Petition — Conway v. Mississippi

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. €9-1753

JOHN CONWAY and ROBERT O'BRIEN,

Petitioners,

versus

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

WRIGHT & HEIDELBERG

FIELDING L. WRIGHT, JR.

ATTORNEY AT LAW

3007 MAGNOLIA STREET

POST OFFICE BOX 1606

PASCAGOULA, MS 39567

COUNSEL FOR PETITIONERS

SCOFIELDS' QUALITY PRINTERS. P O. BOX 53096. N. O.. LA. 70153 - 504/622-1611

&upreme Court, U. &

FILED

MAY 5 1980

-L _RODA K, JR., CU

TABLE OF CONTENTS

Page

eg 8 R18, emer ramen rer mr 1

jk oe? , TE eraee omy e tare ood S 2

QUES THINS FRESGII TERS «nce vdins ehavwkawowan 2

CONSTITUTIONAL AND STATUTORY

PROIV ISR Ne EVO VO? oo ents si keucicoaees 2

STATEMENT SOF TPKE CR i vivc icine ens Comaeess 6

REASONS FOR GRANTING THE

PE PETS: 6005 8000 ck besa enna a

1. The primary reasons for granting cer-

tiorari is to answer the question of

whether a law enforcement official is

required to obtain an arrest warrant

before he arrests a person when

adequate time and opportunity are

SVAN hi icne nck hsgsce eae eee ae 9

2. Is the Mississippi Supreme Court’s

determination of probable cause based

on self-verifying information con-

trary to this Honorable Court's

assessment, thus denying petitioners

due grocese OF TONT oo ie Sikes waaraeeee 15

Se kot terre r ery ere rt 18

©. Bis Se NS ive siwn s684ean 4 ee ae eee 19

ii

TABLE OF CONTENTS (Continued)

EEE PD sca Kovune ns seenct wtp eon beaver

0 rer: vars eres

PG, Set vecnse es ccwaedteseee shane

TABLE OF AUTHORITIES

CASES:

Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921,

rr Sr Oe Ce eee cdeeaweke

Aguilar v. Texas, 378 U.S. 108, 84S.Ct. 1509, 12

ee Tae MED % ok ccc cave cedeneesesen

Arkansas v. Sanders, 442 U.S. ___, 99 S.Ct.

2586, 61 L.Ed.2d 235 (1979) ...........0-

Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13

Ree CRE AOOOED 6 iiidv cosiewsn see ceune an

Brown v. Illinois, 422 U.S. 590, 93S.Ct. 2254, 45

Se Ee 3 | rr ree wore

Carroll v. United States, 267 U.S. 132, 45 S.Ct.

ee ee Eee, DED EPMO) nos vic phx deans «%

Coolidge v. New Hampshire, 403 U.S. 443,915S.Ct.

D022, 29 L.Ed.26 564 (1971) .. oe secvvve es

Delaware v. Prouse, 440 U.S. 648, 99S.Ct. 1391,

ee WO RTOS os ss i o.oo Oe aw kane eacke

iii

TABLE OF AUTHORITIES (Continued)

Page

Draper v. United States, 358 U.S. 307, 79 S.Ct.

SO9 SE Be TIO kkk Rkwek eva wewes 16,17

Giordenello v. United States, 357 U.S. 480, 78 S.Ct.

1246,.2 L.E.2e 1503 (1988) c.isccs caves nance 17

Johnson v. United States, 333 U.S. 10, 68S.Ct. 367,

OE ee Oe Ce oi ie vk d0kb cs kc eked 13

Joyce v. Mississippi, 327 So.2d 255 (1976) ....... 16,18

Keyes v. Mississippi, 283 So.2d 919 (1973) ......... 10

McDonald v. United States, 335 U.S. 451, 69S.Ct.

re, Oe bee ee No ie Oe bas wae > oe 13

Payton v. New York, 27 Cr. L. 3033 ...... 11,12,13,14

Smith v. Mississippi, 128 So.2d 875 (1961) ......... 10

Spinelli v. United States, 398 U.S. 401, 89 S.Ct.

584, EE Ee ee Gar (BG 6 eos Ke eK tas 12,16

Strode v. Mississippi, 231 So.2d 779 (1970) ...... 16,17

United States v. United States District Court, 407 U.S.

297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) .... 11

United States v. Watson, 423 U.S. 411, 96 S.Ct.

820, 46 L.Ed.2d 598 (1976) .......... 10,12,13,14

United States v. Ventresca, 380 U.S. 102, 85 S.Ct.

OES £55 e ee CD aba ka nc Phas hen ei 12

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

JOHN CONWAY and ROBERT O'BRIEN,

Petitioners,

versus

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF MISSISSIPPI

John Conway and Robert O’Brien petition for a Writ

of Certiorari to review the judgment of the Supreme

Court of Mississippi in this case.

OPINION BELOW

The opinion of the Supreme Court of Mississippi

rendered on March 12, 1980 is not as yet officially re-

ported but a copy of the opinion is printed herein as

Appendix A.

2

JURISDICTION

The mandate of the Supreme Court of Mississippi is

printed herein as Appendix B and was entered on April

18, 1980 and the Petition for Rehearing to the Supreme

Court of Mississippi was denied on April 16, 1980 and is

printed herein as Appendix C. The petitioners, having

exhausted their state court remedies, petition this

Honorable Supreme Court of the United States under

the jurisdiction of 28 U.S.C. Section 1257(3).

