        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-KA-00681-COA

DAVID LEE MAY A/K/A DAVID L. MAY A/K/A                                   APPELLANT
DAVID MAY

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                        12/11/2013
TRIAL JUDGE:                             HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:               HARRISON COUNTY CIRCUIT COURT,
                                         SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                         BY: LISA L. BLOUNT
                                             JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY:                       JOEL SMITH
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF POSSESSION OF ONE-
                                         TENTH BUT LESS THAN TWO GRAMS OF
                                         COCAINE AND SENTENCED AS A
                                         HABITUAL OFFENDER TO LIFE IN THE
                                         CUSTODY OF THE MISSISSIPPI
                                         DEPARTMENT OF CORRECTIONS
                                         WITHOUT ELIGIBILITY FOR PAROLE OR
                                         PROBATION
DISPOSITION:                             REVERSED AND RENDERED – 12/13/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      IRVING, P.J., FOR THE COURT:

¶1.   David Lee May was convicted of possession of one-tenth but less than two grams of

cocaine and sentenced as a habitual offender to life without parole. On appeal, May argues
he was subject to an illegal search and seizure under the Fourth Amendment. We agree. The

State failed to prove that May consented to the search that resulted in the discovery of the

cocaine or that the police had probable cause to conduct the search. Therefore, we find that

May’s conviction and sentence must be reversed and rendered.

                                           FACTS

¶2.    Around midnight on November 3, 2010, Biloxi Police Department Officer Doug

DeGeorge saw a vehicle veer over the fog line and into the median on Interstate 10. May

was a passenger in the vehicle. Officer DeGeorge conducted a traffic stop for careless

driving. The driver could not produce a driver’s license, so Officer DeGeorge asked him to

exit the vehicle. In frisking the driver for weapons, he felt “an unusually large bulge” in the

driver’s pants. The driver admitted it was drugs. The driver was placed under arrest, and

Officer DeGeorge called for backup.

¶3.    Officer DeGeorge asked May if he had a driver’s license. May had a Mississippi

identification card, but his license was suspended. Because the driver had been arrested and

May’s license was suspended, Officer DeGeorge began the process to have the vehicle

towed. Officer DeGeorge asked May to exit the vehicle so it could be inventoried. May was

directed to sit on the ground next to the front driver’s side tire of Officer DeGeorge’s patrol

car.

¶4.    As May sat on the ground, Officer DeGeorge noticed that he was acting “extremely

nervous” and was “[e]xtremely fidgety.” Officer DeGeorge observed that May held onto his

right shoe and looked down at it if anyone talked to him or he thought anyone was looking



                                              2
at him. Officer DeGeorge asked May if he had anything illegal in his possession. May said

no. According to Officer DeGeorge, he then asked May if he would mind removing his

shoes. Officer DeGeorge testified that May said he did not mind and took off his shoes. A

Zippo lighter fell out of one of his shoes. Officer DeGeorge picked up the lighter to examine

it. He testified: “[W]ith a Zippo, you can actually pull the center out to refill it. And so I

did so. And a plastic bag containing marijuana, a small amount of marijuana[,] and a small

amount of crack cocaine fell out of the center of that.” May was arrested. At the police

station, he gave a voluntary statement, admitting that the cocaine and marijuana were his.

¶5.    May was indicted in the Harrison County Circuit Court for possession of one-tenth

but less than two grams of cocaine under Mississippi Code Annotated section 41-29-

139(c)(1)(B) (Supp. 2016). He proceeded to trial and was allowed to represent himself with

the assistance of standby counsel. Prior to trial, May filed a pro se motion to suppress. It

stated: “I am request[ing] . . . [Investigator] David Elliott . . . of the Biloxi Police

Department to suppress all evidence on case num. 10-025337[,] . . . possession of a

controlled substance to wit crack[] cocaine/cell phone[]s . . . [—] the items . . . that w[ere]

tak[e]n the [night] of Nov. 3[,] 2010.” After conducting a hearing, the circuit court denied

May’s motion to suppress. The jury found May guilty as charged. He was sentenced as a

habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life in

the custody of the Mississippi Department of Corrections. May appeals, arguing his

conviction and sentence should be reversed because the search of the lighter violated the

Fourth Amendment.



                                              3
                                 STANDARD OF REVIEW

¶6.    We apply a mixed standard of review to Fourth Amendment issues. Cook v. State,

159 So. 3d 534, 537 (¶6) (Miss. 2015). The existence of probable cause or reasonable

suspicion is reviewed de novo. Id. “But the de novo review is limited to the trial court’s

‘decision based on historical facts reviewed under the substantial evidence and clearly

erroneous standards.’” Id. (quoting Dies v. State, 926 So. 2d 910, 917 (¶20) (Miss. 2006)).

