       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                            NO. 2013-KA-00810-COA

ANTONIO MAURICE PARKS A/K/A ANTONIO                                 APPELLANT
PARKS

v.

STATE OF MISSISSIPPI                                                 APPELLEE


DATE OF JUDGMENT:                     03/14/2013
TRIAL JUDGE:                          HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:            ATTALA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:               ROSALIND HAYDEN JORDAN
ATTORNEY FOR APPELLEE:                OFFICE OF THE ATTORNEY GENERAL
                                      BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                    DOUG EVANS
NATURE OF THE CASE:                   CRIMINAL - FELONY
TRIAL COURT DISPOSITION:              CONVICTED OF POSSESSION OF MORE
                                      THAN THIRTY GRAMS OF COCAINE, A
                                      SCHEDULE II CONTROLLED
                                      SUBSTANCE, AND SENTENCED TO
                                      TWENTY-FIVE YEARS IN THE CUSTODY
                                      OF THE MISSISSIPPI DEPARTMENT OF
                                      CORRECTIONS, WHICH IS TO RUN
                                      CONSECUTIVELY TO ANY PREVIOUSLY-
                                      IMPOSED SENTENCE, WITH TEN YEARS
                                      SUSPENDED AND FIFTEEN YEARS TO
                                      SERVE, FOLLOWED BY FIVE YEARS OF
                                      POST-RELEASE SUPERVISION, AND A
                                      FINE OF $5,000
DISPOSITION:                          AFFIRMED - 01/20/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ.

      BARNES, J., FOR THE COURT:

¶1.   Antonio Maurice Parks was convicted of possession of a schedule II controlled
substance and sentenced to twenty-five years in the custody of the Mississippi Department

of Corrections (MDOC), with ten years suspended and fifteen years to serve, followed by

five years of post-release supervision. Parks claims on appeal that the circuit court’s

admission of evidence obtained during an investigatory stop was an abuse of discretion, as

the stop and subsequent search of his person violated his rights under the Fourth Amendment.

Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On the evening of August 3, 2012, Mississippi Bureau of Narcotics Agent Clint

Walker received information from a confidential informant that two African American males,

traveling from Winston County, Mississippi, in a green SUV with a Holmes County license

plate, were transporting approximately two ounces of crack cocaine. Approximately two

hours later, Agent Walker spotted two African American males in a green SUV with a

Holmes County license plate traveling through Ackerman, Mississippi. Following the

vehicle in an unmarked car, Agent Walker observed the vehicle cross the center line of the

road “a couple of times.” Concerned about the potential for a high-speed pursuit, Agent

Walker radioed the Attala County Sheriff’s Department, requesting assistance in making a

traffic stop. Law enforcement set up a fake safety checkpoint on Highway 12 in order to

effectuate the traffic stop. As the green SUV stopped at the checkpoint, four sheriff’s

deputies and Agent Walker approached the car, with guns drawn.

¶3.    Parks was the driver of the vehicle. He and his passenger, Curtis Blackmon, were

ordered from the vehicle and placed in handcuffs. Parks was taken to the rear of the vehicle,

accompanied by Sheriff Tim Nail and, according to Parks, was given a Terry pat-down


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search at that time.1 Blackmon was taken to the front of the car and left in the custody of a

deputy. Agent Walker did a quick search of the car to check for any weapons in plain sight.

He then proceeded to search Blackmon, but he found nothing on Blackmon’s person. After

obtaining Parks’s verbal consent, Agent Walker searched the vehicle a second time, but

found no contraband. Then, Agent Walker went to the rear of the vehicle where Parks was

being held. He lifted Parks’s shirt to check for any concealed weapon or contraband and saw

three to four inches of the top of a sealed plastic bag sticking up from the waistband of

Parks’s pants. Sheriff Nail removed the white opaque bag, which contained an off-white,

hard, rock-like substance. It was later determined that the bag contained approximately forty

grams of crack cocaine.

¶4.    Parks was subsequently convicted of possession of thirty grams or more of cocaine,

a schedule II controlled substance. He was sentenced to twenty-five years in the custody of

the MDOC, which was to run consecutively to any previously imposed sentence, with ten

years suspended and fifteen years to serve, followed five years of post-release supervision,

and a $5,000 fine. On March 27, 2013, Parks filed a motion for a new trial, or alternatively,

for a judgment notwithstanding the verdict, arguing that the circuit court erred in denying his

motion to suppress the cocaine evidence, as it was obtained in violation of his rights under

the Fourth Amendment. He also claimed the verdict was against the overwhelming weight

of the evidence.

¶5.    The circuit court denied Parks’s post-trial motion, and he now appeals, re-asserting




       1
           See Terry v. Ohio, 392 U.S. 1 (1921).

                                              3
his claim that the search and seizure violated his Fourth Amendment rights.2 Finding no

error, we affirm.

                                       DISCUSSION

       Whether the Terry pat-down conducted by Agent Walker violated Parks’s
       Fourth Amendment right against an unlawful search and seizure.3

¶6.    At trial, defense counsel moved to suppress the evidence of the cocaine, claiming that

Parks had already been frisked for a weapon when he was initially handcuffed; thus, the

second Terry search of Parks by Agent Walker was a violation of Parks’s Fourth Amendment

rights. He further contended that when Agent Walker lifted up Parks’s shirt, it exceeded the

boundaries of a Terry search, which he claims only permits the patting down of a suspect’s



       2
       On appeal, Parks has abandoned his claim that the verdict was against the
overwhelming weight of the evidence.
       3
         Although neither party addressed the validity of the traffic stop on appeal, we find
the investigatory stop of Parks and his companion did not constitute an unlawful search and
seizure. As the trial court ruled, “there was probable cause to make an investigative stop
based on the information that was received from the confidential informant.” Evidence for
reasonable suspicion to make an investigatory stop generally comes from two sources:
“either the officers’ ‘personal observation’ or an informant’s tip.” Eaddy v. State, 63 So. 3d
1209, 1213 (¶15) (Miss. 2011) (citing Williamson v. State, 876 So. 2d 353, 355 (¶9) (Miss.
2004)). “[A]n informant’s tip may provide reasonable suspicion if accompanied by some
indication of reliability[.]” Id.

       Agent Walker confirmed he had used the confidential informant on four prior
occasions and that the information provided to him by the informant in the past had been
“true and accurate.” Also, law enforcement’s identification of the vehicle matched what the
informant had told them. Because law enforcement’s reasonable suspicion was supported
by an indication of reliability (the informant’s tip, corroborated by law enforcement’s
independent investigation), the investigatory stop of the vehicle was supported by probable
cause and not an unlawful search and seizure. See Floyd v. City of Crystal Springs, 749 So.
2d 110, 119 (¶33) (Miss. 1999) (holding investigatory stop was justified as reliable named
informant provided law enforcement specific information concerning defendant’s vehicle
and the informant’s details were corroborated by law enforcement).

                                              4
outer clothing to check for weapons.       See Terry v. Ohio, 392 U.S. 1, 29-30 (1921).

Therefore, he argued that the cocaine evidence was “fruit of the poisonous tree.”

¶7.    There was no indication by the informant that either of the suspects possessed a

weapon. Parks gave consent to search vehicle, but nothing was found in the Terry search of

the vehicle. However, “[a]bsolute certainty that a suspect is armed is not required; ‘the issue

is whether a reasonably prudent man in the circumstances would be warranted in the belief

that his safety or that of others was in danger.’” United States v. Reyes, 349 F.3d 219, 224

(5th Cir. 2003) (quoting Terry, 392 U.S. at 27). Agent Walker stated that in his experience

and training, suspects who possess that amount of “dope” generally are carrying a weapon,

which is why both suspects were handcuffed. At the motion hearing, the trial judge asked

Agent Walker to give additional testimony as to why he still had concern for officer safety

when Parks was already handcuffed. Agent Walker testified that weapons and contraband

can often be concealed in a person’s waistband, and he further explained:

       Being handcuffed in the rear [of the vehicle] would still give [Parks] access to
       any weapon in the waistband. So to be able to clearly – for my comfort, for
       my safety, I pick[ed] up his shirt enough to where I could visibly see and also
       pat[ted] around the waistband to where he would have access to a weapon.

       ....

       This is my officer safety. There is me being able to say I’m doing everything
       I can do to go home to my family at night. When I approached him, I asked
       the sheriff has he been searched, patted down and he was not able to say yes.
       So at that point, I lifted his shirt. I pat[ted] down his waistband. No weapons
       that he can get his hands on to keep me from going home at night.