QUESTIONS PRESENTED

The questions presented herein are whether the

petitioners’ Fourth and Fourteenth Amendment

Rights were violated by their arrests and the subse-

quent admission of evidence and more particularly:

1. Was the arrest made without a warrant valid

since the officers had more than sufficient time and

opportunity to procure an arrest warrant but chose not

to? ,

2. Is the Mississippi Supreme Court determina-

tion of probable cause based on “self-verifying” infor-

mation contrary to this Honorable Court's assess-

ment, thus denying petitioners due process of law?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment of the United States Con-

stitution provides:

3

“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or

things to be seized.”

The Fourteenth Amendment of the United States

Constitution provides in the Section pertinent herein:

“(N)or shall any state deprive any person of

life, liberty, or property, without due process

of law; .. .”

The twenty-third Section of the Mississippi Con-

stitution provides:

“The people shall be secure in their persons,

houses and possessions, from unreasonable

seizure or search; and no warrant shall be

issued without probable cause supported by

oath or affirmation, specially designating the

place to be searched and the person or thing

to be seized.”

The Fourteenth Section of the Mississippi Consti-

tution provides: |

“No person shall be deprived of life, liberty, or

property except by due process of law.”

4

Also involved, is Section 99-3-7 of the Mississippi

Code of 1972 as annotated and amended:

“An officer or private person may arrest any

person without warrant, for an indictable

offense committed, or a breach of the peace

threatened or attempted in his presence; or

when a person has committed a felony,

though not in his presence; or when a felony

has been committed, and he has reasonable

ground to suspect and believe the person pro-

posed to be arrested to have committed it; or

on a charge, made upon reasonable cause, of

the commission of a felony by the party pro-

posed to be arrested. And in all cases of

arrests without warrant, the person making

such arrest must inform the accused of the

object and cause of the arrest, except when

he is in the actual commission of the offense,

or is arrested on pursuit.

Any law enforcement officer may arrest

any person on a misdemeanor charge with-

out having a warrant in his possession when

a warrant is in fact outstanding for that per-

son’s arrest and the officer has knowledge

through official channels that the warrant is

outstanding for that person’s arrest. In such

cases, the officer making the arrest must in-

form such personat the time of the arrest the

5

object and cause therefor. If the person ar-

rested so requests, the warrant shall be

shown to him as soon as practicable.”

Also, Rule 1.02 of the Mississippi Uniform Criminal

Rules of Circuit Court Practice, which have been ap-

proved by the Mississippi Supreme Court, and now

have the authority of statutory law:

“An officer may arrest any person without a

warrant under the following circumstances:

(1) For an indictable offense or breach of

the peace, including those threatened or

attempted, committed in the presence of

an officer;

(2) Where there is a warrant in existence

for a misdemeanor, and the officer has

personal knowledge of the warrant;

(3) Whena felony has been committed, and

the officer has reasonable grounds to

believe the person proposed to be

arrested committed it;

(4) When a charge has been made upon

reasonable grounds to believe the party

proposed to be arrested has committed

some felony;

(S) When a person has committed a felony,

though not in the presence of the

officer.

6

In all cases of arrest without a warrant, the

person making such arrest must inform the

accused of the object and the cause of the

arrest, except when he is in the actual com-

mission of the offense, or is arrested on pur-

suit.”

STATEMENT OF THE CASE

This cause involves the application and interpreta-

tion of the United States Constitution’s Fourth

Amendment requirement for an arrest warrant. The

question results from an absence of an arrest warrant

when the petitioners herein were arrested at which

time incriminating evidence was seized from them.

The petitioners were arrested on July 2, 1978 and

subsequently indicted for the possession of a con-

trolled substance with intent to deliver. (Miss. Code

1972 annotated and amended, Section 41-29-132)

A motion to suppress was filed because the arrest

was made without an arrest warrant and the evidence

showed, by the officer’s own testimony, that adequate

time and opportunity to obtain an arrest Warrant had

existed.

Testimony further showed officers had received in-

formation approximately 18 hours before the arrest

and relied on such information by following, petitioner

Conway to the Mobile, Alabama airport.

7

Petitioner O’Brien arrived and petitioners left to re-

turn to Pascagoula, Mississippi where they resided and

were followed by the officers who made the decision in

Alabama to pull over and arrest petitioners as soon as

they “crossed the Mississippi line”.

Petitioners, unaware that they were being followed,

pulled over to the side of the highway on their own

volition and the trailing agents immediately pulled over

and “formally” placed them under arrest.

The officers then took the position they did not know

who to get an arrest warrant for, yet the person who

was their informant and upon whose information they

relied for “sufficient probable cause” testified he

specifically named petitioner Conway to the officers.

It was further argued by the officers that they did not

have sufficient probable cause to obtain a warrant, yet

a warrantless arrest based upon probable cause was

made upon the same information they deemed insuffi-

cient for a warrant.

Petitioners, always contending a lack of probable

cause to justify a warrantless arrest, moved the evi-

dence be suppressed. Although the trial court stated it

was a “close question”, it overruled the motion.

In spite of the fact Mississippi law is absolutely clear

that an arrest begins when the pursuit to make the

arrest begins, the officers argued the drugs were in

“plain view” and were, therefore, justified in arresting

8

the petitioners. Only when they saw certain items in

plain view did they claim they arrested petitioners, thus

contradicting their own clear testimony.

The officers, therefore, took two opposing views of

probable cause and the arrest requirement and the trial

court condoned their conduct.

With the evidence obtained through their warrant-

less arrest and search, the petitioners were convicted

and sentenced to a 20 year term in the Mississippi

Department of Corrections and fined $15,000.00. All

proper motions were filed and an appeal was taken to

the Mississippi Supreme Court.

