Opposition Brief — Jerry McCommon v. Mississippi

Supreme Court, U.S,

FILED

oct & 6

EPH F. SPANIOL, JR

we

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

JERRY McCOMMON,

Petitioner

vs.

STATE OF MISSISSIPPI,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

BRIEF IN OPPOSITION

EDWIN LLOYD PITTMAN

ATTORNEY GENERAL

STATE OF MISSISSIPPI

WAYNE SNUGGS

ASSISTANT ATTORNEY GENERAL

(Counsel of Record)

DeWITT ALLRED

SPECIAL ASSISTANT ATTORNEY GENERAL

(Of Counsel)

Post Office Box 220

Jackson, Mississippi 39205

Telephone: 601/359-3680

Attorneys for Respondent

“BEST AVAILABLE COPY | amma

QUESTIONS PRESENTED

1. Whether probable cause existed

issuance of a search warrant.

2. Whether the warrant was based upon

facts that were materially false or recklessly

made.

a Whether the issuing magistrate was

neutral and detached.

4. Whether the search warrant, whether

valid or not, was necessary under the Carrol]

doctrine.

TABLE OF CONTENTS

QUESTIONS PRESENTED----------------- 1

TABLE OF

TABLE OF

CONTENTS------------------- 11-111

AUTHORITIES----------.-...- —_—

OPINION BELOW----------------------- 2

CONSTITUTIONAL PROVISIONS

AND

STATUTES------~-..........- 2

STATEMENT OF THE CASE--------------- 3

SUMMARY OF THE ARGUMENT------------- e, 3

ARGUMENT:

REASONS FOR DENYING

THE WRIT

THE SEARCH WARRANT WAS

A. THERE WAS PROBABLE

CAUSE TO ISSUE THE

SEARCH WARRANT--------- 6-11]

B, THE SEARCH WARRANT

WAS NOT BASED UPON

FACTS THAT WERE

MATERIALLY FALSE OR

RECKLESSLY MADE-------- 11-14

THE SEARCH WARRANT

WAS ISSUED BY A

NEUTRAL AND DETACHED

MAGISTRATE--~---------- 14-25

OQ

aii

TABLE OF CONTENTS - Continued

ee EVEN IF THE SEARCH WARRAN

WERE NOT VALID, THE EVI-

DENCE WAS ADMISSIBLE

BECAUSE NO SEARCH WARRANT

WAS NECESSARY--------------

CONCLUSION---------------------------

CERTIFICATE--------------------------

PAGE:

ia inaeitaeiaiinaeniaiaal aii

TABLE OF AUTHORITIES

CASES: PAGE:

United States:

Aguilar v. Texas, 378 U.S. 108,

84 S.Ct. 1509, 12 L.Ed.2d

723 (1964) -------------------- 7, 28, 12, 3

California v. Carney, U.S. ,

37 Cr.L.Rptr. 3033 (1985) ----- 27

Carroll v. United States, 267 U.S.

132, 45 S.Ct. 280, 69 L.Ed.

943 (1925) -------------------- 25, 26

Chambers v. Maroney, 399 U.S. 42,

90 S.Ct. 1975, 26 L.Ed.2d

419 (1970) -------------------- 26

Coolidge v. New Hampshire, 403 U.S.

443, 91 S.Ct. 2022,

29 L.Ed.2d 564 (1971) ------- -- 14

Franks v. Delaware, 438 U.S. 134,

78 S.Ct. 2674, $7 L.Ed.2d

667, (1978) --------------.~-~- 14

Giordenello v. United States,

357 U.S. 480,

78 8.Ct. 1245,

2 L.Ed.2?d 1503 (1

Illinois v. Gates, 46?

Ge @.CG. 2347, 7

927 (1983) -----------------__- 10, 28

Massachusetts v. Upton,

v.85. , 404 §.Ct.

