DUI Law - Mississippi Reverses Conviction For Suspicious Behavior Illegal Stop

This case comes to DAD from NCDD member Lance Mixon. In Reynolds v. City of Water Valley, --- So.3d ----, 2011 WL 6034360 (Miss.App. 2011) the defendant challenged his conviction based upon a lack of probable cause to stop the vehicle. On the morning of September 6, 2008, at 4:30 a.m., Water Valley Police Officer Christopher Blair was on routine patrol in Water Valley, Mississippi. Officer Blair was stopped at a red light at the intersection of Central Street and North Court Street. While waiting for the light to change, Officer Blair noticed a car stop approximately six-car lengths behind him. When the light changed, both cars proceeded southbound on Central Street. Officer Blair then turned left into a parking lot to perform a security check on the Dollar General business, but he noticed the car continued straight on Central Street. Officer Blair noted the car was a silver Chevrolet Corvette, which he stated was a “very unique car[.]”

After checking the doors, windows, and back of the Dollar General, Officer Blair turned north onto Railroad Street and saw the Corvette driving east on North Court Street. When the Corvette passed him at the intersection of Railroad Street and North Court Street, he noted the car was traveling below the speed limit of twenty-five miles per hour. He also saw that two males were in the Corvette and that the passenger was drinking from a white cup. The passenger pointed at Officer Blair when they drove by his car. Once the passenger pointed to the officer, the Corvette slowed from less than twenty-five miles per hour to approximately five to eight miles per hour. Officer Blair began to follow closely behind the Corvette for a “good little distance” and proceeded to call in the license plate number to dispatch. Dispatch informed Officer Blair that the car belonged to Reynolds and that there were “negative 29s, which means it's not wanted or stolen out of anywhere.” From there, the two cars continued east on North Court Street to Goode Street. Goode Street is a public street that generally runs north and south. To the south, it runs through the elementary school's campus. The Corvette turned right (south) onto Goode Street toward the elementary school; Officer Blair turned left (north) which runs into Jones Street. 

Officer Blair traveled approximately 150 feet north on Goode Street when he made the decision to turn around and initiate a traffic stop with the Corvette because he believed it suspicious that the Corvette would be going toward the school at 4:30 a.m. The Corvette had turned around in the elementary school's parking lot and was driving north on Goode Street when the two cars passed each other near the elementary school. After passing each other, Officer Blair turned around, turned on his blue lights, and initiated a traffic stop. In response to Officer Blair, the Corvette immediately pulled over and stopped.

On appeal, the court found the stop of the vehicle illegal:

"At the bench trial, Officer Blair testified that Reynolds's behavior was suspicious and initiated an investigatory stop based upon the following events:

1. Reynolds stopped six-car lengths behind him at the stop light;

2. The car slowed its speed dramatically upon seeing the officer; and

3. The car, although on a public street, was driving toward the elementary school at 4:30 a.m."

Continuing, the appeals court wrote:

 "The traffic stop ultimately led to Reynolds's arrest and conviction of DUI. Based on this evidence alone, we find Officer Blair did not have reasonable suspicion sufficient to initiate an investigatory stop under the Terry standard. At the bench trial, Officer Blair testified: Reynolds did not violate any traffic laws; the car had not been reported stolen; and there was not any other suspicious behavior beyond what was previously described. Further, Officer Blair testified that Reynolds did not exhibit any of the usual signs of DUI, such as swerving, failing to dim headlights, or abrupt stopping and starting. He also testified that one reason he was suspicious of the Corvette and decided to initiate the stop was based on the fact that the Corvette was driving toward the elementary school. He testified there “had [been] some break-ins both at the school, high school, [and] other businesses, that's why I was checking Dollar General, so I wanted to turn around and see why they were at the elementary school.” It is unclear from the record whether the elementary school or the high school had been broken into in the past, when the alleged break-in had occurred, and whether the suspects of the break-in had been apprehended. For example, had the suspects already been apprehended, it might not have been reasonable for Officer Blair to be suspicious of a car driving toward the elementary school. Further, once he turned around, Officer Blair saw that the Corvette had not stopped at the elementary school, nor was it doing anything suspicious at the school, yet he still proceeded to initiate the traffic stop. It was not until after Reynolds had exited the car that Officer Blair began to suspect Reynolds might have been drinking and driving. The supreme court has held that if the seizure was an unlawful exercise of the officer's authority, then any evidence that results from the unlawful seizure, in this case evidence of a DUI, is considered fruit of the poisonous tree and should be suppressed. Haddox, 636 So.2d at 1233. Considered as a whole, these acts of “suspicious behavior” do not demonstrate Reynolds had committed any criminal act or that one was imminent. Officer Blair might have been correct under the circumstances in concluding that the Corvette looked suspicious at 4:30 a.m.; however, merely looking suspicious is not sufficient to justify a Terry investigative stop. There was simply no evidence Reynolds had committed any criminal offense or was about to engage in criminal activity. Since Officer Blair lacked the proper reasonable suspicion to initiate a Terry stop, any evidence he found as a result of that stop is considered fruit of the poisonous tree and should have been suppressed at the hearing."
Therefore, the appeals court reversed the conviction for DUI Refusal and remanded with instructions.