After oral argument, the Mississippi Supreme Court

affirmed the cause in contradiction of its own previous

decisions concerning arrest and probable cause, yet did

not specifically overrule their precedent.

While grossly misjudging crucial facts, which bear

tremendously on the outcome and upon the questions

of law, the court specifically stated it was “impractical”

for the agents to obtain an arrest warrant.

Petitioners strongly urged the Mississippi Supreme

Court to grant a rehearing so that the errors of law and

fact could be addressed and also that the status of the

law could be clarified...

The Petition for Rehearing was denied as shown by

the Order printed herein as Appendix C, therefore,

9

petitioners would show they have exhausted their

state remedies and have been denied due process of

law, not only by the lack of suppression at the trial

level, but also by the Mississippi Supreme Court, which

declined to reverse the cause, after being presented the

Constitutional issues and arguments submitted to it by

petitioners.

REASONS FOR GRANTING THE PETITION

1. The primary reasons for granting cer-

tiorari is to answer the question of

whether a iaw enforcement official is re-

quired to obtain an arrest warrant before

he arrests a person when adequate time

and opportunity are available.

Time and opportunity were unquestionably available

here. The agents testified they had time and only the

Mississippi Supreme Court found it “impractical” to

obtain an arrest warrant.

Petitioners ask the Court to answer the question in

the affirmative, that a warrant, when time and oppor-

tunity are available, is necessary. If the actions here are

proper, indeed is there ever need for a warrant?

Law enforcement officials may feel they have prob-

able cause to arrest yet it must be remembered this

determination is a judicial function. The courts,

through a detached and neutral magistrate, should be

the ones to determine if the burden has been met.

tein vs i.

10

The Mississippi court has held that arrests without

arrest warrants where nocrime has beencommitted in

the officers’ presence are illegal and the evidence ob-

tained through these arrests must be suppressed. Keyes

v. Miss., 283 So.2d 919 (1973); Smith v. Miss., 128 So.2d

875 (1961). Also this Court has held that evidence ob-

tained through an unconstitutional arrest must be sup-

pressed. Brown v. Illinois, 422 U.S. 590, 93 S.Ct. 2254, 45

L.Ed.2d 416 (1975).

Here not only was a warrant absent, but while cases

decided by this Honorable Court on a similar question

affirm a warrantless arrest, the information relied on

was not proven reliable. (See U.S. v. Watson, 423 U.S.

411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976))

Unfortunately the two issues cannot be separated

and treated distinctly for the lack of constitutionally re-

quired probable cause is the crucial element to deter-

mine the need for a warrant. The fruits of an arrest and

search make the probable cau-« available before the

arrest seem sufficient and add weight to the informa-

tion that would not otherwise meet this Court’s test of

reliability.

Petitioners ask this Court to answer that officials

should not dodge the warrant requirement because

they feel they have probable cause when it is not estab-

lished by evidence strong enough to convince a magis-

trate.

11

Reasonableness for a warrantless arrest is still the

constitutionally required standard and the analysis

must commence with the rules established in Fourth

Amendment litigation involving tangible items. Beck v.

Ohio, 379 U.S. 89, Delaware v. Prouse, 440 U.S. 648.

Strangely enough, the law now gives greater Fourth

Amendment protection to property rather than to per-

sons.

“The mere reasonableness of a search, assess-

ed in the light of the surrounding circum-

stances, is not a substitution for the judicial

warrant required by the Fourth Amend-

ment.” See U.S. v. U.S. District Court, 407 U.S.

297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972);

Coolidge v. New Hampshire, 403 U.S. 143, 91

S.Ct. 2022, 29 L.Ed.2d 564 (1971); Arkansas v.

Sanders, 99 S.Ct. 2586 (1979)

In the recent case of Payton v. New York, 27 Cr. L. 3033 it

is stated:

“The simple language of the Amendment

applies equally to seizures of persons and to

seizures of property. Our analysis in this case

may therefore properly commence with the

rules that have been established in the

Fourth Amendment litigation involving tan-

gible items.”

12

While Payton, supra, deals specifically with the

reasonableness of a v.arrantless arrest in the home,

petitioners would show it is just as applicable here for a

personal liberty deprived by unconstitutional arrest is

just as repugnant wherever it occurs.

Also in Payton, sufficient probable cause was ad-

mitted, but here it is not and is most strenuously de-

nied anc! not proven to this Court’s required level.

Spinelli v. U.S., 398 U.S. 401 (1969); Adams v. Williams,

407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)

Under the purview of Payton v. New York, the peti-

tioners ask the Court to grant certiorari to hold that

where sufficient time and opportunity is available law

enforcement officials must secure an arrest warrant

where they only suspect a crime has beencommitted.

U.S. v. Watson, supra, held that law enforcement offi-

cials’ assessment of probable cause would be more

readily acceptable if a magistrate issues a warrant but

in the same opinion held a warrant was not required.

(Also see U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13

L.Ed.2d 684 (1965))

In Watson the Court stated that the law once only

allowed exigent circumstances to justify a warrantless

arrest but later the law was interpreted to allow war-

rantless arrest on probable cause.

13

The justification by the Watson decision is that it

would “encumber prosecution” with respect to exi-

gent circumstances because various court proceedings

would be required. Petitioners would show that court

action is still required and the “encumbrances” occur

nevertheless in the determination of probable cause

since it is primarily a judicial function also.

