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TERRY v. STATE
Case Summary — No. 43346 (April 19, 1965)
Factual and Procedural Background
Jessie Terry (appellant) was convicted in the Circuit Court of Lee County of possession of intoxicating liquor, second offense, fined $500 and sentenced to six months in the county jail (Miss. Code Ann. § 2613 (b) (1956)). The conviction was based on whiskey found in appellant's automobile after officers acting on an anonymous telephone tip waited on a country road, observed a car matching the description given, shone two red signal lights from the sheriff's car toward the parked automobile, and then pursued the automobile when it drove away at high speed. The officers had no search warrant and no arrest warrant. At the subsequent stop (after a high-speed pursuit and a turn-over), several cases of whiskey were found and admitted into evidence at trial. On appeal the central questions were whether the search and seizure were valid (including whether probable cause existed based on the anonymous telephone call) and whether the arrest/search began before appellant drove recklessly to evade officers. The trial court admitted the evidence; on appeal the court reversed the conviction and discharged the appellant.
Legal Issues Presented
- Whether the search of appellant's automobile without a warrant was supported by probable cause when the information relied upon came from an anonymous telephone informant.
- Whether the arrest and search began at the point the officers initiated pursuit (by pulling up behind appellant with red signal lights) and, if so, whether officers then had authority to arrest and search without a warrant.
Arguments of the Parties
Appellant's Arguments
- Appellant is protected by the United States and Mississippi Constitutions against unreasonable searches and seizures (citing several authorities such as Adams v. State; Pickle v. State; State v. Watson; Turner v. State; and Code § 2615).
- Officers who search an automobile without a warrant are not the final judges of the credibility of the information; probable cause must be supported by credible information (citing numerous cases including Branch v. State; Branning v. State; Elardo v. State; and Mapp v. State).
- The arrest and search began when officers started to pursue or overtake appellant, and authorities on pursuit and seizure support this proposition (citing Ford v. City of Jackson; Gause v. State; McNutt v. State; One 1948 Pontiac Automobile v. State; and Smith v. State).
- To convict for a second violation of the intoxicating liquor statute the State had to prove a prior conviction, which the State failed to do (citing Code § 2613).
Appellee's Arguments
- The arrest of appellant was proper (citing Fanning v. State; Ford v. City of Jackson; Goodman v. State; Smith v. State).
- The State had sufficient proof of a prior conviction (citing Entrekin v. Tide Water Associated Oil Co.; Goldsby v. State; Viator v. Stone).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Adams v. State, 202 Miss. 68, 30 So.2d 593 | Cited by appellant for protection against unreasonable searches and seizures. | Cited in appellant's brief; the court discussed constitutional protection generally but did not explicitly base a discrete ruling on this case. |
| Pickle v. State, 172 Miss. 563, 160 So. 909 | Used to show that an anonymous telephone informant's information may be insufficient to constitute probable cause. | The court expressly relied on Pickle to hold the anonymous telephone information did not constitute probable cause for the warrantless search. |
| State v. Watson, 133 Miss. 796, 98 So. 241 | Cited by appellant under the general protection against unreasonable searches and seizures. | Cited in appellant's brief; the court's opinion did not specifically invoke this case in its analysis. |
| Turner v. State, 133 Miss. 738, 98 So. 240 | Cited by appellant under the general protection against unreasonable searches and seizures. | Cited in appellant's brief; not specifically applied in the court's written analysis. |
| Branch v. State, 171 Miss. 301, 157 So. 875 | Cited to support that officers are not final judges of credibility when searching without a warrant. | Cited in appellant's brief; the court adopted the general principle that credibility must support probable cause but did not expressly analyze this case. |
| Branning v. State, 215 Miss. 223, 60 So.2d 633 | Cited for the proposition that officers cannot solely judge credibility for warrantless searches. | Cited in appellant's brief; not specifically applied in the court's analysis. |
