                           IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 1998-KM-01252-SCT
GRAHAM ALEXANDER FLOYD
v.
CITY OF CRYSTAL SPRINGS, MISSISSIPPI

DATE OF JUDGMENT:                                     7/28/1998
TRIAL JUDGE:                                          HON. LAMAR PICKARD
COURT FROM WHICH APPEALED:                            COPIAH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                               ROBERT LEWIS SPOTSWOOD
ATTORNEY FOR APPELLEE:                                ROBERT W. LAWRENCE
NATURE OF THE CASE:                                   CRIMINAL - MISDEMEANOR
DISPOSITION:                                          AFFIRMED - 11/24/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                       12/15/99



     EN BANC.
     SMITH, JUSTICE, FOR THE COURT:

¶1. This case comes to this Court on appeal following the conviction in the Circuit Court of Copiah County,
Mississippi, of Graham Floyd for first offense DUI.

¶2. On April 24, 1997, Graham Floyd was operating his vintage red 1966 Ford Mustang convertible in an
easterly direction along Highway 27 within the City of Crystal Springs, Mississippi, when he was stopped
by members of the Crystal Springs Police Department and subsequently arrested for driving under the
influence. Floyd was tried and convicted by the Municipal Court of Crystal Springs, Mississippi, for DUI,
first offense, on May 15, 1997.

¶3. Floyd then appealed the conviction to the Circuit Court of Copiah County, Mississippi. Circuit Judge
Lamar Pickard conducted a de novo bench trial and found Floyd guilty of DUI, first offense, in violation of
Miss. Code Ann. § 63-11-30(1)(a) (Supp. 1998). Floyd was sentenced to pay a fine of $500.00 plus
State assessments in the amount of $172.00, and was taxed with all costs of the appeal to the circuit court.
Floyd now appeals the conviction to this Court.

                                       STATEMENT OF FACTS

¶4. Officer Gerome Leflore of the Crystal Springs Police Department was off duty when a citizen
approached him at a gas station on Mississippi Highway 27 on April 24, 1997, and reported to him that
there was a person in an antique model, red Mustang convertible driving at a high rate of speed in a
reckless manner headed into town on Highway 51. Because Officer Leflore was not on duty at the time, he
called the Crystal Springs Police Department and relayed the information to the dispatcher. Officer Leflore
testified that the citizen who reported the incident, David Rogers, had given Leflore information and
complaints in the past.

¶5. The police dispatcher radioed the information to Officer Chris Palmer, who proceeded to the
intersection of Highway 51 and Highway 27 in Crystal Springs, where he intercepted a vehicle matching the
description given by the dispatcher. When Officer Palmer began following the Mustang, there was a vehicle
between Officer Palmer's patrol car and the Mustang, and Officer Palmer testified that he did not see the
driver of the Mustang violate any traffic laws. As soon as Officer Palmer could safely pass the vehicle, he
pulled the Mustang to the side of the road.

¶6. Officer Palmer testified that he asked the driver, Graham Floyd, for his license. Officer Palmer stated
that the top was down on the convertible, and he noticed a glass on the middle console of the vehicle and
an opened bottle of a white substance labeled "vodka" on the passenger side.

¶7. Officer Palmer testified that he asked Floyd to step from the vehicle, and that, when Floyd did so, he
staggered, and Officer Palmer had to step between Floyd and the highway to keep Floyd safely out of the
highway. Officer Palmer stated that Floyd told him he had had a few drinks at the County Line beer joint
and was drinking some on the way home. Officer Palmer also testified that Floyd's speech was "really
slurred," and that Floyd muttered and talked loudly. Officer Palmer stated that Floyd tried to fix his pants
leg and almost fell.

¶8. Officer Palmer testified that Floyd had a knot on his head that was bleeding a little, apparently from a
fight Floyd had been engaged in earlier that evening. Palmer stated that he asked Floyd several times
whether Floyd wanted to see a doctor, but that Floyd refused medical assistance.

¶9. Officer Palmer then thought it necessary to transport Floyd to the police department for the intoxilizer
test, so he handcuffed Floyd and drove him to the police station. At the station, Officer Palmer told Floyd
he had the right to refuse the test and explained the consequences of refusal. At that time, Floyd asked to
use the telephone to call his attorney. Officer Palmer testified that, upon Floyd's request, he gave Floyd the
nearest telephone available, which was only five feet from where the two were sitting. Officer Palmer did
not leave the room while Floyd called his attorney. Floyd told his attorney on the phone that he had had a
few drinks. Subsequent to the telephone conversation, Floyd refused to take the intoxilizer test.

