                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 91-KA-01243-SCT
MERVIN SANDERS
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                 11/6/91
TRIAL JUDGE:                                      HON. JOE N. PIGOTT
COURT FROM WHICH APPEALED:                        PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           JOHN P. PRICE
ATTORNEYS FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL
                                                  BY: DEIRDRE MCCRORY
DISTRICT ATTORNEY:                                NA
NATURE OF THE CASE:                               CRIMINAL - FELONY
DISPOSITION:                                      AFFIRMED - 6/6/96
MOTION FOR REHEARING FILED:                       6/21/96
MANDATE ISSUED:                                   8/22/96




     EN BANC.


     PITTMAN, JUSTICE, FOR THE COURT:


¶1. On January 21, 1990, appellant Mervin Sanders was arrested for the crime of unlawful possession of
cocaine with intent to deliver. He was indicted for this crime on October 17, 1991, and pled not guilty six
days later. Sanders was then tried and found guilty on October 31, 1991, and on November 6, 1991, was
sentenced to pay a $30,000 fine and serve thirty years without parole, probation, good time, or early
release. We affirm.

                                                 FACTS

¶2. In January 1990, the Mississippi Bureau of Narcotics (MBN) began a sting operation focused on
Sanders which used informant Johnny Morris as their contact. Sanders was targeted by the bureau partially
because he had sold Morris cocaine on many previous occasions. As a part of this operation, Morris
recorded several telephone calls with Sanders in which Sanders agreed to travel from Brookhaven,
Mississippi, to New Orleans and get Morris an ounce of cocaine for $1,120. The two of them also agreed
that Morris would supply Sanders with a car for the journey. Morris ultimately decided to lend Sanders his
beige 1982 Mazda 626 four-door which was missing its left taillight.
¶3. On January 20, MBN agents attached a "birddog" transmitting device to the Mazda designed to make
following the car easier. Morris delivered the car to Sanders, who left Brookhaven that same day at about
5:30 p.m. The birddog tracked Sanders south on Interstate 55 until near Hammond, Louisiana. After they
lost contact with the car, the agents met at the weight station at the Mississippi/Louisiana border and set up
stationary surveillance points along Interstate 55. At about 2:20 a.m., Agents Ronnie Frazier and Craig
Oster spotted the beige Mazda traveling northward on the interstate with Sanders behind the wheel.
Sanders was stopped just north of Osyka in Pike County by a highway patrol officer working with the
narcotics team. At trial Frazier testified as to why he felt they had sufficient probable cause to stop Sanders
and search the car for cocaine:

      The conversations that were held between Mr. Sanders and Mr. Morris were recorded
      conversations. The meeting times were recorded. There was visual surveillance made when Mr.
      Sanders met with Mr. Morris, Mr. Morris gave Mr. Sanders the car, and there was a constant
      surveillance on the vehicle, tag number, description on the vehicle, when it left the State of Mississippi
      it was under constant surveillance. It was also pre-determined that there was an ounce of cocaine to
      be picked up for $1120.00.

After the vehicle was stopped, Sanders was asked to get out of the car. Agent Oster then went to the
Mazda's right passenger's door and opened it and the glove box. Inside the glove box he found a package
containing one ounce of cocaine.(1) The officers did not have a search warrant nor had they attempted to
obtain one. Sanders was arrested for the crime of possession of more than one ounce of cocaine with
intent.

¶4. Although the arrest took place on January 21, 1990, Sanders was not indicted until October 17, 1991.
Sanders was free during the interim. Agent Frazier explained at the trial why the accused was not kept in
prison:

      Yes, sir, - he was released on -- I think Agent Oster released him without bond because he showed
      intention that he wanted to cooperate maybe later on down the road. You lock a man up in jail, it
      goes in the newspaper, and it goes around the community, and in that situation he can't help himself.
      Its not unusual to do that.

Sanders pled not guilty at his October 23, 1991, arraignment and was tried on October 31.

¶5. Judge Pigott, prosecuting attorney Dunn Lampton, and defense attorney John Price discussed the
admission of evidence of prior drug transactions between Mervin Sanders and Johnny Morris at some
length in the trial below. This exchange was held after Morris testified outside the presence of the jury that
he had bought cocaine from Sanders on many previous occasions:

      BY MR. LAMPTON: Your Honor, that's what I wanted to ask him about outside the presence of the
      jury.

