Opinion
No. 2003-KA-01601-COA.
March 8, 2005. Petition for Rehearing Filed March 22, 2005.
COURT FROM WHICH APPEALED: LEAKE COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. V.R. COTTEN, DATE OF JUDGMENT: 5/16/2003
DISPOSITION: AFFIRMED
ATTORNEY FOR APPELLANT: JOHN R. McNEAL
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
BEFORE BRIDGES, P.J., MYERS AND BARNES, JJ.
¶ 1. A jury sitting before the Leake County Circuit Court found Adam Roebuck guilty of possession of precursor drugs with the intent to manufacture crystal methamphetamine, a violation of Section 41-29-313(1)(a)(i) of the Mississippi Code. The circuit court sentenced Roebuck to serve a ten year sentence with the Mississippi Department of Corrections. Although Roebuck filed a motion for judgment notwithstanding the verdict or, alternatively, for a new trial, the circuit court denied those motions. Aggrieved, Roebuck appeals and asserts the following:
I. THE CIRCUIT COURT ERRED AS A MATTER OF LAW BY DENYING ROEBUCK'S MOTION TO SUPPRESS EVIDENCE BASED ON A LACK OF PROBABLE CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT.
II. THE CIRCUIT COURT ERRED AS A MATTER OF LAW BY FAILING TO GRANT ROEBUCK'S MOTION FOR A DIRECTED VERDICT OR, IN THE ALTERNATIVE, A JUDGMENT NOTWITHSTANDING THE VERDICT OF THE JURY BECAUSE THE EVIDENCE WAS INSUFFICIENT TO MEET THE BURDEN OF PROOF TO PROVE THE PRIMA FACIE ELEMENTS OF THE CHARGE ROEBUCK WAS CHARGED WITH.
III. THE CIRCUIT COURT ERRED AS A MATTER OF LAW BY FAILING TO GRANT A MISTRIAL.
Having reviewed Roebuck's allegations, we affirm the decision of the circuit court.
FACTS
¶ 2. On June 6, 2001, a confidential informant placed telephone calls to Agent Jimmie Nichols of the Mississippi Bureau of Narcotics and Deputy Investigator Mark Wilcher of the Leake County Sheriff's Office. The confidential informant reported that he had been at Adam Roebuck's residence and had seen methamphetamine inside Roebuck's house. The confidential informant also reported that he had observed Roebuck and another individual using methamphetamine as well as preparing or "cooking" methamphetamine.
¶ 3. Determined to secure a warrant to search Roebuck's house, Nichols prepared an affidavit, supplemented with a description of underlying facts and circumstances. Afterwards, Nichols and Wilcher went before Judge Ruby Graham of the Leake County Justice Court. Nichols presented his affidavit, accompanied by an underlying facts and circumstances sheet, to Justice Court Judge Graham. Wilcher offered oral testimony. Satisfied that probable cause for a search warrant existed, Judge Graham issued a search warrant. According to that search warrant, Nichols and Wilcher had authority to search Roebuck's residence. Armed with the search warrant, Nichols and Wilcher, among others, executed the search warrant approximately three to four hours after receiving contact from the confidential informer.
¶ 4. Roebuck was at home when Nichols and Wilcher executed the search warrant. Nichols and Wilcher proceeded to search Roebuck's property. When authorities searched Roebuck's house, they found a trace amount of ephedrine or pseudoephedrine on some coffee filters and a box of salt. Additionally, agents found lithium battery casings in the yard. That is, the lithium had been stripped from the batteries. The agents did not actually find lithium on Roebuck's property. There was not enough evidence to give rise to an arrest of Roebuck at that time.
¶ 5. However, shortly after Nichols and Wilcher arrived at Roebuck's house, they heard a four-wheeler leave from somewhere around Roebuck's mobile home. Although authorities tried to pursue the four-wheeler, the unknown driver cut through some woods and a pasture and went out of their sight. Roebuck was not the driver, as he was on the property during the search.