(1984) ------------~--~--- aG, ik, 26

Spinelli v. United States

ll,

393 U.S. 410, 89 S.ct. 584,

2i L.Ed.2d 637 (1969) ----..... 7, &@

aiwe

TABLE OF AUTHORITIES - Continued

Aap

.

PAGE .

Texas v. White, 423 U.S. 67,

96 S.Ct. 304, 46 L.Ed.2d

209 (1975) ------------------- ~~~ 26

United States v. Johns, U.S.

, 36 Cr.L.Rptr. 3134 (1985)--- 27

United States v. Leon, U.S. :

104 S.Ct. 3405, 82 L.Ed.2ad” ~

677 (1984) ----------------- ~~ 24

Mississippi:

McCommon v. State,

460/ So.2d 940,

(Miss. 1985) ----------------~--~-- 2

STATUTES:

section 41-29-157(2) Mississinvpbpi

i | ) : | 5 )

Lode iT LI Lene nr eee ee -—----

NO. 85-8

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

JERRY MCCOMMON,

Petitioner,

VERSUS

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

BRIEF IN OPPOSITION

Respondent, State of Mississippi, respect-

fully prays that the Petition for Writ of Certi-

orari to the Supreme Court of the State of

Mississippi be denied in this case.

OPINION BELOW

The opinion of the Supreme Court of Missis-

Sippi affirming the conviction herein is repor-

ted at McCommon v. State, 467 So.2d 940 (Miss.

1985).

CONSTITUTIONAL PROVISIONS AND STATUTES

Amendment IV, Constitution of the United

States, is set out in the Petition.

Section 41-29-157(2), Mississippi Code of

1972 (in pertinent part):

A search warrant shall issue

only upon an affidavit of a person

having Knowledge or information of

the facts alleged, sworn to before

the judge or justice court judge

and establishing the grounds for

issuing the warrant. If the judge

or justice court judge is satisfied

that grounds for the application

exist or that there is probable

cause to believe they exist, he

shall issue a warrant identifying

the area, premises, building, or

conveyance to be searched, the

purpose of the search, and, if

appropriate, the type of property

to be searched, if any.

STATEMENT OF THE CASE

The Respondent adopts the Petitioner's

statement of the Case except for (1) the state-

ment at page 7 of the Petition that "Several of

the statements contained in this document [the

Affidavit] were untrue and were known by the

affiants to be untrue", and (2) the statement at

page 8 that "The Justice Court Judge testified

..-that he issued the warrant based on the fact

that it was requested by two sworn officers of

the law, rather than anything stated in the

underlying facts and circumstances".

SUMMARY OF THE ARGUMENT

The Affidavit was more than adequate to

establish the existence of probable cause to

search the trunk of Jerry McCommon's car. The

"two-pronged" test, urged by Petitioner, is in-

appropriate,and analysis should proceed under

the "totality-of-the-circumstances" test, as was

done by the Mississippi Supreme Court. The

informant's tip was not fundamental to the

establishment of probable cause in this case.

The facts claimed by the Petitioner to be

"materially false or recklessly made" amount,

at the most, to negligence or innocent mistake

as to essentially peripheral matters.

The justice court judge who issued the

warrant was not a model of neutrality and detach-

ment; neither was he a rubber stamp for the

police. The record supports the Mississippi

Supreme Court's conclusion that his neutrality

and detachment were sufficiently established.

In any event, the issuing magistrate's subjective

feelings, whatever they may have been, do not

present grounds for reversal of a conviction af.

objectively, the Affidavit states an adequate

basis for the finding of probable cause.

Even if the warrant should be found to be

invalid, the conviction must stand because

a warrantless search would have been permissible

under the circumstances here since probable

cause was present,

ARGUMENT

REASONS FOR DENYING THE WRIT

Ze

THE SEARCH WARRANT WAS VALID.

A. THERE WAS PROBABLE CAUSE TO

ISSUE THE SEARCH WARRANT.