      BY MR. PRICE: To which we object, Your Honor. This is testimony of previous illegal acts that are
      not admissible for this offense.

      BY THE COURT: Well, if the defense is entrapment the principle element is the predisposition of the
      defendant to commit the crime....I feel that that's the real test, whether or not the defendant was
      already predisposed to commit the crime, or, on the other hand, if the witness persuaded some
      innocent person to go and commit an offense, that would be entrapment, but if the person was
      already predisposed to commit the offense, then the witness just provided the opportunity and then
      that would not be entrapment. All right.

      BY MR. LAMPTON: I guess I'm still unclear if Mr. Price is using the defense of entrapment. I know
      he told the jury that on his opening statement, but I don't know if that's what he still claims or not.

      BY MR. PRICE: I think it's obviously the defense, Your Honor.

      BY THE COURT: All right. Well, if that is your defense, then I will permit the State to show the
      predisposition, if any, the Defendant had to commit the offense. All right.

Sanders did not testify at trial and the defense introduced no further evidence of entrapment. The defense
did however request and receive an entrapment jury instruction.

¶6. The jury found Sanders guilty of the crime of unlawful possession of cocaine with intent to deliver. A
sentencing hearing was held on November 6, 1991, at which evidence of two prior drug offense convictions
was introduced and at which Sanders was sentenced as a habitual offender to pay a $30,000 fine and to
serve 30 years without parole, probation, good time, or early release. A Motion for New Trial was filed by
Sanders on November 14 and was overruled on December 5, 1991. He appealed to this Court the next
day.

                                                    LAW

                                   I. SUPPRESSION OF EVIDENCE

¶7. Sanders first claims on appeal that the lower court erred when it refused to suppress evidence found
during the warrantless search of the Mazda. The Fourth Amendment to the United States Constitution
guarantees that:

      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
      searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
      supported by Oath or affirmation, and particularly describing the place to be searched, and the
      persons or things to be seized.

U.S. Const. amend. IV.

¶8. The meaning of the Fourth Amendment has been greatly refined and expanded upon in the two
centuries since its passage. One of the more notable examples of this jurisprudence concerns the automobile
exception to the warrant requirement. This rule is well summarized in Barry v. State, 406 So. 2d 45,
(Miss. 1981): "A warrantless search of an automobile has long been recognized as an exception to the
warrant requirement provided probable cause and exigent circumstances exist. This exception is founded
on the basic premise that for IV Amendment purposes there is a fundamental difference between houses
and cars." Id. at 47 (citations omitted). The practical effect of this exception is that evidence seized without
a warrant from an automobile is admissible if there is probable cause and an exigency.

¶9. Frazier testified at length as to why he and his fellow agents thought they had probable cause to search
Sanders' car. Their informant, Johnny Morris, had recorded conversations with Sanders in which Sanders
agreed to go to New Orleans and get Morris an ounce of cocaine for $1120, the agents knew the
appearance of the car, its licence plate number and its distinctive missing taillight, and the agents had been
told by Morris that he and Sanders had made several similar transactions in the past. The agents had
probable cause to believe that the promised illegal drugs would be somewhere in the car. The first part of
the automobile exception was therefore satisfied.

¶10. The exigency prong is addressed in the Mississippi Federal case of Henry v. Williams, 299 F.Supp.
36 (N.D. Miss. 1969):

      [T]he exceptional circumstances excusing the issuance of a warrant are: 1) when the vehicle searched
      is in motion; 2) when the officers have probable cause to believe the vehicle contains contraband
      subject to search; and 3) when it is impracticable to secure a warrant because the vehicle can and
      may be removed from the jurisdiction.

Id. at 45.

¶11. Applying these criteria, the vehicle was in motion when the agents stopped it, the agents had probable
cause to believe that the vehicle contained contraband, and finally, because the vehicle was apprehended
close to the Mississippi/Louisiana border it could easily have been removed from Mississippi. The exigency
requirement excusing the issuance of a warrant was satisfied by the facts of the case three times.

