Date: 10-06-2020

Case Style:

Case Number: 2019-KA-00024-COA

Judge: Virginia Carter Carlton

Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.

Defendant's Attorney:

Description: Brandon, MS - Criminal Defense Attorney, possession of more than two but less than ten grams of methamphetamine


¶1. A Rankin County grand jury indicted Michael Shane Buford for one count of
possession of more than two but less than ten grams of methamphetamine in violation of
Mississippi CodeAnnotated section 41-29-139 (Supp. 2016). Buford filed a pretrial “Motion
to Suppress Evidence,” which the trial court denied after a hearing on the merits.
¶2. Following a jury trial, Buford was found guilty and adjudged a subsequent drug
offender pursuant to Mississippi Code Annotated section 41-29-147 (Rev. 2013) and a
habitual offender pursuant to MississippiCodeAnnotated section 99-19-81 (Rev. 2015). The
trial court sentenced Buford to serve a term of sixteen years in the custody of the Mississippi
Department of Corrections (MDOC). On appeal, Buford argues that he was the subject of
an illegal search and seizure and contends that the trial court erred by denying his “Motion
to Suppress Evidence.” Having conducted a thorough review of the record, we disagree. We
find that the State proved that Buford consented to the search that uncovered the
methamphetamine, and we therefore affirm Buford’s sentence and conviction.
FACTS AND PROCEDURAL HISTORY
¶3. On March 25, 2017, Sybil Brooks contacted the Pearl Police Department to complain
that individuals, later identified as Buford and his wife, Amy, were occupying Brooks’s
rental home without permission. Brooks indicated that she wanted authorities to remove
them from the property. Officers were dispatched to the property to investigate Brooks’s
complaint. The Bufords were found at the residence and questioned by the responding
officers. Buford was unable to produce a lease or any other proof that he was entitled to be
in the home.
¶4. Testimony indicated that Brooks had an agreement with Jason Sebren. Brooks
allowed Sebren to live in the trailer in exchange for making ongoing repairs to the home.
Buford claimed that Sebren brought him (Buford) in to assist with the repair work and
allowed him and Amy to live in the trailer as well. It is unclear what transpired, but the
relationship between Brooks and Sebren soured, and Sebren left the trailer. Buford
remained, with hopes of being hired to finish the remaining repairs. Buford claims that on
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the morning of the incident, Brooks came by the trailer and stated that “she wanted
everybody gone.” Buford testified he had made arrangements to vacate the trailer and
enlisted someone to assist him with moving out that afternoon, but the police arrived before
he had the opportunity to leave.
¶5. Buford’s person was searched during his interaction with the officers, and the search
produced a tobacco dip can, which officersrecovered fromBuford’s pocket. Officers opened
the tobacco can and discovered a bag containing approximately 2.16 grams of
methamphetamine. Buford was then arrested and indicted for possession of more than two
but less than ten grams of methamphetamine in violation of Mississippi Code Annotated
section 41-29-139.
¶6. Buford filed a pre-trial “Motion to Suppress Evidence” challenging the
constitutionality of the officers’ detention and search of his person and the tobacco can.
Buford requested the trial court to suppress “any and all property and other evidence
[(specifically the methamphetamine)] seized by the arresting officers” as “fruits of the
poisonous tree.” The trial court granted an evidentiary hearing on the matter, where the
parties presented testimony from Brooks, Buford, and two of the responding officers.
¶7. Officer Jeannie Easterling was the first to arrive at the scene and described Buford as
“very nice . . . [not] rude.” She also testified that Buford was very cooperative and “friendly
. . . kind of approachable.” Officer Easterling stated that Buford opened the door and
allowed her to come into the home. Officer Easterling also stated that Buford willingly
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answered all of her questions related to the trespass complaint. Based on their conversation,
Officer Easterling determined that Buford did not have documentation to prove that he was
rightfully on the property. Once the male officers began to arrive on the scene, Officer
Easterling turned her attention toward questioning Amy.
¶8. Officer Brad Winningham was the last of four responders on site and testified that the
other three officers were already inside the home when he arrived. Officer Winningham