The Affidavit in support of the application

for the search warrant presented the following

matters tending to establish probable cause:

(1) The affiants were experienced narcotics

law enforcement agents. (2) One of the agents,

some five months earlier, had arrested McCommon

in Jackson, Mississippi, for possession of

cocaine. The search incident to that arrest had

revealed a large amount of marijuana debris

in the trunk of McCommon's vehicle, and the

agent had been informed that McCommon was run-

ning marijuana from Miami, Florida, in his

vehicle. (3) Some’ two months earlier, two

persons described in the affidavit as associates

of McCommon had been arrested in Alcorn County,

Mississippi, for possession of a large quantity

of marijuana. The affidavit alleged that one

of the vehicles involved in that arrest belonged

to McCommon. Investigation had revealed that

McCommon was in Miami at the time one of these

persons arrived there by commercial airline.

(4) Southern Florida is a major gateway for

illegal narcotics into the United States.

(5) The agents had observed McCommon arrive at

the Jackson Airport and drive away. The agents

were told by an informant that McCommon would

be driving to Miami possibly to pick up a load

of drugs. The agents had followed McCommon from

the Jackson Airport to Miami and then back to

Mississippi, confirming the informant's state-

ment that McCommon would be driving to Miami and

back. (6) In Miami, the agents had observed

McCommon at a residence occupied by a person

Known to the D.E.A. as a “Marine Smuggler".

|

(7) On the way back from Miami, McCommon's

vehicle had sagged in the rear, though it had

not done so on the trip to Miami. (8) When

Stopped by the agents on the highway, McCommon

had lied to them, Stating that he was returning

from a two-day camping trip on the Mississippi

Gulf Coast.

The following matters tended to diminish

the likely existence of probable cause: (1) The

basis of the informant's Knowledge was not stated.

(2) The basis of the affiant's belief in the

informant's reliability and Credibility was not

stated. (3) The informant's tip was not de-

tailed. (4) The informant's tip was modified

by the word "possibly". (5) The affiants did

} not actually see any drugs or any suspicious

looking transfer at the residence in Miami, and

therefore could not verify the informant's state-

ment that McCommon's purpose was to pick up drugs.

(6) southern Florida, in addition to being a

center for narcotics activity, is a popular

vacation area.

Under Aguilar v. Texas, 378 U.S. 108,

84 §.Ct. 1509, 12 L.Ed.2d 723 (1964), and

Spinelli v. United States, 393 U.S. 410, 89 S.Ct.

584, 21 L.Ed.2d 637 (1969), the sort of technical

analysis of the informant's tip urged by the

Petitioner here may have been in order. Respon-

dent uses the word "may" because the informant's

tip in this case did not have the kind of "funda-

mental place in this warrant application" as did

the tip in Spinelli (supra, 393 U.S. 414, 89 S.Ct.

at 588, 21 L.Ed.2d at 642), and because the

affidavit here did not present the affiants'

"mere conclusion" of illegal activity, as did

the affidavit in Aguilar (supra, 3/8 U.S. at

113, 84 S.Ct. at 1513, 12 L.Ed.2d at 727).

The informant's tip in this case played a

relatively small role in establishing probable

Cause. McCommon was known by these officers

— a —_ -

prior to receipt of this informant's tip. Here,

unlike the situations in Aguilar and Spinelli,

the other parts of the affidavit supported the

finding of probable cause. In addition, the tip

was substantially corroborated by the fact that

McCommon did drive to Miami and back to Missis-

Sippi, as the informant had said he would.

The Petitioner acknowledges that Illinois

v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.

2d 527 (1983), has been decided but apparently

urges that Aguilar/Spinelli is still the estab-

lished method of probable-cause analysis. As

the decision in Massachusetts v. Upton, U.S.

, 104 §.Ct. 2085, 80 L.Ed.2d 721 (1984),

emphasizes, Gates and not Aguilar/Spinelli

states the proper method of analysis.