¶12. Sanders has further complained on appeal that the narcotics agents should have gotten a search
warrant in the several hours that passed between Morris giving Sanders his car and Sanders' arrest. The
application of the third Henry criteria to the facts of the case shows why this contention is also without
merit. Even if it had been possible for one or more agents to have been taken off a surveillance which
involved examining every northbound car on Interstate 55 over a period of several hours at night, the
nearness of the state line and the ease with which Sanders could have fled the agent's jurisdiction made
getting a search warrant impracticable. The record demonstrates both that the agents had probable cause to
believe that the car driven by Mervin Sanders contained cocaine and that an exigency existed which would
allow a warrantless search. The admission of the fruits of this search was proper.

                                       II. PRIOR ILLEGAL ACTS

¶13. Sanders next complains that the court erred when it allowed the State to introduce his prior illegal acts.
At the trial below, defense attorney Johnny Price told Judge Pigott and prosecuting attorney Dunn Lampton
that he proposed to use the doctrine of entrapment as a defense, requested and received a jury instruction
on entrapment, and discussed entrapment during his opening argument. "Where entrapment is pled as a
defense, evidence of predisposition is always relevant and, hence, always admissible. This is because the
very idea of entrapment suggests that the person would have never committed a crime had he not been
persuaded or otherwise enticed." Moore v. State, 534 So. 2d 557, 558-559 (Miss. 1988) (citations
omitted). Additionally, under Sayre v. State, 533 So. 2d 464 (Miss. 1988), "[w]hether (the defendant) has
committed other similar acts in the past is relevant within our evidence law; that is, such evidence has a
tendency to show predisposition." Id. at 466.

¶14. The facts of Sayre are somewhat similar to the facts of the case below. There, as in this case, the
defendant never waived his right to claim entrapment or lack of predisposition. Furthermore, in both Sayre
and the case at bar, the case went to the jury with an entrapment instruction and the defense ultimately failed
to prove their entrapment claim. This Court wrote in Sayre in discussing whether testimony about previous
drug sales brought out on cross-examination of the defendant was admissible:

      That Sayre ultimately failed in his entrapment defense hardly affects admissibility. At the time the
      prosecuting attorney was faced with deciding whether to cross-examine Sayre, the predisposition
      issue was alive and well. Sayre had not rested his case, and the Circuit Court would have erred had it
      thereafter denied him the right to offer evidence or lack of predisposition. The Circuit Court correctly
      held Sayre's prior marijuana-related criminal activity relevant and thus admissible.

      The argument we are presented today is that, because Sayre never denied predisposition, the
      prosecution was precluded from proving it. This logic would empower an accused to pretermit much
      of the prosecution's proof by an admission or a failure to deny. We have rejected this tactic in cases
      with much higher stakes.

Id. at 466-467.

¶15. In the case at bar, the defense raised the issue of entrapment yet never introduced evidence of
entrapment. Nevertheless, the issue was alive throughout the trial, from being discussed on the defense's
opening argument to being submitted as a jury instruction. If a defendant says to the jury, judge and
prosecution that he will raise proof of a certain defense, the judge and prosecution should be allowed to
believe that the defendant will indeed raise proof of that defense. The prosecution should also be allowed to
introduce evidence based on this belief which will rebut that defense.

¶16. When Judge Pigott let the disputed evidence of Sanders' previous drug transactions with Morris be
introduced, entrapment was still very much a viable defense. Indeed, as entrapment was allowed as a jury
instruction, one could say that it was an issue throughout the entire trial. Because the disputed evidence went
to prove Sanders' predisposition to commit the crime of which he was accused, and as such predisposition
evidence is admissible where entrapment is raised as a defense, the ruling of Judge Pigott which allowed the
introduction of such evidence was proper.

                                III. DISPROPORTIONATE SENTENCE

¶17. Sanders' third assignment of error is that his sentence was disproportionate to his crime and
constituted cruel and unusual punishment. Sanders was found guilty of possession of cocaine with intent to
deliver and was sentenced as a habitual offender to pay $30,000 and to serve 30 years without the
possibility of early parole. Cocaine is a Schedule II controlled substance. Miss. Code Ann. § 41-29-115.
Under Miss. Code Ann. § 41-29-139:

      (a) Except as authorized by this article, it is unlawful for any person knowingly or intentionally:

      (1) To sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter,
      transfer, manufacture, distribute or dispense, a controlled substance;...