Petitioners would show the great diversity in treat-

ment between the arrest and search warrants is not

constitutionally justified. Regarding searches, deci-

sions on probable cause are required to be made by a

magistrate and not the officer engaged in ferreting out

crime. Johnson v. U.S., 333 U.S. 10, 685S.Ct. 367, 92 L.Ed.

436 (1948); McDonald v. U.S., 335 U.S. 451,69S.Ct. 191,

93 L.Ed. 153 (1948)

Petitioners ask the Court to answer why compar-

able treatment should not be afforded parties arrested

without warrants when time and opportunity applies

in that case.

Without this holding, the Fourth Amendment re-

quirement for an arrest warrant is useless and seizure

of a person requires less judicial authority than the

seizure of property.

Based on the holding in Watson, this Court declined to

“transform this judicial preference into aconstitution-

al rule”, however, due to the holding in Payton v. New

York, supra, the Court has indeed stated this issue

14

reaches constitutional proportion by reversing the

New York Supreme Court and at least two Circuit

Courts of Appeal along with several state courts which

held warrantless arrests in the home invalid when

probable cause existed.

Indeed, according to the Court in Payton, a majority of

the states allowed warrantless entries into the home to

arrest even absent exigent circumstances, Mississippi

in fact being one of the states. (Miss. Code of 1972, as

annotated and amended, Section 99-3-11) The consti-

tutionality of these laws is now seriously in question, if

not implicitly declared invalid.

The entire analysis leaves the Watson holding in ques-

tion not only because of the narrow issue addressed by

Payton but by the apparent implication of its preference

for warrants over warrantless arrests.

The fact is that the Court now does hold this issue is

not simply a “judicial preference”, but a violation of

constitutional standards and petitioners ask this Court

to move to Payton logical extension in the cause.

Petitioners were entitled to an expectation of pri-

vacy in their automobile and as the rationale of Payton

should hold they were unlawfully arrested. The word

“automobile” is not a talisman in whose presence the

Fourth Amendment fades away and disappears. Cool-

idge v. New Hampshire, supra.

15

Finally the petitioners ask this Honorable Court to

address the question as to what extent law enforce-

ment officials may proceed without an arrest warrant

when ample opportunity and availability of one is open

to them.

2. Is the Mississippi Supreme Court's deter-

mination of probable cause based on self-

verifying information contrary to this

Honorable Court’s assessment, thus

denying petitioners due process of law?

All the information the agents had in this cause was

given to them by the informant who testified at the

trial. They received no other information and the rest

of the testimony simply was concerning what their “in-

vestigation revealed”.

The content of the informant’s testimony, however,

is of more serious dispute since the informer swore and

stated unequivocally, absolutely, positively, and with-

out a doubt that he told the agents petitioner Conway

would go to pick up petitioner O’Brien.

The agents stated they did not know who to get a

warrant for, therefore, that was their reason for not

obtaining one. After following petitioner Conway to

Mobile, only then did they say they had probable cause.

The reason for this is clear because the agents did not

have a warrant and the informer was also unreliable

and could not meet this Honorable Court's reliability

16

requirement of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.

1509, 12 L.Ed.2d 723 (1964); Spinelli v. U.S., 398U.S. 401

(1969); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921,

32 L.Ed.2d 612 (1972); Strode v. Miss., 231 So.2d 779

(1970)

The Mississippi Supreme Court stated the agents

had probable cause because they received “self-verify-

ing” information from what they saw at the airport

similar to what had occurred in a previous Mississippi

case. Joyce v. Miss., 327 So.2d 255 (1976)

This Court in Draper v. U.S., 358 U.S. 307, 79 S.Ct.

329, 3 L.Ed.2d 327 (1959) stated the most important

factor for a warrantless arrest was the determination

of probable cause.

Draper stated and placed immense importance upon

several factors from an admittedly reliable informant

which were corroborated by the actual events that took

place, yet here the informant was not proven reliable,

because he could not be proven reliable. No specific de-

tails of what was to occur were present here as were re-

lied on in Draper.

The legality of the arrest here turns on a similar

question, since the officers did not have an arrest war-

rant and probable cause was not established, the arrest

was illegal and the evidence seized incident to it must be

suppressed. Weeks v. U.S., 232 U.S. 383, 34S.Ct. 341, 58

L.Ed. 652; Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 09

17

L.Ed. 543; Giordenellov. U.S., 357 U.S. 480, 78S.Ct. 1245,

2 L.Ed.2d 1503.

“The arresting officers did not have a bit of

evidence, known to them as to which they

could take on oath had they gone to a magis-

trate, that petitioner had committed any

crime. The arresting officers did not know

the grounds on which the informer based his

conclusions; nor did they seek to find out

what they were. They acted solely on the in-

former’s word. In my view that was not

enough.” Draper, supra, dissent.

This passage is important here, since nowhere was

the two pronged reliability test of Aguilar v. Texas and its

Mississippi counterpart, Strode v. State, in any way Satis-

fied whatsoever.

If the officers had probable cause or an articulable

suspicion, a magistrate was available before they left to

follow petitioner to the airport in Mobile. While the

officers were in Mobile they saw absolutely nothing in

addition to what they had not already been told and

that was not enough to arrest the petitioners.

This position should be addressed by this Honorable

Court, for may an officer on one hand say that not

enough probable cause for a warrant existed when he

later arrested the parties without a warrant with no

additional probable cause or information?

18

The “self-verification” apparently is anchored to the

results or the fruits of the arrest and subsequent

search, yet this should not be allowed to influence the

decision to arrest or the assessment of probable cause

before the fact. See Joyce v. Miss., supra, dissent of Chief

Justice Patterson.