The Mississippi Supreme Court deliberately

and correctly applied the Gates "totality-of-

ithe-circumstances" analysis and correctly found

Ithat probable cause was established and that the

-l|0-

trial judge properly overruled the motion to

suppress. The affidavit provided a more than

"substantial basis for the issuance of the

warrant" and more than a "'fair probability that

contraband or evidence of crime'", Upton, supra,

U.S. at , 104 S.Ct. at 2088, 80 L.Ed.2d

—_—_—. _———

at 727, would be found in the trunk of McCommon's

Car.

B. THE SEARCH WARRANT WAS NOT

BASED UPON FACTS THAT WERE

MATERIALLY FALSE OR RLCK-

LESSLY MADE.

(1) The only witness who was cross-examined

with regard to the allegations of the third

paragraph of the affidavit (the arrest in Alcorn

County) was Agent Coleman (R. 123-126, 134-135).

Coleman was asked by defense counsel, "[H]ow

do you Know he [(McCommon] owned that car?"

Coleman answered, “The tag was registered in his

name" (R. 124). Counsel asked, "Did you honestly

believe this car was registered to Mr. McCommon?",

and Coleman answered, "Yes, Sir, I did" (R. 125).

Petitioner misstates the situation by representing

in his brief that it was developed at the sup-

pression hearing that the agents "actually had

no idea to whom the car was titled."

It is of small consequence that the agents’

information as to the Alcorn County arrest was

based on hearsay and was not personally checked

by the agents as to its veracity. "[A]Jn affi-

davit may be based on hearsay information and

need not reflect the direct personal observations

of the affiant." Aguilar, supra, 378 U.S. at 114,

84 S.Ct. at 1514, 12 L.Ed.2d at 729

(2) Petitioner does t state hat dif

ference it should have made to the issuing magis-

trate that the informant communicated with Agent

rty

Coleman rather than with the affiant, Agent

Barrett. The agents were working closely with

- hor - | } haan 1 N11g@7AA 11 + } ~~ :

yne another and Nad peen throughout the operation.

The record does not demonstrate that the

informant did not communicate with Barrett. The

only testimony on the question was that of Cole-

man, who testified he did not know whether the

informant had communicated with any officer or

agent other than himself (R. 139-140).

(3) The affidavit did not allege that Mary

(or Marie) Canovis owned the house but that it

was “occupied by a person Known to the Drug

Enforcement Agency as a Marine Smuggler." The

agents did believe that the woman they observed

in the residence was Canovis, based on the fact

that her car was parked outside the house (R. 64,

66).

The Petitioner has not shown that the affi-

idavit contained any deliberate falsehood or reck-

j}less disregard fur the truth. At the most, the

;Petitioner has alleged "negligence or innocent

mistake", and such allegations are insufficient

to overcome the presumption of validity with

respect to the affidavit. Franks v. Delaware,

438 U.S. 154, 171, 98 S.Ct. 2674, 2684, 57 L.Ed.

2d 667, 682 (1978).

C. THE SEARCH WARRANT WAS ISSUED

BY A NEUTRAL AND DETACHED

MAGISTRATE.

Justice Court Judges (formerly, justices of

the peace) are among those judicial officers

authorized by Section 41-29-157(2), Mississippi

Code of 1972, to issue search warrants under the

Mississippi Uniform Controlled Substances Law.

Judge Mangum was acting within his statutory

authority as a justice court judge for District

Two of Simpson County, Mississippi (R. 150).

The office of justice court judge is officially

neutral and detached from the police and a

justice court judge is not a prosecutor or law-

enforcement officer. Cf, Coolidge v. New

Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.

2a 564 (1971).

-~14-

There are two ways to view Judge Mangum's

testimony at the suppression hearing. The Peti-

tioner's view is that Judge Mangum said, in

effect, that he issued the Warrant because the

affiants were law-enforcement officers.

Another view, and Respondent believes it is

the better one, is that Judge Mangum was saying

he believed the allegations made in the affidavit

pecause the affiants were law-enforcement officers.

