                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-CT-00114-SCT

JAMES ROBERT DELKER

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          09/19/2007
TRIAL JUDGE:                               HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:                 LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   ROBERT H. COMPTON
                                           JOHN G. COMPTON
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         BILBO MITCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 10/07/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    James Robert Delker was convicted in the Circuit Court of Lauderdale County,

Mississippi, of felony driving under the influence (“DUI”) and was sentenced, as a habitual

offender, to serve the maximum term of five years in the custody of the Mississippi

Department of Corrections (“MDOC”). Delker appealed his conviction and sentence and the

case was assigned to the Mississippi Court of Appeals for disposition. See Miss. R. App. P.

16(d). Delker contended that the circuit court had erred in denying his motion to suppress

all evidence obtained from an allegedly illegal search and seizure. See Delker v. State, 2009
WL 2902631, at *2-3 (Miss. Ct. App. Sept. 11, 2009). The Court of Appeals affirmed

Delker’s conviction and sentence, concluding, in pertinent part, that “[e]ven if we were to

find [the] . . . arrest of Delker was unlawful, based on the United States Supreme Court’s

holding in Herring v. State, __ U.S. __, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), we would

still find that Delker’s driving under the influence should not be suppressed.” Delker, 2009

WL 2902631, at *9.

¶2.    This Court granted Delker’s petition for writ of certiorari. See Delker v. State, 31 So.

3d 1217 (Miss. Apr. 15, 2010). We granted Delker’s petition to determine if the Court of

Appeals failed to consider a “controlling constitutional provision[,]” i.e., the Fourth

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

Constitution, and address whether the circuit court erred in denying Delker’s motion to

suppress. Miss. R. App. P. 17(a); Miss. R. App. P. 17(h) (“ [t]he Supreme Court may limit

the question on review”).

¶3.    A Fourth Amendment violation does not automatically precipitate the exclusion of

evidence. Rather, it sets into motion a separate inquiry, i.e., whether application of the

exclusionary rule outweighs the costs to society in allowing the criminal to be set free. See

Herring, 129 S. Ct. at 700 (quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S. Ct.

2159, 165 L. Ed. 2d 56 (2006)) (“exclusion ‘has always been our last resort, not our first

impulse’”). Each case must be considered based upon the facts presented in that case. We

find the exclusionary rule inapplicable in Delker’s case and affirm the result reached by the

circuit court and affirmed by the Court of Appeals.




                                              2
                                          FACTS 1

¶4.    In the late hours of Christmas Eve 2005, the Chief of Police of the Town of Marion,

Mississippi, Ben Langston, was on duty in his police cruiser at the entrance of Valley Ridge

Apartments, within the Marion city limits. He observed a car drive by at approximately ten

miles over the speed limit, traveling east on Old Country Club Road, just outside the town

limits. Langston mistakenly believed the road was within the Town of Marion.

¶5.    Langston commenced pursuit with the intention of giving the driver (later determined

to be Delker) a warning. But the driver did not respond to the officer’s blue lights. Instead,

he sped up to approximately sixty to sixty-five miles per hour, overtook and passed a car

stopped at a stop sign, then drove through the stop sign. Eventually, he stopped in the

driveway of his home.      While following the speeding vehicle, Langston radioed for

assistance from the Lauderdale County Sheriff’s Department.

¶6.    When Langston approached the stopped car, he observed that Delker had trouble

getting out of his car, had difficulty standing, and had slurred speech. Langston also noticed

the smell of alcohol emanating from Delker’s car and saw an empty beer can on the front

seat. Langston testified that when he asked why Delker had not stopped, Delker responded,

“that he knew he was going to jail, and he didn’t want to leave his car along side the

roadway.”

¶7.    When Deputy Karey Williams of the Lauderdale County Sheriff’s Department arrived,

Delker was handcuffed. Williams offered to let Delker take a portable breathalyzer test,



       1
      The underlying facts are more fully stated by the Court of Appeals and are not
completely restated by this Court. See Delker, 2009 WL 2902631, at *1-2.