¶10. Floyd was tried and convicted by the Municipal Court of Crystal Springs, Mississippi, for DUI, first
offense, on May 15, 1997. Floyd then appealed the conviction to the Circuit Court of Copiah County,
Mississippi. Circuit Judge Lamar Pickard conducted a de novo bench trial and found Floyd guilty of DUI,
first offense, in violation of Miss. Code Ann. § 63-11-30(1)(a) (Supp. 1998). At trial, Floyd's counsel
objected to the introduction of the telephone conversation and moved to dismiss for lack of probable cause
to stop Floyd's vehicle. Judge Pickard reserved ruling on the objection regarding the telephone
conversation, and never issued a final ruling to that objection. Judge Pickard overruled the motion to
dismiss, and stated that there was probable cause to stop the vehicle. From this ruling, Floyd appeals,
raising the following issues:

      I. WHETHER A POLICE OFFICER HAS THE LAWFUL AUTHORITY TO STOP A
      VEHICLE WHEN THE OFFICER DID NOT OBSERVE ANY MOTOR VIOLATIONS
      OR SUSPICIOUS DRIVING, YET RECEIVED SPECIFIC INFORMATION FROM A
     THIRD PARTY WARNING THAT THE DRIVER WAS OPERATING THE VEHICLE IN
     A RECKLESS MANNER.

     II. WHETHER INCRIMINATING STATEMENTS MADE BY A SUSPECT DURING A
     TELEPHONE CONVERSATION WITH HIS ATTORNEY MAY BE USED AGAINST
     THE DEFENDANT WHEN THE CONVERSATION TOOK PLACE IN THE PRESENCE
     OF A POLICE OFFICER AND AFTER THE DEFENDANT HAD BEEN PLACED IN
     CUSTODY.

                                       STANDARD OF REVIEW

¶11. This Court must utilize a separate standard of review for each of the two issues raised by Floyd. First,
determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.
Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed. 2d 911 (1996). This
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. Id. Thus, this
Court is restricted to a de novo review of the trial judge's findings using the applicable "substantial
evidence"/"clearly erroneous" standard. McNeal v. State, 617 So. 2d 999, 1007 (Miss. 1993) (citing
Hansen v. State, 592 So. 2d 114 (Miss.1991)).

¶12. Second, this Court has held that "[t]he standard of review regarding admission [or exclusion] of
evidence is abuse of discretion." Thompson Mach. Commerce Corp. v. Wallace, 687 So. 2d 149, 152
(Miss. 1997). Where error involves the admission or exclusion of evidence, this Court will not reverse
unless the error adversely affects a substantial right of a party." In re Estate of Mask, 703 So. 2d 852,
859 (Miss. 1997); Terrain Enters., Inc. v. Mockbee, 654 So. 2d 1122, 1131 (Miss. 1995).

                                               DISCUSSION

     I. WHETHER A POLICE OFFICER HAS THE LAWFUL AUTHORITY TO STOP A
     VEHICLE WHEN THE OFFICER DID NOT OBSERVE ANY MOTOR VIOLATIONS
     OR SUSPICIOUS DRIVING, YET RECEIVED SPECIFIC INFORMATION FROM A
     THIRD PARTY WARNING THAT THE DRIVER WAS OPERATING THE VEHICLE IN
     A RECKLESS MANNER.

¶13. Floyd argues that the power of a law enforcement officer to perform an investigatory stop without a
warrant is limited to those instances when a misdemeanor or felony is committed in the presence of the
officer or when the officer reasonably believes that the suspect is involved in a felony. Thus, Floyd contends
that because reckless driving is a misdemeanor and because Officer Palmer did not personally observe
Floyd driving in a reckless manner, the stop performed by Officer Palmer was unlawful as a violation of the
Fourth Amendment's prohibition against unreasonable search and seizure.

¶14. The Fourth Amendment to the United States Constitution and Article 3, Section 23 of the Mississippi
Constitution contain almost identical language expressing a person's right to be secure from unreasonable
searches and seizures. The prohibition against unreasonable searches and seizures "applies to seizures of the
person, including brief investigatory stops such as the stop of a vehicle." United States v. Cortez, 449 U.S.
411, 417, 101 S.Ct. 690, 694, 66 L.Ed. 2d 852 (1981). See also Davis v. Mississippi, 394 U.S. 721,
89 S.Ct. 1394, 22 L.Ed. 2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877, 20
L.Ed. 2d 889 (1968).

¶15. By statute in Mississippi, a law enforcement officer may arrest, without a warrant, a suspect for a
misdemeanor when the misdemeanor was committed in the officer's presence. Miss. Code Ann. § 99-3-
7(1) (Supp. 1999). However, the statute permits an officer to arrest a suspect for a felony where the officer
has reasonable ground to believe the person to be arrested committed a felony, even though not committed
in the officer's presence.