                                        DISCUSSION

¶7.    May raises one issue on appeal: whether the search of the lighter that fell from his

shoe violated the Fourth Amendment. “The Fourth Amendment of the U[nited] S[tates]

Constitution and Article 3, Section 23 of the Mississippi Constitution guarantee a person’s

right to be free from unreasonable searches and seizures.” Cooper v. State, 145 So. 3d 1164,

1168 (¶10) (Miss. 2014). “As a general rule, our state and federal Constitutions prohibit

searches without a valid warrant unless an exception applies.” Galloway v. State, 122 So.

3d 614, 669 (¶182) (Miss. 2013). The State bears the burden to show that a warrantless

search falls under one of the permissible exceptions. Id. If no exception is found, the

evidence seized as a result of the search “should be suppressed as fruit of the poisonous tree.”

State v. Woods, 866 So. 2d 422, 427 (¶16) (Miss. 2003). “A search is not unreasonable when

it is based on probable cause.” Walker v. State, 881 So. 2d 820, 827 (¶15) (Miss. 2004).

¶8.    One exception to the warrant requirement is consent. Galloway, 122 So. 3d at 669

(¶182). Also excepted from the warrant requirement are items within a police officer’s plain

view or plain feel. Ferrell v. State, 649 So. 2d 831, 833-34 (Miss. 1995) (plain view); Gales



                                               4
v. State, 153 So. 3d 632, 639 (¶17) (Miss. 2014) (plain feel). The State asserts May

consented to the search that resulted in his conviction, and, even if he did not, May’s

behavior created probable cause for the search, rendering his consent unnecessary. The State

further argues that May has waived his arguments regarding these issues, as they were not

specifically raised in his motion to suppress.

       1.     Consent

¶9.    To provide an exception to the warrant requirement, a person’s consent to search must

be knowing and voluntary. Moore v. State, 933 So. 2d 910, 916 (¶19) (Miss. 2006). For

consent to be given knowingly, “the person searched must be aware he has the legal right to

refuse.” Id. Voluntariness is determined from the totality of the circumstances. Graves v.

State, 708 So. 2d 858, 863 (¶24) (Miss. 1997). Factors to consider are

       whether the circumstances were coercive, occurred while in the custody of law
       enforcement or occurred in the course of a station house investigation. The
       court must also 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 cooperative, the
       consent is more likely to be voluntary; however, if the defendant agreed and
       then changed his mind, the consent should be suspect.

Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226-28 (1973)). “[W]here consent is

given, the State is not required to demonstrate knowledge; rather, ‘the burden is on the

defendant to show impaired consent or some diminished capacity.’” Moore, 933 So. 2d at

916 (¶20) (quoting Jones v. State, 607 So. 2d 23, 29 (Miss. 1991)).

¶10.   May argues his consent was involuntary under the circumstances—he was afraid

because he had just seen his companion arrested, and he was sitting on the side of the

                                                 5
interstate with no way to leave. For these same reasons, May argues that he was subjected

to a custodial interrogation, as he was in a custodial situation when Officer DeGeorge asked

him to remove his shoe, and he was not read his rights under Miranda v. Arizona, 384 U.S.

1121, 1125 (1966), rendering the questioning illegal. However, according to Officer

DeGeorge’s testimony, May was not under arrest or being detained for any reason when he

was asked to remove his shoe. Rather, he was sitting on the ground because his driver’s

license was suspended and he could not lawfully drive the vehicle in which he had been

riding. As Officer DeGeorge testified, “Because we arrested the driver . . . [and] Mr. May

. . . [had] a suspended driver’s license, . . . he wasn’t able to leave at that point.” According

to May’s own statements, he was allowed to use his cell phone to make calls to look for a

ride as he sat on the ground. The record shows that Officer DeGeorge did not appear

concerned with May at this point. Officer DeGeorge testified he did not recall whether May

had his phone or whether he was making calls, as Officer DeGeorge was “dealing with” the

driver, who was under arrest, and “[the driver’s] narcotics,” and he was making phone calls,

“notifying the investigators and the supervisors and such.”

¶11.   As May points out on appeal, practically speaking, it may have been difficult for him

to leave the scene, as it was the middle of the night and the traffic stop occurred on the

interstate. But there was no testimony to this effect. Nor was there any testimony that

Officer DeGeorge used coercive tactics to detain May or make May remove his shoe. May

bore the burden to prove his consent was involuntary. He has provided no such proof.

Rather, the evidence showed May was being generally cooperative and was allowed to sit



                                               6
with minimal supervision to use his phone. Based on the facts presented, we find May

voluntarily consented to the removal of his shoe.

¶12.   We must next examine whether May’s voluntary consent to remove his shoe extended

to the search of the lighter that fell from his shoe. The State argues, and the dissent agrees,

that May’s consent and voluntary removal of his shoe imputed consent to search all items

contained in May’s shoe. The State and dissent cite Gales in support of their assertion.

¶13.   In Gales, 153 So. 3d at 636 (¶2), two individuals robbed a convenience store at

gunpoint and then fled. A police officer saw a man, later identified as Brandon Gales, who

met the description of one of the suspects, running down a street near the store. Id. at (¶4).

Gales tried to make it look as if he was walking when he saw the officer. Id. The officer

approached him. Id. Because he had reason to suspect that Gales possessed a weapon, the

officer frisked Gales for safety reasons. Id. at 640 (¶19). The officer felt an unknown bulge

in Gales’s back pocket. Id. at 636 (¶4). The officer asked Gales what was in his pocket. Id.

at (¶5). Gales voluntarily removed wads of cash. Id. at 642 (¶27). On appeal, Gales argued

that the officer exceeded the scope of Terry v. Ohio, 392 U.S. 1 (1968), by asking him to

remove an item from his pocket that the officer knew was not a weapon. Id. at 639 (¶17).

However, the Mississippi Supreme Court noted 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)). The supreme court further found that

“once police are 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



                                               7
(1983)). Thus, “[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,” and

the seizure was legal. Id. at 639 (¶17).

¶14.   This case is distinguishable from Gales. When Gales voluntarily removed the cash

from his pocket, it was immediately viewable as incriminating because the officer was

looking for an armed-robbery suspect matching Gales’s description who had stolen cash.

And Gales voluntarily showed the officer the cash, removing any reasonable expectation of

privacy. Here, however, when May voluntarily removed his shoe, only the lighter was

revealed. There was no testimony that the lighter was inherently incriminating or illegal, that

the lighter was a weapon or could contain a weapon, or that Officer DeGeorge was concerned

for his safety because of the lighter. Thus, unless the scope of May’s consent to remove his

shoes extended to a search of the interior of the lighter, the search of the lighter was illegal.

¶15.   The scope of consent under the Fourth Amendment is examined for “objective

reasonableness.” O’Donnell v. State, 173 So. 3d 907, 914 (¶13) (Miss. Ct. App. 2015). We

must ask ourselves: “[W]hat would the typical reasonable person have understood by the

exchange between the officer and the suspect?” Id. (quoting Florida v. Jimeno, 500 U.S.

248, 251 (1991)). We cannot find that a typical reasonable person would have understood

a request to remove a person’s shoes as a request to search the contents of any object

contained in the shoes. As applied to the facts here, we cannot find that by consenting to

remove his shoes, May would have understood that he was consenting to Officer DeGeorge

taking apart and searching the lighter that fell from his shoe. Rather, we find the scope of



                                               8
May’s consent only extended to the contents of the shoe that were plainly viewable as

incriminating or dangerous. Because Officer DeGeorge had no basis to search the lighter and

May had not consented to the search of the lighter, May retained a reasonable expectation

of privacy in its contents. Without May’s consent, the State was required to prove probable

cause or another exception to the warrant requirement for the contents of the lighter to be

admissible under the Fourth Amendment.

       2.     Probable Cause

¶16.   May asserts that Officer DeGeorge’s search of the lighter was not reasonably related

to the scope of the initial stop nor was probable cause to search the lighter developed during

the stop. See Terry, 392 U.S. at 20. A search is reasonable under Terry when: (1) “the

officer’s action was justified at its inception,” and (2) “it was reasonably related in scope to

the circumstances which justified the interference in the first place.” Id. Under the first

factor, May concedes the careless-driving traffic stop was justified. He also concedes that

Officer DeGeorge had the right to conduct a pat-down search for weapons. But he argues

that under the second factor, the scope of the search went beyond that allowed by Terry, and

no probable cause was created during the stop for the warrantless search.

¶17.   We agree that the scope of the search was not reasonably related to the circumstances

warranting the interference—the traffic stop. At the time May was asked to remove his shoe,

the traffic stop had been completed, and the driver was under arrest. Officers were making

arrangements for the vehicle to be inventoried and towed. Therefore, our analysis is limited

to whether Officer DeGeorge had probable cause to determine that May was involved in



                                               9
illegal activity.

¶18.   Probable cause for a warrantless search “exists where the facts and circumstances

within the arresting officer’s knowledge and of which [he] had reasonably trustworthy

information are sufficient in themselves to warrant a man of reasonable caution in the belief

that an offense has been or is being committed.” Walker, 881 So. 2d at 827 (¶15). “A

collection of actions which, individually, are subject to innocent explanation may be

sufficient to create reasonable suspicion under the totality of the circumstances.” Anderson

v. State, 864 So. 2d 948, 951 (¶13) (Miss. Ct. App. 2003) (citing United States v. Arvizu, 534

U.S. 266, 274 (2002)). “However, mere hunches or ‘looking suspicious’ is not sufficient to

establish reasonable suspicion.” Id. (citing Brown v. Texas, 443 U.S. 47, 52 (1979)).

¶19.   As the supreme court has explained:

       [Probable cause] is not what some officer thought[;] it is not some conduct that
       was simply unusual, not some conduct which simply roused the suspicion that
       illegal activity could be afoot when there was at the same time just as likely a
       possibility that nothing at all illegal was transpiring. Rather, it must be
       information reasonably leading an officer to believe that then and there
       contraband or evidence material to a criminal investigation would be found.

Rooks v. State, 529 So. 2d 546, 555 (Miss. 1988).

¶20.   Officer DeGeorge testified at the suppression hearing as follows regarding his

observations of May’s behavior:

       Q.      And what, if anything, did you observe about Mr. May as he was sitting
               there in front of your vehicle?

       A.      Mr. May was extremely nervous. Extremely fidgety. He continued to
               keep holding on to his right shoe, kept looking down at it anytime
               anybody was talking to him or if he thought somebody was looking at
               him. I made note of that.

                                             10
       Q.     And what did his demeanor tell you from your experience as a police
              officer?

       A.     Usually when people start looking at things or putting their hand in
              their pockets or a certain pocket, they are trying to conceal something
              or hide something.

       Q.     And what did you do then?

       A.     I asked Mr. May if he had anything illegal on him. He told me no. I
              asked him if he would mind taking his shoes off. He said, no. He took
              his shoes off and a Zippo lighter fell out.

¶21.   At trial, Officer DeGeorge testified as follows:

       Q.     What was [May]’s demeanor as he was removed from the vehicle and
              sitting on the ground in front of your patrol vehicle?

       A.     . . . I noticed that he continued to stare at his right shoe. He started
              reaching and grabbing for it as if he was trying to hide something.
              Anytime somebody would look at it, he would hold it. If somebody
              wasn’t looking at him, he would hold it and kind of look at it. It kind
              of brought my attention, obviously, to his right shoe.

       Q.     And based on your training and experience, what did . . . his actions
              suggest to you?

       A.     Normally if people are—if they will stick their hand in their pocket,
              say, their right pocket, but their other hand is not in a pocket, they are
              usually trying to conceal something in the pocket. Especially if they
              look down at their hand. Most of the time, if something is illegal, such
              as narcotics or weapons, it’s almost as if they’re touching it that it
              doesn’t exist and you can’t see it.

¶22.   We cannot find probable cause existed for a search based on Officer DeGeorge’s

testimony. Officer DeGeorge merely testified that he became suspicious that May could have

something illegal in his shoe because May acted nervous and looked at and held onto his

right shoe as he sat on the ground. But to establish probable cause, an officer must have



                                             11
“information reasonably leading [the] officer to believe that then and there contraband or

evidence material to a criminal investigation would be found.” Rooks, 529 So. 2d at 555.

Officer DeGeorge guessed that May could be in possession of something illegal. But this

alone is insufficient to establish probable cause. As stated, “mere hunches or ‘looking

suspicious’ is not sufficient to establish reasonable suspicion.” Anderson, 864 So. 2d at 951

(¶13).

¶23.     We find the facts here analogous to the following cases, in which no probable cause

was found under the plain-view or plain-feel doctrine for containers that typically hold

innocuous materials. In Anderson, 864 So. 2d at 949 (¶2), a police officer conducted a traffic

stop at approximately 11:30 p.m. The defendant, Carl Anderson, was asked to exit the

vehicle. Id. at (¶3). Anderson acted nervous, and the officer could see a plastic bag sticking

out of Anderson’s pants. Id. The officer testified he could not see the contents of the bag,

nor did he believe the bag itself to be dangerous. Id. at 950 (¶9). But the officer thought the

bag looked “out of place.” Id. at 951 (¶12). He pulled Anderson’s pants away from his body

and could see the plastic bag contained what appeared to be cocaine. Id. at 949-50 (¶3). In

holding the search was illegal, we found that “[t]hough crack cocaine may quite often be

carried in plastic bags, and though having a plastic bag inside one’s pants may be unusual,

neither consideration creates probable cause to believe that there was cocaine.” Id. at 951

(¶12). We noted the officer’s somewhat ambiguous testimony that he thought he saw residue

higher on the bag, which “was possibly crack cocaine.” Id. at 950 (¶10). But we found that

even “[o]bserving the powdery substance itself did not create probable cause.” Id. at 950-51



                                              12
(¶10).

¶24.     In Anderson v. State, 16 So. 3d 756, 758 (¶3) (Miss. Ct. App. 2009), officers observed

a handgun inside a home on a table near a known felon. Jamie Anderson, who was also in

the home, was frisked for weapons. Id. at (¶4). In patting down Anderson, no weapons were

found, but the officer felt a pill bottle, which he believed to contain methamphetamine. Id.

“The issue that follow[ed] [was] whether [the officer] had probable cause to believe that

what he felt in Anderson’s pants at the time of the pat-down search actually contained

contraband.” Id. at 760 (¶11). While the officer “assumed” the pill bottle contained drugs,

“[t]here [wa]s no testimony in the record that pill bottles found in pants’ pockets normally

contain illegal contraband.” Id. We found that under the plain-view doctrine, “the

contraband must itself be in plain view” to establish probable cause and provide an exception

to the warrant requirement. Id. at 761 (¶12) (quoting Ferrell, 649 So. 2d at 833). Because

the contents of the pill bottle were “not immediately apparent as contraband,” “the seizure

of the contraband from a pill bottle in Anderson’s pocket fit[] neither the ‘plain-view’ nor

the ‘plain-feel’ exceptions to the warrant requirement” and was illegal. Id. at (¶¶13-14).

¶25.     In a similar case, Ferrell, 649 So. 2d at 834, the supreme court found no exception to

the warrant requirement for the search of a matchbox. Ray Ferrell was arrested for speeding

and driving with a suspended license. Id. at 832. Ferrell was frisked and placed in the back

of the officer’s patrol car. Id. Upon Ferrell’s request, one of the officers went to retrieve

Ferrell’s keys from his vehicle. Id. The officer saw a matchbox on the passenger seat next

to the keys. Id. From his experience, the officer knew narcotics were often carried in



                                               13
matchboxes. Id. The officer picked up the matchbox, revealing a yellow pill. Id. He opened

the matchbox, and it contained only matches. Id. The officer then saw a second matchbox

between the two front seats. Id. The officer opened it and discovered nine rocks of crack

cocaine. Id. at 832-33. The supreme court found the search impermissible under the plain-

view doctrine. Id. at 833-34. The supreme court stated that “[t]he plain[-]view exception

is intended to allow police officers to seize incriminating items that are discovered in the

course of their legitimate law enforcement activities, not to justify warrantless, exploratory

searches of containers that purport to contain innocuous materials.” Id. at 834 (internal

citations omitted) (quoting United States v. Villarreal, 963 F.2d 770, 776 (5th Cir. 1992)).

“[A] container cannot be opened unless its contents are in plain view or they can be inferred

from the container’s outward appearance.” Id. (quoting United States v. Sylvester, 848 F.2d

520, 525 (5th Cir. 1988)).

¶26.   Here, like the foregoing cases, Officer DeGeorge could not articulate anything more

than speculation that May might have had something illegal in his possession. When the

lighter fell from May’s shoe, nothing illegal came into plain view or could be inferred from

the lighter’s outward appearance. Nor did the testimony show that there was anything

inherently dangerous about the lighter that would have justified a search for officer safety.

Finally, there was no testimony that Officer DeGeorge’s handling of the lighter led him to

believe under the plain-touch doctrine that something illegal may be inside. Under the

totality of the circumstances and based on our de novo review of the facts established at trial,

we find no substantial basis for the establishment of probable cause and no exception to



                                              14
justify Officer DeGeorge’s warrantless search of the contents of the lighter.

¶27.   Because Officer DeGeorge lacked probable cause for the search of the lighter and no

exception to the warrant requirement applied, his search of the lighter was a Fourth

Amendment violation. It follows that the cocaine seized as a result of the search should have

been suppressed. With no evidence to support May’s possession-of-cocaine conviction, the

conviction must be reversed and rendered.

       3.      Waiver

¶28.   The State argues “several of the issues raised,” including May’s assertions of lack of

consent and improper custodial interrogation, are procedurally barred because they were not

“sufficiently raised” in May’s general motion to suppress. See Evans v. State, 725 So. 2d

613, 638 (¶48) (Miss. 1997) (stating that the failure to raise an issue at trial procedurally bars

the issue on appeal).

¶29.   In addressing this assertion, we must consider that May filed his motion to suppress

pro se and proceeded pro se at trial with standby counsel. May’s standby counsel did not

assist at the suppression hearing or during the questioning of Officer DeGeorge at trial.