| Elardo v. State, 164 Miss. 628, 145 So. 615 | Cited by appellant on issues of search and seizure credibility. | Cited in appellant's brief; the court did not expressly apply this precedent in its opinion. |
| Gardner v. State, 145 Miss. 210, 110 So. 588 | Cited by appellant in support of search-and-seizure principles. | Cited in briefing; not individually applied in the court's written reasoning. |
| Hamilton v. State, 149 Miss. 251, 115 So. 427 | Cited by appellant under search and seizure law. | Cited in appellant's brief; the opinion does not separately invoke this case. |
| Hill v. State, 151 Miss. 518, 118 So. 539 | Cited by appellant regarding searches without warrant. | Cited in appellant's brief; not specifically applied by the court. |
| McGowan v. State, 184 Miss. 96, 185 So. 826 | Cited by appellant on search and seizure matters. | Cited in the brief; not expressly relied upon in the opinion. |
| Mapp v. State, 148 Miss. 739, 114 So. 825 | Used to support that defendant's counsel is entitled to disclosure of informant identity and facts underlying officers' actions. | The court cited Mapp to state that counsel is entitled to know who gave the information and to full disclosure to challenge probable cause. |
| Perry v. State, 150 Miss. 293, 116 So. 430 | Cited by appellant in discussion of search-and-seizure law. | Cited in appellant's brief; the court's opinion did not specifically apply this case. |
| Perry v. State, 154 Miss. 212, 122 So. 398 | Cited by appellant on search/seizure principles. | Listed in appellant's brief; not separately applied in the opinion. |
| State, For Use and Benefit of Kemper County v. Brown, 219 Miss. 383, 68 So.2d 419 | Cited by appellant in briefing on search and seizure authority. | Cited in appellant's brief; the opinion did not rely explicitly on this case. |
| Ford v. City of Jackson, 153 Miss. 616, 121 So. 278 | Cited for the proposition that the search begins when the pursuit begins. | The court relied on Ford among authorities to conclude the search began when pursuit began. |
| Gause v. State, 203 Miss. 377, 34 So.2d 729 | Cited regarding the timing of arrest/search relative to pursuit. | The court cited Gause as supporting the principle that an unlawful initial pursuit cannot be cured by subsequent events. |
| McNutt v. State, 143 Miss. 347, 108 So. 721 | Cited by appellant in relation to officer conduct and pursuit. | Cited in appellant's brief; not separately analyzed in the opinion. |
| One 1948 Pontiac Automobile v. State, 221 Miss. 352, 72 So.2d 692 | Cited by appellant on automobile search principles. | Cited in appellant's brief; the opinion did not explicitly apply this decision. |
| Sellers v. Lofton, 149 Miss. 849, 116 So. 104 | Cited by appellant in support of limitations on warrantless searches. | Cited in appellant's brief; not expressly applied by the court. |
| Smith v. State, 240 Miss. 738, 128 So.2d 857 | Cited for the proposition that a search begins when pursuit begins and for related arrest/search timing rules. | The court cited Smith to support that the search begins when pursuit begins and used it in concluding the officers' pursuit constituted the start of the search/arrest. |
| Fanning v. State, 249 Miss. 124, 161 So.2d 199 | Cited by appellee in support of the arrest's validity. | Cited in appellee's brief; the opinion did not specifically adopt Fanning as controlling in its final analysis. |
| Goodman v. State, 158 Miss. 269, 130 So. 285 | Cited by appellee on arrest issues. | Cited in appellee's brief; not specifically applied by the court in its opinion. |
| Entrekin v. Tide Water Associated Oil Co., 203 Miss. 767, 35 So.2d 305 | Cited by appellee regarding proof of prior conviction. | Cited in appellee's brief; the court's opinion does not discuss the State's proof of prior conviction in detail. |
| Goldsby v. State, 240 Miss. 647, 123 So.2d 429 | Cited by appellee concerning proof of prior conviction. | Cited in appellee's brief; not directly applied in the court's reasoning. |
| Viator v. Stone, 201 Miss. 487, 29 So.2d 274 | Cited by appellee on the proof of prior conviction issue. | Cited in appellee's brief; not explicitly applied in the court's decision. |
| Harris v. State, 209 Miss. 183, 46 So.2d 194 | Cited for the proposition that an initially unlawful pursuit cannot be validated by subsequent traffic violations during escape. | The court cited Harris in support of the rule that subsequent traffic violations do not authorize an arrest which began unlawfully. |
| Butler v. State, 135 Miss. 885, 101 So. 193 | Cited regarding limits on arrest authority and pursuit. | Cited by the court as authority for the principle that an unlawful initial pursuit cannot be cured by later events. |