¶16. The constitutional requirements for an investigative stop and detention are less stringent than those for
an arrest. This Court has recognized 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," that is, on
less information than is constitutionally required for probable cause to arrest. Singletary v. State, 318 So.
2d 873, 876 (Miss. 1975). See also McCray v. State, 486 So. 2d 1247, 1249 (Miss. 1986). Such an
investigative stop of a suspect may be made so long as an officer has "a reasonable suspicion, grounded in
specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a
felony...." McCray, 486 So. 2d at 1249 (quoting United States v. Hensley, 469 U.S. 221, 229, 105
S.Ct. 675, 680, 83 L.Ed. 2d 604, 612 (1985)), or as long as the officers have "some objective
manifestation that the person stopped is, or is about to be engaged in criminal activity." McCray, 486 So.
2d at 1249-50 (quoting Cortez, 449 U.S. at 417, 101 S.Ct. at 695).

¶17. The United States Supreme Court approved this investigatory procedure in Terry v. Ohio, 392 U.S.
1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32
L.Ed. 2d 612 (1972). In determining whether there exists the requisite "reasonable suspicion, grounded in
specific and articulable facts," the court must consider whether, taking into account the totality of the
circumstances, the detaining officers had a "particularized and objective basis for suspecting the particular
person stopped of criminal activity." Cortez, 449 U.S. at 417-18, 101 S.Ct. at 694-95 (citing Brown v.
Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed. 2d 357 (1979)).

¶18. As this Court noted in Singletary, the United States Supreme Court has "unequivocably settled the
question of the lawfulness of an investigative stop where there is no probable cause to arrest if the officer
acts reasonably." Singletary, 318 So. 2d at 877. The test is thus one of reasonableness, and neither this
Court nor the United States Supreme Court has articulated a concrete rule to determine what circumstances
justify an investigatory stop. Green v. State, 348 So. 2d 428, 429 (Miss. 1977). The question is
approached on a case-by-case basis. Id. The United States Supreme Court has stated that, as a general
rule, "the decision to stop an automobile is reasonable where the police have probable cause to believe that
a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135
L.Ed. 2d 89 (1996) (citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 1399, 59 L.Ed. 2d
660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed. 2d 331 (1977)).

¶19. Floyd argues that an investigative stop is lawful only where the officer has observed the suspect
committing a misdemeanor or reasonably believes the person to have committed a felony. Floyd contends
that because an officer could not lawfully arrest a suspect without a warrant where the misdemeanor was
committed outside the officer's presence, the investigative stop of a misdemeanor suspect violates the
Fourth Amendment where the misdemeanor occurred outside the officer's presence. The State distinguishes
between the standard of reasonable suspicion required for an investigative stop and the misdemeanor /
felony distinction made by Miss. Code Ann. § 99-3-7 in determining probable cause to arrest.
¶20. For this argument, Floyd cites to the following language found in Floyd v. State, 500 So. 2d 989
(Miss. 1986):

      An investigative stop may be made even where officials have no probable cause to make an arrest as
      long as they have "a reasonable suspicion, grounded in specific and articulable facts, that a person
      they encounter was involved or is wanted in connection with a completed felony . . . or 'some
      objective manifestation that the person stopped is, or is about to be engaged in criminal activity.'"

Floyd, 500 So. 2d at 992 (quoting McCray v. State, 486 So. 2d at 1249-50). The defendant in Floyd
was suspected of drug trafficking. The highway patrol put out a bulletin on the defendant's vehicle. The
defendant was subsequently spotted by a trooper and pulled over. The trooper first arrested the defendant,
then smelled marijuana when he leaned inside the car. The trooper then opened the trunk and discovered
bales of marijuana. On appeal, this Court stated that the trooper lacked both the reasonable suspicion of
criminal activity required to make the stop as well as the probable cause required to arrest the defendant.
Floyd, 500 So. 2d at 993 n.1. The trooper lacked reasonable suspicion to make the stop because he was
told only to be on the lookout for the defendant's vehicle and to advise headquarters if he stopped the
vehicle. The trooper had no idea why the defendant was wanted. The trooper lacked probable cause to
make the arrest because the arrest preceded the discovery of the marijuana, and the scant information given
to the officer was not enough to amount to probable cause.

¶21. The above quoted language which is urged by Floyd in this case was first utilized by this Court in
McCray v. State, 486 So. 2d 1247 (Miss. 1986). Like Floyd, McCray involved a suspected felony, not
a traffic violation. In McCray, officers observed certain characteristics of the often-used drug courier profile
in determining that the defendant was likely involved in drug trafficking. Officers stopped the defendant in an
airport terminal. A drug-detecting dog reacted positively to the suitcase belonging to the defendant. The
defendant was asked to accompany the officers to the airport police office where the defendant consented
to a search of his bags. This Court held that even if the initial stop of the defendant exceeded the scope of
the investigative search and thus amounted to a seizure, the officers had probable cause to do so. McCray,
486 So. 2d at 1250.

¶22. Floyd also cites to Haddox v. State, 636 So. 2d 1229 (Miss. 1994), another drug trafficking case
which, again, cites Floyd for the requirement that to make an investigative stop, an officer needs only a
reasonable suspicion that the suspect is involved in a felony. Haddox, 636 So. 2d at 1233. In Haddox, a
law enforcement officer received information from a confidential informant that the defendants, two sisters,
were to be driving into Marion County with a large amount of marijuana. The officer pulled over the vehicle
driven by the sisters, and, upon not seeing any contraband in plain view, informed the sisters that they would
have to wait while a search warrant was obtained. On appeal, the sisters argued that the detention
amounted to an arrest and that the officer did not have probable cause to detain them. The Court held that
the detention, which lasted only five to ten minutes, did not amount to an arrest, but was within the purview
of the investigative stop, and that, at the time of the stop, there was no reasonable belief that the stop would
turn into a more permanent detainment, i.e. a full arrest. Id. at 1237. As in both Floyd and McCray, this
Court was not called upon in Haddox to make the felony/misdemeanor distinction, and the stop was
unrelated to any traffic offense.

¶23. Examining only the language of Floyd, McCray and Haddox containing the statement that to make an
investigative stop, an officer needs only a reasonable suspicion that the suspect is involved in a felony, it
would seem, at first blush, that Floyd's argument that Officer Palmer could not lawfully stop him for a traffic
violation which did not occur in Officer Palmer's presence is correct. Nevertheless, this argument is
misplaced.

¶24. First, the language argued by Floyd from Floyd, McCray, and Haddox allows an officer to make an
investigative stop where the traffic violation did not occur in his presence. Again, that language reads:

      An investigative stop may be made even where officials have no probable cause to make an arrest as
      long as they have 'a reasonable suspicion, grounded on specific and articulable facts, that a person
      they encounter was involved or is wanted in connection with a completed felony . . . or some
      objective manifestation that the person stopped is, or is about to be engaged in criminal activity.'

Floyd, 500 So. 2d at 992 (quoting McCray, 486 So. 2d at 1249-50) (emphasis added). As Floyd points
out, traffic violations are misdemeanors, and misdemeanors are, technically speaking, "criminal activity" in
that misdemeanors, like felonies, are crimes. Therefore, the very language urged by Floyd allows an officer
to stop a suspect so long has he has a reasonable suspicion of any "criminal activity."

¶25. Second, Floyd takes the language relied upon out of context. The facts of neither Floyd, McCray, nor
Haddox stand for the proposition for which Floyd cites those cases. The defendants in all three cases were
suspected of felonies; thus, this Court was not faced with making a felony/misdemeanor distinction in any of
cases cited by Floyd. The quoted language relied upon by Floyd is found either in cases like the three
discussed above in which the investigative stop was made for purposes wholly unrelated to a traffic
violation or in cases in which the suspect was stopped initially for a traffic violation, but where the suspect
was detained for something unrelated to the traffic violation. See, e.g., Chapman v. State, 284 So. 2d 525
(Miss. 1973) (defendant was stopped for speeding and was detained because she and her companions fit
the description of the persons who had recently robbed a grocery store). This Court has never applied the
language relied upon by Floyd to simply a stop made for purposes of investigating a possible traffic
violation.

¶26. Third, applying the felony/misdemeanor distinction in traffic violation cases would require law
enforcement officials to ignore communications of other officials warning of drivers who may be impaired, ill,
reckless, or dangerous to the public unless the officer has probable cause to arrest. The State urges this
Court to recognize the common sense rule enunciated by the Maryland Court of Special Appeals in State
v. Alexander, 721 A.2d 275 (Md. Ct. Spec. App. 1998):

      "[W]hen police cross a threshold not in their criminal investigatory capacity, but as a part of their
      community caretaking function, it is clear that the standard for assessing the Fourth Amendment
      propriety of such conduct is whether they possessed a reasonable basis for doing what they did . . . .
      [T]he question is whether there were reasonable grounds to believe that some kind of an emergency
      existed, that is, whether there was evidence which would lead a prudent and reasonable official to see
      the need to act . . . ."