                                              3
which Delker refused. Williams then transported Delker to the Lauderdale County Sheriff’s

Department, where he administered field sobriety tests to Delker. According to Williams,

Delker failed some aspects of these tests and refused to blow into the Intoxilizer 8000

machine.

¶8.      Delker subsequently was indicted for felony DUI,2 and the indictment later was

amended to charge Delker as a habitual offender. Thereafter, Delker filed a motion to

suppress all evidence obtained as a result of his search and arrest. This evidence included:

(1) an empty beer can and a near-empty whiskey bottle found in Delker’s car; (2) the odor

of alcohol; (3) Langston’s and Williams’s observations of Delker’s behavior; (4) Delker’s

refusal of the portable breathalyzer test; (5) Delker’s failure in the field sobriety test; and (6)

Delker’s refusal to blow into the Intoxilizer 8000 machine. In support of the motion to

suppress, Delker argued that Langston had lacked authority to stop and arrest him because

Delker had not committed any offense in Langston’s jurisdiction. As such, Delker contended

that the search and seizure was illegal under the Fourth and Fourteenth Amendments to the

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

evidence obtained was inadmissible under the exclusionary rule as “fruit of the poisonous

tree.”



         2
        The record reflects that in September 1998, Delker pleaded guilty to felony DUI and
was sentenced by the Circuit Court of Lauderdale County to five years in the custody of the
MDOC with three and one-half years suspended and five years of supervised probation. In
August 2000, Delker was found in violation of the terms and conditions of his probation after
consuming alcohol in a local restaurant, had his probationary status revoked, and was
sentenced to serve three and one-half years in the custody of the MDOC. On April 11, 2005
and March 2, 2006, Delker pleaded guilty to separate charges of driving under the influence
arising from separate incidents.

                                                4
¶9.    The circuit court denied Delker’s motion to suppress, concluding that Langston had

acted as a private citizen and had possessed the authority to effectuate a citizen’s arrest under

the circumstances.     According to the circuit court, a private citizen is authorized by

Mississippi Code Section 99-3-7 to make an arrest if a misdemeanor is committed in his

presence. See Miss. Code Ann. § 99-3-7 (Rev. 2007). Therefore, the circuit court held that

the traffic stop was legal and the evidence obtained was not subject to the exclusionary rule.

¶10.   The Court of Appeals affirmed the circuit court’s result, but for different reasons. See

Delker, 2009 WL 2902631, at *5. That court determined that the circuit court had erred in

finding that a private person could arrest another for the misdemeanor offense of speeding

“because, under section 99-3-7(1), the only non-felony or non-indictable offense committed

in the citizen’s presence that gives rise to his authority to arrest the perpetrator is an offense

constituting a breach of the peace threatened or attempted.” Id. at *5. But the Court of

Appeals further held that Langston’s citizen’s arrest was permissible because (1) it was not

effectuated until after Langston had stopped Delker and observed his probable guilt of an

indictable offense (felony DUI), and (2) Langston had authority to initiate pursuit as a private

citizen since Delker had committed an indictable offense (felony DUI), although Langston

lacked any knowledge of it. See id. at *5-8. Alternatively, the Court of Appeals held that

even if Delker’s arrest was illegal, the evidence obtained should not be suppressed under the

exclusionary rule because Langston’s mistake about the boundaries of his jurisdiction did not

rise to the Herring standard of “deliberate, reckless, or grossly negligent conduct . . . .” Id.

at *9 (citing Herring, 129 S. Ct. at 702).




                                                5
                                         ANALYSIS

¶11.   “In reviewing the denial of a motion to suppress, we must determine whether the trial

court’s findings, considering the totality of the circumstances, are supported by substantial

credible evidence.” Moore v. State, 933 So. 2d 910, 914 (Miss. 2006). But this Court will

also reverse the admission of the evidence if an incorrect legal standard was applied. See id.

at 918. The standard of review for questions of law is de novo. See Hood v. State, 17 So.

3d 548, 551 (Miss. 2009).

¶12.   This Court declines to delve into the legality, vel non, of the arrest. For purposes of

deciding this case, we indulge Delker’s contention “that there was a Fourth Amendment

violation. The issue is whether the exclusionary rule should be applied.” Herring, 129 S.