      ...

      (b) Except as otherwise provided in subsection (f) of this section or in Section 41-29-142, any
      person who violates subsection (a) of this section shall be sentenced as follows:
      (1) In the case of controlled substances classified in Schedule I or II, as set out in Sections 41-29-
      113 and 41-29-115, except one (1) ounce or less of marihuana, and except a first offender as
      defined in Section 41-29-149(e) who violates subsection (a) of this section with respect to less than
      one (1) kilogram but more than one (1) ounce of marihuana, such person may, upon conviction, be
      imprisoned for not more than thirty (30) years and shall be fined not less than One Thousand Dollars
      ($1,000) not more than One Million Dollars ($1,000,000) or both;

Miss. Code Ann. § 41-29-139.

¶18. As Sanders had been convicted of the unlawful sale of marijuana twice before and had been sentenced
both times to terms longer than one year, his sentence was enhanced under the maximum term provisions of
§ 99-19-81. Under this statute:

      Every person convicted in this state of a felony who shall have been convicted twice previously of any
      felony or federal crime upon charges separately brought and arising out of separate incidents at
      different times and who shall have been sentenced to separate terms of one (1) year or more in any
      state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the
      maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or
      suspended nor shall such person be eligible for parole or probation.

Miss. Code Ann. §99-19-81.

¶19. It is the combination of § 41-29-139 and § 99-19-81 which led to Sanders' sentence of $30,000 and
thirty years without parole.

¶20. "This Court has consistently held that a sentence will be upheld if within statutory limits. Also, where a
sentence does not exceed statutory limits, it does not constitute cruel and inhuman treatment." Adams v.
State, 410 So. 2d 1332, 1334 (Miss. 1982) (citations omitted). Furthermore, § 99-19-81 was specifically
found by this Court to be constitutional and not violative of the Eighth Amendment in Bridges v. State, 482
So. 2d 1139 (Miss. 1986). As § 41-29-139(b)(1) allows fines of $1,000 to $1,000,000 and prison terms
of up to 30 years, and as Sanders' sentence fell well within these guidelines, his claim that his sentence was
unconstitutional under the Eighth Amendment is without merit and Judge Pigott's sentence is therefore
affirmed.

                                             IV. SPEEDY TRIAL

¶21. Sanders was arrested on January 21, 1990, indicted on October 17, 1991, and tried on October 31,
1991. He claims as his final assignment of error on appeal that the long delay between his arrest and his
indictment and trial denied him his right to a speedy trial. Before this Court can decide the merits of this
issue, however, two rather high procedural hurdles must be leapt. First, the appellant did not address this
point in his initial Appellant's Brief but instead raised it for the first time in his Rebuttal Brief. This Court has
not determined if one may so introduce new assignments of error but the Fifth Circuit has, stating, "We will
not consider issues raised for the first time in an appellant's reply brief." U.S. v. Anderson, 5 F.3d 795 (5th
Cir. 1993), cert. denied, Barnett v. U.S., 114 S.Ct. 1118 (1994). This is a fitting and obvious rule for this
Court to adopt. Appellants cannot be allowed to ambush appellees in their Rebuttal Briefs, thereby denying
the appellee an opportunity to respond to the appellant's arguments.

¶22. The second procedural hurdle concerns the inaction of defense counsel in the trial below. Defense
counsel did not object or even mention the issue of speedy trial while the case was being tried. The first time
this issue was raised was in the appellant's rebuttal brief submitted almost a full year after the trial. This
Court can only decide this issue if it views it as plain error under Supreme Court Rule 28(a)(3). As a rule,
the Supreme Court only addresses issues on plain error review when the error of the trial court has
impacted upon a fundamental right of the defendant. "It has been established that where fundamental rights
are violated, procedural rules give way to prevent a miscarriage of justice." Gray v. State, 549 So. 2d
1316, 1321 (Miss. 1989). Although the right to a speedy trial is a fundamental constitutional right, it is
difficult to tell if this right has been violated in the case at bar. Under the test of Barker v. Wingo, 407 U.S.
514 (1972), four factors must be considered before one can determine if the right to a speedy trial has been
denied: (1) length of delay, (2) reason for the delay, (3) the defendant's assertion of his right to a speedy
trial, and (4) prejudice resulting to the defendant. Sanders' discussion of this issue on appeal is quite brief
and does not state how the delay violated his rights. The following is an excerpt taken from Sanders' reply
brief:

               SUGGESTION OF PLAIN ERROR NOT PREVIOUSLY ASSIGNED


      Appellant would respectfully point out to the Court that the alleged offense of which he was convicted
      took place on or about January 21, 1990. However, the Appellant was not indicted until October 17,
      1991, and tried on October 31, 1991.

      Since the time of the filing of Appellant's Brief this Court has decided the case of Jenkins v. State, No.
      90-KA-0163 pertaining to denial of speedy trial rights to a defendant and the remedy therefor.

      Appellant would point out to this Court that the State made no attempt to justify its delay in bringing
      the Defendant to his day in Court and that the defendant's rights were prejudiced thereby.

      Appellant respectfully requests that this issue be recognized by this Court as plain error which should
      be addressed by the Court although not assigned as error in the lower Court. Appellant requests that
      this Court review the procedures in his case in light of Jenkins v. State and find that his rights have
      been violated therein.

¶23. As Sanders has not adequately demonstrated a violation of a fundamental right, this Court should not
use the rule of plain error to hear this issue.

¶24. Finally, if this Court were to address the merits of this issue, it would be hard pressed to find a
violation of Sanders' right to a speedy trial. The only prong of Barker that Sanders may have satisfied is
that of length of delay. This Court has found that a delay as short as 298 days may be enough to satisfy the
first of the Barker requirements. Bailey v. State, 463 So. 2d 1059 (Miss. 1985). Over a year and a half
passed between Sanders' arrest and his indictment and trial, almost certainly a long enough delay to satisfy
Barker. Nevertheless, Sanders does not fare as well in regard to the remaining three speedy trial prongs.
He does not point to any evidence which would establish a reason for the delay or which would show how
he was prejudiced.(2) Furthermore, Sanders never asserted his right to a speedy trial. When one looks at
the combination of these factors it becomes apparent that Sanders' claim that he was denied his right to a
speedy trial can not be supported.

¶25. This Court should not address this issue as Sanders did not raise it in his initial appellant's brief.
Alternatively, this issue should also not be addressed because Sanders did not raise this issue below, and
has not shown that this is a suitable case for plain error revue. Finally, if this Court were to address the
merits of this issue, it would find no violation of Sanders' right to a speedy trial. For any and all of these
reasons, this assignment of error is without merit.

                                                CONCLUSION

¶26. The lower court did not err by allowing the evidence of the cocaine to be introduced. The police
properly searched Sanders' car without a warrant due to the exigent circumstances. Nor was error
committed by allowing the testimony of prior illegal acts into evidence. Sanders' claimed an entrapment
defense, and thus, permitted the State to offer testimony to show Sanders' predisposition to committing the
alleged crime. Thus, the lower court was not in error in admitting testimony of the prior meetings and deals
between Morris and Sanders. Because Sanders was a habitual offender, his sentence was within the
statutory guidelines and not disproportionate to his crime. Finally, this Court will not even consider the issue
of a speedy trial due to the failure to properly object or raise it on appeal. Thus, the lower court was
correct in its rulings below and its actions are affirmed.

¶27. CONVICTION OF UNLAWFUL POSSESSION OF COCAINE WITH INTENT TO
DELIVER AND SENTENCE OF THIRTY (30) YEARS, AS AN HABITUAL OFFENDER, IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND
PAYMENT OF A FINE OF $30,000.00 AFFIRMED.

LEE, C.J., PRATHER, P.J., BANKS, ROBERTS AND SMITH, JJ., CONCUR. MILLS, J.,
CONCURS IN RESULT ONLY. McRAE, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY SULLIVAN, P.J.