“While pro se litigants are afforded some leniency, they must be held to substantially the

same standards of litigation conduct as members of the bar.” Sumrell v. State, 972 So. 2d

572, 574 (¶6) (Miss. 2008). But a pleading filed by a pro se person “is held to less stringent

standards than formal pleadings drafted by lawyers.” Terrell v. State, 573 So. 2d 732, 733

(Miss. 1990). When a person is proceeding pro se, we will not find a “meritorious complaint

. . . lost because [it was] inartfully drafted.” Id.



                                                15
¶30.   Although inartfully drafted, we find May’s motion to suppress was sufficient to

preserve this issue for review. And, even if it was not, we find review for plain error

appropriate. “The plain-error doctrine is implicated when an error at trial affects substantial

rights and results in a manifest miscarriage of justice.” Hearn v. State, 3 So. 3d 722, 736

(¶36) (Miss. 2008). Plain error may be found where the trial court fails “to properly evaluate

evidentiary matters.” Id. “Plain[-]error [review] is also appropriate where there is a violation

of constitutional rights.” Id. May’s right to be free from an illegal search and seizure is a

constitutional right under the Fourth Amendment, and the admission of the cocaine into

evidence was an evidentiary matter, which we find was not properly reviewed by the trial

court. Thus, the issues raised, even if waived, are proper for plain-error review. May’s

conviction is reversed and rendered.

¶31. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT, IS REVERSED AND RENDERED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

    LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR AND GREENLEE, JJ.,
CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT
SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE
WRITTEN OPINION.

       CARLTON, J., DISSENTING:

¶32.   I respectfully dissent from the majority’s opinion. I find that May consented to

remove his shoe and, in so doing, voluntarily revealed to Officer DeGeorge the cigarette

lighter concealed inside the shoe. As a result, I find that Officer DeGeorge’s search of May’s

cigarette lighter and seizure of the cocaine inside the lighter failed to violate May’s Fourth



                                              16
Amendment rights. For these reasons, I would affirm the circuit court’s denial of May’s

motion to suppress and would affirm May’s conviction.

¶33.   After arresting the vehicle’s driver and discovering that May’s driver’s license was

suspended, Officer DeGeorge concluded that the vehicle would have to be towed. Officer

DeGeorge therefore asked May to exit the vehicle and sit on the ground so officers could

inventory the vehicle’s contents before the vehicle was towed. Officer DeGeorge testified

that May was not yet in custody when he asked May to exit the vehicle and sit on the ground.

However, Officer DeGeorge further stated that it was not safe for the officers to inventory

the vehicle while someone was still inside the car.

¶34.   Although May was not yet in custody, Officer DeGeorge noticed that May acted

extremely nervous and fidgety. According to Officer DeGeorge’s testimony, May kept

grabbing and holding onto his right shoe as though he were trying to hide something.

Whenever anyone spoke to May or looked in his direction, Officer DeGeorge observed that

May would grab and hold onto his right shoe. Due to May’s behavior, Officer DeGeorge

asked whether May had anything illegal in his possession. After May answered that he did

not, Officer DeGeorge asked May whether he would mind taking off his shoes. Officer

DeGeorge testified that May consented to the request.

¶35.   As May voluntarily took off his shoe, a Zippo cigarette lighter fell to the ground.

Officer DeGeorge testified that the center part of Zippo cigarette lighters come out so that

a person can refill the lighter. When Officer DeGeorge pulled out the center part of May’s

cigarette lighter, he found two small plastic bags containing marijuana and crack cocaine.



                                            17
After discovering the narcotics, Officer DeGeorge arrested May and searched May’s person.

Upon arriving at the police station, May waived his constitutional rights and gave a

statement. During his statement, May admitted that the cocaine and marijuana belonged to

him. Testing later revealed that May’s cigarette lighter had contained 0.3 grams of cocaine.

¶36.   May was subsequently indicted and charged with “knowingly, willfully, unlawfully[,]

and feloniously possess[ing] 0.1 grams or more but less than 2.0 grams of cocaine, a

Schedule II Controlled Substance[.]” See Miss. Code Ann. § 41-29-139(c)(1) (Rev. 2013).

The indictment further charged that May was a habitual offender under Mississippi Code

Annotated section 99-19-83 (Rev. 2015) and had been previously convicted of the following

felonies: (1) burglary in cause number B2402-2007-00714, with a sentence of five years in

the custody of the Mississippi Department of Corrections (MDOC); (2) unlawful possession

of a firearm or a weapon by a convicted felon in cause number B2402-2003-622, with a

sentence of three years in MDOC’s custody; and (3) attempted robbery, a crime of violence,

in cause number 91-7245, with a sentence of fifteen years in MDOC’s custody.