Ct. at 699. Even in the event of a Fourth Amendment violation, the supreme law of the land

requires a case-by-case “balancing test” to be performed, and suppression ordered “only in

those unusual cases in which exclusion will further the purpose of the exclusionary rule.”

Kansas v. Ventris, __ U.S. __, 129 S. Ct. 1841, 1845, 173 L. Ed. 2d 801 (2009) (requiring

“balancing test”); United States v. Leon, 468 U.S. 897, 918, 104 S. Ct. 3405 (1984).

Specifically:

       [t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate
       that exclusion can meaningfully deter it, and sufficiently culpable that such
       deterrence is worth the price paid by the justice system. As laid out in our
       cases, the exclusionary rule serves to deter deliberate, reckless, or grossly
       negligent conduct, or in some circumstances recurring or systemic negligence.

Herring, 129 S. Ct. at 702 (emphasis added).

¶13.   Without question, Langston mistakenly believed the road to be within the Town of

Marion, indeed the record supports no other finding. A “mistake” is defined as “1. An error:

                                               6
fault. 2. A misconception: misunderstanding.” Webster’s II New College Dictionary 702

(1995). In pursuing Delker, Langston was merely going to warn him to slow down, in the

interest of protecting the citizens (including Delker) from harm, rather than seeking to

effectuate an arrest and seizure. Langston’s error of not knowing the exact jurisdictional

boundaries of the Town of Marion was, at worst, an innocent mistake. The record provides

not one iota of evidence to the contrary.

¶14.   An “innocent mistake” is “far removed from the core concerns that led [the United

States Supreme Court] to adopt the [exclusionary] rule in the first place.” Herring, 129 S.

Ct. at 698, 702-03 (quoting Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L.

Ed. 2d 667 (1978)). Not a scintilla of evidence exists in this record that Langston’s conduct

was “deliberate, reckless, or grossly negligent” 3 or a form of “recurring or systemic

negligence[,]” as mandated by the United States Supreme Court to invoke the exclusionary

rule. Herring, 129 S. Ct. at 702. Nor does any evidence support that Langston’s conduct

was outrageous, reprehensible, or glaringly bad (i.e., flagrant).




       3
        Nonetheless, the dissent advances the argument that Langston’s mistake regarding
municipal boundaries was either gross negligence or reckless disregard, and then cites “one
of the approximate” definitions of “gross negligence” from a civil case. Dame v. Estes, 233
Miss. 315, 318, 101 So. 2d 644, 645 (1958). Dame, although civil in nature, is instructive
insofar as it provides an example of conduct which this Court found to have created a jury
question on the issue of punitive damages. See id. The dissent equates Langston’s mistake
to a speeding motorist, estimated by witnesses to be driving fifty miles per hour in a thirty-
mile-per-hour zone, who, in broad daylight, “either ignored or wholly failed to see the stop
sign which was staring her in the face . . . or to even check the speed of the automobile she
was driving[,]” then “wholly failed to see the appellant’s pickup truck until it was directly
in front of her . . . .” Id. That accident and the conduct at issue here are plainly
distinguishable. (Diss. Op. at ¶ 26).

                                              7
¶15.   Moreover, while the dissent emphasizes the purported “flagrancy” of Langston’s

conduct, this Court notes that the “flagrancy of police misconduct” requires consideration

of “the actions of all the police officers involved.” Id. at 700 (quoting Leon, 468 U.S. at 911,

923 n.24) (emphasis added).       Williams’s response to Langston’s radioed request for

assistance from the Lauderdale County Sheriff’s Department while in pursuit of Delker was

altogether reasonable. Williams had no reason to know of Langston’s error. Accordingly,

considering “the actions of all the police officers involved[,]” neither Langston’s innocent

error nor Williams’s proper and reasonable response of assistance could be characterized as

“so objectively culpable as to require exclusion.” Herring, 129 S. Ct. at 703.