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DUI _ Mississippi Finds Driving Too Slow Stop Illegal

In Trejo v. State of Mississippi, --- So.3d ----, 2011 WL 6224477 (Miss.) Officer Chris Picou was traveling North on I–55 at approximately 1:17 a.m. when he came upon a red Chevrolet SUV with a Texas license plate traveling in the left-hand or inside lane. The SUV was traveling approximately 58–60 miles per hour in an area where the minimum posted speed limit is 45 miles per hour and the maximum is 70 miles per hour. Picou was traveling 70 miles per hour in the left-hand lane behind Trejo when he flashed his bright lights for the SUV to move over so that he could pass. When the driver failed to change lanes, Picou flashed his brights two more times, with ten seconds passing between each flash. After the third flash, Picou initiated his blue lights, and the driver immediately pulled onto the interstate shoulder.

The trial court denied the defendant's motion to suppress. The Court of Appeals held that the arresting officer lacked probable cause or reasonable suspicion to make the traffic stop that led to the discovery of cocaine; thus, the trial court should have suppressed the cocaine as fruit of the poisonous tree. The Mississippi Supreme Court then reviewed the case to determine if the stop was proper under the community caretaking doctrine. 

The Supreme Court found that there was not a sufficient basis to stop the car under the community caretaking doctrine:

"Because of the risk of danger to a driver as well as the traveling public, we agree that it would be reasonable for a police officer to stop an individual who appears to be falling asleep while driving. However, the facts presented here simply do not support such an inference. There was no evidence of erratic driving. Trejo was traveling approximately 10–12 miles per hour below the maximum speed limit of 70 miles per hour and well above the minimum speed limit of 45 miles per hour in the left-hand lane around 1:00 a .m. We do not think his speed was so slow that a reasonable person would believe it indicative of distress. We also do not find that Trejo's failure to change lanes after Picou flashed his bright lights was necessarily indicative of distress, nor was it so when considered with the other facts. Picou flashed his bright lights in quick succession on a deserted stretch of interstate. And no traffic prevented Picou from passing Trejo in the right lane. We find the following analysis by the Court of Appeals especially relevant:


Trejo was not weaving or driving erratically, and there is no indication that Trejo was even aware that he was being followed by law enforcement.... This lack of awareness is supported by the fact that when Officer Picou turned on his flashing blue lights, Trejo promptly pulled over to the side of the road.

Therefore, we find that the facts presented at the suppression hearing do not justify a reasonable belief that Trejo needed help or that the public was endangered, and as such, the trial court should have granted Trejo's motion to suppress."


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DWI Law - Proving Venue as an Element of the DUI Offense in Mississippi

In most states, a defendant has a right to a trial in the county where the offense occurred under their state's constitution (venue). Often, this right extends into an obligation for the prosecution to prove (as an element) venue for the offense beyond a reasonable doubt. Such is true in Mississippi. In Bonds v. State of Mississippi, the defendant appealed his conviction, alleging that the prosecution failed to prove venue. --- So.3d ----, 2011 WL 5027166 (Miss.App.). The defendant in Bonds relied on the Mississippi Supreme Court case Kitchens v. State, 186 Miss. 443, 191 So. 116 (1939) where the supreme court reversed a driver's conviction of driving a car while in a state of intoxication because the State failed to prove where the incident occurred and did not establish venue because “the only proof offered by the State was that the appellant was drunk when he drove his automobile up to the home of the chief prosecuting witness, and that this witness lived ‘about two miles below Star, off of 49 Highway on the road known as the Stewart and Ella Ross road, in District No. 1 of Rankin County.”

Distinguishing the Kitchens ruling, the appeals court in the instant case held that the State affirmatively established venue by stating that all five driving citations, including DUI citation, listed a certain county as the county in which offense occurred, the trooper testified that he worked in that county and that he took defendant to jail in that county, and the consent form for the breath test machine listed the county where the violation allegedly occurred as that certain county.

Editors Note: I am particular troubled by the fact that the charging documents were used as evidence to prove venue, when the opinion does not explain how that became admissible as evidence against the defendant. Nevertheless, remember to hold the State to their proof when the issue of venue is necessary.

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DUI Appeal - Mississippi Court Allows Inspector Records Despite Lack of Confrontation

This case comes to DAD thanks to the watchful eyes of NCDD member Lance Mixon. In Matthies v. State of Mississippi, --- So.3d ----, 2011 WL 2120060 (Miss.App.), the defendant argued on appeal that his confrontation rights were violated when the person who 'calibrated' the machine did not testify at trial. The calibration certificates were filled out on September 1, 2008, and October 2, 2008, and certify that the Intoxilyzer 8000 machine administered to Matthies was in “working condition” and met “acceptable standards of accuracy.”

The Mississippi Appeals Court first reviewed cases from other jurisdictions involving similar issues:

"Since the Melendez–Diaz Court expressly declined to answer the question before us, we look to other jurisdictions. Courts having occasion to consider intoxilyzer inspection, maintenance, or calibration records post- Melendez-Diaz have almost uniformly agreed that such records are nontestimonial in nature. See United States v. Forstell, 656 F.Supp.2d 578, 580–82 (E.D.Va.2009); State v. Linder, 2010 WL 3760744, *2 (Ariz . Ct.App.2010); Jacobson v. State, 703 S.E.2d 376, 379 (Ga.Ct.App.2010); People v. Jacobs, 939 N.E.2d 64, 71–72 (Ill.App.Ct.2010); Ramirez v. State, 928 N.E.2d 214, 219–20 (Ind .Ct.App.2010); State v. Johnson, 233 P.3d 290, 299 (Kan.Ct.App.2010); State v. Bergin, 217 P.3d 1087, 1089 (Or.Ct.App.2009); Settlemire v. State, 323 S.W.3d 520, 521–22 (Tex.Ct.App.2010); Hamilton v. State, 2010 WL 4260608, * 3 (Alaska Ct.App.2010) (unreported decision). But see United States v. Gorder, 726 F.Supp.2d 1307, 1314 (D.Utah 2010) (finding “Intoxilyzer 8000 Operational Checklist” testimonial).

The Mississippi court found the language in the Ramirez decision (cited above) most persuasive. "In Ramirez, the Indiana Court of Appeals confronted similar calibration certificates and found:

"Melendez–Diaz does not hold that routine calibration records are always nontestimonial. But at a minimum it leaves the question unresolved and demands the same type of scrutiny that we have undertaken since Crawford. ... The certificates do not comprise ex parte in-court testimony or its functional equivalent. They are not formalized testimonial materials like sworn affidavits. Moreover, while the certificates contemplate use in criminal trials, they are completed in advance of any specific alleged drunk-driving incident and breath test administration and are not created for the prosecution of any particular defendant." Ramirez, 928 N.E.2d at 219.

The Matthies court concluded:

"The certificates at issue here do nothing more than verify the accuracy of the equipment. Though the Intoxilyzer was calibrated for use in criminal prosecutions, the certificates were not specifically prepared with an eye on prosecuting Matthies. Therefore, the calibration records in this case are different from the lab analysts' certificates at issue in Melendez–Diaz, which were prepared after the drug seizure to establish at the defendant's trial that the substance obtained from him was cocaine."

Editor's Note: What bothers this editor the most from these decisions is the claim that 'all the inspector is doing is finding the machines accurate'. However, the machines themselves are designed to do the same thing that was found problematic in Melendez-Diaz: determine the identity of a particular substance and then subsequently weigh it. Whereas Melendez identified the substance in the bag as cocaine, in this case the machine identified the substance in the lungs as alcohol. An inspector who 'calibrates' a device is performing some of the same activities that are performed by a GC tech. Finally, the Intoxilyzer actually 'weighs' the amount of alcohol as well, which is a key component to the innocence or guilt of the driver. It seems to me that these courts are being disingenuous in their so-called distinctions between drug gc-ms cases and dui breath-test cases.