¶ 6. When they failed to apprehend the anonymous driver of the four-wheeler, Wilcher and Agent Joey Mayes of the Mississippi Bureau of Narcotics opted to travel to another location. Wilcher stated that he had been contacted by an individual who reported that four wheelers traveled from Roebuck's property to property owned by a third party "at all hours of the day." According to trial testimony, that third-party property was tied up in an estate. Wilcher reported that he had obtained permission from "someone involved with the estate" to go onto that estate property. Wilcher never attempted to obtain a warrant to search the estate property. The "estate property" was in the opposite direction of the four wheeler flight.
¶ 7. During Wilcher's and Mayes's search of the estate property, they discovered a "clandestine methamphetamine lab." They found a small bag, closed with a zipper. Six cans of Warren Premium Starter Fluid were inside that bag. Starter fluid contains ethyl ether. Ethyl ether is a precursor to manufacture of methamphetamine. Miss. Code Ann. § 41-29-313(3)(a) (Rev. 2001). Authorities also found two tanks of anhydrous ammonia and a green plastic box, commonly used to store tools or fishing tackle. Inside the green tool box, authorities found lithium batteries, a pack of coffee filters, and 98.6 grams of powdered ephederine. Anhydrous ammonia, ephederine, and lithium and are all precursors to manufacture of methamphetamine. Miss. Code Ann. § 41-29-313(3)(b), (d), and (f) (Rev. 2001).
PROCEDURAL HISTORY
¶ 8. The Grand Jury of Leake County returned an indictment against Roebuck on January 8, 2003. Roebuck waived arraignment and pled not guilty. On April 28, 2003, Roebuck filed a motion to compel disclosure of the confidential informant who contacted Nichols and Wilcher. Roebuck also filed a motion to suppress evidence. In his motion to suppress, Roebuck argued that the underlying facts and circumstances portion of Nichols's affidavit did not contain a statement of reliability or a statement that the particular confidential informant had furnished reliable information in the past or that the confidential informant was known to be reliable. Roebuck asked the circuit court to conclude that the affidavit was, therefore, issued without probable cause because it did not establish or corroborate the credibility of the confidential informant who contacted Nichols and Wilcher.
¶ 9. The day before trial, Roebuck's counsel filed a motion to dismiss or, in the alternative, a motion in limine. Roebuck wanted the circuit court to dismiss the case because the State failed to produce the identity of one of the confidential informants. Roebuck argued that the State was required to produce that information according to UCCCR 9.06. Alternatively, Roebuck wanted to prevent the prosecution from presenting any evidence that originated from Roebuck's property/house described in the warrant or any physical location whatsoever (most importantly, the property the methamphetamine laboratory was on). The circuit court denied Roebuck's motions and the matter went to trial.
¶ 10. After the State presented their case-in-chief, Roebuck entered an unsuccessful motion for directed verdict. Following the circuit court's denial of that motion, Roebuck closed his case. The jury found Roebuck guilty. Post-trial, Roebuck filed a motion for judgment notwithstanding the verdict or, alternatively, a motion for new trial. The circuit court denied his motion and Roebuck now brings his grievances before this Court.
I. DID THE CIRCUIT COURT ERR AS A MATTER OF LAW BY DENYING ROEBUCK'S MOTION TO SUPPRESS EVIDENCE BASED ON ALACK OF PROBABLE CAUSE FOR THE ISSUANCE OF A SEARCH WARRANT?
¶ 11. Similar to the Fourth Amendment to the United States Constitution, Article 3, Section 23 of the Mississippi Constitution dictates that the government is prohibited from searching a citizen's home unless the government obtains a search warrant after demonstrating probable cause. U.S. Const. amend.IV; Miss Const. art. 3 § 23; Simmons v. State, 805 So.2d 452 (¶ 60) (Miss. 2001). The information necessary to establish probable cause "must be information reasonably leading an officer to believe that, then and there, contraband or evidence material to a criminal investigation would be found." Petti v. State, 666 So.2d 754, 757 (Miss. 1995). A demonstration of probable cause is sufficient where facts and circumstances, of which an officer has reasonable trustworthy information, should justify a man of average caution to believe that a crime has been committed and that a particular person committed it. Id.