¶16.   But for those who would opine that Langston’s error was more than a mere mistake,

exclusion still is not automatic. Exclusion is proper only after an unbiased weighing is

conducted on the scales of justice.      In one tray is the “appreciable” or “substantial”

deterrence gained by exclusion and in the other tray are the “substantial social costs” and

“harm to the justice system” resulting from exclusion. Id. at 700-01, 704 (quoting Leon, 468

U.S. at 909; Illinois v. Krull, 480 U.S. 340, 352-53, 107 S. Ct. 1160, 94 L. Ed. 2d 364

(1987)). In weighing these competing claims, “the rule’s costly toll upon truth-seeking and

law enforcement objectives presents a high obstacle for those urging [its] application.”

Herring, 129 S. Ct. at 701 (quoting Pa. Bd. of Probation & Parole v. Scott, 524 U.S. 357,

364-65, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998)).

¶17.   Any purported deterrent effect in encouraging officers to be aware of jurisdictional

boundaries is dubious at best, given the dearth of similar cases involving errors in

jurisdictional boundaries presented to this Court over the years. This alone should negate

                                               8
any perception of the beneficent need for exclusion to the end of “appreciable” or

“substantial” deterrence of such errors in the future. Herring, 129 S. Ct. at 700-01. But even

assuming arguendo that a marginal deterrent effect exists, it is significantly outweighed by

the “substantial social costs” and “harm to the justice system” exacted by exclusion. Id. at

700-02, 704. It takes neither a judge nor a lawyer to recognize the compelling social interest

in protecting innocent citizens from drunk drivers and the offense to “basic concepts of the

criminal justice system” by “letting guilty and possibly dangerous defendants go free.”

Herring, 129 S. Ct. at 701 (quoting Leon, 468 U.S. at 908). Here, a multiple DUI offender,

who was driving under the influence on Christmas Eve, would not be required to answer for

his actions because of Langston’s error. The counter-effect would be that innocent citizens

of this State, who look to the government for protection from drunk drivers, would be

subjected to the potentially fatal risk of a recalcitrant, multiple-DUI offender being placed

back on their roadways. This risk only adds to the undeniable substantial social costs exacted

by drunk drivers through not only fatalities,4 but also through grief to the survivors; personal

injuries ranging from catastrophic to minor; and property loss. Moreover, harm to the justice

system is self-evident.5    Delker has demonstrated a deliberate, reckless, and flagrant

disrespect of the laws of this State, despite opportunity after opportunity to alter his conduct.

       4
        In 2007 and 2008 alone, 582 drunk-driving-related deaths occurred in Mississippi.
See National Highway Traffic Safety Administration, “2008 Traffic Safety Annual
Assessment -- Highlights,” at http://www-nrd.nhtsa.dot.gov/Pubs/811172.pdf (last visited
Sept. 28, 2010).
       5
        The Legislature has responded to the carnage resulting from drunk driving. In the
past ten years, amendments to Mississippi Code Section 63-11-30 have decreased legal
blood alcohol levels from 0.10% to 0.08% and increased penalties for violations. See Miss.
Code Ann. § 63-11-30 Historical and Statutory Notes (Rev. 2004).

                                               9
¶18.   All can agree that where law-enforcement officers abuse our sacred Constitution and

the laws of our land to effect convictions by “deliberate, reckless, or grossly negligent

conduct, or . . . recurring or systemic negligence[,]” application of the exclusionary rule is

not only necessary, but also laudable.6 Herring, 129 S. Ct. at 702. But such is not the case

before this Court today. When police mistakes are not the result of “systemic error or

reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its

way.’” Id. at 704 (quoting Leon, 468 U.S. at 907-08 n.6). The “substantial social costs” and

“harm to the justice system” resulting from giving the keys to the jail to a serial drunk driver,

under the facts and circumstances presented here, far outweigh any imagined deterrent effect.

Herring, 129 S. Ct. at 700-02, 704.

¶19.   Our ruling is not only consistent with recent United States Supreme Court rulings, but

also finds support from such respected jurists as Judges Benjamin Cardozo and Henry J.