Court's Reasoning and Analysis
The court's analysis proceeded from Mississippi Constitution article 3, section 23 (1890) (security from unreasonable search and seizure and requirement of probable cause for warrants) and Mississippi Code Annotated section 2615 (1956) (statutory authority to search an automobile if officer has reason to believe intoxicating liquor is being transported in violation of law). The court articulated and applied the following points:
- The constitution and statute permit a warrantless automobile search only when supported by probable cause; such probable cause must be based on information from a credible person. (Hn 1–Hn 3)
- Whether probable cause existed is a judicial question for the court to decide; defense counsel is entitled to know the identity of informants and full facts on which officers acted to challenge probable cause. The court cited Mapp v. State for this disclosure principle. (Hn 3–Hn 5)
- The anonymous telephone information in this case—that appellant would be traveling on a certain road at a certain time making a whiskey delivery—did not constitute probable cause sufficient to justify a warrantless search. The court relied on Pickle v. State for the proposition that anonymous tips standing alone are insufficient. (Hn 5)
- The court treated the initiation of pursuit as the beginning of the search/arrest process. An arrest (and the search that accompanies it) begins when the officer commences pursuit for the purpose of making the arrest; therefore, if officers lacked authority to arrest at that moment, evidence obtained thereafter is tainted. The court cited authorities including Smith v. State and Ford v. City of Jackson for this timing rule. (Hn 6–Hn 9)
- Applying these principles to the facts, the court found that the officers had been waiting specifically for appellant for over two hours, that they pulled up behind his stopped car and displayed two red signal lights, and that at that point pursuit (and thus the search/arrest) began. At that moment the officers did not have legal authority to make the arrest or warrantless search. Because they lacked authority when pursuit began, evidence seized after appellant was overtaken was improperly admitted. (Hn 10)
Holding and Implications
Holding: The trial court's judgment is reversed and the appellant is discharged. The trial court erred in admitting the evidence obtained as a result of the search.
Implications:
- Direct effect: The conviction for possession of intoxicating liquor, second offense, was reversed and the appellant discharged.
- Substantive guidance from the opinion: The court reaffirmed that (1) warrantless automobile searches require probable cause supported by information from a credible person, (2) anonymous telephone tips standing alone are insufficient to constitute probable cause for a warrantless search, (3) pursuit by officers begins the search/arrest process and officers must have authority at that moment to arrest/search, and (4) an initially unlawful pursuit cannot be validated by subsequent events (such as later traffic violations during flight). These rules were applied to reverse admission of the seized evidence in this case.
Disposition: Reversed and appellant discharged.
1. Intoxicating liquors — search of automobile without a warrant — probable cause — must be supported by information from credible person.
Search of automobile in which officers believe intoxicating liquor is being transported in violation of law must be based upon probable cause, supported by information from credible person. Art. 3, Sec. 23, Constitution 1890.
2. Searches and seizures — same — probable cause — facts must be sufficient to constitute.Facts upon which officer acts in searching automobile must be sufficient to constitute probable cause. Art. 3, Sec. 23, Constitution 1890.
3. Searches and seizures — probable cause — a judicial question.Whether officer had probable cause for search of automobile is judicial question for decision of Court. Art. 3, Sec. 23, Constitution 1890.
4. Searches and seizures — search of automobile without a warrant — probable cause — defendant entitled to full disclosure of facts upon which officers acted.Counsel of defendant charged with possession of intoxicating liquor, based upon search and seizure of liquor in defendant's automobile, was entitled to know who gave information to officers concerning such possession, and to obtain full disclosure of facts upon which officers acted, in order to present issue of whether there was probable cause for such seizure without authority of law. Art. 3, Sec. 23, Constitution 1890; Sec. 2615, Code 1942.