The Mississippi Supreme Court erred in assessing

the facts and then in the absence of proof of the re-

liabilit:’,pf the informant, erred in finding probable

cause. Petitioners ask this Court to determine if due

process of law will allow the Mississippi Supreme

Court decision, which does not conform with the deci-

sions and precedent of this Honorable Court, tostand.

CONCLUSION

For the foregoing reasons, the petitioners would re-

spectfully show that their writ of certiorari should be

granted.

Respectfully submitted,

WRIGHT & HEIDELBERG

Sah Lg):

FIELDING-L_WRIGHT, JR. |

ATTORNEYS AT LAW

3007 MAGNOLIA STREET

POST OFFICE BOX 1606

PASCAGOULA, MS 39567

COUNSEL FOR PETITIONERS

19

CERTIFICATE OF SERVICE

I, Fielding. Wright, Jr., hereby certify that I have

this the 2-day of May, A.D., 1980, mailed first class,

postage prepaid, 3 copies of the foregoing Petition for a

Writ of Certiorari to William A. (Bill) Allain, Attorney

General, State of Mississippi, Post Office Box 220,

Jackson, Mississippi and Catherine Walker Under-

wood, Special Assistant Attorney General, State of

Mississippi, Post Office Box 220, Jackson, Mississippi.

‘I. WRIGHT, JR.

COUNSEL FOR PETITIONERS

la

“APPENDIX A”

IN THE SUPREME COURT OF MISSISSIPPI

NO. 51,741

JOHN CONWAY AND ROBERT O’BRIEN

versus

STATE OF MISSISSIPPI

March 12, 1980

BEFORE SMITH, SUGG AND BOWLING

BOWLING, JUSTICE, FOR THE COURT:

Appellants, John Conway and Robert O’Brien, were

indicted and convicted in the Circuit Court of Jackson

County for the possession of a controlled substance

(methamphetamine) with intent to deliver in violation

of Mississippi Code Annotated section 41-29-139 (1972

as amended). The jury returned a verdict of guilty as

charged against both defendants. Each was sentenced

to serve a term of twenty years with the Mississippi

Department of Corrections, and a fine of $15,000 was

imposed on each.

On appeal, appellants alleged two assignments of

error, namely:

2a

1. The trial court erred in overruling defendants’

motion to suppress; and

=,

2. That an alleged remark made by the district

attorney in his argument to the jury constituted re-

versible error.

The motion to suppress was directed toward the

methamphetamine substance secured from an auto-

mobile as hereinafter related. The motion contended

that the evidence should have been suppressed be-

cause of both an illegal arrest and an illegal search.

There is practically no dispute in the facts of the oc-

currences leading to appellants’ arrest. Testimony was

received on the motion from three participating offi-

cers. There were five officers involved in the matter;

however, it was stipulated that the testimony of the

other two would be cumulative. The principal partici-

pant and the guiding figure in the entire matter was

one Don Richards, who at the time was District Super-

visor for the Gulfport office of the Mississippi Bureau

of Narcotics. His testimony and the testimony of the

other officers was that information had been received

that a shipment of methamphetamine would arrive in

the Jackson County area on the weekend of July 1 and

2, 1978, which dates were a Saturday and Sunday. On

information from an informant, a search warrant was

secured for a residence in Pascagoula where there lived

Matthew Dixon and Richard Johnson and their respec-

3a

- tive wives. The activities surrounding the search of this

residence took place late at night on July 1 and the early

morning of July 2. During the course of the search of

the residence, appellant John Conway came to the loca-

tion where he and Agent Don Richards became ac-

quainted.

The officers received information from Johnson that

he had carried a man named “Obie” to Mobile, Ala-

bama, on Saturday, July 1, for the purpose of the latter

flying to Philadelphia, Pennsylvania, to secure the

drugs, and returning on Sunday afternoon to Mobile,

where he would be met by someone then unknown.

At noon on Sunday, July 2, the officers met for lunch

in Pascagoula to discuss what action to take regarding

the information received. As stated, the identity of the

person who was to pick up “Obie” in Mobile at the air

terminal was unknown. There was doubt that the de-

livery of the substance would take place due to pub-

licity regarding the arrests the night before. During the

afternoon of Sunday, the agents, under Richards’

direction, decided to take a chance and goto the Mobile

air terminal to conduct surveillance and try to ascer-

tain whether or not the drug would be brought in by

“Obie,” who would meet him, and what action they

would then take.

Late in the afternoon, appellant, John Conway, was

observed driving into the air terminal parking lot and

4a

entering the terminal. Dixon was also observed arriv-

ing in another vehicle and entering the terminal. They

were observed talking to each other. At approximately

5:30 P.M., a plane arrived from Philadelphia, by way of

Atlanta. “Obie,” who was later identified as appellant

Robert O’Brien, got off the plane carrying a small suit-

case and met appellant Conway and Dixon. The three

then went to the parking lot with “Obie” getting into

Conway’s vehicle with the bag. Both vehicles then

headed toward Mississippi. The officers began surveil-

lance of the two vehicles with the admitted intention of

stopping them at some point after reaching the State of

Mississippi. Shortly after crossing the state line, and

before the officers had made any move to stop the

vehicles, Conway and Dixon stopped on the side of the

road, got out of their cars and approached each other.