At the hearing, Agent Campbell testified,

"I...typed up the Affidavit and gave it to Judge

Mangum. He read it" (R. 47); "I basically told

Judge Mangum the extent of the investigation and

---Il typed up the Affidavit...and...I observed

him read...those Underlying Facts and he then

signed the Affidavit...and Search Warrant"

(R. 56).

On cross-examination, defense counsel asked

Judge Mangum, "Now, did you review these Under-

lying Facts and Circumstances before you signed

this Affidavit?", and the judge answered, "I

Counsel's next questions and the judge's

answers are important to this analysis because

ct

hey reveal that the judge did in fact consider

ct

he allegations in the affidavit and because

they reveal that what the judge was talking about

at the hearing was his acceptance of those alle-

gations as true because the affiants were sworn

law-enforcement officers:

Q. Did you rely on everything

in there before you issued this

Search Warrant?

A. I put the man under oath

and I had no reason not to believe

him.

Q. Now, you say the ‘'man?'

A. Or the men under oath,

men under oath.

Q. Okay, you put the men

under oath?

A. That's exactly right.

QO. And then based on what they

told you--

A. That's exactly--that's the

reason I--

QO. --you issued the Search

Warrant?

A. That's right.

Q. Okay. Now, I notice a

statement in here [regarding

McCommon's presence at the resi-

dence in Miami]. Now, you had

that information available to you?

A. That's right.

Q. And you believed that?

A. That's exactly right.

Q. And your belief on that

statement is part of the reason

you issued the Search Warrant?

A. That's right.

Q. OKay. Now, there is a

statement in here [regarding

McCommon's statement that he had

been camping on the Mississippi

Gulf Coast]. Okay, now, you

relied on that statement as part

of the reason for giving the

Search Warrant?

A. Well, they--

ahPu

QO. They told you he had lied

about that, didn't they?

A. That's exactly right.

QO. Okay. And the fact that

he had made that statement to him

when they knew that that was a lie

is part of the reason that you--

as underlying facts and circum-

stances that caused you to issue

the Search Warrant?

A. Well, I had no reason not

to believe them.

QO. I'm not saying whether or

not you didn't believe them or not.

I'm saying that those are some of the

facts that cause” you to issue the

Search Warrant?

A. That's correct on their

statement--

Q. Because they said, ‘Okay,

the man said he had been to the

Gulf Coast, he had been to the KOA

Campground, we know he's lieing [sic]

because we followed him to Florida.'

Okay, the fact that they told you

that was part of the reason why

you issued the Search Warrant--

A. That's correct.

QO. -~-because he had lied to

them?

afte

~

A. Exactly. After they had

been placed under oath, now.

O. I understand that. I'm

190t talking about when that

sequence happened. I'm talking

about the fact that they told you

that he had lied about where he had

been when they knew he had been to

Miami and he had told them he had

been to the KOA Campground and they

knew he was lieing [sic] and they

told you that you said, well, I

think that's part of the reason why

we ought to issue a Search Warrant,

didn’t you?

A. That's right.

Q. OKay. And they also told

5 that he had some associates

arrested up in Alcorn County for

ssession of 500 pounds of Mari-

juana, didn't they?

Q. And you relied on that

also? (Showing the witness.)

Up at the top here.

A. (Witness examines the

document.) Now, wait a minute.

You're saying 500 pounds and it

doesn't say anything about 500

pounds in this.

[At this point counsel and the witness

became confused as to which paragraph of the

ou

affidavit was being discussed (R. 162-164)].

Q. All right. Now, if, in

fact, two associates of Mr. McCommon--

if the two people arrested in Alcorn

County for possession of 500 pounds

of Marijuana were not associates of

Mr. McCommon, would that have made

any difference to you?

A. No, I don't think it would.

Q. It wouldn't have made any

difference? All right, if the fact

that he had not been seen at the--

if he had not been to the residence

in Miami, Florida, of a documented

marine drug smuggler, would that

have made any difference to you?

A. Yes, if they hadn't

mentioned it, it would have made a

difference.

QO. In other words--

A. When they stated that in the

underlying facts there, that's more

proof that they needed a Search

Warrant.