¶37.   Prior to his trial, May moved to suppress the evidence of the cocaine found in his

lighter during the traffic stop. However, the circuit court denied May’s pretrial motion and

allowed the State to introduce the evidence during the trial. After considering the evidence

and testimony presented at trial, the jury found May guilty of possession of a controlled

substance. The circuit court sentenced May, as a habitual offender, to life in MDOC’s

custody without the possibility of parole or probation. May filed an unsuccessful motion for

a new trial or, in the alternative, a judgment notwithstanding the verdict. Aggrieved by his



                                            18
conviction and sentence, May now appeals to this Court.

¶38.   On appeal, May asserts no dispute that probable cause existed for Officer DeGeorge’s

initial traffic stop. Nor does May challenge Officer DeGeorge’s right to conduct a pat down

of May for the safety of Officer DeGeorge and the other police officers. Instead, May asserts

that Officer DeGeorge’s search of his cigarette lighter and seizure of the cocaine inside the

lighter violated the Fourth Amendment. As a result, May argues the circuit court erred by

denying his pretrial motion to suppress the evidence of the cocaine found in his lighter.

¶39.   According to May’s argument, Officer DeGeorge’s search was unreasonable, lacked

probable cause, and occurred without valid consent. Specifically, May argues Officer

DeGeorge’s search was not reasonably related to the scope of the initial traffic stop and was

not justified by probable cause developed during the traffic stop. Furthermore, May contends

Officer DeGeorge lacked valid consent to search the lighter. May therefore asks this Court

to either reverse and render his conviction or to remand the case for a new trial.

¶40.   With regard to the applicable standard of review, the Mississippi Supreme Court has

previously stated:

       When reviewing a trial court’s denial of a motion to suppress, [the appellate
       court] adopts a mixed standard of review. Determinations of reasonable
       suspicion and probable cause are reviewed de novo. However, [the appellate
       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, [the appellate court] is
       restricted to a de novo review of the trial judge’s findings using the applicable
       substantial evidence/clearly erroneous standard. Finally, [the appellate court]
       reviews the admission or exclusion of evidence for abuse of discretion.

Gillett v. State, 56 So. 3d 469, 482 (¶21) (Miss. 2010) (internal citations and quotation marks



                                              19
omitted).

¶41.   I also acknowledge that this case addresses the discovery of incriminating evidence

found upon May’s voluntary removal of his shoe and the revelation to Officer DeGeorge of

the lighter concealed within the shoe. As our caselaw establishes, the voluntariness of one’s

consent to a search is a question of fact to be determined from the surrounding

circumstances. See Gilbreath v. State, 783 So. 2d 720, 723 (¶6) (Miss. Ct. App. 2000).

¶42.   “The Fourth Amendment to the United States Constitution and Article 3 Section 23

of the Mississippi Constitution provide that an individual has the right to be free from

unreasonable searches and seizures.” Shelton v. State, 45 So. 3d 1203, 1208 (¶10) (Miss. Ct.

App. 2010) (citing Dies v. State, 926 So. 2d 910, 917-18 (¶21) (Miss. 2006)). “The action

of an officer stopping a vehicle is reasonable when there is ‘probable cause to believe that

a traffic violation has occurred.’” Lee v. State, 100 So. 3d 982, 984-85 (¶9) (Miss. Ct. App.

2012) (quoting Whren v. United States, 517 U.S. 806, 810 (1996)). However, consent to a

search provides an exception to the requirement of a valid warrant or probable cause. Id. at

985 (¶10).

¶43.   Although May raises no dispute that probable cause existed for Officer DeGeorge’s

initial traffic stop, I briefly address the issue. The record reflects that Officer DeGeorge

stopped the vehicle for careless driving after he observed the vehicle swerve on the interstate

and cross the fog line toward the median. As this Court has previously recognized, the

“failure to have regard for the width and use of the street by swerving off the side of the road

or crossing the marker lines constitutes probable cause for a traffic stop.” Henderson v.



                                              20
State, 878 So. 2d 246, 247 (¶8) (Miss. Ct. App. 2004). Thus, under the circumstances

presented, probable cause existed for Officer DeGeorge to execute a traffic stop and detain

the vehicle.

¶44.   “To stop and temporarily detain is not an arrest, and the cases hold that[,] given

reasonable circumstances[,] an officer may stop and detain a person to resolve an ambiguous

situation without having sufficient knowledge to justify an arrest.” Gonzales v. State, 963

So. 2d 1138, 1141 (¶13) (Miss. 2007) (citation omitted). In addition, the United States

Supreme Court has “noted that it is imperative that the facts be judged against an objective

standard: Would the facts available to the officer at the moment of the seizure or the search

warrant a man of reasonable caution in the belief that the action taken was appropriate?” Id.

at 1141-42 (¶13) (citations and internal quotation marks omitted). During a proper

investigative stop, if a police officer “develops reasonable, articulable suspicion of some

criminal activity in addition to . . . that initially suspected, the permissible scope of the stop

expands to include the officer’s investigation of the newly suspected criminal activity.” Tate

v. State, 946 So. 2d 376, 382 (¶18) (Miss. Ct. App. 2006) (citing United States v. Kye Soo

Lee, 898 F.2d 1034, 1040 (5th Cir. 1990)).