Friendly. In considering the high price on the criminal justice system exacted by the

exclusionary rule, Judge Cardozo questioned whether the criminal should “go free because

the constable has blundered.” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926)


       6
        For examples, see Mapp v. Ohio, 367 U.S. 643, 644-45, 81 S. Ct. 1684, 6 L. Ed. 2d
1081 (1961) (exclusionary rule applied to flagrant and deliberate violation of the defendant’s
rights when officers brandished a false warrant, forced open the door of her home, prevented
her lawyer from entering, handcuffed her, and proceeded to search her home for obscene
materials); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 390, 40 S. Ct. 182, 64
L. Ed. 319 (1920) (exclusionary ruled applied when federal officials “without a shadow of
authority” went to the defendant’s office and “made a clean sweep” of every paper they
could find); Weeks v. United States, 232 U.S. 383, 393-94, 34 S. Ct. 341, 58 L. Ed. 652
(1914) (exclusionary rule applied when, without a search warrant, officers broke into
defendant’s home, confiscated incriminating papers, then returned later to confiscate more,
under circumstances in which “not even an order of court would have justified such
procedures”).

                                               10
(opinion of the Court by Cardozo, J.). Similarly, Judge Friendly argued that a mere

“blunde[r]” or “slight and unintentional miscalculation” ought not compel application of the

exclusionary rule, as deterrence could be “sufficiently accomplished” by confining its

application to “evidence obtained by flagrant or deliberate violation of rights.” Friendly,

Henry J., The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 952-53

(1965). Such a well-reasoned, balanced approach should be no different in today’s decision.

Applying that approach, as the Court of Appeals did, the exclusionary rule is inapplicable

here. See Delker, 2009 WL 2902631, at *9 (“we do not find that [Langston’s] mistake

concerning the location of the municipal limits of the [T]own of Marion rises to the standard

of conduct articulated in Herring”). Today’s opinion neither expands nor erodes the

exclusionary rule, nor does it transform or expand traditional notions of the distinctions

between negligence, gross negligence, and reckless disregard. As the circuit court reached

the right result in denying Delker’s motion to suppress, albeit for the wrong reason, this

Court affirms the result of that ruling. See Green v. Cleary Water, Sewer & Fire Dist., 17

So. 3d 559, 572 (Miss. 2009) (citations omitted) (“[i]t is well established in our jurisprudence

that the right result reached for the wrong reason will not be disturbed on appeal”).

                                       CONCLUSION

¶20.   As the seized evidence was not subject to the exclusionary rule, this Court affirms the

judgment of the Circuit Court of Lauderdale County.

¶21. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.
CONVICTION OF FELONY DRIVING UNDER THE INFLUENCE (DUI) AND
SENTENCE, AS A HABITUAL OFFENDER, OF FIVE (5) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

                                              11
    CARLSON, P.J., DICKINSON, LAMAR, AND PIERCE, JJ., CONCUR.
CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J., AND KITCHENS, J. GRAVES, P.J., NOT PARTICIPATING.

       CHANDLER, JUSTICE, DISSENTING:

¶22.   Because I believe today’s decision erodes the exclusionary rule in Mississippi by

holding that a police chief’s ignorance of his municipality’s boundaries was an innocent

mistake, I respectfully dissent. Chief Langston’s pursuit of Delker was plainly violative of

the Fourth Amendment because, outside his jurisdiction, Chief Langston lacked any legal

authority whatsoever to initiate pursuit of Delker for the misdemeanor offense of traveling

ten miles per hour over the speed limit. Miss. Code Ann. § 99-3-7(a) (Rev. 2007). In my

view, knowledge of jurisdictional boundaries is a fundamental duty of law enforcement, and

Chief Langston’s total ignorance of the municipal boundary was at least gross negligence,

if not reckless disregard for the constitutional rights of Delker and other motorists traveling

on Old Country Club Road. I believe that applying the exclusionary rule in this case

obviously would encourage law enforcement to be cognizant of jurisdictional boundaries by

excluding evidence obtained from illegal, extrajurisdictional arrests. Therefore, I would

reverse the trial court’s denial of Delker’s motion to suppress.

¶23.   I begin with a brief discussion of Herring v. United States, ___ U.S. ___, 129 S. Ct.

695, 172 L. Ed. 2d 496 (2009), in which the United States Supreme Court applied the good-

faith exception to the exclusionary rule in the context of negligent record-keeping by the

police. In Herring, officers stopped Herring and arrested him based on a warrant issued in

a neighboring county. Id. at 698. A search incident to the arrest yielded drugs and a gun.