¶ 12. Under the "totality of the circumstances" test, a written affidavit supplemented by oral testimony of police officers can, as combined, establish a "substantial basis" for a determination that probable cause existed for issuance of a search warrant. Id. at 758; see also Miss. Unif. R.P.J.C. 3.03 (stating that a justice court judge can issue a search or arrest warrant after the judge determines that probable cause exists based on an affidavit or other evidence then before the court). But simply repeating an informant's allegation, without more, does not overcome the threshold requirements for probable cause.
¶ 13. While an affidavit may rely on information gleaned from an informer's report that is, information not within the personal knowledge of the affiant an affidavit must present a substantial basis for crediting that hearsay. U.S. v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). That substantial basis has been overcome where the affidavit contains a statement that an officer has successfully used a confidential informant to prosecute criminal allegations in the past. Id. Similarly, it is sufficient where an affidavit contains corroborating evidence to show a confidential informer is truthful and reliable. Id.
¶ 14. Suffice to say, where a request for a search warrant relies on information relayed by a confidential informant, probable cause for issuance of a search warrant exists where law enforcement independently corroborates a confidential informer's statements. The common factor is that, by affidavit or oral testimony, law enforcement must present an issuing judge with some "indicia of veracity or reliability" on the confidential informant's allegation. State v. Woods, 866 So.2d 422 (¶ 14) (Miss. 2003).
STANDARD OF REVIEW
¶ 15. In reviewing a finding of probable cause, this Court does not make a de novo determination of probable cause, but only determines if there was a substantial basis for the determination of probable cause. Smith v. State, 504 So.2d 1194, 1196 (Miss. 1987). "In making our review, this Court looks both to the facts and circumstances set forth in the affidavit for search warrant and as well, the sworn oral testimony presented to the issuing magistrate [or judge]." Petti, 666 So.2d at 758.
ANALYSIS
¶ 16. Roebuck claims that the trial court, by denying his motion to suppress evidence, violated his constitutional right of freedom from unreasonable searches and seizures. Roebuck argues that Justice Court Judge Graham should not have issued the search warrant because the evidence was insufficient to convey probable cause. Particularly, that the affidavit in support of the search warrant lacked indicia of reliability as it did not demonstrate corroborating evidence showing that the informant was truthful and reliable. To demonstrate, Roebuck mentions that law enforcement did not find the evidence that the informant claimed would be present at Roebuck's house. Roebuck reasons that, as such, no indicia of reliability or veracity was included in the affidavit or presented orally. Roebuck concludes that evidence seized as a result of the alleged improper search warrant should have been suppressed as "fruit of the poisonous tree." Accordingly, this Court must resolve whether the issuing justice court judge had sufficient evidence of probable cause for issuance of the search warrant.
¶ 17. Nichols prepared an affidavit and the accompanying facts and circumstances sheet. The underlying facts and circumstances sheet said:
Agent Nichols spoke with a confidential source who stated that he/she had been to a residence belonging to Adam Roebuck, a known drug violator. This informant stated that He/She had observed the strong smell of ether, a chemical used to manufacture methamphetamine. This informant stated that Adam Roebuck and Brent White were both at the residence cooking methamphetamine. This informant also stated that methamphetamine was being stored inside this residence for personal consumptionas well as for distribution. This informant also stated that another known drug violator had departed the residence enroute to Jackson with a quantity of Methamphetamine. Deputy Mark Wilcher also received information on this same date from a concerned citizen that he/she was concerned about persons using, distributing and concealing narcotics at this residence. This citizen stated that persons, alleged drug violators, were in and out of this location all hours of the day and night. This citizen also stated that these persons had been around this residence this morning. Agents and Deputies have received numerous complaints about Adam Roebuck manufacturing and distributing methamphetamine from this residence.
