IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2013-KA-00383-COA ALPHONZ O CORTEZ GARTH A/K/A ALPHONZ O GARTH A/K/A ALPHONZ O C. GARTH APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/25/2013 TRIAL JUDGE: HON. LEE J. HOW ARD COURT FROM W HICH APPEALED: CLAY COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: RODNEY A. RAY ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: FORREST ALLGOOD NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF MORE THAN THIRTY GRAMS OF COCAINE AND SENTENCED TO TW ENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITHAN ADDITIONAL FIVE YEARS OF POSTRELEASE SUPERVISION DISPOSITION: AFFIRMED: 06/02/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. Alphonozo Garth was convicted of the possess i o n o f mo r e t h a n thirty gram s of cocaine. On appeal, he contends that the drug s w ere f ound f ollowing an illegal search i n c ident to his arrest. H owever, the record indicates his arresting of f i cers had a d i f

f e r e n tjustif

i cation f or the warrantless search: probable cause based on a drug-snif f i ng dog alerting

to illegal drugs at the driver’s door of Garth’s autom o b i l e . W e f ind that the trial court did not abuse its discretion in deny ing Garth’s m otion to suppress, so we af f irm

. FACTS ¶2. Garth and another m an were sitting i n a v e h i c l e outside som e apartm ents in W est Point, Mississippi. Garth was in the driver’s seat and the other m an i n the passenger’s seat. Police were searching f

or the other m an af

ter a com p laint that h e had been involved in a disturbance at the apartm ents and was still outside, sitting in a vehicle. The of f icers spoke

to G a r t h , w h o p r o v ided identif i cation to prove he was n ot the m an they were looking f or. Wh en the of

f icers went to speak to the p assenger, one noticed that Garth had a n o pen container of an a lcoholic beverage between his legs. At this p oint, Garth exited the vehicle, hitting o ne of the of

f icers with the door, and then attem pted t o strike the of

f i cer. The of

f icer def ended him self

, and du r i n g the tussle, G arth threw a clear plastic b ag that c ontained

som ething white, which was picked up by a by stander who escaped with it. ¶3. Garth was arrested f o r assaulting the police of f icer and taken away f

ro m t h e s c e n e . A drug-snif

f ing dog was brought to look f o r narcotics, and, while walking past the driver’s door of G arth’s vehicle, it “alerted” to the presence of illegal drugs. The o f

f icer attending the dog then opened the door and f ound what was later determ i ned to be 37 gram s of cocaine in a pocket on the driver’s door. The of f icers also f

ound digital scales and an additional 2.7
gram s of cocaine in the center console.

2¶4. The of f icers also f

ound a large am ount of cash i n Garth’s pockets – m ore than $400. The cash w as seized, and when Garth was presented w ith a w ritte n notice that s a id it was seized because o f

his possession of

crack cocaine, Garth interjected t o say the cocaine was powder, not crack – which turned out to be true. ¶5. Garth was tried b ef ore a Clay County jury

. He presented no w i tnesses i n his def e nse, and he was convicted. DISCUSSION ¶6. On appeal, Garth c ontends that the drugs were f ound in an illegal search i ncident to h is arrest. In support, he of f ers only a cursory argum ent and a single authority : A rizona v. Gant , 556 U.S. 332, 335 (2009), in which the United States Suprem e Court h eld t hat the search of a vehicle incident to arrest could only be undertaken if

it is reasonable to believe that the arrestee m ight access the vehicle at the tim e of the arrest, or that the vehicle contains evidence of the crim e f

or which the arrest is m a de. ¶7. Garth ass e r t s , p ersuasively , that neither situation occurred here. However, we note that a t no point, either at trial or on appeal, h as the State e v er argued that Garth’s vehicle was searched incident to his arrest. Garth appears to have just decided to ignore the independent justif i cation of f ered by the State f

or the search. I ndeed, the answer to Garth’s com plaint is contained within Gant i tself , where the Suprem e Court expressly noted the lim itations o f its holding in that case: “ I f t h e re is probable cause t o believe a vehicle c o ntains evidence of crim inal activity , U

nit e d S t a tes v. Ross , 456 U.S. 798, 820-21 (1982), authorizes a

3[ warrantless] search of any area o f the vehicle in which the evidence m ight be f ound.” Gant , 556 U.S. at 347. ¶8. It is cle a r t h a t probable cause e xisted t o search G arth’s v ehicle. Garth assaulted an of f icer i n an apparent a t t e m

p t t o d ivert attention so an accom plice could carry away what appeared to be illegal drugs. A f ter Garth was arrested, he was f ound to be c arry ing a large

am ount of cash, and a police dog trained to identif y i llegal drugs had indicated their presence

near the driver’s door o f the vehicle Garth had b een occupy i ng. These circum s tances f orm

a substantial basis f

or the trial c ourt to have f ound p roba b l e c ause f

o r a l egal warrantless search o f t h e v e h i c l e . See Shelton v. State , 45 So. 3 d 1203, 1209 (¶15) (Miss. Ct. App. 2010). The circuit court did not err in deny ing the m otion to suppress. ¶9. T H E J U D G M E N T O F THE CIRCUIT COURT OF C LA Y C O U N T Y O F CONVICTION OF POSSES S ION O F MORE T HAN THIRTY GRAMS OF COCAINE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CU S T O D Y OF THE MISSISSIPPI D EPARTMENT OF CORRECTIONS, WITH AN ADDITIONAL FIVE YEARS OF POST-RELEASE SUPERVISION, IS A FFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., IRVING A N D G R I FFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND JAMES, JJ., CONCUR.

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