Id. However, it turned out that, unknown to the arresting officers, the warrant had been

                                              12
recalled, and the issuing department negligently had failed to update the database. Id. The

Supreme Court found that the good-faith exception to the exclusionary rule applied, because

“when police mistakes are the result of negligence such as that described here, rather than

systemic error or reckless disregard of constitutional requirements, any marginal deterrence

does not ‘pay its way.’” Id. at 704. The court described the conduct at issue as “isolated

negligence attenuated from the arrest.” Id. at 698. The court held that:

       To trigger the exclusionary rule, police conduct must be sufficiently deliberate
       that exclusion can meaningfully deter it, and sufficiently culpable that such
       deterrence is worth the price paid by the justice system. As laid out in our
       cases, the exclusionary rule serves to deter deliberate, reckless, or grossly
       negligent conduct, or in some circumstances recurring or systemic negligence.

Id. at 702 (emphasis added). Thus, for example, “[i]f the police have been shown to be

reckless in maintaining a warrant system, or to have knowingly made false entries to lay the

groundwork for future false arrests, exclusion would certainly be justified under our cases

should such misconduct cause a Fourth Amendment violation.” Id. at 703.

¶24.   The court stated that it had “never suggested that the exclusionary rule must apply in

every circumstance in which it might provide marginal deterrence.” Id. at 700. Rather, the

exclusion question “turns on the culpability of the police and the potential of exclusion to

deter wrongful police conduct.” Id. at 698. The court explained that, because the purpose

of the rule is to deter police misconduct, an assessment of the flagrancy of police misconduct

is necessary in each case. Id. at 701. “[E]vidence should be suppressed ‘only if it can be

said that the law enforcement officer had knowledge, or may properly be charged with

knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. (quoting

Illinois v. Krull, 480 U.S. 340, 352-353, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)). Finally,

                                             13
the analysis of deterrence and culpability is an objective inquiry of “whether a reasonably

well trained officer would have known that the search was illegal” in light of “all of the

circumstances,” which will frequently include the officer’s knowledge and experience. Id.

at 703 (quoting United States v. Leon, 468 U.S. 897, 922 n.23, 104 S. Ct. 3405, 82 L. Ed.

2d 677 (1984)).

¶25.   In my opinion, the police misconduct at issue easily meets the standard for exclusion

announced in Herring. Knowledge of jurisdictional boundaries is one of the fundamental

duties of a chief of police. See Miss. Code Ann. 21-21-1 (Rev. 2007) (“the . . . chief of

police shall be an ex officio constable within the boundaries of the municipality” and “shall

be the chief law enforcement officer of the municipality and shall have control and

supervision of all police officers employed by said municipality”). Chief Langston testified

that he had been unaware that Old Country Club Road was outside his jurisdiction until

shortly before the hearing on the motion to suppress, when a county road crew correctly

informed him that the road was outside his jurisdiction. Chief Langston provided no

explanation for why he had been unaware of the municipal boundaries of Marion. Rather,

it seems that Chief Langston merely assumed that Old Country Club Road was within his

jurisdiction. Indeed, as the majority points out, Chief Langston was “mistaken.” But the

presence or absence of a mistake by the police is not the standard for application of the

exclusionary rule. A “mistake” is not a legally recognized mental state, nor was a “mistake”

a legal standard announced in Herring.            Rather, Herring referred to the familiar

classifications of conduct as negligent, grossly negligent, reckless, or intentional. Herring,

129 S. Ct. at 702.

                                             14
¶26.   I assert that a reasonably well-trained chief of police would have ascertained the

jurisdictional boundaries of his town, and that Chief Langston’s ignorance of the municipal

boundaries under the facts of this case was at least gross negligence. This Court has defined

“‘gross negligence’ [a]s that course of conduct which, under the particular circumstances,

discloses a reckless indifference to consequences without the exertion of any substantial

effort to avoid them.” Dame v. Estes, 233 Miss. 315, 318 101 So. 2d 644, 645 (1958). In

my opinion, it is beyond peradventure that a police chief’s ignorance of the fact that a

highway lies outside his jurisdiction is at least gross negligence. As the police chief, Chief

Langston was responsible not only for acquiring accurate knowledge of jurisdictional

boundaries, but also for conveying that knowledge to subordinate officers. Miss. Code Ann.