The officers, under the direction of Richards, im-

mediately stopped both in front of and behind the two

suspect vehicles. Upon approaching the Conway

vehicle, one officer observed several small plastic bags

in a larger plastic bag — all containing a white powdery

substance — laying on the rear floorboard of the car in

plain view. Conway, O’Brien and Dixon were im-

mediately arrested and placed in the custody of the offi-

cers. The substance laying on the floorboard was

seized.

One officer was left with the two vehicles, which

were later towed by wreckers to Pascagoula. A search

warrant for the vehicles was secured. Pursuant to this

warrant, the suitcase that had beencarried from the air

5a

terminal by appellant O’Brien was seized, opened, and a

relatively large amount of methamphetamines found

therein. The evidence indicated that the drug was

worth a considerable sum of money.

Appellants contend that their warrantless arrest was

invalid. It is strongly urged that the officers had ample

time and opportunity to apply for and secure a valid

arrest warrant, and that without such warrant they did

not have probable cause to make the arrests. The

answers to these contentions are clear. During the

early part of the morning of Sunday, July 2, the offi-

cers learned from Johnson, who had recently been

arrested at his residence, that on July 1 he had taken a

person known only to him as “Obie” to Mobile tocatch

a plane. Although the officers met appellant Conway at

the time of Johnson’s arrest, no information was

secured by the officers at any time that Conway was

the person who would meet “Obie” the next day in

Mobile. No information was received by the officers

that Dixon would also appear at the air terminal with

Conway. The officers were more or less “shooting in

the dark” when they decided on Sunday afternoon to

go to Mobile, as they anticipated that the person known

as “Obie” and never seen by them would be warned not

to return to Mobile with the supply of drugs. The onlv

warrant that the officers could possibly have secured

would have been a so-called “John Doe” warrant. This

was impractical because of the time element involved in

traveling to Mobile and setting up surveillance prior to

the arrival of the plane. The first identification of the

6a

personalities involved in picking up “Obie” was when

Conway and Dixon arrived shortly before the plane

was due. Conway and Dixon were then observed meet-

ing “Obie,” who was carrying a small bag and all three

were seen getting into the Conway and Dixon vehicles

and heading toward Mississippi. The officers had no

alternative but to follow, readily admitting that they

intended to stop the two vehicles after reaching the

Mississippi state line. The vehicles were not stopped by

the officers, and it is clear from the record that an

arrest was not made until the powdery substance was

seen on the floorboard of the Conway vehicle. It is

abundantly clear that under the authorities the offi-

cers had probable cause to arrest appellants and Dixon

without a warrant.

In United States v. Burnett, 526 F.2d 911 (Sth Cir. 1976),

cert. den. 425 U.S. 977, 48 L.Ed.2d 801, 96 S.Ct. 2179,

the Court said:

Although appellants argue that the agents had

ample opportunity to obtain an arrest or

search warrant, this argument, even if true,

does not invalidate their arrests. A warrant-

less arrest is lawful so long as the arresting

officers have probable cause. E.g., United

States v. Hofman, 488 F.2d 287 (Sth Cir. 1974)

(no warrant); United States v. Morris, 477

F.2d 657, 663 (Sth Cir.), cert. denied, 414 U.S.

852, 94 S.Ct. 146, 38 L.Ed.2d 101 (1973) (in-

valid warrant).

7a

In the more recent case of United States v. Parker, 549

F.2d 1217 (5th Cir. 1977), we find the following:

Parker also contends that the government

agents’ failure to obtain an arrest warrant vit-

iated his arrest and rendered his subsequent

confession illegal. Parker does not dispute that

the agents had probable cause to arrest him,

but asserts that they should have obtained a

warrant in the approximately 34 hours be-

tween the time that they became aware of his

whereabouts and the time of the arrest. This

argument has no merit. While it is preferable

for law enforcement officers to obtain arrest

warrants where feasible, Beck v. Ohio, 379

U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142

(1964); Wong Sun v. United States, 371 U.S.

471, 479-82, 83 S.Ct. 407, 9 L.Ed.2d 441

(1963), an arrest supported by probable cause

should not be invalidated solely because the

officers failed to secure a warrant, Gerstein v.

Puch, 420 U.S. 103, 113, 95 S.Ct. 854, 43

L.Ed.2d 54 (1975); United States v. Hofman,

488 F.2d 287 (Sth Cir. 1974). Although Parker

argues that the officers had ample oppor-

tunity to obtain an arrest warrant, this argu-

ment, even if true, does not invalidate his

arrest, United States v. Burnett, 526 F.2d 911

(Sth Cir.), cert. denied, 425 U.S. 977, 96 S.Ct.

2179, 48 L.Ed.2d 801 (1976).

8a

We, therefore, readily see that appellants cannot take

advantage of the time element to complain that an

arrest warrant was not secured. We now consider the

question as to whether or not the officers had prob-

able cause for the eventual arrest of the three persons.

In Strode v. State, 231 So.2d 779 (Miss. 1970), this

Court, in discussing probable cause, said:

Probable cause is a practical, nontechnical con-

cept, based upon the conventional considera-

tions of every day life on which reasonable and

prudent men, not legal technicians, act. It

arises when the facts andcircumstances with-

in an officer’s knowledge, or of which he has

reasonably trustworthy information, are

sufficient in themselves to justify a man of

average caution in the belief that a crime has

been committed and that a particular indi-

vidual committed it.