stated that upon his arrival, he learned that Buford had not been searched. He testified that
he asked Buford if he had any problems with him [Officer Winningham] searching him.
Buford responded that he did not and stuck his hands out in front of him. Officer
Winningham further testified, “I asked him [Buford] did he have any issues with me
searching anything on him which would include [the tobacco can].” Officer Winningham
then conducted the search that uncovered the tobacco can and ultimately the
methamphetamine.
¶9. Regarding the question of consent to search, Buford denied granting the police any
consent to conduct a search and claimed that the tobacco can containing the drugs was not
found on his person. At the conclusion of the evidence, the trial court found that the search
was consensual and denied Buford’s motion to suppress.
¶10. Officer Marc Gatlin, the second officer to reach the scene, testified at trial that Officer
Easterling was inside the home talking to Buford and Amy when he arrived. According to
Officer Gatlin, he recalled that Officer Bankston was the party who requested Buford’s
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consent for the search. Officer Gatlin’s body-worn camera captured some video footage of
the incident but was not activated until after the tobacco can had been searched and Buford
was handcuffed.
¶11. Following a jury trial on August 1, 2018, Buford was found guilty and convicted of
possession of methamphetamine as charged in his indictment. Buford was adjudged a
subsequent drug offender pursuant to Mississippi Code Annotated section 41-29-147 and a
habitual offender pursuant to Mississippi Code Annotated section 99-19-81. The trial court
sentenced him to serve a term of sixteen years in the custody of the MDOC. Aggrieved,
Buford now appeals from the trial court’s denial of his “Motion to Suppress Evidence.” He
asserts that the search of the tobacco can violated his constitutional rights.
STANDARD OF REVIEW
¶12. The standard of review when an appellate court reviews a trial court’s denial of a
motion to suppress was delineated in Gillett v. State, 56 So. 3d 469, 482 (¶21) (Miss. 2010),
as follows:
When reviewing a trial court’s denial of a motion to suppress, this Court
adopts a mixed standard of review. Determinations of reasonable suspicion
and probable cause are reviewed de novo. However, this Court should take
care both to review findings of historical fact only for clear error and to give
due weight to inferences drawn from those facts by resident judges and local
law enforcement officers. Thus, this Court is restricted to a de novo review of
the trial judge’s findings using the applicable substantial evidence/clearly
erroneous standard. Finally, this Court reviews the admission or exclusion of
evidence for abuse of discretion.
(Citations and internal quotation marks omitted).
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DISCUSSION
¶13. On appeal, Buford alleges that the trial court erred in denying his motion to suppress.
Buford argues that law enforcement illegally detained and searched him, specifically citing
the officers’ search of the tobacco can reportedly found on his person. Buford maintains that
opening the tobacco can constituted a violation of his right to be free from unreasonable
searches and seizures under the United States and Mississippi Constitutions and that the trial
court erred by failing to suppress the resultant evidence (a bag of methamphetamine found
inside the can).
¶14. The State contends that Buford was not detained at the time of the search and that he
gave free and voluntary consent for officers to perform a general search of his person. The
State further asserts that Buford’s consent was not a qualified one and that officers were
justified in searching Buford and all items on his person, including the tobacco can and its
contents.
I. Whether Buford gave knowing and voluntary consent to be
searched.
¶15. Buford acknowledges that Brooks’s trespassing complaint created reasonable
suspicion and justified a detainment for the purpose of investigation. Buford asserts,
however, that the officers’ questioning continued beyond the time necessary to reasonably
investigate the trespassing claim. Buford argues that any consent he provided was tainted
and coerced during what he asserts was a period of an illegal detainment.
¶16. The State refutes the assertion that Buford was detained at any point prior to his arrest
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and maintains that Buford voluntarily consented to a general search during the officers’
investigation of Brooks’s complaint.
¶17. In Moore v. State, 933 So. 2d 910, 916 (¶18) (Miss. 2006), the Mississippi Supreme