Id. at 284 (holding that marijuana discovered in plain view was admissible where police entered a residence
without a warrant to investigate a potential breaking and entering and to determine whether there were any
victims). The Fifth Circuit has recognized a similar rule, cited by this Court in Singletary v. State, 318 So.
2d 873, 876 (Miss. 1975): "The local policeman . . . is also in a very real sense a guardian of the public
peace and he has a duty in the course of his work to be alert for suspicious circumstances, and, provided
that he acts within constitutional limits, to investigate whenever such circumstances indicate to him that he
should do so." United States v. West, 460 F.2d 374, 375-76 (5th Cir. 1972).

¶27. The United States Supreme Court has noted that determining the reasonableness of a detention less
intrusive than a traditional arrest depends "on a balance between the public interest and the individual's right
to personal security free from arbitrary interference by law officers." Brown v. Texas, 443 U.S. at 50, 99
S.Ct. at 2640 (quoting Pennsylvania v. Mimms, 434 U.S. at 109, 98 S.Ct. at 332). "Consideration of the
constitutionality of seizures involves a weighing of the gravity of the public concerns served by the seizure,
the degree to which the seizure advances the public interest, and the severity of the interference with
individual liberty." Brown v. Texas, 443 U.S. at 50-51, 99 S.Ct. at 2640. Returning to the case at bar,
there was no reason to believe, at the time Officer Palmer stopped Floyd, that the short detention would
turn into a more permanent detention, that is, an arrest for DUI. Officer Palmer merely investigated a
complaint received from the dispatcher regarding a reckless driver. The public concern served by the
seizure is evident - a reckless driver poses a mortal danger to others. There exists in such a situation an
absolute necessity for immediate investigatory activity. The severity of interference with individual liberty
was minimal - Floyd was required to pull over to the side of the road. Officer Palmer had a duty to
investigate the detailed complaint given to the police department concerning a driver who may have been ill,
impaired, reckless or dangerous to the public. To cling to a rule which would prevent a police officer from
investigating a reported complaint of reckless driving would thwart a significant public interest in preventing
the mortal danger presented by such driving.

¶28. The felony/misdemeanor distinction cited in the cases urged by Floyd is not the correct test by which
to evaluate whether an investigative stop is reasonable. The question is not whether a driver is suspected of
a felony or misdemeanor, but whether a law enforcement officer acts reasonably in stopping a vehicle to
investigate a complaint short of arrest. This Court stated in Singletary, 318 So. 2d at 876:

      Police activity in preventing crime, detecting violations, making identifications, and in apprehending
      criminals may be divided into three types of action: . . . (2) Investigative stop and temporary detention:
      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 . . . .

¶29. Though Floyd argues otherwise, the circumstances under which Officer Palmer stopped Floyd were
clearly reasonable, and Floyd clearly had "reasonable suspicion, grounded on specific and articulable facts"
as required by this Court in Floyd, 500 So. 2d at 992. Floyd argues that the stop was unreasonable
because Officer Palmer received a dispatch based on a complaint from a third party.

¶30. Reasonable cause for an investigatory stop may be based on an officer's personal observation or on
an informant's tip if it bears indicia of reliability. Adams v. Williams, 407 U.S. at 147, 92 S.Ct. at 1924.
Reasonable suspicion is dependent upon both the content of the information possessed by the detaining
officer as well as its degree of reliability. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416,
110 L.Ed. 2d 301 (1990). Both factors - quantity and quality - are considered in the "totality of the
circumstances." Id. Here, Officer Palmer received a very specific description of Floyd's vehicle, the precise
location of the car, and information regarding exactly what was complained of, that is, reckless driving at a
high rate of speed. The report came to Officer Palmer over his radio from the dispatcher. Officer Leflore
testified that the complaint came from a named source who had given him information in the past. This was
certainly enough to satisfy both the quantity and quality requirements.

¶31. A case from the Texas Court of Appeals is precisely on point. In State v. Sailo, 910 S.W.2d 184
(Tex. App. 1995), while police officers were making a traffic stop, a private citizen drove up and informed
police officers that he had seen a possible drunk driver approaching the scene. The informant described the
suspect as driving a small, white Toyota pickup truck and stated that the vehicle was approaching the
officers. The informant drove off before the officers could take down the informant's name. The officers
stopped the vehicle described by the informant even though neither had seen the vehicle commit any traffic
violations. The driver was eventually arrested after failing field sobriety tests.