In Joyce v. State, 327 So.2d 255 (Miss. 1976), this Court,

in holding that probable cause existed, stated as

follows:

Not only does the evidence prove the tip to be

selfverifying, but also that an independent

investigation was made before Wann’s car was

stopped and searched. The narcotics agents

observed Wann picking up two very heavy

9a

suitcases at the baggage checkout and carry-

ing them to his car. Sixty pounds of mari-

juana compressed in kilo bricks does not oc-

cupy much space. It could be carried in suit-

cases, but it would make them heavier than

usual. They observed Joyce and his com-

panions furtively and nervously looking

around to See if anyone was watching them

and then as they drove slowly away from the

airport the agents observed Wann, the driver,

frequently looking in his rear-view mirror and

appellant and Saczynski, the passengers, fre-

quently looking through the rear window.

In the case of Isaacks v. State, 350 So.2d 1340 (Miss.

1977), the Court, through Justice Inzer in the majority

opinion and Justice Sugg in the dissenting opinion, dis-

cussed the many cases dealing with circumstances

under which evidence may be seized when in “plain

view” without a warrant. The majority opinion stated

as follows:

Only under certain circumstances may offi-

cers seize contraband in “plain view” without

a warrant. They are: (1) incident to a valid

arrest, (2) where officers have a valid search

warrant to search a given area for specific ob-

jects and in the course of the search come

across contraband, (3) incident to “hot pur-

suit” of a fleeing suspect, or (4) incident toa

10a

search of a stopped automobile on probable

cause or because of the mobility of the vehicle.

From the facts and circumstances hereinbefore re-

lated, it is evident that the conditions under (1) and (4)

apply here. As for (1), we have already seen that before

the contraband was viewed, probable cause existed for

a warrantless arrest of appellants. The seizure of the

contraband can also be justified under (4), as there was

probable cause to stop the car, and the narcotics agents

were then entitled to seize the powdery substance

within their plain view. Green v. State, 348 So.2d 428

(Miss. 1977).

The United States Supreme Court also has spoken

on the situation where contraband objects are in plain

view of an officer who has a right to be where the ob-

jects may be seen. In Harris v. United States, 390 U.S. 234,

19 L.Ed.2d 1067, 88 S.Ct. 992 (1968), it was said:

It has long been settled that objects falling in

the plain view of an officer who has a right to

be in the position to have that view are sub-

ject to seizure and may be introduced in evi-

dence. ...

The trial court was correct in overruling appellants’

motion to suppress.

lla

Appellants claim reversible error because of an al-

leged statement made by the district attorney in argu-

ment to the jury. The only thing in this record in this

regard is the following that was dictated to the court

reporter after the closing arguments had been made:

BY MR. WRIGHT: In view of the fact that

the closing arguments of all counsel was not_

being recorded, and for the purpose of the rec-

ord, the defendant moved for a mistrial based

on a comment made by the assistant district

attorney, Joe R. Colingo, during his closing

argument to the effect that the testimony was

uncontradicted. At which point counsel ob-

jected and moved for a mistrial based on sucha

statement being a comment on the defendant

not rebutting any testimony.

BY MR. HUNTER: May it please the court,

the only exception to that is I believe the state-

ment was, that the evidence was uncon-

tradicted.

BY MR. COLINGO: That's what the state-

ment was.

BY MR. WRIGHT: It’s the same thing.

BY MR. COLINGO: No, it’s not.

BY THE COURT: There is acase on it, but I

will overrule it.

12a

There is no way that this Court can determine the

context in which the alleged statement of the district

attorney was made to the effect that “the testimony”

was uncontradicted. This Court has held many times

that each case must be considered individually where

there is a question as to the prosecution’s comments on

the defendant’s failure to testify. In Peterson v. State, 357

So.2d 113 (Miss. 1978), we said:

Each case on these types of matters has to be

considered in the light of that particular case.

The facts of all are different. . .

In Barnes v. State, 230 Miss. 299, 92 So.2d 863 (1957),

this Court stated:

The county attorney, in his argument to the

jury, said: “Mr. Anderson testified the value of

the feed as being $3.50 a sack and that is no!

disputed. . .” It will be noted that the remarks

had reference only to the value of the feed.

They were not directed to whether Barnes

was guilty or innocent of the stealing. Other

witnesses could have testified to such values

— not just Barnes himself. The remarks did

not apply especially to Barnes. They were

applicable to any witness Barnes might have

produced to testify about the value of the

property. The remarks were general — not

personal. As a matter of fact, Barnes did not

13a

place any witness upon the stand. He pro-

duced no testimony whatever. In addition,

Barnes could not have been prejudiced by the

remarks for the reason that he obtained this

instruction: “The court instructs the jury for

the defendant that you cannot convict the

defendant simply because he did not testify.”

That instruction was read to the jury before

any argument was made. It called to the atten-

tion of the jurors in the most pointed and

forceable way the fact that the defendant did

not testify. It was much more effective in

directing the attention of the jury to the fail-

ure of Barnes to testify than were the re-

marks of the county attorney.

In Smith v. United States, 234 F.2d 385 (Sth Cir. 1956),

we find the following:

We think it quite clear that this was fair com-

ment on the defendant’s failure to produce

witnesses touching on a subject which he in-

jected in his conduct of the trial. During his

argument and cross-examination of wit-

nesses, he referred to alleged criminal acts of

government witnesses. The comment by the

United States Attorney that the accused had

the opportunity to present any criminal ac-

tion in the form of testimony is similar to that

which was found by the court to be unobjec-

14a

tionable in Langford v. United States. There a

statement by counsel that “the defendant had

no witness to impeach the stories of [govern-

ment witnesses]” was held by the court to be

in substance a statement that thestories were

not contradicted. As this court has said in

Jamail v. United States, the rule against com-

menting on the failure of a defendant to testi-

fy in his own behalf “does not go tothe extent

of forbidding argument by counsel for the

prosecution to the effect that the evidence

against a defendant is uncontradicted.” The

same is true with respect to a failure to pro-

duce testimony on any phase of the defense

upon which the accused seeks to rely.

In Clark v. State, 260 So.2d 445 (Miss. 1972), we stated

the following:

. There are a few cases where the com-

ments are of the character here under con-

sideration in which we have held that the com-

ments did not amount to reversible error. In

those cases there was either an eye witness

other than the accused available to him and

who was not placed on the stand, or the guilt

of the accused was so manifest that no fair

jury could have returned a verdict other than

guilty. Chatman v. State, 244 Miss. 659, 145

So.2d 707 (1962). .

15a

In Lambert v. State, 199 Miss. 790, 25 So.2d 477 (1946),

this Court stated in discussing the question now be-

fore us:

... “the testimony for the state” includes all

matters on which the state introduces evi-

dence. . .” “Uncontradicted” would include all

evidence of a contradictory nature, even cir-

cumstantial evidence... .

In Johnson v. State, 109 Miss. 622, 68 So. 917 (1915), the

alleged statement by the prosecuting attorney was

almost identical with the one propounded here. The

Court, in affirming the conviction, stated:

The evidence for the state was uncontradict-

ed — it stood alone as the evidence in the case

— and to say so, in our opinion, cannot be con-

strued as any sort of reference, of any charac-

ter whatever, to the failure of defendant to

testify. To so hold, it seems to us, would be to

deny to the state the privilege of arguing the

case at all.

In Lambert v. State, supra, and as reaffirmed in Chatman v.

State, supra, it was stated:

... this Court has reversed for comments of

the character here under consideration, un-

less (1) there was an eye witness other than

defendant available to the accused and who

16a

was not placed upon the stand by him, or (2)

the guilt of the defendant was somanifest that

no fair jury could have returned a verdict

other than guilty.

Also see Martin v. State, 200 Miss. 142, 26 So.2d 169

(1946).

As hereinbefore emphasized, based on the record be-

fore us, we are unable to make a reasonably accurate

determination as to the context in which the alleged

statement was used. There was no bill of exceptions re-

quested. No testimony or evidence whatever was

introduced by the appellants and the statement could

have been made in connection with many “objects of

evidence” that were uncontradicted. Furthermore, as

stated in Chatman, supra, no fair minded jury could have

returned a verdict other than guilty in this case.

AFFIRMED.

PATTERSON, C.J., SMITH, P.J., ROBERTSON,

P.J., SUGG, WALKER, BROOM, LEE AND COFER,

JJ.. CONCUR.

ATTEST:

A True Copy

This the 16th day of April, 1980

ROBERT E. WOMACK, CLERK

SUPREME COURT OF MISSISSIPPI

ls} DEBBIE HOLMES

17a

“APPENDIX B”

MANDATE FROM THE

SUPREME COURT OF MISSISSIPPI

JOHN CONWAY AND ROBERT O'BRIEN

versus No. 51,741

STATE OF MISSISSIPPI

Filed: April 22, 1980

To the Circuit Court of Jackson County—Greet-

ings:

WHEREAS, on the 12th day of March, 1980, the

same being a day of the regular term of the Mississippi

Supreme Court, begun and held in the Courtroom, in

the Gartin Building, in the City of Jackson, Mississippi,

on the 1st Monday of March, in the year of our Lord,

1980, the following final judgment was rendered by the

Mississippi Supreme Court, to-wit:

This cause having been submitted at a former Term

of this Court on the record herein from the Circuit

Court of Jackson County and this Court having suffi-

ciently examined and considered the same and being of

the opinion that there is no error therein doth order

and adjudge that the Judgment of said Circuit Court

rendered in this cause on the 15th day of May, 1979—a

18a

conviction of POSSESSION OF CONTROLLED SUB-

STANCE WITH INTENT TO DELIVER and a sen-

tence to serve a term of TWENTY (20) YEARS in the

custody of the Mississippi Department of Corrections

and to pay a fine of $15,000.00—be and the same is

hereby affirmed. It is further ordered and adjudged

that the appellants do pay all of the costs of this appeal

to be taxed for which let proper process issue.

YOU ARE THEREFORE HEREBY COMMANDED,

that such execution and further proceedings be had in

said cause, as according to right and justice, and the

judgment of our SUPREME COURT and the law of the

land ought to be had.

WITNESS, the Hon. Neville Patterson, Chief

Justice of the Mississippi Supreme Court; also

the signature of the Clerk and the Seal of said

Court hereunto affixed, at office, in the City of

Jackson, this the 18th day of April, A.D., 1980.

ls) ROBERT E. WOMACK

Clerk

Circuit Court No. 8974

19a

“APPENDIX C”

MINUTES, SUPREME COURT OF MISSISSIPPI

MARCH TERM, 1980

WEDNESDAY, APRIL 16, 1980, COURT SITTING:

JOHN CONWAY AND ROBERT O'BRIEN

versus No. 51,741

STATE

This cause this day came on to be heard on Petition

for Rehearing and this Court having sufficiently exam-

ined and considered the same en banc and being of the

opinion that the same should be denied doth order that

said Petition be and the same is hereby denied.

ATTEST:

A True Copy.

This the 17th day of April, 1980.

ROBERT E. WOMACK, CLERK

SUPREME COURT OF MISSISSIPPI

Is} L. PUCKETT.