(Emphasis added). The trial judge concluded that “because Agent Walker had not been

present when Defendant Parks was originally handcuffed, it was reasonable for him to



                                              5
conduct a Terry pat[-]down to determine if the defendant had a weapon.” He also held that

the lifting of Parks’s shirt “was a reasonable thing to do,” as it was dark outside and weapons

are often found tucked in a suspect’s waistband.

¶8.    In Estrada v. Rhode Island, 594 F.3d 56, 67 (1st Cir. 2010), the United States Court

of Appeals for the First Circuit concluded that a second pat-down of the suspect was justified

because the officer had concerns for his safety, as he could not see the suspect while

conducting a background check, and the situation “had escalated” because other suspects did

not have legal documentation of citizen status. Here, when questioned at trial whether

anyone had conducted an initial pat-down of Parks when he was being handcuffed, Sheriff

Nail stated that it was the normal procedure to do so, but he also testified: “I don’t

remember. I don’t remember myself doing one or seeing anybody do one.” As the trial court

noted in its order denying Parks’s motion for a new trial, “[Agent] Walker was not able to

secure a definitive answer from Sheriff Nail concerning the security and thoroughness of a

search of Parks.” Agent Walker stated that, in his experience as a law enforcement officer,

a suspect can reach a weapon even though handcuffed. Consequently, we find no error in

the circuit court’s conclusion that the decision to conduct a Terry search by Agent Walker

was reasonable under the totality of the circumstances.

¶9.    Regarding the lifting of Parks’s shirt, the United States Court of Appeals for the Fifth

Circuit stated in Reyes that “the raising of a suspect’s shirt by a law enforcement officer does

not violate the boundaries established in Terry.” Reyes, 349 F.3d at 225 (citing United States

v. Hill, 545 F.2d 1191, 1193 (9th Cir. 1976)). “[W]hile a search incident to a Terry stop

ordinarily is confined to a pat-down of the outer clothing of a suspect, ‘Terry does not in


                                               6
terms limit a weapons search to a so-called pat-down search.’” State v. Taveras, 39 A.3d

638, 649 (R.I. 2012) (quoting Commonwealth v. Flemming, 925 N.E.2d 39, 43 (Mass. Ct.

App. 2010)). In Hill, 545 F.2d at 1193, the Ninth Circuit also held: “Terry does not in terms

limit a weapons search to a so-called ‘pat[-]down’ search. Any limited intrusion designed

to discover guns, knives, clubs or other instruments of assault are permissible. The raising

of the shirt in the instant case is well within the boundaries established by Terry.” 4

¶10.   Agent Walker stated that Parks was wearing a “large shirt” that “was definitely not

tight on his skin” and that, in his experience, a weapon is often concealed in the waistband

of a suspect’s pants. Parks confirmed during his hearing testimony, on the motion to

suppress, that his t-shirt “covered [his] pants.” Upon the lifting of the t-shirt, the contraband

was sticking out approximately three to four inches above Parks’s pants and was clearly

visible to the officers. Agent Walker’s slight lifting of the shirt to view Parks’s waistband

was a “limited intrusion” in this instance, and we find that his actions did not violate Parks’s

Fourth Amendment rights. Accordingly, the circuit court did not abuse its discretion in

denying Parks’s motion to suppress the evidence. See Cooper v. State, 93 So. 3d 898, 900

(¶6) (Miss. Ct. App. 2012) (A trial court’s admission or exclusion of evidence is reviewed

for abuse of discretion.).

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY OF
CONVICTION OF POSSESSION OF MORE THAN THIRTY GRAMS OF
COCAINE, A SCHEDULE II CONTROLLED SUBSTANCE, AND SENTENCE OF
TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, WHICH IS TO RUN CONSECUTIVELY TO ANY



       4
        We acknowledge that in Hill, the officer observed a “bulge” in the waistband,
providing suspicion that defendant had a weapon.

                                               7
PREVIOUSLY-IMPOSED SENTENCE, WITH TEN YEARS SUSPENDED AND
FIFTEEN YEARS TO SERVE, FOLLOWED BY FIVE YEARS OF POST-RELEASE
SUPERVISION, AND A FINE OF $5,000, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLANT.

     LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON, MAXWELL AND
FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE
WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION.




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