¶32. The driver argued on appeal that the investigative stop was unlawful because the information provided
by the unidentified informant was not an adequate ground for the officers to form a reasonable suspicion
that criminal activity was occurring. The court noted that a tip by an unnamed informant of undisclosed
reliability standing alone will rarely establish the requisite level of suspicion necessary to justify an
investigative detention, and that "[t]here must be some further indicia of reliability, some additional facts
from which a police officer may reasonably conclude that the tip is reliable and a detention is justified." Id. at
188 (citing White, 496 U.S. at 329, 110 S.Ct. at 2415-16). The Sailo court held, that the informant's
complaint contained the requisite indicia of reliability, citing Justice (then Judge) Kennedy's statement in the
Ninth Circuit Court of Appeals case, United States v. Sierra-Hernandez, 581 F.2d 760 (9th Cir. 1978):

A citizen who confronts an officer in person to advise the officer that a designated individual present on the
scene is committing a specific crime should be given serious attention and great weight by the officer. . . . A
person who is not connected with the police or who is not a paid informant is inherently trustworthy when
he advises the police a crime is being committed.

Sailo, 910 S.W.2d at 188 (citing Sierra-Hernandez, 581 F.2d at 763). The Sailo court also discussed
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983), in which the Supreme Court
stated that a detailed description of the wrongdoing, along with a statement that the event was observed
firsthand, entitles an informant's tip greater weight than might otherwise be the case. Sailo at 189. The
court in Sailo thus determined that, in the totality of the circumstances, the investigative stop of the
defendant was justified. Cases with like facts and result are State v. Melanson, 665 A.2d 338 (N.H.
1995) (unknown caller's report that provided a specific description of a car whose driver was thought to be
intoxicated, knowledge of its exact location at the time, and specific information of its movements,
reasonably supported the conclusion, for the purpose of determining whether officer had reasonable
suspicion to stop vehicle, that the basis of the caller's knowledge was his personal observation of vehicle),
and Commonwealth v. Janiak, 534 A.2d 833 (Pa. Super. Ct. 1987) (investigatory stop of a vehicle
based on radio broadcast that intoxicated individual was driving vehicle in vicinity was proper; vehicle was
the only vehicle on road that it was reported to be proceeding from).

¶33. As in Sailo, the information given by the informant to Officer Leflore was neither vague as to the type
of criminal activity nor imprecise as to the kind of crime being committed. The informant also described the
suspect's location with some particularity. Furthermore, the name of the informant in the case at hand was
known by Officer Leflore, and Leflore had received complaints from the informant in the past. No evidence
is present in the record which should have caused Officer Leflore to doubt the reliability or good faith of the
informant. Officer Leflore immediately telephoned the dispatcher, and the same information was relayed to
Officer Palmer. There was no link in the chain of communication which was or should have appeared to be
unreliable to Officer Palmer. Officer Palmer confirmed that a vehicle was located where the informant had
indicated and matching the description given. In light of the totality of the circumstances, the investigative
stop was justified.

      II. WHETHER INCRIMINATING STATEMENTS MADE BY A SUSPECT DURING A
      TELEPHONE CONVERSATION WITH HIS ATTORNEY MAY BE USED AGAINST
      THE DEFENDANT WHEN THE CONVERSATION TOOK PLACE IN THE PRESENCE
      OF A POLICE OFFICER AND AFTER THE DEFENDANT HAD BEEN PLACED IN
      CUSTODY.

¶34. Floyd argues that his Fifth and Sixth Amendment rights to counsel were violated by Officer Palmer's
remaining within hearing distance of Floyd's telephone conversation with his attorney and the subsequent
use at trial of statements made during that conversation. Floyd's counsel objected to the use of the
telephone conversation at trial, but on the grounds that the statements were confidential and thus protected
by attorney-client privilege. To this objection, counsel for City of Crystal Springs replied that the
communication was not confidential where Floyd was aware of the presence of Officer Palmer at the time
the statements were made. The trial judge stated that he would take the objection under consideration and
directed the witness, Officer Palmer, to answer the prosecution's questions regarding the telephone
conversation. Officer Palmer testified that during the telephone conversation Floyd stated, "yes, I've had a
few drinks" and that after Floyd hung up the telephone, he stated to Officer Palmer that he did not want to
take the intoxilizer test. No ruling was ever made regarding the objection, and Floyd's counsel never raised
the question again to the trial court. Floyd now raises the objection on appeal, apparently abandoning the
confidentiality argument and arguing, instead, that the use of the statements at trial violated Floyd's right to
counsel.

¶35. Floyd's argument is procedurally barred. Floyd abandoned his objection when he failed to require the
trial judge to issue a ruling on the objection. The State submits that this Court should apply its holding in
Rushing v. State, 711 So. 2d 450 (Miss. 1998), to the issue at hand. In that case, the defendant was
convicted of uttering a forged prescription. The defendant had several prior convictions for forged
prescriptions, and, prior to trial, the defense attorney filed a motion in limine seeking to exclude from
evidence any mention of prior bad acts or convictions. The trial court never ruled on the motion, and the
defendant attempted to raise her objection on appeal. This Court stated:

      There is nothing in the record to indicate whether the motion was ruled on by the court. It is well-
      established that "[i]t is the responsibility of the movant to obtain a ruling from the court on motions
      filed by him and failure to do so constitutes a waiver of same." Martin v. State, 354 So. 2d 1114,
      1119 (Miss. 1978)(citing Grant v. Planters' Bank, 5 Miss. 326 (1840)).... Thus, we do not hold
      the trial court in error for not ruling on the motion.