§ 21-21-1 (Rev. 2007). His ignorance of the boundary disclosed a reckless indifference to

the consequences of that lack of knowledge; that is, a reckless indifference to the

consequences of attempting to exercise authority outside his jurisdiction, including the

violation of individuals’ civil rights. And Chief Langston exerted no substantial effort to

avoid these consequences by simply learning the true municipal boundaries. So considered,

Chief Langston’s error evinced reckless disregard for the constitutional rights of travelers on

Old Country Club Road. This flagrant level of police culpability mandates exclusion.

Herring, 129 S. Ct. at 701.

¶27.   The flagrancy of Chief Langston’s misconduct becomes even more obvious when

contrasted with the negligent conduct that was at issue in Herring. In Herring, the police

made a record-keeping error when, for whatever reason, a computer database was not

updated. Id. at 698. This was a negligent failure to act attenuated from the arrest. Id. at 698.

                                              15
Here, Chief Langston’s error was not attenuated from his illegal pursuit of Delker, because

he was actively patrolling outside his jurisdiction at the time he initiated pursuit.

¶28.   I would find that excluding the evidence procured from Chief Langston’s illegal

pursuit of Delker would have a meaningful deterrent effect by encouraging the basic

competence of our law enforcement officers. The majority opines that, because this Court

has not decided many cases involving errors in jurisdictional boundaries, “any purported

deterrent effect” is “dubious at best.” Maj. Op. at ¶17. First, I observe that this Court has

decided cases involving extrajurisdictional arrests, and the majority provides no guidance as

to how many more appellate decisions would suffice for it to place a value on deterrence.

See Nash v. State, 207 So. 2d 104, 106-07 (Miss. 1968); Shinall v. State, 199 So. 2d 251,

256-57 (Miss. 1967) (overruled on other grounds). Second, I observe that the issue of how

many cases have managed to work their way through each level of our justice system to

finally arrive at this Court to present the issue of an extrajurisdictional arrest is hardly

relevant to whether exclusion would deter the police from acting outside their jurisdictions.

¶29.   The main purpose of the exclusionary rule “is to deter – to compel respect for the

constitutional guaranty in the only effectively available way – by removing the incentive to

disregard it.” Elkins v. U.S., 364 U.S. 206, 217, 80 S. Ct. 1437, 1444, 4 L. Ed. 2d 1669

(1960). I believe that Chief Langston’s error was “sufficiently deliberate that exclusion can

meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid

by the justice system.” Herring, 129 S. Ct. at 702. In my opinion, it would be elementary

in most instances for the police to acquire knowledge of jurisdictional boundaries, and




                                              16
requiring police to know the boundaries or face exclusion of evidence would have a

meaningful deterrent effect.

¶30.   Regarding the price paid by the justice system, I fully agree with the majority’s

condemnation of drunk drivers such as Delker. But, while keeping “a guilty and possibly

dangerous defendant” imprisoned and away from the public is always a commendable

endeavor, my primary concern, as it must be, is for the proper application of the law. By

discounting the significance of Chief Langston’s error, the majority encourages the State’s

law enforcement officers’ ignorance of jurisdictional boundaries when initiating pursuit of

misdemeanants—persons the officer observes to be merely traveling a few miles over the

speed limit or committing other minor traffic violations. Most vitally, by casting Chief

Langston’s gross negligence as simple negligence, today’s decision may greatly expand the

practice of judicial forgiveness of police misconduct that violates individuals’ Fourth

Amendment rights. I believe it is the proper role of this Court to deter such police

misconduct by excluding its fruits and safeguarding individuals’ freedom from unreasonable

searches and seizures.

¶31.   In conclusion, I would reverse the trial court’s denial of the motion to suppress.

       WALLER, C.J., AND KITCHENS, J., JOIN THIS OPINION.




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