5. Searches and seizures — same — probable cause — information obtained from anonymous telephone call as not constituting.Information obtained from anonymous telephone informer that defendant would be traveling on certain road, in his automobile, around certain time, making delivery of whiskey, did not constitute probable cause for search of defendant's automobile by officers who had no search warrant. Art. 3, Sec. 23, Constitution 1890; Secs. 2470, 2615, Code 1942.
6. Searches and seizures — same — search begins when pursuit begins.Search of automobile begins when pursuit by police officers begins. Art. 3, Sec. 23, Constitution 1890.
7. Arrest — without a warrant — when officer may arrest.Sheriff has no right to arrest without warrant unless it is evident to him that some breach of peace is being threatened or crime is being committed in his presence. Art. 3, Sec. 23, Constitution 1890; Secs. 2470, 2615, Code 1942.
8. Arrest — same — arrest begins when pursuit begins for such purpose.Arrest begins when officer begins his pursuit for purpose of making it. Sec. 2470, Code 1942.
9. Arrest — same — pursuit — violation of traffic law as not authorizing an arrest.If officer does not have authority to make arrest at instant he begins his pursuit for that purpose, fact that person the officer is pursuing violates traffic law in making his escape does not thereby authorize arrest which began unlawfully. Art. 3, Sec. 23, Constitution 1890; Sec. 2470, Code 1942.
10. Arrest — same — same — same — evidence obtained as result of search, improper.Where officers had been waiting for over two hours on country road in early morning for defendant, defendant drove by in his automobile, not violating the law, and stopped on the side of the highway, and officers then pulled up behind him, with red signal lights operating on their vehicle, pursuit of defendant by officers began at that point; and inasmuch as at that point they did not have legal authority to make arrest and search, admission of evidence obtained as result of search occurring after defendant was overtaken was improper. Art. 3, Sec. 23, Constitution 1890; Secs. 2470, 2615, Code 1942.
Headnotes as approved by Ethridge, J.
ETHRIDGE, J.
Jessie Terry, appellant, was convicted in the Circuit Court of Lee County of the possession of intoxicating liquor, second offense, fined $500 and sentenced to six months in the county jail. Miss. Code Ann. § 2613 (b) (1956). The question is whether the search and seizure of the liquor in appellant's automobile was valid. This includes the issues of whether there was probable cause for the search when the officers were acting on a telephone call from an anonymous informant, and whether the arrest began before appellant drove his automobile recklessly and at high speed in an attempt to evade the officers.
On the night in question, Sheriff Webb, Deputy Sheriff Moore, and Constable Wilson were together at a truck stop. Wilson obtained information from an anonymous telephone caller that Jessie Terry would be traveling a certain road in his automobile around 4:30 a.m., making a delivery of whiskey. The anonymous information indicated, and the officers thought that this whiskey would be delivered to a particular bootlegger in that vicinity. Accordingly, the three officers parked their car on a side road in the country and waited for Terry to pass in his automobile, the description of which they knew. At 4:20 a.m. a car of that description, given to the constable by the anonymous informer, proceeded down the road headed toward the bootlegger's house. At this time Terry was violating no law. The plan of the officers was for Terry to drive into the bootlegger's yard, and they would then catch him. The officers had no search warrant for appellant's car, and no warrant for his arrest.
Instead of Terry turning into this place, he pulled over to the side of the road, stopped and turned his car lights off. When the officers saw that Terry was not turning into the bootlegger's driveway, they moved on up the road, came into view of Terry's car, and gave a "signal or warning" with two red lights on the front of the sheriff's car. At the time this was done, Terry was not violating any law. The sheriff said when he pulled his automobile into the road toward Terry, he wanted to see what was going on.
With the two red lights shining on the front of the sheriff's car, at night on the country road, Terry started up his car and drove away at a high rate of speed, chased by the officers. He turned over after running about three miles, and the officers found several cases of whiskey in his vehicle. This was the evidence used in this case.