Id. at 456. See also Wright v. State, 540 So. 2d 1, 4 (Miss. 1989).

¶36. This principle applies to obtaining rulings on objections as well as on motions. This Court has held that
it is the duty of the objecting party to obtain a ruling by the trial court on objections, and that if the record
includes no ruling by the trial court, the objections are waived for purposes of appeal. Cole v. State, 525
So. 2d 365, 369 (Miss. 1987) (citing Hemmingway v. State, 483 So. 2d 1335 (Miss.1986); Cummings
v. State, 465 So. 2d 993 (Miss.1985)).
¶37. Furthermore, any error in admitting the statement from the telephone conversation is harmless. The
proof of impairment offered by the State was so overwhelming that any such error was harmless. This
Court has explained that an error is harmless when it is apparent on the face of the record that a fair-minded
jury could not have arrived at a verdict other than that of guilty. Forrest v. State, 335 So. 2d 900, 903
(Miss. 1976).

¶38. The evidence of Floyd's impairment is so overwhelming that a fair minded jury (or, here, a judge in a
bench trial) could have arrived at no verdict other than to find Floyd guilty. Officer Palmer testified, and
Floyd does not contradict, that at the time he stopped Floyd's vehicle, Floyd stated that he had been to the
County Line beer joint where, by Floyd's own admission, he had been drinking. Floyd also told Officer
Palmer that he had been drinking on the way home. There was an opened bottle of vodka, one-fourth of
which was missing, on the passenger seat of Floyd's car and a glass on the console of the car. When Floyd
exited the vehicle, he staggered, almost fell into the highway, could not stand properly, almost fell over
when he tried to fix his pants leg, and spoke with slurred speech, alternating between mumbling and loud
speech.

¶39. Additionally, the only statement from the telephone conversation testified to by Officer Palmer was
Floyd's statement, "Yes, I've had a few drinks." Floyd had already told Officer Palmer, when Officer
Palmer pulled Floyd's car to the side of the road, that he had been to the County Line beer joint where he
had been drinking and that he had been drinking on the way home. The statement from the telephone
conversation was merely cumulative and is, therefore, harmless.

                                              CONCLUSION

¶40. This Court affirms the trial court's conviction of Graham Floyd for DUI, first offense. The issues raised
by Graham on appeal are without merit.

¶41. Floyd's argument that Officer Palmer could not lawfully stop his vehicle because Officer Palmer did
not personally observe the reckless driving is without merit. Officer Palmer had a reasonable suspicion,
grounded on specific and articulable facts that Floyd had been driving recklessly. Floyd's argument that his
constitutional right to counsel was violated is procedurally barred. Further, any error in admitting Floyd's
statements from the telephone conversation was harmless, given the abundance of evidence of Floyd's
impairment presented to the trial court and given Floyd's prior statements to Officer Palmer regarding the
fact that he had been drinking.

¶42. Therefore, this Court affirms Graham's conviction and the judgment of the Copiah County Circuit
Court.

¶43. CONVICTION OF DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR
AND SENTENCED TO PAY A FINE OF $ 672.00 AFFIRMED.

     PRATHER, C.J., PITTMAN, P.J., BANKS, MILLS, WALLER AND
     COBB, JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE
     WRITTEN OPINION JOINED BY SULLIVAN, P.J.
     McRAE, JUSTICE, DISSENTING:
¶44. The majority writes that the information provided by a third party that Floyd was speeding and driving
recklessly was sufficient to justify a Terry investigative stop. Terry v. Ohio, as the majority notes, allows
police to make an investigatory stop if the officer has a reasonable suspicion that a person has committed or
may be committing a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
However, because it cannot be said that one who is speeding and/or driving recklessly is likely to be
engaging in any crime other than speeding and/or driving recklessly,(1) and one cannot investigate the crime
of speeding and/or driving recklessly by stopping the alleged violator, allowing police to conduct an
investigative stop under these circumstances stretches the concept of a Terry stop too far. Indeed, because
the driver who commits no infractions while driving probably does not exist,(2) the majority's opinion gives
police carte blanche to search almost every driver on the road. Moreover, the officer in this case, although
he was able to maneuver his vehicle behind the car behind Floyd, never observed Floyd speed or drive
recklessly. Thus, the obvious conclusion is that the informant's information which formed the basis for the
alleged Terry stop was not reliable since no speeding or reckless driving occurred within the officer's
presence. If the information forming the basis of the stop is not reliable, the information cannot support a
warrantless search. Barton v. State, 328 So.2d 353, 354 (Miss. 1976).

