        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2013-KA-01428-COA

CLARENCE WYDELL HYNES A/K/A                                              APPELLANT
CLARENCE HYNES

v.

STATE OF MISSISSIPPI                                                       APPELLEE


DATE OF JUDGMENT:                        10/09/2012
TRIAL JUDGE:                             HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:               SCOTT COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  EDMUND J. PHILLIPS JR.
ATTORNEY FOR APPELLEE:                   LISA L. BLOUNT
DISTRICT ATTORNEY:                       MARK SHELDON DUNCAN
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF POSSESSION OF AT
                                         LEAST .1 GRAM BUT LEST THAN 2
                                         GRAMS OF METHAMPHETAMINE, AS A
                                         SUBSEQUENT DRUG OFFENDER, AND
                                         SENTENCED TO TEN YEARS IN THE
                                         CUSTODY OF THE MISSISSIPPI
                                         DEPARTMENT OF CORRECTIONS
DISPOSITION:                             AFFIRMED - 12/02/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., FAIR AND JAMES, JJ.

      JAMES, J., FOR THE COURT:

¶1.   After a jury trial, Clarence Wydell Hynes was convicted of possession of at least .1

gram but less than 2 grams of methamphetamine.        Because of a prior conviction of

possession of methamphetamine, Hynes was sentenced as a second offender to ten years in

the custody of the Mississippi Department of Corrections. Hynes filed a motion for a new
trial, and the trial court denied the motion. Hynes raises the following issues: (1) whether

the trial court erred in admitting into evidence the search of Hynes’s person, and (2) whether

the trial court erred in admitting Hynes’s confession into evidence. Finding no error, we

affirm.

                                           FACTS

¶2.       On November 10, 2011, Hynes was with his friend, Ryan Jackson, at the intersection

of VFW Road and a dirt road. Deputy Sheriff Joey Rigby and Jeff Pitts, an agent with the

narcotics task force with the Scott County Sheriff’s Department, were driving in separate

vehicles down VFW Road when they saw Jackson and Hynes. Deputy Rigby testified that

he saw Hynes and Jackson duck behind a car. Deputy Rigby turned around and observed a

red Ford traveling at a high rate of speed. Agent Pitts stopped his vehicle at the dirt road and

stayed with Jackson. Deputy Rigby stopped Hynes’s car and was told by Hynes that his

license was suspended. Deputy Rigby conducted a pat down of Hynes and felt a lump in

Hynes’s pocket. Deputy Rigby reached inside the pocket and pulled out a pill bottle, which

contained what he suspected to be a controlled substance. Hynes was then handcuffed and

Deputy Rigby continued to pat Hynes down. After testing, it was determined that the

substance found in Hynes’s pocket was methamphetamine.

¶3.       Hynes told Deputy Rigby that he had a problem with drugs and bought the drugs from

someone named “Brusha.” Deputy Rigby testified that Hynes volunteered information about

where he bought the drugs. Further, Deputy Rigby did not question Hynes. Leonard

Harrison, a narcotics investigator with the sheriff’s department, testified that Hynes was read

his rights and that Hynes appeared to have understood those rights. Investigator Harrison


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also testified that while Hynes was in custody, he never asked for an attorney and gave a

written, signed statement.

¶4.    The suppression hearing was held immediately prior to trial. Hynes argued that

Deputy Rigby should have obtained a search warrant before searching his person. As a

result, the search that produced the contraband was illegal and the evidence should not be

admitted. The trial court overruled Hynes’s objection and the evidence was admitted.

¶5.    At trial, Jackson testified that when Hynes saw the police, he got into his car and left,

but was not speeding.        Jackson also testified that he did not see Hynes smoke

methamphetamine. Hynes declined to testify in his defense. At the close of all the evidence,

Hynes made a motion to dismiss and renewed his motion to suppress the evidence from the

pill bottle, which the trial court denied.

¶6.    Hynes filed a motion for a new trial, and the trial court denied the motion. Hynes

appeals.

                                STANDARD OF REVIEW

¶7.    The Mississippi Supreme Court has held that “[a]dmission or exclusion of evidence

will be [re]viewed on an abuse of discretion standard.” Hargett v. State, 62 So. 3d 950, 952

(¶7) (Miss. 2011). Further, “[a] trial judge enjoys a great deal of discretion as to the

relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be

prejudicial to the accused, the Court will not reverse this ruling.” Id. at 952-53 (¶7).

¶8.    The denial of a motion for a new trial will be reversed only when a verdict is so

“contrary to the overwhelming weight of the evidence that to allow it to stand would sanction

an unconscionable injustice.” Pritchett v. State, 134 So. 3d 857, 859 (¶5) (Miss. Ct. App.

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2014). Also, the evidence is viewed in light most favorable to the verdict. Id.

                                       DISCUSSION

       I.     Whether the trial court erred in admitting into evidence the search
              of Hynes’s person.

¶9.    Hynes argues that the State incorrectly applied the “plain feel” doctrine, and that it

was not possible to determine from the pat-down that Hynes’s pocket contained any

contraband. Hynes also relies on Anderson v. State, 16 So. 3d 756 (Miss. Ct. App. 2009),

to support his argument. In Anderson, Deputy Truett conducted a pat down search for

weapons on Anderson. Id. at 758 (¶4). Deputy Truett felt a pill bottle in Anderson’s pocket,

and he removed the pill bottle, opened the container, and discovered the methamphetamine.

Id. Anderson was arrested and charged with possession of methamphetamine. Id. This

Court held that there was no probable cause to suspect that the pill bottle contained a

controlled substance. Id. at 762 (¶15). The Court also stated “a pill bottle, in and of itself,

is not contraband. It is not illegal to have a pill bottle, and there was no evidence presented

that pill bottles typically contain contraband.” Id. at (¶16).

¶10.   An individual has the right to be free from unreasonable searches and seizures. Eaddy

v. State, 63 So. 3d 1209, 1213 (¶12) (Miss. 2011). This right is granted by the Fourth

Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi

Constitution. Id. In order to determine the reasonableness of a search and seizure, the Court

employs a two-prong test: “(1) whether the officer’s action was justified at its inception, and

(2) whether it was reasonably related in scope to the circumstances which justified the

interference in the first place.”   Id.   Both the State and Federal Constitutions forbid



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warrantless searches unless an exception is applicable. Id. “Unless the State proves that a

warrantless search comes within an exception, all evidence seized from the search is

inadmissible. Id.

¶11.   During the suppression hearing, Deputy Rigby testified that he stopped Hynes because

he was speeding. “Police officers may detain a person for a brief investigatory stop

consistent with the Fourth Amendment when officers have reasonable suspicion[,] grounded

in specific and articulable facts[,] that allows the officers to conclude the suspect is wanted

in connection with criminal behavior.” Lawrence v. State, 124 So. 3d 91, 95 (¶11) (Miss. Ct.

App. 2013).

¶12.   Under Whren v. United States, 517 U.S. 806 (1996), the United States Supreme Court

held that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment

analysis.” Id. at 813. In other words, the reasoning behind the original traffic stop does not

matter as long as the officer objectively believed that a traffic violation occurred. Here,

Deputy Rigby thought that Hynes was speeding; therefore, he had probable cause to initiate

a traffic stop.

¶13.   Although individuals are protected from warrantless searches and seizures by the

Fourth Amendment, there are several exceptions to the warrant requirement; “including a

consensual search, a search incident to arrest, an inventory search, a search under exigent

circumstances if probable cause exists, and a search of a vehicle when making a lawful

contemporaneous arrest.” Bradley v. State, 934 So. 2d 1018, 1022 (¶7) (Miss. Ct. App.