QO. Okay. If they had not told

you that--I'm going to read this and

I'm going to read it while you're

looking at it. If they had not made

this statement, ‘On October 4, 1982,

McCommon was observed by affiants at

a residence in- Miami, Florida, who

was occupied by a person known to The

Drug Enforcement Administration as

a Marine Smuggler,' now if that

statement was not in there or if you

knew that statement was not true,

would that have made any difference

in your issuing of this Search

Warrant?

A. No, it wouldn't.

(R. 159-165).

[At this point begins the portion of Judge

Mangum's testimony excerpted by the Petitioner

in his brief (R. 165-167).]

Again and again Judge Mangum testified that

he read and considered the allegations in the

affidavit in deciding that probable cause existed;

again and again he stated that he believed those

allegations to be true because the affiants were

law-enforcement officers and because they were

under oath.

In ruling on the claim that Judge Mangum

was not acting as a neutral and detached magis-

trate, the Mississippi Supreme Court found as

follows:

Judge Mangum was called as a wit-

ness for the state during the suppres-

alin

Sion hearing in this cause. On cross-

examination by the defense attorney,

Judge Mangum testified that he relied

primarily on the fact that the people

who requested the warrant were sworn

police officers rather than anything

in particular in the affidavit of

underlying facts and circumstances.

Judge Mangum did add however, ‘Well,

if I didn't feel like it was warranted,

now, then, naturally, I wouldn't issue

at.”

McCommon asserts that the judge's

testimony that he primarily relied on

the fact that sworn police officers

were asking for the warrant is evid-

ence that he was not a neutral and

detached magistrate. We disagree.

Judge Mangum's testimony that he would

not have issued the warrant had he not

thought it appropriate is evidence

that he was not serving 'merely as a

rubber stamp for the police.'

McCommon v. State, 467 So.2d 940,

942 (Miss., 1985).

As the Petitioner's brief shows, Judge

the police fulfill their duties, and Judge

any particular thing he might tell you?" (R.

These statements, read out of the context of

a22e

Mangum did say he felt it was his duty to help

Mangum did answer "That's right" to the question,

"And it's really based on the request other than

166).

the judge's other testimony, cast the judge in an

unfair light. Taking the judge's testimony as

a whole, Respondent submits that Judge Mangum

did "judge for himself the persuasiveness of the

facts relied on by [the] complaining officer to

show probable cause." Aguilar, supra, 378 U.S.

at 113, 84 S.Ct. at 1513, 12 L.Ed.2d at 727,

quoting Giordenello v. United States, 357 U.S.

480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503,

» 1509 (1958).

That Judge Mangum's testimony revealed a pro-

police, non-judicial attitude was recognized by

the Mississippi Supreme Court, which expressed

| its strong disapproval of Judge Mangum's atti-

| tude in the majority opinion (467 So.2d at 942)

and even more forcefully in the concurring

opinion (467 So.2d at 943-945). The Court's

response was both appropriate and adequate: the

reviewing court's task was "merely [to] decid[e]

whether the evidence as a whole provided a 'sub-

stantial basis' for the magistrate's finding of

-23-

probable cause" and not to conduct a "de novo

probable cause determination." Upton, supra,

U.S. at , 104 §.Ct. at 2088, 80 L.Ed.2d

at 727. "“(T)jhe exclusionary rule is designed

to deter police misconduct rather than to punish

the errors of judges and magistrate." United

States v. Leon, U.S. ‘ , 104 §.Ct.

3405, 3418, 82 L.Ed.2d 677, 694 (1984).

Probable cause was fully present and fully

established, and Judge Mangum's subjective state

of mind, however viewed, provides no basis for

reversal of this conviction. As stated by the

trial judge,

{[I]n overruling the Motion to

Suppress, it is my understanding that

if there was sufficient evidence either

in the statement made--written state-

ment made by the officers or in the

testimony that they gave to Judge

Mangum to justify Judge Mangum to find

probable cause, regardless of what

his personal feelings were, I mean

what made him do it, whether he had

egg for breakfast or something

bitter, I don't think would enter

into it. I think if it's there,

atée

then that is sufficient. (R. 170).

As stated in the Specially concurring opin-

ion of the Mississippi Supreme Court,

It is also my view that the Con-

stitution does not require a review-

ing court to probe the state of mind

of every magistrate who issues a search

warrant, and the majority opinion

should so state.

In this case it is abundantly

Clear that the officers had probable

Cause to make the affidavit, and that

the magistrate was furnished with

facts constituting probable cause.

Furthermore, he held an officially

neutral and detached position from

the officers.

Neither the circuit judge nor

we are required to go further.

467 So.2d at 946,

Lie

EVEN IF THE SEARCH WARRANT WERE

NOT VALID, THE EVIDENCE WAS

ADMISSIBLE BECAUSE NO SEARCH

WARRANT WAS NECESSARY.

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

45 S.Ct. 280, 69 L.Ed. 543 (1925), "holds a search

o24<

warrant unnecessary where there is probable cause

to search an automobile stopped on the highway;

the car is movable, the occupants are alerted,

and the car's contents may never be found again

if a warrant must be obtained. Hence an immedi-

ate search is constitutionally permissible."

Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct.

1975, 1981, 26 L.Ed.2d 419, 428 (1970). In the

present case, aS in Carroll and Chambers, the

search had to be made immediately without a

warrant or the car had to be held for the length

of time necessary to obtain the warrant: "Given

probable cause to search, either course is

reasonable under the Fourth Amendment." Id

—

399 U.S. at 52. The later search at the jail

was equally permissible. Texas v. White,

423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d

209, 211 (1975).

Even if it were to be found that the search

warrant herein was constitutionally insufficient,

-26-

the conviction is valid because the agents acted

upon probable cause, as Respondent has argued

above, under Part I-A. See also, California v.

Carney, U.S. , 37 Cr.L.Rptr. 3033 (1985);

United States v. Johns, U.S. » we GHoelte

Rptr. 3134 (1985).

afta

CONCLUSION

Under the “totality-of-the-circumstances”

analysis mandated by Gates and applied by the

trial court and the Mississippi Supreme Court in

this case, the affidavit was more than sufficient

to justify the issuance of the search warrant.

The record demonstrates that the issuing magis-

trate considered the allegations in the affida-

vit and based his decision to issue the warrant

on his finding that the affidavit stated probable

cause; he did not act as a rubber stamp for the

police. It is the adequacy of the affidavit,

and not the subjective feelings of the

magistrate, that the reviewing court must con-

Sider in deciding whether the principles of the

Fourth Amendment have been violated in a parti-

cular case, and even if the record showed (which

this record does not) that the magistrate had

failed to weigh and consider the affidavit's

allegations, no cause for reversal would be

present.

The Respondent therefore respectfully

submits that the Petition for Writ of Certiorari

herein ought to be denied.

Respectfully submitted,

EDWIN LLOYD PITTMAN

ATTORNEY GENERAL

STATE OF MISSISSIPPI

WAYNE SNUGGS

ASSISTANT ATTORNEY GENERAL

COUNSEL OF RECORD

DeWITT ALLRED

SPECIAL ASSISTANT ATTORNEY GENERAL

OF COUNSEL

Office of the Attorney General

Post Office Box 220

Jackson, Mississippi 39205

Telephone: 601/359-3680

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CERTIFICATE

I, Wayne Snuggs, an Assistant Attorney

General for the State of Mississippi, do hereby

certify that I have this day caused to be mailed,

via United States Postal Service, first-class

| postage prepaid, three (3) true and correct

copies of the foregoing Brief in Opposition to

the following:

Samuel H. W’ kins, Esquire

105 North State Street

Post Office Box 504

Jackson, Mississippi 34205

Counsel for Petitioner

This, the 3zp day of October, i985.

}

WAYNE SNY$GS

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