issue a citation for the

alleged infraction, he unnecessarily prolongs the stop. (Transcript of Traffic Stop p. 2-5). Officer Johns

asked Martin for consent to search his car, and Martin did not give an affirmative answer. (Transcript of

Traffic Stop 3, 5). Officer Johns then began searching Martin's vehicle anyway. (Id. at 5) He took several

minutes to thoroughly search the front of the vehicle and finding no contraband, he began searching the

back of the vehicle. (See Video of Traffic Stop 6-7). It was then, and only then, that Officer Johns found a

closed duffle bag that contained several pounds of marijuana in vacuum sealed bags. (Tr. 132). Officer

Johns then told Martin to get on the ground and advised martin of his Miranda rights. (Tr.132-133).

Prior to trial, Martin filed two motions to motion to suppress evidence, asserting that Officer

Johns lacked probable cause or reasonable suspicion to stop his vehicle, and the detention was

unreasonable in scope. (C.P. 23, 53). After a hearing on the matter, the trial court overruled Martin's

motion to suppress. (Tr. 49).

The trial court erred in overruling Martin's motion to suppress. Officer Johns' decision to stop

Martin's vehicle was made without probable cause or reasonable suspicion and constituted an

unreasonable seizure in violation of Martin's Fourth Amendment rights. Officer Johns stated that he

almost didn't pull over Martin, and the video evidence does not support Officer Johns' testimony at trial.

Officer Johns reluctantly admitted at trial that he had not determined whether he was going to stop

2

Although Officer Johns testified that he smelled a faint odor of marijuana when he initially stopped Martin, it was

later revealed through the testimony of Officer Vaughn that t.he only marijuana found in Martin's vehicle was in

vacuum sealed hacs. (1'r. I 54)

'I

Martin until he pulled alongside Martin. (Tr. 150- 53). it was only at that angle, however, that Officer

Johns could determine Martin was African-American. Additionally, Officer Johns could point to no

reasonable, articulable, objective factors to support his claim he had not racially profiled Martin. but

instead he admitted that he had not decided to stop Martin until he had been able to observe him

alongside his vehicle. Addftionaily, the video evidence even shows Officer Johns' vehicle several car

lengths ahead of Martin when the video begins, further supporting the notion that it was not any action

taken by Martin before the video that triggered Officer Johns to fall back behind Martin. As illustrated in

the excerpt of the cross-examination of Officer Johns, it was only after he passed Martin, that he had

made a conscious decision to pull behind Martin, follow him and stop him. Jr. 151-153). Accordingly,

the trial court erred in overruling Martin's motion to suppress evidence, and this Court should reverse

Martin's conviction, sentence, and render a judgment of acquittal.

Finally, the Trial Court erred in holding that Martin was a habitual offender under Mississippi

Cede Annotated Section 99-19-81. In this regard, the Trial Court held that where a defendant that had

multiple felonies that occurred at different times and the defendant was ordered to serve the sentences

concurrently would still qualify as a habitual offender. This ruling is contrary' to the statutory language,

which states Charges separately brought and arising out of separate incidences at different times, and

who shall have been sentenced to separate terms of one year or more.' The sentences for all of Martin's

prior felonies were to run concurrently and were not in fact separate terms of one year or more. Miss.

Code Ann. § 99-19-81. jr. 232) Accordingly, Martin requests that this Court remand this case for resentencing.

ARGUMENT

I.

THE TRIAL COURT ERRED IN OVERRULING MARTIN'S MOTION

TO SUPPRESS.

in reviewing this issue, this Court adopts a mixed standard of review. Dies p. Slate, 926 So.

2d 910. 917 (Miss. 2006). Determinations of reasonable suspicion and/or probable cause are questions of

'a

law which are reviewed de novo. Id. (citing Orne/cis v. United Stains, 51 7 U .S. 690, 699, 116 S.Ct. i 657,

1663 (1996); Flod v. City of Crystal Springs, 749 So. 2d 110, Ii 3 (Miss. 1999). The trial court's findings

of fact are reviewed under the substantial evidence/dearly erroneous standard of review. Dies, 926 So. 2d

at917;Floyd, 749 So. 2dat 113.

Under Mississippi law, it is well-established 'that the provisions for search and seizure are strictly

construed against the state and in favor of the citizen.' Barker v. State. 241 So, 2d 355. 358 (Miss. 1970).

All evidence obtained as a result of an unreasonable search or seizure is inadmissible. McFarlin v. Slate.

883 So. 2d 594, 598-9 (Miss. Ct. App. 2004) (quoting Terry v Ohio, 392

U.S. I, 30, 88 S.Ct. 1868 (1968)).

.

"The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the

Mississippi Constitution of 1890 prohibit unreasonable searches and seizures.

. . ."

Rainer v. State, 944

So. 2d 115, 118 (Miss. Ct. App. 2006) (citing U S. v. Ross. 456 U.S. 798, 825, 102 S.Ct. 2157 (1982)).

Traffic stops are considered seizures within the meaning of the Fourth Amendment. See, e.g., Delaware v.

Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391 (1979); Howard v, State, 987 So. 2d 506, 509-10 (Miss. Ct. App.

2008). The appellate courts of this State have analyzed traffic stops under the framework set forth for

investigatory stops under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). Sec e.g.. Dies, 926 So. 2d at

917-18 (21); Floyd, 749 So. 2d at 114 (14); Couldery v. Siaie. 890 So. 2d 956 (Miss. Ct. App. 2004);

Rainer, 944 So. 2d at 118 (i!6). The reasonableness of a Terry stop is determined under a two-prong

inquiry: "whether the officer's action was justified at its inception, and whether it was reasonably related in

scope to the circumstances which justified the interference in the first place.

A.

Terry, 392 U.S. at 19-20.

Officer Johns lacked probable cause and/or a reasonable suspicion to stop Martin's

vehicle; therefore, the stop was not justified at its inception.

An officer may make a brief investigatory stop 'when the officer has a reasonable suspicion that

criminal activity is afoot." Rainer. 944 So. 2d at 118 (citing Terry. 392 U.S. at 3 0-31. XX S.Ct. 1868). The

officer may not rely on "an inchoate and unparticularized suspicion or hunch:" instead he or she "must he

able to point to specific and articulable facts that justify the intrusion." Id. (citing Terry, 392 U.S. at 21, 88

S.Ct. 1868; Illinois v. Wardlow, 528 U.S. 119. 123-24. 120 S.Ct. 673 (2000)). in determining whether an

13

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officer possessed reasonable suspicion, this Court "musl consider whether, taking into account the totality

of the circumstances. the detaining officers had a particularized and objective basis for suspecting the

particular person stopped of criminal activity.

Floyd, 749 So. 2d at 144-15 (quoting US. v, cortez,449

U.S. 411, 417-18, 101 S.Ct. 690. 694-95 (1981)). "Furthermore, the reasonableness of official suspicion

must be measured by what the officers knew before they initiated the-search." Rainer. 944 So. 2d at 118

(citing Florida i J. L., 529 U.S. 266, 271, 120 S. Ct. 1375 (2000)). A traffic stop is one of the types of

seizures that must be reasonable under the Fourth Amendment. It is classified as an investigatory stop,

which is reasonable if there is probable cause to believe that the driver's conduct constitutes a traffic

violation or specific reasonable suspicion that other criminal activity is afoot. Moore V. State, 986 So.2d

928, 933 (Miss. 2008). The State bears the burden of showing that a challenged search or seizure is based

on suitable evidence. Caning v. State, 226 So.2d 747, 752 (Miss. 1969) Davis v. State, 660 So.2d 1228.

1238 (Miss. 1995). The United States Supreme Court has also stated that "the decision to stop an

automobile is reasonable where the police have probable cause to believe that a traffic violation has

occurred.' Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1 769 (1996) (citing Delaware, 440 U.S. at

659,99 S.Ct. 1391).

In the instant case, Officer Johns lacked probable cause and/or a reasonable suspicion to make the

initial stop of Martin's vehicle. As explained in more detail in the statement of facts above, Officer Johns'

initial reason for approaching Martin's vehicle was not in fact the reason why he stopped Martin. It was

only after Officer Johns had pulled alongside Martin and had an opportunity to see that he was AfricanAmerican, that he decided that he would pull back behind Martin, follow him and stop him for crossing and

or touching the fog line an alleged second time. (Tr. 150-153). Officer Johns even told Martin that he was

not going to issue him a citation for crossing the fog line. (Transcript of Traffic Stop

p. 2-5). The fact that

Officer Johns admitted that he had not determined whether he was going to stop Martin until after he had

pulled alongside of Martin's vehicle and looked inside the vehicle is strongly indicative that profiling on

Officer John's part sparked the hunch upon which the stop was predicated.

The record makes abundantly clear that Officer Johns had no probable cause or reasonable

is

15

suspicion that Martin was committing a traffic violation at the time he decided to pull him over. (Tr

150-153). The fact that the video does not support Officer Joh,)S7 claim that he pulled Martin over for

initially crossing the fog line and that it was only after he had pulled beside Martin that he clearly

decided to pull behind Martin and stop him show that his motivation for stopping Martin was not

supported by any reasonable, articulable or objective factors. (See Video of Traffic Stop). Furthermore,

the video is in direct contradiction to Officer Johns' testimony of the facts. Id.

Because Officer Johns could not point to any reasonable, objective, or articulable factors in

support of his assertion that Martin was driving carelessly and the video evidence was in direct

contradiction to his testimony, his allegations are, at best, subject to characterization as "an inchoate and

unparticularized suspicion or hunch.' Rainer. 944 So. 2d at 118 (quoting Ward/ow, 528 U.S. at 123-24,

120 S.Ct. 673). Therefore, Officer Johns' hunch that Martin was involved in some illegal activity was an

unreasonable basis for stopping Martin's vehicle.

Finally, this Court's decision in the closely analogous case of Couldery v. State," 890 So. 2d 959,

960-61 (Miss. Ct. App. 2004) is controlling, in Couldery, the defendant was traveling east on Interstate

20 in a car bearing California plates. Couldery. 890 So. 2d at 960-6L The defendant moved from the

right lane to the left lane as he passed a Mississippi Highway Patrol car parked on the right hand

shoulder. Id. The defendant continued driving in the left lane, and the officer followed the defendant and

pulled him over about thirty seconds later. M. The officer checked the defendant's license and

registration and discovered no outstanding warrants. id The officer questioned the defendant about his

trip, and requested consent to search his vehicle, which the defendant refused. in'. The officer ordered the

defendant to follow him to a nearby gas station where a drug dog showed interest in the trunk of the

defendant's car, where a search revealed two suitcases of steroids, Id.

On appeal, the defendant challenged the trial court's denial of his motion to suppress the

steroids, and this Court considered whether the officer possessed probable cause/reasonable suspicion to

make the initial stop of his vehicle. id. at 962-64. This Court considered the relevant statutes concerning

driving a vehicle in the left Jane (Mississippi Code Annotated Sections 63-3-61 1 and 63-3-601) and held

that they applied only to two-lane highways, not to four-lane highways. Id. This Court further held that

the defendants action in driving in the left lane of the eastbound portion of Interstate 20-a roadway

designated for one-way traffic-was exempted by Section 63-3-601(4) which exempts "'roadways

'designated and signposted for one-way traffic." id." Accord ingiy this Court [found] that the traffic

stop was not valid." Id.

As in Couldery, Martin's conduct as vividly illustrated on the dash camera of John's vehicle,

clearly did not constitute a traffic violation which would give rise to probable cause to stop his vehicle.

Consequently, Martin's stop was an unreasonable seizure made in violation of his Fourth Amendment

rights, and the trial court erred in denying his motion to suppress. Therefore, without evidence of the

marijuana obtained from the illegal search of Martin's vehicle, justice requires that this Court reverse

(and/or vacate.) his conviction, sentence, and render a verdict of acquittal in Martin's favor.

B.

Martin's detention was not reasonably related in scope to the circumstances which

allegedly justified the stop in the first place.

Furthermore, even assuming, arguendo, that Officer Johns had probable cause or reasonable

suspicion to support Martin's initial stop, his actions were not reasonably related in scope to the

circumstances that justified" a brief traffic stop, and the detention lasted longer than necessary to effect

the purpose of the stop. US v. Jensen, 462 F.3d 399. 404 (5th Cir. 2005); Couldery, 890 So. 2d at 966

(1123-24). "When the purposes of the stop are resolved and the officer's initial suspicions have been

verified or dispelled, the detention must end unless there is additional reasonable suspicion supported by

articulable facts." US v. Grant, 349 F.3d 192, 196-97 (5th Cir. 2003)(citing United Stales v. Gonzalez,

328 1`.3d 755, 758 (5th Cir.2003)). Police activities during a stop must be reasonably related to the

specific suspicion that formed the basis for the stop. and the stop must end if all such activities are

completed without discovering facts that would justify further investigation. U.S. v. Pack, 612 v. F.3d

3 41, 350 (5th Cir. 2010). Officer Johns' statement. "before I let you go indicated that he was ready to

end the stop and did not believe he had grounds to require an further delay. Continuing to ask

questions improperly extended the stop, therefore the search and the statements and evidence that

resulted from further questioning should have been excluded, in Cou/derv, this Court, assuming for

arguments sake only that the stop was justified, held that the officers later observation that the

defendant was large in stature, owned a gym, had bloodshot eyes and was undertaking an unusual trip,

did not indicate that the defendant was trafficking steroids. Coulder.', 890 So. 2d at 966-67. In so

Finding, this Court stated:

Under the totality of the circumstances, even if the stop was proper, Officer Vincent

should have ticketed Couldery and left him to journey home. Nothing in the record

supports a finding that Vincent was justified in further detaining Couldery beyond the

ordinary scope of a brief traffic stop.

Id.

Soto in the instant case, the record does not support a finding that Officer Johns wasjustified in

detaining Martin beyond the scope of an ordinary traffic stop. Driving in the afternoon with out-of-state

tags in a rental vehicle that smells very fresh does not indicate that one is smuggling drugs. Although

Officer Johns alleged that he smelled a faint odor of marijuana, it was later testified by Officer Vaughn

that all of the marijuana was in vacuum sealed bags. (it. 1 54) Thus, the trial court should have granted

Martins motion to suppress for this reason also.

It.

THE TRIAL COURT ERRED IN HOLDING THAT MARTIN

WAS A HABITUAL OFFENDER UNDER MISSISSIPPI CODE

ANNOTATED SECTION 99-19-81 AND THE TRIAL COURT ERRED (N

SENTENCING MAR11NAS SUCH.

During sentencing, the State attempted to establish that Martin was a habitual offender under

Mississippi Code Annotated Section 99-19-81. To prove this, the State alleged that Martin had

previously been convicted of and sentenced to one year or more for four separate felonies that occurred

in Alabama.

The State introduced certified copies judgements of conviction for the felonies,however, the

State failed to show that the sentences for these felonies were to he served separately. The statutory

17

/71

language of 99-19-8I referring to the requirements to

he a habitual offen

der: "Charges separately

brought and arising out of separate incidences at differ

ent tinier, and who shall have been sentenced to

separate terms of one year or more." The sentences

concurrently and were not in fact separate terms of one

232) The Trial Court held that where a defendant that

for all of Martin's prior felonies were to run

year or more. Miss. Code Ann. § 99-19-8 1. (Tr.

had multiple felonies that occurred at different

times and the defendant was ordered to serve the sente

nces concurrently would still qualify as a habitual

offender. This ruling is contrary to the statutory language.

that Martin was a habitual offender under Mississippi Code

The Trial Court. therefore, erred in holding

Annotated § 99-19-81.

A defendant has "a fundamental right to be free from an

2d 521, 524 (19(Miss. Ct. App. 2006) (citing Sneed v.

illegal sentence." Clark v. State, 960 So.

State, 722 So.2d 1255, 1257 (111)(Miss.1998)).

The Mississippi Supreme Court has held that the issue

of whether a defendant has been erroneously

adjudged a habitual offender is subject to plain error review

. See Smith v, Stale, 477 So. 2d 191, 195-96

(Miss. 1985).

In order to sentence a defendant as a habitual offender,

of the elements beyond a reasonable doubt. Ellis v. State,

the State bears the burden of proving all

485 So.2d 1062, 1063 (Miss.1986); Vince v.

Stale, 844 So. 2d 510, 517 (Miss. Ct. App. 2003). Acco

rdingly, this Court should reverse the sentence

entered in the trial court and remand this case for re-sen

tencing.

CONCLUSION

Based on the propositions briefed and the authorities

cited above, together with any plain error

noticed by the Court which has not-been speci

fically raised, Martin respectfully requests that this

honorable Court reverse the conviction, sentence

and fines entered in the trial court and render a

judgment of acquittal. In the alternative. Marti

n requests that this Court reverse his conviction sente

nce

and fines and remand this case for a new trial or for re-sen

tencing without enhanced status.

it

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Date:

IN