Court explained that “[t]he United States Constitution and the Mississippi State Constitution
guarantee citizens the right to be secure in their persons, houses, and possessions against
unreasonable and warrantless searches and seizures. U.S. Const. Amend. IV; Miss. Const.
art. 3, § 23.” The supreme court further explained, however, that “[w]hile the warrant
clauses of these provisions express the general rule that law enforcement must procure a
warrant based on probable cause before engaging in a search, the rule has several
exceptions.” Id. The relevant exception in this case, as it was in Moore, is “the consent
exception. Voluntary consent eliminates the warrant requirement.” Id.
¶18. In Moore, the supreme court found that “[a] significant factor in [that] particular case
[was] the conflicting testimony of Moore and the officers as to whether” Moore’s consent
was “knowledgeable and voluntary.” Id. at 918 (¶24). The supreme court observed that “the
only evidence Moore provides to support his contention that his consent was not
knowledgeable and voluntary is his own testimony.” Id. (internal quotation mark omitted).
Similarly, the officers’ testimony in this case contradicts Buford’s assertion that he was
illegally detained during their interaction so as to effectively “coerce” his consent. Buford’s
testimony about the events leading up to his arrest largely conflicted with the whole of the
officers’ accounts. Initially, Buford denied granting officers any consent to search him and
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claimed that the tobacco can was not found on his person (or in his pocket). Although
Buford no longer denies the fact that he gave consent, the sole support for Buford’s
contention that he was coerced is his own testimony. “[W]here consent is given, . . . ‘the
burden is on the defendant to show impaired consent or some form of diminished capacity.’”
Id. at 916 (¶20) (quoting Jones v. State, 607 So. 2d 23, 29 (Miss. 1991)). Alone, Buford’s
account is not sufficient evidence for us to disturb the trial court’s decision on this issue. Id.
at 918 (¶25). “The trial court has sole authority in determining witness credibility” and “was
free to give [Buford’s testimony] less weight than the officers’ testimony.” Id. at 918 (¶¶24,
25).
¶19. Additionally, Buford presents no evidence that he was impeded from leaving the
trailer home during the questioning, defeating the argument that he was detained. In fact,
Buford testified that he told officers he was remaining there to wait on transportation and
payment for work he had done.
¶20. The trial court ultimately weighed the evidence and found that this was a “consent to
search” case and that Buford knowingly and voluntarily gave his consent to search. After
reviewing the record, we find that there was substantial, credible evidence to support the trial
court’s finding. This issue is without merit.
II. Whether the scope of Buford’s consent extended to the tobacco can
and its contents.
¶21. The trial court also found that Buford’s consent included the tobacco can and its
contents. Buford urges that even if he gave general consent to search his person, the consent
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did not extend to the contents of the tobacco can.
¶22. The State concedes that the involved officers did not ask for nor receive any specific
consent to open the tobacco can. The State asserts, however, that Buford’s general consent
to the search “his person and anything on him” was sufficient.
¶23. As we have addressed above, “[a]s a general rule, our state and federal Constitutions
prohibit searches without a valid warrant unless an exception applies.” Jones v. State, 261
So. 3d 1131, 1139 (¶26) (Miss. Ct. App. 2018). “One exception to the warrant requirement
is consent. Also excepted from the warrant requirement are items within a police officer’s
plain view or plain feel.” Id.
¶24. With respect to the scope of Buford’s consent relative to the tobacco can and its
contents, we observe that “[v]oluntariness [of a person’s consent to be searched] is
determined from the totality of the circumstances.” Id. As we held in Nowell v. State, 246
So. 3d 77, 81 (¶17) (Miss. Ct. App. 2018), “[t]aking into consideration the totality of the
circumstances, this Court only reverses a trial court’s denial of a motion to suppress if the
trial court manifestly erred or ruled contrary to the overwhelming weight of the evidence.”
¶25. In Jones, this Court explained that “[f]or consent to be given knowingly, the person
searched must be aware he has the legal right to refuse,” and this Court also addressed the
factors to consider in determining whether a consent is voluntary, including, in pertinent part:
The court must . . . look to the individual’s maturity, impressionability,
experience[,] and education. Further, the court should consider whether the
person was excited, under the influence of drugs or alcohol, or mentally
incompetent. If the consent occurred while the defendant was being generally
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cooperative, the consent is more likely to be voluntary.
Jones, 261 So. 3d at 1139 (¶25).
¶26. We apply these factors here. Officer Winningham testified that he “asked him
[Buford] did he have any issues with me searching anything on him which would include [the
tobacco can].” (Emphasis added). The defense asked, “But you didn’t ask for permission to
search that specific can though, did you?” Officer Winningham again made clear, “Just his
person and anything on him.” (Emphasis added). Officer Winningham testified that he
obtained consent from Buford to search “all items on him,” just not specific consent as to
each individual item.
1
¶27. Further, there is ample testimony that Buford was generally cooperative. See id. at
1139-40 (¶28). Officer Easterling, the first officer to arrive at Buford’s home, described
Buford as “very nice[,] . . . [not] rude” and “friendly . . . kind of approachable.” Officer
1 The dissent quotes from a separate exchange between defense counsel and Officer
Winningham in which Officer Winningham acknowledged that he did not get specific
consent from Buford to search the tobacco can. But we have already recognized this point
above. And although during this exchange Officer Winningham also appeared to concede
that Buford “just generically gave consent to search his person,” we must give “due weight”
to the trial judge’s consideration of this testimony and the earlier exchange between defense
counsel and Officer Winningham that we have quoted above:
[DEFENSE COUNSEL:] But you didn’t ask for permission to search that
specific can though, did you?
[OFFICER
WINNINGHAM:] Just his person and anything on him.
(Emphasis added). See Gillett, 56 So. 3d at 482 (¶21).
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Winningham testified that when he asked Buford if he “[had] any issues with me searching
him . . . he advised he did not.” Additionally, we find no evidence in the record that Buford
was impaired in any way at the time of the search. See id. at 1140 (¶28). As for Buford’s
experience with the criminal justice system, see id., the record reflects that Buford testified
that he had “just gotten out of prison” and that he told the police, “I know my rights,” when
they tried to enter his home.
¶28. Based on the principles addressed above and the totality of the circumstances, we find
that there is substantial, credible evidence supporting the trial court’s finding that Buford
knowingly and voluntarily consented to Officer Winningham’s search of the tobacco can
found in Buford’s pocket. Moreover, we find that there is sufficient evidence supporting a
determination that no impermissible search and seizure of the tobacco can and its contents
took place because the tobacco can was in “plain feel” in Buford’s pocket. See Nowell, 246
So. 3d at 82 (¶19) (finding “that no impermissible search and seizure [of pouch containing
methamphetamine] occurred because the . . . pouch was in plain view inside the car”); Jones,
261 So. 3d at 1139 (¶26) (recognizing that another exception “from the warrant requirement
are items within a police officer’s plain view or plain feel”).
¶29. Our decision on this point is further supported by the “objective reasonableness”
standard that governs our examination of the scope of consent under the Fourth Amendment.
O’Donnell v. State, 173 So. 3d 907, 914 (¶13) (Miss. Ct. App. 2015). The United States
Supreme Court has determined that the correct question to ask is, “[W]hat would the typical
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reasonable person have understood by the exchange between the officer and the suspect?”
Id. (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). In this case, the officer’s
testimony reflects that Buford consented to a search of his person “and anything on him.”
It is objectively reasonable that an officer, having received consent to search “the person and
anything on him,” would believe that he had received consent to examine what he found after
conducting that search.
¶30. Buford cites May v. State, 222 So. 3d 1074 (Miss. Ct. App. 2016), as support for his
contention that his consent did not include searching the contents of the tobacco can. We
find May distinguishable and inapplicable to the facts of this case. In May, law enforcement
conducted a traffic stop for careless driving. Id. at 1077 (¶2). After the driver of the vehicle
was arrested, May (a passenger in the vehicle) was asked if he would mind removing his
shoes. Id. at 1077 (¶4). May said that he did not mind, took off his shoes, and a Zippo
lighter fell onto the ground. Id. Law enforcement disassembled the lighter and found a bag
containing crack cocaine and marijuana inside. Id. Prior to trial, May moved to suppress all
evidence, and his motion was denied. Id. at 1078 (¶5). On appeal, May argued that the
search of the lighter that fell from his shoe violated his Fourth Amendment right to be free
from unreasonable searches and seizures. Id.
¶31. In reversing May’s conviction, this Court stated that “[a]s applied to the facts here,
we cannot find that by consenting to remove his shoes, May would have understood that he
was consenting to [law enforcement] taking apart and searching the lighter that fell from his
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shoe.” Id. at 1080 (¶15).
¶32. Thus, in May, the defendant’s consent was limited to the removal of his shoes. In
contrast, Buford in this case consented to a search of his person “and anything on him.”
Applying the requisite standard, we find that it is objectively reasonable that an officer would
think such a consent encompassed an examination ofitems found in that search—in this case,
the tobacco can and its contents.
¶33. We find Gales v. State, 153 So. 3d 632 (Miss. 2014), instructive. Gales involved the
armed robbery of a convenience store in which one of the suspects (Brandon Gales) was
spotted by a police officer running down a street near the store. Id. at 636 (¶4). The officer
stopped Gales, and because he had reason to suspect that Gales had a weapon, the officer
frisked him. Id. at 640 (¶19). Although he did not find a weapon, the officer testified that
he felt a bulge in Gales’s back pocket, id. at 636 (¶5), asked Gales what was in his pocket,
id., and Gales voluntarily removed “wads of money” that he claimed he won by gambling.
Id. at 642 (¶27).
¶34. On appeal, Gales argued that the officer’s search exceeded the scope of Terry v. Ohio,
392 U.S. 1 (1968), because Gales was asked to remove an item from his pocket that the
officer knew was not a weapon. Gales, 153 So. 3d at 639 (¶17). In rejecting this contention,
the supreme court observed that “since Terry, the U.S. Supreme Court has held repeatedly
that mere police questioning does not constitute a seizure.” Id. at (¶18) (quoting Florida v.
Bostick, 501 U.S. 429, 434 (1991)). Our supreme court also found that “once police are
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lawfully in a position to observe an item first-hand, its owner’s privacy interest in that item
is lost.” Id. at 642 (¶30) (quoting Illinois v. Andreas, 463 U.S. 765, 771 (1983)). Based on
these circumstances, the supreme court found no error in the trial court’s determination that
“[b]ecause Gales voluntarily showed [the officer] the money, Gales no longer had a
‘reasonable expectation of privacy’ as to the money under the Fourth Amendment [(citing
Katz v. United States, 389 U.S. 347, 359 (1967) (Harlan, J. concurring)),]” and the seizure
was legal. Gales, 153 So. 3d at 639, 642 (¶¶17, 30).
¶35. Likewise, in this case, the officer was lawfully allowed to see and obtain the item in
Buford’s pocket by virtue of the consent Buford had given. After having given general
consent to search “his person and anything on him,” we find Buford no longer had a
“reasonable expectation of privacy” in the container or its contents. Id. at 639, 642 (¶¶17,
30). It stretches common sense to think an officer can legally receive permission to obtain
an item in a pocket but that the general consent does not include permission to actually
examine the item. What purpose would such a general consent provide?
¶36. Finally, our supreme court has held that “to trigger the exclusionary rule, police
conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the justice system.”
Delker v. State, 50 So. 3d 300, 303 (¶12) (Miss. 2010) (quoting Herring v. United States, 555
U.S. 135, 143 (2009)). Continuing, the supreme court explained, “[a]s laid out in our cases,
the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in
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some circumstances recurring or systemic negligence.” Id. These circumstances are not
present in this case. The exclusionary rule does not apply where, as here, Buford gave
consent to the search.
¶37. For the reasons stated, we cannot say that the trial court’s decision to deny Buford’s
“Motion to Suppress Evidence” constituted “manifest error or was contrary to the
overwhelming weight of the evidence.” Nowell, 246 So. 3d at 82 (¶19). We therefore affirm
the trial court’s judgment against Buford.

Outcome: AFFIRMED

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