The sheriff said that after Terry's car passed the bootlegger's house, "I was after the automobile that Mr. Terry was driving from then on." His sole purpose in waiting out there two hours on the night in question was to catch Terry with the whiskey. Asked whether he gave any warning signal to defendant that he was pursuing him, the sheriff said, "I had my red light on, two of them that sets ( sic) in front of the car." Deputy Sheriff Moore said that two or three minutes after Terry's car passed them, they drove toward the bootlegger's house; that they came up behind him, with the police red lights on the front of their car; and that then Terry, who was stopped, took off in a burst of speed.
Mississippi Constitution article 3, section 23 (1890) provides that the people shall be secure "from unreasonable seizure or search; and no warrant shall be issued without probable cause. . . ." Mississippi Code Annotated section 2615 (1956), recognizing that automobiles provide a particular problem, states that the sheriff and other officers have the power, if they have reason to believe that intoxicating liquor is being transported in violation of law in any automobile, to make a reasonable search of the vehicle, to seize the liquor, and to arrest the person in possession thereof.
(Hn 1) However, such search of a vehicle without authority of law must be based upon probable cause, supported by information from a credible person. (Hn 2) The facts upon which the officer acts must be sufficient to constitute probable cause, (Hn 3) and this is a judicial question for the decision of the court. (Hn 4) Defendant's counsel is entitled to know who gave the information, and to obtain a full disclosure of the facts upon which the officer acted, in order to present the issue of whether there was probable cause. Mapp v. State, 148 Miss. 739, 114 So. 825 (1927). (Hn 5) The information obtained from the anonymous telephone informer did not constitute probable cause for the search made by these officers. Pickle v. State, 172 Miss. 563, 160 So. 909 (1935). They had no search warrant for appellant's car, and did not have the probable cause required by Constitution article 3, section 23 and Code section 2615 to make the search without a warrant.
(Hn 6) Furthermore, no misdemeanor was being committed by appellant in the presence of the officers at the time the arrest and search began. The search begins when the pursuit begins. Smith v. State, 240 Miss. 738, 128 So.2d 857 (1961); Ford v. City of Jackson, 153 Miss. 616, 121 So. 278 (1929). (Hn 7) The sheriff had no right to arrest defendant unless it was evident to him at the time that some breach of the peace was being threatened or a crime was being committed in his presence. Miss. Code Ann. § 2470 (1956). (Hn 8) An arrest begins when an officer begins his pursuit for the purpose of making it. (Hn 9) If he does not have the authority to make an arrest at the instant he begins his pursuit for that purpose, the fact that the person the officer is pursuing violates a traffic law in making his escape does not thereby authorize the arrest which began unlawfully. Smith v. State, supra; Harris v. State, 209 Miss. 183, 46 So.2d 194 (1950); Gause v. State, 203 Miss. 377, 34 So.2d 729 (1948); Butler v. State, 135 Miss. 885, 101 So. 193 (1924).
(Hn 10) In the instant case, the officers had been waiting for over two hours on a country road in the early morning hours for a specific person, the defendant. He drove by in his car, not violating the law, and stopped on the side of the highway. The officers then pulled up behind him with the two police, red signal lights on. At that point we think the pursuit of appellant by the officers began. At that point it was essential that they have legal authority to make the arrest and search. They did not have it, and the trial court erred in admitting the evidence obtained as the result of the search in question.
Reversed and appellant discharged.
Lee, C.J., and Gillespie, Brady, and Inzer, JJ., concur.
GILLESPIE, J., concurring:
I concur in this decision because binding authority of former cases requires that I do so. However, in my opinion, and with deference, I believe there has been too much refinement in the law of arrests and concerning unreasonable searches and seizures. There is authority for the proposition that the arrest in this case began when the officers turned on the red lights of their car. This does not seem to me to be a reasonable rule and I do not think people should be licensed to flee when they see officers approaching on the public highways and in fleeing violate the speed laws and other traffic laws. Officers should have a right to patrol any highway at any time and turn on red lights without justifying others in violating the traffic laws. Therefore, I think the law should be other than what it is, but I yield to authority. In my opinion the law in the areas of arrest and searches and seizures has developed in the abstract without proper regard for the realities officers face in enforcing the law.
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