¶45.   In the present case, Officer DeGeorge was able to reasonably articulate the behavior

that led him to suspect “some criminal activity in addition to . . . that initially suspected[.]”

Id. Officer DeGeorge testified that he noticed May acting extremely nervous and fidgety as

he sat on the ground.       Specifically, Officer DeGeorge observed that May appeared

preoccupied with his right shoe and constantly grabbed the shoe whenever anyone spoke to



                                               21
him or looked at him. Based on his experience and training as a police officer, Officer

DeGeorge testified that May’s behavior indicated that May was attempting to hide something

in his shoe. According to Officer DeGeorge’s testimony, May voluntarily consented to

remove his shoes. On appeal, the State argues this indicates May also consented to the search

of the cigarette lighter that fell out of his shoe.

¶46.   In addition to arguing that he never consented to the search of the lighter, May

contends that Officer DeGeorge’s search of the lighter was an illegal attempt to find evidence

without probable cause. May asserts that, at the time the cigarette lighter fell to the ground,

Officer DeGeorge had completed his “safety search” of May. Therefore, because the lighter

was a closed container and was neither a weapon nor contraband, May argues that the

ensuing search of his lighter was unreasonable and lacked probable cause.

¶47.   In addressing May’s assignment of error, I again emphasize that “consenting to a

search is an exception to the requirement that searches are to be conducted pursuant to a valid

warrant or probable cause.” Lee, 100 So. 3d at 985 (¶10) (citing Jackson v. State, 418 So.

2d 827, 830 (Miss. 1982)). I also recognize that, “[w]hether a person voluntarily consents

to a search is a question of fact to be determined by the total circumstances.” Moore v. State,

933 So. 2d 910, 916 (¶20) (Miss. 2006) (citation and internal quotation marks omitted). In

Gales v. State, 153 So. 3d 632, 639 (¶17) (Miss. 2014), our supreme court recognized that

a defendant lacked a reasonable expectation of privacy with regard to incriminating evidence

contained in his pocket when he voluntarily took the item out of his pocket and showed it to

law-enforcement officers. With respect to the present case, I find the supreme court’s



                                                22
holding in Gales controlling.

¶48.   In Gales, a police officer was in pursuit of an armed-robbery suspect when he

encountered the defendant. Id. at 640-41 (¶19). The officer had reason to suspect that Gales

possessed a weapon, and he therefore conducted a search of Gales’s person. Id. at 641 (¶19).

Even though the officer felt no weapon, he did feel an unknown bulge in Gales’s back

pocket. Id. Although concerned for his safety, the officer did not search Gales’s pockets.

Id. Instead, the officer testified that he asked Gales what was in his pocket. Id. The officer

further testified that Gales voluntarily emptied his pockets, showing the officer the money

in his pocket and claiming that he had won the money while gambling. Id.

¶49.   Prior to his trial for armed robbery and conspiracy to commit armed robbery, Gales

argued the officer’s search was unreasonable, and he unsuccessfully tried to suppress all

evidence seized as a result of the search. Id. at 637 (¶10). In upholding the trial court’s

finding that the officer performed a constitutional search, the supreme court stated, “Because

Gales voluntarily showed [the officer] the money, Gales no longer had a ‘reasonable

expectation of privacy’ as to the money under the Fourth Amendment.” Id. at 639 (¶17)

(quoting Katz v. United States, 389 U.S. 347, 359 (1967) (Harlan, J. concurring)).

¶50.   In the present case, May consented to the removal of his shoe, which led him to

voluntarily reveal to Officer DeGeorge the cigarette lighter concealed within the shoe. The

record reflects substantial evidence to support the circuit court’s factual finding that May

consented to Officer DeGeorge’s search. The record also reflects that May’s behavior

created probable cause for the search, thereby rendering consent unnecessary. Like the



                                             23
defendant in Gales, May lacked any reasonable expectation of privacy as to the incriminating

evidence that he voluntarily revealed by removing his shoe. See id. As a result, I find no

merit to May’s claims that Officer DeGeorge’s search of his cigarette lighter and seizure of

the cocaine inside the lighter violated the Fourth Amendment. I therefore would find no

abuse of discretion in the circuit court’s denial of May’s motion to suppress. See Gillett, 56

So. 3d at 482 (¶21). Accordingly, I respectfully dissent from the majority’s opinion and

would affirm the circuit court’s judgment of conviction against May.




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