¶45. The Fourth Amendment to the United States Constitution prohibits both unreasonable searches and
seizures. Just as a search must be commensurate with the information which forms the basis for the search
(e.g., the police cannot search for a stolen television in a pocketbook),(3) so, too, should a stop be
commensurate with its objective. Indeed, this is exactly what the United States Supreme Court held in
Terry -- an investigative detention is permissible only if (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." Terry, 392 U.S. at 20, 88 S.Ct. 1868 (emphasis added). If speeding and/or reckless
driving is an indication of no crime other than speeding and/or reckless driving, an investigative stop of a
driver alleged to have been speeding and/or driving recklessly is pointless inasmuch as the stop terminates
all evidence of the crime. If the officer has not observed the driver speeding and/or driving recklessly,
stopping the driver is not going to aid his investigation.

¶46. If the police had themselves observed Floyd violating traffic ordinances, they could have stopped him
and seized him long enough to process a citation. The fact that he was observed violating traffic ordinances,
however, does not ipso facto, give police probable cause to make an investigative stop. In other words,
speeding and driving recklessly are not evidence that the driver is likely to be committing other crimes.

¶47. What is lacking here is any reasonable suspicion that Floyd, seen speeding by another motorist, was
likely to be engaging in any criminal activity other than speeding and/or driving recklessly. As a
practical matter, stopping a driver to investigate whether he might have been speeding defies all common
sense. Because stopping the driver actually pretermits all evidence that the driver might be speeding, it
cannot be said that the stop and search are "reasonably related in scope to the circumstances [alleged
speeding] which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S.Ct. at 1868.

¶48. In Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 488, 142 L.E.2d 492 (1998), the United States
Supreme Court reversed a conviction for possession of drugs which had been found in a search incident to
a traffic citation. There was no justification for a search of the car where once the speeder was stopped, "all
the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive
speed was going to be found either on the person of the offender or in the passenger compartment of the
car." Knowles, 119 S.Ct. at 488.
¶49. The majority argues that "applying the felony/misdemeanor distinction in traffic violation cases would
require law enforcement officials to ignore communications of other officials warning of drivers who may be
impaired, ill, reckless, or dangerous to the public unless the officer has probable cause to arrest." This is
hardly the great concern the majority would have us believe. If an officer is given a report of an impaired
driver, he needs only to follow the driver a short distance to determine for himself whether the driver is
impaired. Since the officer would have to apprehend the vehicle to stop the car anyway, it should demand
no extra effort to require the officer to verify for himself that the suspected bad driver is a bad driver in
reality.

¶50. The majority's opinion in this case does more than just make bad law; it threatens the very freedoms
upon which this nation was founded. The idea that police officers may stop citizens for no reason other than
that they might have been speeding is specious. The majority, it seems, would have one give up all right to
be free from government intrusion once he enters his automobile. I, for one, cannot agree, and, thus, I
dissent.

      SULLIVAN, P.J., JOINS THIS OPINION.
1. Speeding and or other traffic infractions alone do not generally provide a reasonable suspicion that the
offender is guilty of driving while intoxicated. See, e.g. State v. Carver, 577 N.W.2d 245 (Minn.Ct.App.
1998) (speeding and parking vehicle diagonally were not sufficient indicia of intoxication to provide
probable cause to arrest defendant for DUI and petty misdemeanor speeding did not provide sufficient
probable cause to arrest defendant for DUI); State v. Rutherford, 981 P.2d 386 (Or.Ct.App. 1999)
(state trooper did not have subjective probable cause to believe that defendant was driving under the
influence of intoxicants before he administered field sobriety after stopping defendant for speeding and
driving carelessly).

2. Even a minimally competent police officer can follow a car long enough to observe some minor traffic
infraction if he is looking for a pretext to stop the vehicle. While we certainly do not endorse this practice,
we would be foolish not to recognize that it happens. People v. Uribe, 16 Cal,Rptr.2d 122, 129 (1993)
(unsafe lane change); King v. State, 839 S.W.2d 709 (Mo.Ct.App. 1992).

3. See, e.g., Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 224, 2000, 2003, 36 L.Ed.2d 900 (1973);
Ferrell v. State, 649 So.2d 831, 833 (Miss. 1995) (police could not examine contents of matchbox in a
search for weapons incidental to arrest of driver).
