IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00520-COA ANDREW ACIE ADAMS A/K/A ANDREW ADAMS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 03/11/2015 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS JR. COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: PHILLIP BROADHEAD ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF 250 OR MORE GRAMS OF MARIJUANA AND SENTENCED AS A HABITUAL OFFENDER TO SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITHOUT ELIGIBILITY FOR PAROLE OR EARLY RELEASE DISPOSITION: AFFIRMED: 10/04/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLTON, P.J., FAIR AND GREENLEE, JJ. FAIR, J., FOR THE COURT: ¶1. Andrew Acie Adam s was convicted o f possession of m a r ijuana af ter it was f

ound in his vehicle p ursuant to a search warrant. Adam s claim s on appeal 1 that the police obtained

1 P h illip W. B ro ad h e ad , clin ical p ro f esso r an d d irecto r o f th e U n iv ersity o f M ississip p i S c h o o l o f L a w C rim in al A p p eals C lin ic, w as a p p o in ted as A d am s’s ap p ellatethe warrant b y f a lsely claim ing that a drug dog had i ndicated the presence of d rugs inside the vehicle. W e f

i nd this argum ent procedurally barred and, in the alternative, unsupported by the record. W e af

f i rm Adam s’s conviction and sentence.

DISCUSSION ¶2. P olice of

f i cers e ncountered Adam s af ter he d ouble parked his vehicle, a Kia, in the road. The Kia was next t o a not h e r v e h i c l e A dam s owned, a Chevrolet Im pala, which was parked on the side of the road. Adam s was shining a f lashlight i nto the Im

pala, but when the of f icers approached, h e r eturned t o the driver’s s eat of the Kia and appeared t o be preparing

to leave. W hen the o f

f icers activated their blue lights, Adam s exited the vehicle and resisted instructions to rem ain where he was. 2 A d a ms w a s arrested f or blocking the roadway , and what were later d eterm ined to be sy nthetic cannabinoids were seen in plain view i n the Kia. Adam s ’s wif

e was f ound to have additional sy nthetic cannabinoids a nd a s t olen pistol in her
purse. Af

te r a drug-detecting police dog alerted to the p resence of illegal drugs in the
Im pala, the of

f icers o btained a search warrant f or th e v e h i c le. The m arijuana Adam s was ultim ately convicted of possessing was f ound in a p lastic bag on the rear f loorboard, driver’s side. ¶3. On appeal, Adam s contends that the search warrant was illegally obtained based on

co u n sel. T h ird -y ear law stu d en t s u n d e r P ro f esso r B ro ad h ead ’s su p e rv i sio n w ere ap p o in ted as sp ecial co u n sel p u rsu an t to M i ssissip p i C o d e A n n o tated sectio n 7 3

- 3 -2 0 7 (R ev . 2 0 1 2 ). Jo d y A

. B ev i ll an d E th an D

. L av elle a ssisted i n th e p rep aratio n o f A d a m s’s b rief s, an d V a lerie M o ss an d P h ilip S u m m a p resen ted o r al arg u m en t.

2 L ater, A d am s slip p e d o u t o f h is h an d cu f

f s an d h ad to b e f

o rcib l y restrain ed

. 2a f

a lse s t atem e nt i n the supporting af f idavit. He b ases this claim on a dash cam era recording of a drug-detecting dog’s walk around his vehicle. The recording shows the dog a nd its handler, O f

f icer Michael Hauler, wa l k ing counterclockwise around the vehicle, starting at the passenger’s side rea r c o r n e r . The pair walk around the vehicle, and as they pass the driver’s side r e ar corner, the d og appears to hesitate and jum ps up toward the driver’s side taillight. It then walks f

urther a round the rear of the vehicle, where i t i s out of the video f ram e f or a m om e nt. The dog then returns to the d r i v e r ’ s side rear c orner, where it bows, with i ts rear up and its f

ront legs extended toward the vehicle, a nd begins excitedly sticking its m uzzle into the seam

between the bum

p er and the quarter panel. ¶4. The video then show s o f f i c e r s i n v estigating the gap between the bum per and the quarter p anel, the bum

per i tself , an d the interior of the vehicle (by looking through the window on the r ear driver’s side door). The of f i cers subsequently obta i n ed a w arrant to search the vehicle, on an af f idavit stating that the dog had alerted to the presence of illegal drugs “on the rear quarter panel.” ¶5. According to A dam s, the video shows the dog i ndicating the presence of drugs in the bum per, which he contends is a discrete part of the vehicle that was open to the outside and thus could be, and w as, verif ied not to c ontain drugs. H e contends that a f t er f a i ling to f ind drugs in the bum

per, the of

f i cers should have discounted the d og’s a l ert as a f alse positive, and thus they

had no probable cause f

or a warrant to search the interior of the vehicle. ¶6. From

our review of

the record, this argum ent is procedurally barred. W hile Adam s

3did present several written m otions to suppress, only one a rguably chal l e n g es the search

warrant directly , and i t is a f o rm m otion that appears to have been draf ted to encom

pass every im a ginable challenge t o all of t h e evidence obtained a g ainst “ the D ef endant.” It was f ollowed by a m o tion m o re s peci f i c a l l y c hallenging Adam s’s arrest, but not the search warrant f or the Im pala (except to the extent that it was claim ed to derive f rom the arrest as f ruit of the poisonous tree). Stil l , t h e t r i a l judge allowed A dam s g reat latitude with his original f orm m otion and essentially h eard any and every evidentiary challenge Adam s was willing to present. B ut when of f ered the opportun i t y t o present evidence and argum ents relating to the search warrant f or the Im pala, Adam s’s attorney sim ply “stood on the m otion.” The trial judge then looked at the evidence tha t had been presented thus f ar on the other suppression issues, and he f ound that the warrant w as legally issued. In elaborating on this ruling, the trial j udge did observe that the dog “alerted positive on the rear q uarter panel of the vehicle.” But this was not in response to a n y contentions by A dam s to the contrary , and

no real evidence was presented a t the suppression hearing elaborating on the details on how the dog detecte d or indicated the presence of d rugs. T he f

ailure t o m ake this specif ic
argum ent denied the State the opportunity to present evidence on the i s s u e and denied the trial court the opportunity to m ake speci f ic f i ndings of f

act on the contention. As a result, this issue is p r o c e d u r a l l y barred. See, e.g., W illiams v. State , 9 94 So. 2d 821, 828 (¶24) (Miss. Ct. App. 2008). ¶7. Notwithstanding the procedural bar, w e see no m erit t o this claim

. Adam s contends

4on appeal that the of f icers m isled the issuing judge b y claim ing that the d og w as alerting to the quarter panel rather than the bum per. On this point, Adam s had to m a ke “a substantial prelim inary showing that a f alse statem ent k

nowingly an d i n t entionally , or with reckless disregard f

or the truth, was included by the af f i a n t in the w arrant af

f idavit” and that “the allegedly f

alse statem ent is n ecessary to the f inding of probable cause.” Petti v. State, 666 So. 2d 754, 758 (Miss. 1995) (citing Franks v. Delaware , 438 U.S. 254, 154, 155-56 (1978)). Adams t h e n b o r e the burden to prove, by a preponderance of the evidence, that the challenged s tatem ent was p erjured or m ade in reckless d isre g a r d o f t h e truth. Id. Finally , Adam s had t o show that without the f alse statem ent, the af

f idavit did not establish probable

cause f or the s earch. Id. And since this was the search of an autom obile, a warrant was not required; the search w ould nonetheless have been legal h a d probable cause existed notwithstanding the f

ailure to describe it in the af f idavit. See Townsend v. S tate , 681 So. 2d 497, 502 (Miss. 1996). ¶8. A d a ms f

a i l s t o m ake even the threshold showing that the of f i cers’ descr i p t i o n o f where the dog a l e r t e d was f alse. He attem

pts do so by r ef

erence to the dash cam video, describing how a nd where the dog jum ps and what it did with its m u zzle (sticking it between the b u mp e r a nd the quarter panel). In these argum ents, Adam s seem s to a ssum e that this behavior constituted the alert. But the handler, Of f icer H auler, testif

i ed (at trial) that the dog

was actually trained to alert b y p ointing and scratching with i ts f ront paws; and the video in f act shows the dog doing this, though it is unclear whether the dog is pointing at the bum per

5or the quarter panel. According to Of f icer Hauler, the dog had alerted on the quarter panel where it m et the bum

p er, and the behavior c ited by A dam s was a ctually the dog attem pting

to use its m

uzzle f or leverage to m ake the alert gesture at a higher point o n the vehicle. The video sim ply does not m eet Adam s’s burden to show that the af f idavit’s statem e n t that the dog alerted on the quarter panel is f alse. ¶9. Adam s also f

ails t o show that the allegedly f alse statem ent was m aterial to whether probable cause was established in the af f i davit. He seem s to assum e that, had the dog been pointing toward the bum

per rather than the quarter panel, probable cause would have been lim ited to the b um

per itself and there would have been no probable cause to search the inside of the v e h i c l e . F o r its part, the State concedes that if there was probable cause only to believe contraband would be f ound in o n e specif

ic part of the vehicle, the warrant should have been so lim ited. See M illsap v. State , 767 So. 2 d 286, 292 (¶22) (Miss. Ct. App. 2000).
But Adam s begs the question about what would h ave been indi c a t e d b y an alert on the bum per rather than the quarter panel. T here was n o evidence introduced regarding the dog’s ability to pinp oint the exact l ocation of contraband w ith the degree of c ertainty Adam s

assum es. Moreover, probable cause is a totalit y o f t h e c i rcum stances question. Batiste v. State , 121 So. 3d 808, 859 (¶129) (Miss. 2013). Even assum ing that the dog was alerting on the bum per and that an alert to the bum per (taken alone) would have l im ited probable cause
to the bum

per, the detection of drug odors there would still be a f act to be c onsidered in the totality o f circum stances as t o w hether there was p robable cause to search the interior of the

6vehicle. See United S t ates v. Seals , 987 F

. 2 d 1 1 0 2 , 1 107 (5th C ir. 1993). A dam s f ails to address that possibility

. ¶10. Finally , Adam s s uggests that the warrant was invalid because the supporting af f idavit f ailed to attest to the dog’s certif ications, but this contention was not raised bef ore the trial

court a nd is procedurally barred on appeal. Furtherm ore, Adam s presents no authority holding that a statem ent regarding the dog’s certif ication is r e q u i r ed to s upport a search warrant; and even if it w ere, the search would still be valid as a w arrantless search under the

a u t o mo b i l e exception, as the dog was, in f act, certif i ed, a nd its training was discussed at length at trial. S

ee Townsend , 681 So. 2d at 502. ¶11. THE J U D G M E N T O F THE CIRCUIT COURT OF HARRISON COUNTY, FIRST JUDICIAL DIST R I C T , OF CONVICTION OF POSSESSION OF 250 OR MORE GRAMS OF MARIJUANA A ND SENTENCE AS A HABITUAL O FFENDER OF SIX TEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF C ORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR E ARLY RELEASE, IS AFFIRMED. ALL COSTS O F T H I S APPEAL ARE ASSESSED TO HARRISON COUNTY. LEE, C . J . , GRIFFIS, P.J., BARNES, ISHEE, CARLTON, JAMES, W ILSON AND GREENLEE, JJ., CONCUR. IRVING, P.J., C ONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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