IN THE COURT OF APPEALS 03/25/97

OF THE

STATE OF MISSISSIPPI

NO. 94-KA-00545 COA

 CARTER GASTON III

APPELLANT

 v.

 STATE OF MISSISSIPPI

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. EUGENE BOGEN

COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT:

RICHARD A. SMITH

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY: JOLENE M. LOWRY

DISTRICT ATTORNEY: NOEL D. CROOK

NATURE OF THE CASE: CRIMINAL

TRIAL COURT DISPOSITION: DEFENDANT CONVICTED OF POSSESSION OF COCAINE

AND SENTENCED TO 6 YEARS (HABITUAL AND ENHANCED)
MANDATE ISSUED: 9/26/97

BEFORE THOMAS, P.J., PAYNE, AND SOUTHWICK, JJ.

SOUTHWICK, J., FOR THE COURT:

Defendant Carter Gaston was found guilty of possession of cocaine and sentenced to serve six years

as a habitual drug offender. He appeals, arguing that the trial court erred in its denial of his motion

for suppression of evidence and his motion for the initial judge to recuse himself. He also argues the

jury verdict was against the overwhelming weight and sufficiency of the evidence and contrary to the

laws of Mississippi regarding "constructive possession" of a controlled substance. Finding no error,

we affirm.

FACTS

Officer Mitchell of the Greenwood Police Department observed Gaston’s black pickup truck parked

in front of Casey Williams’s gray Cadillac, both vehicles with their lights on and engines running. The

Cadillac had no driver, as Williams was in the pickup with Gaston. Being in an area known for drug

activity and suspecting the two vehicles to be those of drug dealers, the officer pulled up next to the

drivers’ side of Gaston’s truck, at which time he saw a small white package thrown from the

passenger side window. Officer Mitchell turned on his police lights, and Williams got out of the truck

and into his car and drove away hurriedly. Gaston left quickly in the truck. After calling for backup

assistance, Officer Mitchell followed Gaston’s black pickup and pulled it over.

Officer Harris met Officer Mitchell at the scene of Gaston’s truck, and asked Gaston for consent to

search the truck. Gaston initially refused, but after the Narcotics Division was called, Gaston gave

permission to search. Nothing was found inside the truck, but cocaine was found inside the unlocked

door of the gas tank lid. Gaston testified at trial that he never consented to the search and denied

having any knowledge of the cocaine found in the gas tank.

Gaston was indicted for possession of cocaine with intent to sell. Prior to trial, he filed motions for

Judge Gray Evans to recuse himself and for suppression of evidence. Judge Evans denied both

motions, then later the same day recused himself.

After recusing himself, Judge Evans asked the parties if they wanted the new judge, Judge Bogen, to

rehear the motion to suppress. The parties declined. Gaston’s trial attorney said that he agreed to "let

Judge Bogen rule on the transcript . . . . I think that would be satisfactory. . . ." At trial four days

later, defense counsel moved the court to hold a new suppression hearing. Judge Bogen ruled, "[t]he

Court will stand on the previous rulings by Judge Evans," thus, denying the motion. Gaston appeals

from his resulting conviction.

DISCUSSION

I.
Gaston argues that he was denied his right to a fair trial by an impartial judge when Judge Bogen

refused to hold a new suppression hearing. In one precedent, a defendant filed a written motion to

suppress evidence four days before the trial began. Fielder v. State, 500 So. 2d 1002, 1004 (Miss.

1987). It was denied, but a mistrial ultimately was ordered. At the beginning of the second trial five

months later, the defendant moved the court to be heard on the prior motion. The judge denied the

motion, holding that it should have been brought up before the day of trial. The supreme court

reversed, holding that the judge should have conducted a hearing on the suppression motion filed

prior to the first trial. "Strict adherence" to Rule 4.02 of the Uniform Criminal Rules of Circuit Court

Practice, which requires all pretrial motions to be filed prior to trial, would not serve any justifiable

end in that particular situation.

Unlike in Fielder, Gaston was heard on his original motion. He is appealing from a denial to rehear a

motion to suppress. The failure to hold a hearing by Judge Bogen initially was the result of Gaston’s

agreement that the transcript of Judge Evans’s hearing could be used. Gaston thereby waived any

right to a new hearing. Further, the motion at issue on appeal in Fielder was written and timely filed

with the court prior to the trial. Gaston’s motion at issue in this appeal was made orally, and not

brought before the court until the morning of the trial.

There was no error in denying Gaston’s motion for a new suppression hearing.

II.

Even if procedurally Judge Bogen was not in error, Gaston alleges that the substance of the ruling

should be reversed. In Gaston’s view the police lacked probable cause for the initial stop and

therefore the evidence was obtained through an illegal search.

In order for an officer to have legal authority for an investigative stop, he need not have probable

cause to make an arrest. He need only have a reasonable suspicion grounded in articulable facts that

the accused is involved in a felony. Haddox v. State, 636 So. 2d 1229, 1233 (Miss. 1994), citing

Floyd v. State, 500 So.2d 989, 993 (Miss. 1986) cert. denied, Mississippi v. Floyd, 484 U.S. 816

(1987). In Haddox, the court upheld a search, reasoning that

[p]racticality requires that detainments which would become an arrest depending on the

outcome of a pending investigation, are permissible. Thus, what is an unreasonable seizure

should be determined on a balancing of the scope of the intrusion upon the person's liberty

with the governmental interest. Since an automobile was involved here, the mobility of the

suspected contraband yields a high governmental interest. In comparison, the scope of the

intrusion was minimal, especially considering that the officers did not formally arrest the

suspects, and that their detainment was potentially temporary. At the time of the

detention, there was no reasonable belief that it would turn into a more permanent

detainment, i.e., a full arrest, in which they would be held to answer for crime.

Haddox, 636 So. 2d at 1236-1237. The testimony at trial showed that Gaston was stopped to
investigate a reasonable suspicion that he was involved in drug activity. The facts on which the

officer based his suspicion are as follows: he observed the cars in an area known for drug trafficking;

he saw something thrown from the passenger side of the truck when he approached it; and after being

seen by the suspects, the two tried to flee. Based on these facts, the officer was justified in making

the stop.

Secondly, Gaston questions the legality of the search, arguing that he did not consent. This question

is a factual one. The officers testified that Gaston gave permission for the search, and Gaston testified

that he did not give permission. Conflicting evidence on consent is for the trial judge to resolve.

Luton v. State, 287 So. 2d 269 (Miss. 1973), cert. denied, Luton v. Mississippi, 417 U.S. 920 (1974)

. We accept the lower court's finding of fact regarding consent. We will not disturb a trial court’s

finding of fact unless they are clearly erroneous or influenced by an incorrect view of the law. See

Smith v. State, 465 So. 2d 999, 1002 (Miss. 1985).

Gaston also argues that even if he did consent, the gas tank was outside the scope of a permissible

search. He argues that the gas tank is accessible to the public and not within the passenger

compartment of his vehicle, and should not have been searched by the police officers.

The standard for measuring the scope of the suspect’s consent is objective reasonableness. U.S. v.

Stewart, 93 F.3d 189, 192 (5th Cir. 1996). Recitation of magic words in unnecessary. The key

inquiry focuses on what the typical reasonable person would have understood by the exchange

between the officer and the suspect. U.S. v. Rich, 992 F.2d 502, 505 (5th Cir. 1993), cert. denied,

510 U.S. 933 (1993). The scope of a search is generally defined by its expressed objective.

Florida v. Jimeno, 500 U.S. 248 (1991); United States v. Rich, 992 F. 2d 502 (5th Cir. 1993). In this

case, the police officer was looking for drugs, and his search included places on the truck that drugs

could reasonably be hidden by a suspect and found by an officer. His looking in the gas tank was

within the limits of a consent search, and thus valid.

Finally, Gaston argues that even if he did give consent, the consent was not valid because he was not

advised of his Miranda rights prior to giving consent. He argues that he was under arrest at the time

he was detained, and therefore, his consent to the search was not valid. In Floyd v. State, 500 So. 2d

989, 992 (Miss. 1986), the Mississippi Supreme Court stated that officers had authority to detain a

person without actually arresting him for investigatory purposes. In certain circumstances, even

though a person is not free to leave, he is not necessarily arrested in the constitutionally significant

meaning of the word. While Gaston may have been detained in a limited manner, he was not arrested.

He was capable of giving consent. Thus, he was not subject to an illegal arrest, and his argument that

he was incapable of giving valid consent fails.

III.

Gaston argues that the verdict was against the overwhelming weight of the evidence as well as being

based on insufficient evidence. His focus is on what proof is necessary to show constructive

possession of a controlled substance.

To find a defendant in possession of contraband, the State must prove that the defendant was aware

of the presence of the particular substance and was intentionally and consciously in possession of it.
It need not be actual physical possession; constructive possession may be shown by establishing that

the substance involved was subject to the defendant’s dominion and control. Roberson v. State, 595

So. 2d 1310, 1319 (Miss. 1992). A presumption of constructive possession arises against the owner

of the premises upon which contraband is found. Townsend v. State, 681 So. 2d 497, 509 (Miss.

1996). However, the presumption is rebuttable, and does not relieve the State of its burden to prove

guilt beyond a reasonable doubt. Roberson v. State, 595 So.2d 1310, 1319 (Miss. 1992). Gaston

emphasizes that no direct proof was introduced that he was aware of the presence of the contraband.

Such proof can be provided by reasonable inferences drawn from the evidence, a matter for a jury to

resolve.

Gaston admitted at trial that he was the owner of the truck. He did not dispute that he was the only

person who had access to the truck. However, he attempted to rebut the presumption by showing

that the gas tank of his truck was outside of his control and accessible to the public. He argued that

he did not have sufficient dominion and control over the gas tank of his truck to show that the

contraband belonged to him. Dominion and control does not require proof that it was impossible for

any other person to have access. The jury, examining the evidence and reaching its conclusion

regarding the extent of Gaston’s control over the vehicle, reached a permissible verdict.

Gaston’s argument that the verdict was against the overwhelming weight of the evidence also fails. In

order for this court to grant a new trial on this basis, the court must find the verdict contrary to the

overwhelming weight of the evidence, so that allowing it to stand would be to sanction an

unconscionable injustice. Morgan v. State, 681 So. 2d 82, 93 (Miss. 1996); Groseclose v. State, 440

So. 2d 297, 300 (Miss. 1983).

Based on the evidence, Gaston’s conviction was not against the overwhelming weight of the

evidence. The verdict does not shock the conscience to such an extent that to affirm the verdict

would be to "sanction an unconscionable justice," and therefore, the verdict is affirmed on this issue

as well as all other issues.

THE JUDGMENT OF THE LEFLORE COUNTY CIRCUIT COURT OF CONVICTION OF

POSSESSION OF COCAINE AS A HABITUAL OFFENDER AND ENHANCED

SENTENCE OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT

OF CORRECTIONS AND FINE OF $10,000.00 IS AFFIRMED. ALL COSTS ARE TAXED

TO THE APPELLANT.

BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING, KING,

AND PAYNE, JJ., CONCUR.