The confidential source also stated that he/she had personal knowledge that Adam Roebuck was distributing methamphetamine from this residence and that Adam Roebuck was concealing a quantity of methamphetamine at the residence at this time.
Agent Nichols has been working narcotics in this area for several years and has had an opportunity to investigate Adam Roebuck for the distribution of narcotics. Agent Nichols personally purchased narcotics from Roebuck in an undercover operation. Brent White has also been identified by fingerprint comparisons as being a suspect in another methamphetamine production case in Leake County, Mississippi.
Due to the above mentioned facts and circumstances MBN Agent Jimmie Nichols has good reason to believe and does believe that Adam Roebuck and Brent White are manufacturing methamphetamine at this residence at this time.
¶ 18. However, during the hearing on Roebuck's motion to suppress, Nichols admitted that he did not mention that his confidential informant was credible or believable or that the informant had provided credible information in the past in the affidavit or the underlying facts and circumstances sheet that he presented to Judge Graham. Because sworn testimony indicates that the affidavit does not contain any corroborating evidence indicating that the confidential informant was truthful and reliable, the affidavit, alone, does not support a finding that probable cause existed for issuance of the search warrant. See Woods, 866 So.2d at (¶ 14).
¶ 19. However, Wilcher also presented oral testimony to Judge Graham during their request for a search warrant. During the hearing on the motion to suppress, Wilcher discussed the oral testimony he offered to Judge Graham. Wilcher testified that he told Judge Graham that he had information from two confidential informants. Primarily, the first confidential informant told Wilcher that he observed drug activity at Roebuck's house. The second confidential informant told Wilcher that four-wheelers traveled on the estate property that the clandestine meth lab was found on. At no point did Wilcher mention telling Judge Graham that either confidential informant was truthful and reliable or that the informant had aided in the successful prosecution of criminal investigations. Wilcher did not request a search warrant to search the estate property, but relied on estate consent.
¶ 20. Judge Graham testified at the hearing on the motion to suppress. Judge Graham, reading from the affidavit and the underlying facts and circumstances, stated that the affidavit said "the affiant has good reason to believe and does believe that certain things happened." Judge Graham also conceded that the affidavit does not mention the reliability of the confidential informant.
¶ 21. During arguments at the hearing, Roebuck argued that neither Wilcheror Nichols had any first-hand information regarding crimes committed at Roebuck's house. Further, that any information they had was relayed through a confidential informer. Roebuck stated that, under those circumstances, the law requires reasonably trustworthy information before probable cause arises. Roebuck went on to claim that Judge Graham had no proof that the informant was trustworthy or reliable, only that the information was developed from a confidential informant. Finally, that such information does not meet the standards necessary to issue a search warrant.
¶ 22. The State argued that there is nothing magical about the word "reliable." Further, that the word "reliable" does not have to appear in an affidavit and underlying facts and circumstances for a search warrant to be valid. The State noted that independent corroboration of the informant's report is also a valid method to develop reliability. The State argued that such occurred because Wilcher received additional information from another informant that supported the first informant's report.
¶ 23. The circuit court determined that there were five sources of information that created a "totality of circumstances" that make the search warrant proper. The circuit court stated:
Now, looking at the underlying facts and circumstances, it — and as to what Judge Wilcher had — Judge Graham had before her on that date in June, it looks like there were about five sources of information that she could rely on.
Mr. Nichols, in the first paragraph, he alludes to his experience. He's been in law enforcement 12 years, and seven years in narcotics, particularly. And he also talks in that paragraph about dealing with informants over that period of time.
Then, item number two, we have the underlying facts and circumstances supplemented by Deputy Mark Wilcher, who he says — and he testified before Judge Graham — that he had also received the information that Jimmie Nichols had received and he elaborated on this before her as he gave certain testimony.