      McRAE, JUSTICE, DISSENTING:


¶28. Because the State failed to meet their burden to prove it was excused by the "automobile exception"
from obtaining a warrant, I must respectfully dissent. The Fourth Amendment to the United States
Constitution and the Mississippi Constitution of 1890, art. III, § 3 forbid unreasonable searches and
seizures. See Rooks v. State, 529 So. 2d 546 (Miss. 1988) (search and seizure questions are analyzed
under both the United States and Mississippi Constitutions); see also Mapp v. Ohio, 367 U.S. 643 (1961)
(Fourth Amendment protection is provided to states through Due Process Clause of Fourteenth
Amendment). Warrantless searches are "per se unreasonable under the Fourth Amendment - subject only
to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347,
357 (1967).

¶29. It is recognized that an exception to the warrant requirement was carved out for automobiles in
Carroll v. United States, 267 U.S. 132 (1925); see Moore v. State, 138 Miss. 116, 103 So. 483, 485
(1925) (adopting reasoning of Carroll in its interpretation of Fourth Amendment). However, the Carroll
decision was based on the rationale that the government has always recognized a fundamental difference
between situations in which a warrant is readily obtainable and those instances where "it is not practicable to
secure a warrant" because the item to be searched can be "quickly moved out of the locality or jurisdiction
in which the warrant must be sought." Carroll, 267 U.S. at 153. In order fulfill the Fourth Amendment's
guaranty against unreasonable searches, a seizing officer must obtain a warrant where practicable, or
show probable cause to the court if it is impossible to obtain a warrant prior to the search. Id. at 156
(emphasis added); United States v. Ross, 456 U.S. 798, 807 (1982).

¶30. Although the subject of the search in the case at bar was an automobile, the facts surrounding the
search and seizure present a scenario in which the officers could have easily obtained a search warrant. As
provided by Carroll, only where it is impracticable for an officer to present the facts to a neutral and
detached magistrate should there lie an exception to the warrant requirement. Because of the inherent
mobility of the automobile, most cases involving automobiles will fall within the exception. See California
v. Carney, 471 U.S. 386 (1986) (concluding that inherent mobility of mobile home allowed warrantless
search). However, to support the officers' belief of probable cause in this case, they articulated facts based
on conversations between Sanders and the confidential informant which indicated that the automobile would
travel from Pike County, Mississippi, to New Orleans and back again with an ounce of cocaine. The
officers were aware that their own confidential informant would provide money and loan his car to Sanders
for that purpose. At this point in time, the police had already determined that Sanders would be stopped
upon his return to the state. Their plan at this stage of the operation was settled that Sanders would be
searched upon crossing the Mississippi border. It is therefore absurd that the police maintained at trial that
the circumstances did not allow sufficient time within which to obtain a warrant. If the officers had sufficient
time to install an electronic tracking device into the car given to Sanders for the trip, how can one conclude
that a warrant could not have been obtained in the time frame presented? The intent to stop Sanders when
he returned from New Orleans existed long before Sanders was provided an automobile for transportation.
They likewise knew they had additional time after Sanders departed within which to secure a warrant, and
in the nine hours it took him to return, they were able to arrange for the highway patrol to stop Sanders.

¶31. "'[T]he burden is on those seeking the exemption to show the need for it.'" Coolidge v. New
Hampshire, 403 U.S. 443, 455 (1971) (quoting United States v. Jeffers, 342 U.S. 48, 51 (1951)). The
state has wholly failed to meet this burden. Even in the time period after the car was provided to Sanders,
there was ample time for the officers to have secured a warrant. The entire underlying factual basis of
probable cause indicated that Sanders would return to this State where the police would be waiting. See
Illinois v. Gates, 462 U.S. 213 (1983) (probable cause determined by examining totality of
circumstances); Lee v. State, 435 So. 2d 674 (Miss. 1983) (adopting "totality of circumstances" analysis).
By everyone's account, the narcotics officers could simply wait for Sanders to return to a specific location in
their jurisdiction. If the lower court is to believe that probable cause is supported by the totality of the
circumstances, then it must also conclude that the facts of this particular case have swept away the mobility
rationale which led to the Court's creation of the automobile exception in the first place. A warrant should
have been obtained prior to the search of the automobile being driven by Sanders, as it was clearly
practicable for the officers to have contacted a neutral and detached magistrate.

