                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 1998-KA-01696-SCT
VERBRA CONERLY a/k/a 'RICK'
v.
STATE OF MISSISSIPPI
                                  ON MOTION FOR REHEARING
DATE OF JUDGMENT:                                 09/04/1998
TRIAL JUDGE:                                      HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED:                        MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           MORRIS SWEATT, SR.
ATTORNEYS FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL
                                                  BY: W. GLENN WATS
DISTRICT ATTORNEY:                                RICHARD LAWRENCE DOUGLASS
NATURE OF THE CASE:                               CRIMINAL - FELONY
DISPOSITION:                                      REMANDED - 05/18/2000
MOTION FOR REHEARING FILED:                       1/12/2000
MANDATE ISSUED:                                   6/8/2000



     EN BANC.

     MILLS, JUSTICE, FOR THE COURT:


¶1. Verbra Conerly was convicted of burglary in the Marion County Circuit Court on August 26, 1998, and
sentenced to twenty-five (25) years in the custody of the Mississippi Department of Corrections, with
fifteen (15) years suspended pending successful completion of substance abuse classes. Conerly appealed
his conviction to this Court, and we reversed and rendered, finding no probable cause existed for the
issuance of the arrest warrant. The State filed its motion for rehearing, asking this Court to reconsider our
decision. On motion for rehearing, the motion is granted, the original opinion is withdrawn, and this opinion
is substituted.

                                                  FACTS

¶2. On September 23, 1997, Dornis Lenoir left her home in Marion County, Mississippi, with the doors
closed and the windows down. Upon returning, she discovered that someone had gone through her home
and thrown many of her belongings on the floor. A radio amplifier and a ring were missing. Lenoir's
neighbors named Verbra Conerly as the person responsible for the break-in. These neighbors did not tell
Lenoir any facts known to them which would have supported their suspicions. Lenoir notified the proper
authorities, and an arrest warrant was issued for Conerly.

¶3. Investigator Clint McMurray, acting upon the warrant, arrested Conerly on November 30, 1997. After
being held in a jail cell for two days, Conerly was given his Miranda warnings and immediately questioned
by McMurray. During this questioning, Conerly signed a waiver of rights form and confessed to stealing
both the amplifier and ring. McMurray was the only person who witnessed Conerly's statement.

¶4. At trial, McMurray testified that prisoners in the holding cell are not allowed telephone calls except for
calling an attorney. Conerly, however, contends that he spoke with his mother by telephone prior to his
confession. Conerly's mother, Lexie Conerly, testified that she talked to Verbra while he was in jail and told
him of a threat that was made to her over the telephone. Lexie allegedly told him that an unidentified man
had threatened to burn down the Conerly house with her in it unless Verbra admitted to burglarizing
Lenoir's home. Accordingly, Conerly testified that his confession was made only because he was in fear of
his mother being killed and his home being burned. Aside from his confession, there was no other evidence
linking Verbra Conerly to the burglary.

                                          STATEMENT OF LAW

                                                       I.

        WHETHER THE ARREST WARRANT WAS BASED ON PROBABLE CAUSE

¶5. The State asserts this Court erred in our original opinion when we addressed the legality of the arrest
warrant for the first time upon appeal. In its motion for rehearing, the State contends that "there was no
issue at trial or on appeal, in any manner or form, relating to the sufficiency of probable cause or the legality
of the arrest." In his reply brief, however, Conerly did address the legality of his arrest warrant by asserting
that the only basis for the warrant was the uncorroborated affidavit given by Lenoir. Ordinarily, "we will not
consider issues raised for the first time in an appellant's reply brief." Sanders v. State, 678 So. 2d 663,
669 (Miss. 1996). However, plain errors of sufficient constitutional importance are likely to affect the
outcome of a case and may be addressed for the first time by this Court upon appeal. "This Court has
recognized an exception to procedural bars where a fundamental constitutional right is involved." Maston v.
State, 750 So. 2d 1234, 1237 (Miss. 1999); see Smith v. State, 477 So. 2d 191, 195 (Miss. 1985).
Consequently, we will once again visit this issue.