Then thirdly, we have the testimony hearsay testimony of concerned citizens, that they had seen the comings and goings and the possible unlawful activity.
Then you have the agents and deputies who have received numerous complaints about the Defendant manufacturing and distributing methamphetamine.
And finally, Agent Nichols, in his last paragraph, and I guess this should be the final sealer of it all, he states, and I quote: "have been working in narcotics in this area for several years and have had an opportunity to investigate Adam Roebuck for the distribution of narcotics."
Agent Nichols personally purchased narcotics from Roebuck in an undercover operation and then he mentions another person, Brent White.
So, as I am reviewing this — as reviewing Court as to what Judge Graham did back in June of 2001, I look at all of these sources of information, and then I plug those into the legal words — the totality of the circumstances — and I am convinced that there was no deficiency, as far as the lack of the word "reliability."
The Judge looked at all of these facets. She determined that there was trustworthiness of the two — of the affiant and the — Deputy Wilcher, and for those reasons, she issued the warrant.
So the Court finds that the motion is not well taken and the motion is overruled and the warrant stands.
¶ 24. However, Judge Graham was not required to determine the trustworthiness of Nichols and Wilcher. This Court does not doubt their trustworthiness or credibility. Because law enforcement must present an issuing judge with some "indicia of veracity or reliability" on the confidential informant's allegation, Judge Graham should have withheld the search warrant unless Nichols and Wilcher overcame that burden. Woods, 866 So.2d at (¶ 14) (emphasis added).
¶ 25. Because nothing in the record before this Court suggests that Nichols or Wilcher presented any basis of reliability on the informer's statement or any suggestion of the veracity of it, the motion to suppress should have been granted. It should be clear that we do not find fault due to lack of the word "reliable" in the affidavit or underlying facts and circumstances. We find fault in the search warrant because nothing before Judge Graham suggested that the informant's information was reliable or true. Further, none of the methods of demonstrating veracity or reliability were before Judge Graham. During their trial testimony, Nichols and Wilcher mentioned that the informant had aided in prior investigations, but they did not relay that information to Judge Graham. The "fruits of the poisonous tree" include the evidence seized as a result of the improper search the coffee filter containing a trace of pseudoephederine and a box of salt.
¶ 26. However, this Court is not inclined to reverse despite the improper search warrant. The majority of the evidence that culminated in Roebuck's conviction did not come from Roebuck's house. The search of the estate property was not dependent on the search warrant. In fact, the evidence seized as a result of the search of Roebuck's house did not produce enough evidence to arrest Roebuck. Roebuck was not fingerprinted incident to an arrest based on the evidence discovered on his property. Accordingly, our invalidationof the search warrant does not invalidate Roebuck's arrest. Nor does it invalidate the evidence obtained by searching the estate property because Wilcher obtained permission to search the estate property. Authorities found anhydrous ammonia, sodium hydroxide, ethyl ether, lithium batteries, and ephederine at the clandestine lab located on the estate property. Roebuck's fingerprints were discovered at the clandestine lab. Despite the invalid warrant to search Roebuck's home, the State still presented evidence that connected Roebuck to the clandestine lab.
II. DID THE CIRCUIT COURT ERR AS A MATTER OF LAW BY FAILING TO GRANT ROEBUCK'S MOTION FOR A DIRECTED VERDICT OR, IN THE ALTERNATIVE, A JUDGMENT NOTWITHSTANDING THE VERDICT OF THE JURY BECAUSE THE EVIDENCE WAS INSUFFICIENT TO MEET THE BURDEN OF PROOF TO PROVE THE PRIMA FACIE ELEMENTS OF THE CHARGE ROEBUCK WAS CHARGED WITH?
¶ 27. Roebuck argues that the evidence was insufficient to convict. However, he does not cite to any case or statutory authority at all.