2005). Further, “[t]he State bears the burden to show that a warrantless search comes within

an exception for evidence seized thereupon to be admissible.” Galloway v. State, 122 So.


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3d 614, 669 (¶182) (Miss. 2013).

¶14.   Once stopped, Hynes told Deputy Rigby that he had a suspended license. It was then

Deputy Rigby decided to arrest him and conducted a search incident to his arrest. We have

previously stated that “it is well settled than an officer has the right to conduct a search of a

defendant’s person incident to a lawful arrest.” McKee v. State, 878 So. 2d 232, 236 (¶13)

(Miss. Ct. App. 2004). Also, “evidence obtained as a result of the search incident to [the]

defendant’s arrest for a particular crime is not related to that charge, but created probable

cause for a subsequent arrest on a wholly different charge.” Lee v. State, 100 So. 3d 982, 985

(¶11) (Miss. Ct. App. 2012). Deputy Rigby had probable cause to arrest Hynes once he

confessed to having a suspended license.

¶15.   In Anderson, the defendant was not under arrest when the officer conducted his pat

down. Further, the pat down was to check for weapons, and Anderson was arrested only

when the officer found contraband on his person. Here, Deputy Rigby formed the intention

to arrest Hynes when he learned that Hynes had a suspended license. The circumstances of

Anderson’s and Hynes’s arrests are different, and therefore, Anderson does not apply.

Therefore, this issue is without merit.

       II.    Whether the trial court erred in admitting Hynes’s confession into
              evidence.

¶16.   Hynes argues that his arrest was illegal, and it led to his confession. The only

authority Hynes cites for this assignment of error is Coleman v. State, 592 So. 2d 517 (Miss.

1991). There, the supreme court stated, however: “This Court is not unmindful that a

confession given while in custody following an illegal arrest is not per se inadmissible.” Id.



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at 521. “Brown v. Illinois, 422 U.S. 590 (1975), and its progeny require further inquiry to

determine whether the confession is voluntary, and if so, whether there are any significant

intervening events which remove from the confession the primary taint of the illegal arrest.”

Coleman, 592 So. 2d at 521 (citations omitted).

¶17.   During the suppression hearing, there was testimony that Hynes had been read his

Miranda rights and that he understood those rights. Also, the waiver-of-rights form was

entered into evidence. Also, Hynes did not ask for an attorney before giving his statement

to the police. The State bears the burden of proving that the confession is voluntarily given.

Johnson v. State, 129 So. 3d 148, 151 (¶12) (Miss. 2013). Further, the “burden is met and

a prima facie case is made by testimony of an officer, or other persons having knowledge of

the facts, that the confession was voluntarily made without threats, coercion, or offer of

reward.” Id.

¶18.   Here, there is substantial evidence that support the trial court’s admission of Hynes’s

confession. Several officers were present when he signed his confession, and the officers

also testified that Hynes was aware of his rights and seemed to understand them. Also,

Hynes never asked to speak to an attorney or at any time exercised his right to remain silent.

Therefore, this issue is without merit.

                                      CONCLUSION

¶19.   The trial court did not abuse its discretion in admitting the evidence of Hynes’s

confession and the methamphetamine found on Hynes’s person. First, Deputy Rigby

performed a valid traffic stop because Hynes was traveling at a high rate of speed. Second,

Deputy Rigby conducted a search incident to the arrest once he learned of Hynes’s suspended

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license. Also, the trial court did not err when it admitted Hynes’s confession into evidence.

As previously discussed, there was testimony from several officers stating that Hynes gave

his statement voluntarily and was not coerced in any way. Accordingly, we affirm the

decision of the trial court.

¶20. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF MORE THAN .1 GRAM BUT LESS THAN 2
GRAMS OF METHAMPHETAMINE, AS A SUBSEQUENT DRUG OFFENDER,
AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO SCOTT COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND FAIR, JJ., CONCUR.




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