¶6. Conerly asserts that the arrest warrant was issued based on nothing but "raw hearsay." This Court has
previously held that an arrest warrant may be based on hearsay. Walker v. State, 192 So. 2d 270, 273
(Miss. 1966). There must be underlying facts and circumstances, however, which support the hearsay so as
to allow a neutral and detached magistrate to find the existence of probable cause. Id. at 273.
Uncorroborated and unsubstantiated hearsay will simply not suffice. In the present case, the arrest warrant
was based exclusively on an affidavit, which reads in relevant part as follows:

      On September 23, 1997, Dornis Lenoir, came home and discovered that 1 diamond ring and a car
      radio amplifier [were] missing from her residence at 18 Conerly Lane. The house was locked and the
      house was entered into from a window. Dornis Lenoir was advised by some neighbors down the
      road that the person who was responsible for the missing items was Ricky Conerly.

(emphasis added). Lenoir's neighbors, however, did not witness the incident nor did they provide any
factual data to support their suspicions. From the record before us, it appears that the affidavit was based
on nothing more than uncorroborated rumors.

¶7. To obtain an arrest warrant for a felony, either with or without a warrant, a police officer must have (1)
reasonable cause to believe that a felony has been committed; and (2) reasonable cause to believe that the
person proposed to be arrested is the one who committed it. Henry v. State, 486 So. 2d 1209, 1212
(Miss. 1986). "Arrest warrants or search warrants shall be issued only by the judge after a judicial
determination that probable cause exists based upon the affidavit or other evidence before the court." Miss.
Unif. R.P.J.C. 3.03. Furthermore, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527
(1983), the United States Supreme Court established a "totality of the circumstances" standard for
determining the existence of probable cause: The task of the issuing magistrate is simply to make a practical,
common-sense decision based on all the circumstances set forth in the affidavit before him, including the
"veracity" and "basis of knowledge" of persons supplying hearsay information. We adopted the Gates
"totality of the circumstances" test in Lee v. State, 435 So. 2d 674, 676 (Miss. 1983).

¶8. Moreover, this Court has defined probable cause as follows:

      Probable cause is a practical, non-technical concept, based upon the conventional considerations of
      every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts
      and circumstances within an officer's knowledge, or of which he has reasonably trustworthy
      information, are sufficient to justify a man of average caution in the belief that a crime has been
      committed and that a particular individual committed it.

Strode v. State, 231 So.2d 779, 782 (Miss.1970). Perhaps more simply put, "probable cause means
more than a bare suspicion but less than evidence that would justify condemnation." Wagner v. State, 624
So. 2d 60, 66 (Miss. 1993). Taking into consideration these definitions of probable cause, along with the
"totality of the circumstances" standard adopted in Lee, we find that the information contained within the
record before us is insufficient to establish probable cause. If the sole reason for the issuance of the arrest
warrant was Lenoir's testimony of what her neighbors' "thought", then no probable cause existed to support
the issuance of the warrant. Suspicion alone does not meet the constitutional standard of probable cause.
Henry v. State, 486 So. 2d at 1212. Lenoir's neighbors told her that they "thought" Conerly was
responsible for the break-in. From the record, it appears that the neighbors' testimony was nothing more
than rumor and was not supported by any other evidence. Moreover, the record does not indicate that
Conerly was even seen in the area on the day of the break-in.

¶9. It is important to note, however, that Conerly did not raise this issue at trial, nor did he raise the issue in
his initial brief upon appeal. Therefore, the trial judge was never given the opportunity to rule on the legality
of the arrest warrant. Consequently, facts and information, supportive of a finding of probable cause may be
absent from the record before this Court. As a result, we remand this case to the Marion County Circuit
Court for a determination of whether sufficient probable cause existed to render the Conerly's arrest
warrant valid.

                                                        II.

 WHETHER CONERLY'S CONFESSION SHOULD HAVE BEEN EXCLUDED UNDER THE
              "FRUIT OF THE POISONOUS TREE" DOCTRINE

¶10. Assuming, but not deciding, that Conerly's arrest was illegal, the question thus becomes whether his
subsequent confession should be rendered inadmissible under the "fruit of the poisonous tree" doctrine. See
Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
¶11. In Mississippi, Miranda warnings, alone and per se, do not always make a confession admissible.
Bolton v. State, 530 So. 2d 1360, 1362 (Miss. 1988). However, we are also mindful that a confession
given while in custody following an illegal arrest is not per se inadmissible. Coleman v. State, 592 So. 2d
517, 521 (Miss. 1991). Consequently, "a confession's admissibility must be decided on the facts of each
case." Bolton, 530 So. 2d at 1362. In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416
(1975), the United States Supreme Court set forth five factors for determining whether a confession,
obtained subsequent to an illegal arrest, is admissible. "The weight to be given each of these factors will
necessarily vary with the circumstances of each case." Henry, 486 So. 2d at 1213. "However, the State
bears the burden of proof for each factor as well as the burden of persuasion that the factors suggesting
admissibility outweigh those suggesting inadmissibility." Id. We now address the five factors as set forth in
Brown.

                    (1) The giving of the Miranda warnings and the circumstances

¶12. "The Miranda warnings are an important factor to be sure, in determining whether the confession is
obtained by exploitation of an illegal arrest." Hall v. State, 427 So. 2d 957, 959 (Miss. 1983)(citation
omitted). We have previously held that "as a matter of common sense, the coercive impact of incarceration
may dissipate with time" as a prisoner has had sufficient time to become acclimated to his surroundings. Id.
at 960-61. In the present case, Conerly was held in a jail cell for two days before he received any
Miranda warnings. Immediately after receiving the Miranda warnings, Conerly confessed to the burglary.
Conerly was in continuous custody and did not consult a lawyer. Although it is unclear as to whether he
spoke with his mother during this time, no other outside contact took place. Additionally, Conerly argues
that he was innocent and only confessed out of fear for his mother and her house.

                      (2) The temporal proximity of the arrest and the confession

¶13. As stated previously, Conerly was jailed for two days before he was given his Miranda warnings and
confessed. As Conerly himself said, "I was already locked up, so I just went ahead and said I would
confess, you know, that I had done it ...." Although it is true that the coercive environment of jail may
dissipate over time, the facts of this case seem to indicate that the two-day waiting period may have very
well been the reason for Conerly's confession. We find it very bothersome that threats were relayed to
Conerly during this two day period. Although the State suggests (through Investigator McMurray's
testimony) that Conerly would not have been allowed telephone contact with his mother during this time, the
State offers no phone records or any other testimony which would indicate that no such communication
took place. It should be reiterated, the State bears the burden of proof for each of the Brown factors.
Henry, 486 So. 2d at 1213.

                             (3) The presence of intervening circumstances

¶14. The only intervening event which took place between the time of arrest and Conerly's confession was
the alleged contact between Conerly and his mother, wherein she relayed to Conerly an anonymous threat
to burn down her house if Conerly did not confess. In Taylor v. Alabama, 457 U.S. 687, 691, 102 S.Ct.
2664, 2668, 73 L.Ed.2d 314 (1982), the U.S. Supreme Court held that the defendant's girlfriend, who was
emotionally upset at the time of their visit, could affect the defendant's objectivity and exercise of free will.
A similar conclusion may be reached in the present case. Certainly a threat to burn down Conerly's home,
with his mother in it, hindered Conerly's objectivity and exercise of free will when he made his confession.
  (4) The purpose and flagrancy of the official misconduct; and (5) any other circumstances that
                                          seem relevant

¶15. While we reserve judgment as to whether Conerly's arrest was legal, we can say without a doubt that
the investigation conducted was totally inadequate. Conerly was held two days before he was given
Miranda warnings. During this time, Conerly asserts he spoke with his mother, who relayed threats made
to her and her home. The State never produced any information or phone records to support its contention
that Conerly had no telephone privileges during the two days he was jailed.

¶16. After reviewing the facts of this case through the lens of Brown, we find the confession should be
excluded under the "fruit of the poisonous tree" doctrine if the arrest warrant was illegally issued. The facts
here are insufficient to break the causal chain between Conerly's arrest and confession.

                                               CONCLUSION

¶17. We remand this case to the Marion County Circuit Court for a determination of whether probable
cause existed at the time for the issuance of the arrest warrant. Upon remand, if the circuit court should find
no probable cause existed, then it shall deem the arrest warrant illegal, and Conerly's confession
inadmissible under the "fruit of the poisonous tree" doctrine, and vacate its judgment and Conerly's
conviction and sentence. If the circuit court finds probable cause for the issuance of the arrest warrant, it
shall make this determination in an order.

¶18. REMANDED.

      PRATHER, C.J., PITTMAN AND BANKS, P.JJ., McRAE, SMITH, WALLER, COBB
      AND DIAZ, JJ., CONCUR.