¶ 28. It is the appellant's duty to provide authority and support of an assignment. Hoops v. State, 681 So.2d 521, 526 (Miss. 1996) (citations omitted). Should the appellant fail to provide such, this Court is under no duty to consider assignments of error when no authority is cited. Id.
III. DID THE CIRCUIT COURT ERR AS A MATTER OF LAW BY FAILING TO GRANT A MISTRIAL?
¶ 29. Roebuck argues that the circuit court erred when it denied his motion for directed verdict, his motion for peremptory instruction, and his motion for judgment notwithstanding the verdict. Such assertions question the sufficiency of the evidence. The standards used to review whether a trial court properly granted or denied a motion for directed verdict, for peremptory instruction, or for JNOV are all the same.
¶ 30. When one challenges the sufficiency of evidence, we must analyze the evidence to determine whether a hypothetical juror could find that Roebuck is guilty beyond a reasonable doubt. May v. State, 460 So.2d 778, 781 (1984). If we determine that no reasonable hypothetical juror could find Roebuck guilty, then the circuit court erred by refusing Roebuck's motion for directed verdict and associated motions. Id. If the facts point in Roebuck's favor to the degree that a reasonable hypothetical juror could not find Roebuck guilty beyond a reasonable doubt, viewing the facts in the light most favorable to the State, this court must affirm the circuit court's decision. Blanks v. State, 542 So.2d 222, 225-26 (Miss. 1989). This Court may reverse only if one or more elements is so lacking that reasonable jurors could only find Roebuck not guilty. McClain v. State, 625 So.2d 774, 778 (Miss. 1993).
¶ 31. Roebuck argues that the circuit court should have granted his motions because the State failed to meet its burden of proof. Roebuck's theory depends upon a finding that the circuit court should have suppressed the evidence obtained from the search of the estate property. That is, Roebuck argues that the search of his home only produced coffee filters that had trace amounts of pseudoephedrine, a box of table salt, and a Wal-Mart bag. Roebuck claims that other elements of a methamphetamine "lab" were not found on his property.
¶ 32. Roebuck declares that all of the testifying officers testified that they could not say that Roebuck was aware of the presence or the character of these items while intentionally and consciously possessing those items. Roebuck also claims that all of the testimony indicated that the methamphetamine lab was found off of his property, on property that he did not control or exercise dominion over that meth lab.
¶ 33. Roebuck argues that there must be sufficient facts to warrant a finding that he was aware of the presence and character of the pertinent substances and must intentionally and consciously exercise possession over it. Flurry v. State, 536 So.2d 1340, 1341 (Miss. 1989). Roebuck recognizes that he may still be convicted by way of constructive possession even if he did not exercise actual physical possession over the contraband but argues that he was not in constructive possession either.
¶ 34. Though the investigation report lists the lab as one-half to three-quarters of a mile away, that distance refers to distance over the road. By direct route that is, through the woods the clandestine lab was approximately two hundred yards from Roebuck's house. However, Roebuck also argues that proximity is usually an essential element of possession but proximity alone is not enough without the presence of other incriminating circumstances. Id.
¶ 35. Roebuck argues that in a situation where the premises on which contraband was found are not in an accused's exclusive possession, that accused is entitled to acquittal absent competent evidence connecting him to the contraband. Id. We agree, as this is an accurate statement of the law. Id. However, we find that competent evidence connects Roebuck to the contraband. As mentioned above, Roebuck's fingerprints were found on material seized at the clandestine lab. Our standard of review requires viewing the evidence in the light most favorable to the State. Blanks, 542 So.2d at 225-26. With that in mind, the interpretation most favorable to the State suggests that the fingerprints discovered at the clandestine lab link Roebuck to the contraband. Accordingly, this assignment of error lacks merit.
¶ 36. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF CONVICTION OF POSSESSION OF PRECURSOR CHEMICALS WITH INTENT TO MANUFACTURE METHAMPHETAMINE AND SENTENCE OF FIFTEEN YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FIVE YEARS SUSPENDED IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY.