          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-KA-00520-COA

ANDREW ACIE ADAMS A/K/A ANDREW                                           APPELLANT
ADAMS

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                        03/11/2015
TRIAL JUDGE:                             HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:               HARRISON COUNTY CIRCUIT COURT,
                                         FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                       JOEL SMITH
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF POSSESSION OF 250 OR
                                         MORE GRAMS OF MARIJUANA AND
                                         SENTENCED AS A HABITUAL OFFENDER
                                         TO SIXTEEN YEARS IN THE CUSTODY OF
                                         THE MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS, WITHOUT ELIGIBILITY
                                         FOR PAROLE OR EARLY RELEASE
DISPOSITION:                             AFFIRMED: 10/04/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE CARLTON, P.J., FAIR AND GREENLEE, JJ.

      FAIR, J., FOR THE COURT:

¶1.   Andrew Acie Adams was convicted of possession of marijuana after it was found in

his vehicle pursuant to a search warrant. Adams claims on appeal1 that the police obtained


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         Phillip W. Broadhead, clinical professor and director of the University of
Mississippi School of Law Criminal Appeals Clinic, was appointed as Adams’s appellate
the warrant by falsely claiming that a drug dog had indicated the presence of drugs inside the

vehicle. We find this argument procedurally barred and, in the alternative, unsupported by

the record. We affirm Adams’s conviction and sentence.

                                         DISCUSSION

¶2.     Police officers encountered Adams after he double parked his vehicle, a Kia, in the

road. The Kia was next to another vehicle Adams owned, a Chevrolet Impala, which was

parked on the side of the road. Adams was shining a flashlight into the Impala, but when the

officers approached, he returned to the driver’s seat of the Kia and appeared to be preparing

to leave. When the officers activated their blue lights, Adams exited the vehicle and resisted

instructions to remain where he was.2 Adams was arrested for blocking the roadway, and

what were later determined to be synthetic cannabinoids were seen in plain view in the Kia.

Adams’s wife was found to have additional synthetic cannabinoids and a stolen pistol in her

purse. After a drug-detecting police dog alerted to the presence of illegal drugs in the

Impala, the officers obtained a search warrant for the vehicle. The marijuana Adams was

ultimately convicted of possessing was found in a plastic bag on the rear floorboard, driver’s

side.

¶3.     On appeal, Adams contends that the search warrant was illegally obtained based on


counsel. Third-year law students under Professor Broadhead’s supervision were appointed
as special counsel pursuant to Mississippi Code Annotated section 73-3-207 (Rev. 2012).
Jody A. Bevill and Ethan D. Lavelle assisted in the preparation of Adams’s briefs, and
Valerie Moss and Philip Summa presented oral argument.
        2
            Later, Adams slipped out of his handcuffs and had to be forcibly restrained.

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a false statement in the supporting affidavit. He bases this claim on a dash camera recording

of a drug-detecting dog’s walk around his vehicle. The recording shows the dog and its

handler, Officer Michael Hauler, walking counterclockwise around the vehicle, starting at

the passenger’s side rear corner. The pair walk around the vehicle, and as they pass the

driver’s side rear corner, the dog appears to hesitate and jumps up toward the driver’s side

taillight. It then walks further around the rear of the vehicle, where it is out of the video

frame for a moment. The dog then returns to the driver’s side rear corner, where it bows,

with its rear up and its front legs extended toward the vehicle, and begins excitedly sticking

its muzzle into the seam between the bumper and the quarter panel.

¶4.    The video then shows officers investigating the gap between the bumper and the

quarter panel, the bumper itself, and the interior of the vehicle (by looking through the

window on the rear driver’s side door). The officers subsequently obtained a warrant to

search the vehicle, on an affidavit stating that the dog had alerted to the presence of illegal

drugs “on the rear quarter panel.”

¶5.    According to Adams, the video shows the dog indicating the presence of drugs in the

bumper, which he contends is a discrete part of the vehicle that was open to the outside and

thus could be, and was, verified not to contain drugs. He contends that after failing to find

drugs in the bumper, the officers should have discounted the dog’s alert as a false positive,

and thus they had no probable cause for a warrant to search the interior of the vehicle.

¶6.    From our review of the record, this argument is procedurally barred. While Adams



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did present several written motions to suppress, only one arguably challenges the search

warrant directly, and it is a form motion that appears to have been drafted to encompass every

imaginable challenge to all of the evidence obtained against “the Defendant.” It was

followed by a motion more specifically challenging Adams’s arrest, but not the search

warrant for the Impala (except to the extent that it was claimed to derive from the arrest as

fruit of the poisonous tree). Still, the trial judge allowed Adams great latitude with his

original form motion and essentially heard any and every evidentiary challenge Adams was

willing to present. But when offered the opportunity to present evidence and arguments

relating to the search warrant for the Impala, Adams’s attorney simply “stood on the motion.”

The trial judge then looked at the evidence that had been presented thus far on the other

suppression issues, and he found that the warrant was legally issued. In elaborating on this

ruling, the trial judge did observe that the dog “alerted positive on the rear quarter panel of

the vehicle.” But this was not in response to any contentions by Adams to the contrary, and

no real evidence was presented at the suppression hearing elaborating on the details on how

the dog detected or indicated the presence of drugs. The failure to make this specific

argument denied the State the opportunity to present evidence on the issue and denied the

trial court the opportunity to make specific findings of fact on the contention. As a result,

this issue is procedurally barred. See, e.g., Williams v. State, 994 So. 2d 821, 828 (¶24)

(Miss. Ct. App. 2008).

¶7.    Notwithstanding the procedural bar, we see no merit to this claim. Adams contends



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on appeal that the officers misled the issuing judge by claiming that the dog was alerting to

the quarter panel rather than the bumper. On this point, Adams had to make “a substantial

preliminary showing that a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant affidavit” and that “the

allegedly false statement is necessary to the finding of probable cause.” Petti v. State, 666

So. 2d 754, 758 (Miss. 1995) (citing Franks v. Delaware, 438 U.S. 254, 154, 155-56 (1978)).

Adams then bore the burden to prove, by a preponderance of the evidence, that the

challenged statement was perjured or made in reckless disregard of the truth. Id. Finally,

Adams had to show that without the false statement, the affidavit did not establish probable

cause for the search. Id. And since this was the search of an automobile, a warrant was not

required; the search would nonetheless have been legal had probable cause existed

notwithstanding the failure to describe it in the affidavit. See Townsend v. State, 681 So. 2d

497, 502 (Miss. 1996).

¶8.    Adams fails to make even the threshold showing that the officers’ description of

where the dog alerted was false. He attempts do so by reference to the dash cam video,

describing how and where the dog jumps and what it did with its muzzle (sticking it between

the bumper and the quarter panel). In these arguments, Adams seems to assume that this

behavior constituted the alert. But the handler, Officer Hauler, testified (at trial) that the dog

was actually trained to alert by pointing and scratching with its front paws; and the video in

fact shows the dog doing this, though it is unclear whether the dog is pointing at the bumper



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or the quarter panel. According to Officer Hauler, the dog had alerted on the quarter panel

where it met the bumper, and the behavior cited by Adams was actually the dog attempting

to use its muzzle for leverage to make the alert gesture at a higher point on the vehicle. The

video simply does not meet Adams’s burden to show that the affidavit’s statement that the

dog alerted on the quarter panel is false.

¶9.    Adams also fails to show that the allegedly false statement was material to whether

probable cause was established in the affidavit. He seems to assume that, had the dog been

pointing toward the bumper rather than the quarter panel, probable cause would have been

limited to the bumper itself and there would have been no probable cause to search the inside

of the vehicle. For its part, the State concedes that if there was probable cause only to

believe contraband would be found in one specific part of the vehicle, the warrant should

have been so limited. See Millsap v. State, 767 So. 2d 286, 292 (¶22) (Miss. Ct. App. 2000).

But Adams begs the question about what would have been indicated by an alert on the

bumper rather than the quarter panel. There was no evidence introduced regarding the dog’s

ability to pinpoint the exact location of contraband with the degree of certainty Adams

assumes. Moreover, probable cause is a totality of the circumstances question. Batiste v.

State, 121 So. 3d 808, 859 (¶129) (Miss. 2013). Even assuming that the dog was alerting on

the bumper and that an alert to the bumper (taken alone) would have limited probable cause

to the bumper, the detection of drug odors there would still be a fact to be considered in the

totality of circumstances as to whether there was probable cause to search the interior of the



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vehicle. See United States v. Seals, 987 F.2d 1102, 1107 (5th Cir. 1993). Adams fails to

address that possibility.

¶10.   Finally, Adams suggests that the warrant was invalid because the supporting affidavit

failed to attest to the dog’s certifications, but this contention was not raised before the trial

court and is procedurally barred on appeal. Furthermore, Adams presents no authority

holding that a statement regarding the dog’s certification is required to support a search

warrant; and even if it were, the search would still be valid as a warrantless search under the

automobile exception, as the dog was, in fact, certified, and its training was discussed at

length at trial. See Townsend, 681 So. 2d at 502.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY,
FIRST JUDICIAL DISTRICT, OF CONVICTION OF POSSESSION OF 250 OR
MORE GRAMS OF MARIJUANA AND SENTENCE AS A HABITUAL OFFENDER
OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR EARLY
RELEASE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
HARRISON COUNTY.

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




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