¶32. The Fourth Amendment requires a liberal interpretation in order to secure each individual's
fundamental right of privacy. Byars v. United States, 273 U. S. 28, 32 (1927); Barker v. State, 241 So.
2d 355, 358 (1970) (right against unreasonable search and seizure is strictly construed against state in favor
of citizen). "The word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away
and disappears." Coolidge, 403 U.S. at 461. In construing the Fourth Amendment liberally, we should
therefore look beyond the mere fact that the item being searched was an automobile. In Coolidge, the
defendant was arrested at his home where his car remained parked outside in the driveway. Id. at 460-61.
His car was later towed to the police station where it was searched without a warrant. Id. The Supreme
Court determined that the warrantless search of the automobile was not permitted by the rule in Carroll
since there was no indication that the car along with the evidence would be removed outside of the reach of
the officers. Id. at 461. The Court concluded there were no exigent circumstances which justified a
warrantless search, and that the automobile exception was irrelevant because there were no facts suggesting
that it was impracticable to have secured a warrant. Coolidge, 403 U.S. at 462-64; see Barry v. State,
406 So. 2d 45, 47 (Miss. 1981) (warrantless search of automobiles allowed only when exigent
circumstances exist).

¶33. The case at hand similarly involved a situation where the facts gave no indication that the car would be
removed beyond the reach of the arresting officers. Instead, the facts indicated that Sanders would be
returning to their jurisdiction some time later in the day. It was certainly practical for the officers to have
obtained the warrant before the car was provided to Sanders or in the nine hours between the time Sanders
departed Brookhaven and returned from New Orleans. As was found in the Coolidge case, "there [was]
nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States." Coolidge,
403 U.S. at 461.

¶34. The warrant requirement is imposed on law enforcement officials so that individuals with a special
interest in obtaining an arrest or conviction in the case are not also given the authority to determine whether
the facts provide probable cause for a search.

      The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it
      denies law enforcement the support of the usual inferences which reasonable men draw from the
      evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached
      magistrate instead of being judged by the officer engaged in the often competitive enterprise of
      ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested
      determination to issue a search warrant will justify the officers in making a search without warrant
      would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion
      of police officers.

Johnson v. United States, 33 U.S. 10, 13-14 (1948); see United States v. Lefkowitz, 285 U.S. 452,
464 (1932) (concluding that Fourth Amendment is better preserved by requiring valid warrant from neutral
and detached magistrate instead of "reliance upon the caution and sagacity of petty officers while acting
under the excitement that attends the capture of persons accused of crime"). The case before this Court
today presents the classic example of a situation where police officers maintained an eager interest in
making an arrest without regard to our constitution and the rights of all our citizens.

¶35. The automobile exception should not be interpreted so broadly under the Mississippi Constitution so
as to encompass the facts of this case. See Rooks, 529 So. 2d at 551 (stating that this Court is not bound
by Federal courts' interpretation of Fourth Amendment); Penick v. State, 440 So. 2d 547, 552 (Miss.
1983) ("The words of our Mississippi Constitution are not balloons to be blown up or deflated every time,
and precisely in accord with the interpretation of the U.S. Supreme Court"). The automobile exception was
created by necessity because in the usual case the suspect has the ability to drive his vehicle beyond the
investigating officer's jurisdiction before a warrant can be issued. Because all of the facts supporting
probable cause indicated that the car would actually return to their jurisdiction hours later, the officers have
simply failed to meet their burden to demonstrate that it was necessary for them to utilize the automobile
exception. A new trial should be ordered and any evidence obtained in the search of the automobile should
be suppressed on remand. The validity of the right against unreasonable search and seizure and the
justifications for the warrant requirement command this result. Accordingly, I dissent.

SULLIVAN, P.J., JOINS THIS OPINION.


1. A test administered by the Mississippi Crime Laboratory later confirmed the identity of the substance in
the bag.

2. One possible reason for the delay was raised by Agent Frazier at trial when he spoke of the possibility of
Sanders becoming a state informant.