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DUI Appeal - Destruction of Video OK Say Mississippi

In Ellis v. State of Mississippi, --- So.3d ----, 2011 WL 1486610 (Miss.App.), NCDD members Vic Carmody, Kevin Stewart, and Lance Mixon appealed the defendant's conviction, based in part on the issue of whether the circuit court erred in failing to grant a verdict of acquittal because the State failed to preserve video evidence from the traffic stop.
The defendant was arrested on January 14, 2009. On February 2, 2009, Ellis's attorney sent a letter to Patrolman Conner citing Mississippi Code Annotated section 63–11–15 (Rev.2004) FN3 and requesting eight items, one of which was “the video, if any, taken by the officer of the test or tests.” By the time of the circuit court trial, Ellis had converted this request for any video of alcohol testing by the officer to mean the trooper's memory card of Ellis's traffic stop. Patrolman Conner did not supply the memory card to Ellis. Patrolman Conner testified that if there was nothing “extraordinary about the stop and nothing goes on,” he does not keep the memory card of each traffic stop. Patrolman Conner said there was no requirement that he keep the card of each stop and that he routinely erased the memory card in order to record future stops. He stated: “When it fills up, you've got to get rid of it where you can video your future stops.”

FN3. The section provides: “Upon the written request of the person tested, or his attorney, full information concerning the test taken at the direction of the law enforcement officer shall be made available to him or to his attorney.” Miss.Code Ann. § 63–11–15.

The appeals court summarized the applicable federal law as follows:

“A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed.” California v. Trombetta, 467 U.S. 479, 485 (1984) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). In Trombetta, a two-part test was developed for determining whether a defendant's due-process rights are violated in situations where physical evidence has been destroyed. First, the “evidence must possess an exculpatory value that was apparent before the evidence was destroyed.” Id. at 489. Secondly, the evidence must “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. A bad-faith factor to the Trombetta test was added in Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988). There the United States Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58.

The Mississippi appeals court identified the 3-part due process test for destruction of video as follows:

"What has developed then is a three-part test to use when determining if a due-process violation has occurred when physical evidence has been destroyed. In order to prevail on his due-process claim, Ellis first must show that the digital memory card had exculpatory value that was apparent before it was erased. Secondly, he must show that he would be unable to reasonably obtain comparable evidence; and thirdly, Ellis must show that the State acted in bad faith by destroying the memory card."

As far as the exculpatory value was concerned, the court stated that:

"[W]e doubt that the memory card had apparent exculpatory value prior to its erasure. Patrolman Conner testified that the digital camera did not activate until he turned on his blue flashing lights to initiate the actual stop. It would not have shown any actions like the way Ellis was driving prior to the stop. It might have shown the actual stop. However, any exculpatory value of the events following the stop is significantly reduced by Ellis's own admission that he was drinking and driving and that he had been consuming alcohol earlier in the day at the duck hunt and that he refused the field sobriety test and the Intoxilyzer test."

As far as the bad faith element was concerned, the appeals court wrote:

"We can find no bad faith on the part of the State in the destruction of the card. Ellis's attorney sent the trooper a letter requesting “the video, if any, taken by the officer of the test or tests.” However, by this time the memory card had been erased. Patrolman Conner explained that the card was erased through the normal process used by the trooper of erasing and recording over the digital camera's memory card. Ellis said that unless he determines that there is something unusual about a stop, he simply records over each memory card. He further testified that there was no rule or regulation which required him as a trooper to preserve every memory card of traffic stops. He did not destroy the card of Ellis's traffic stop to circumvent its disclosure. In failing to preserve the card for Ellis, Patrolman Conner was acting “in good faith and in accord with [his] normal practice.” Trombetta 467 U.S. at 488 (quoting Killian v. United States, 368 U.S. 231, 242 (1961)). Further there is no evidence in the record of any “allegation of official animus towards [the defendant] or of a conscious effort to suppress” the memory card. Id.

Thus the court denied this ground on appeal. It should be noted that two interesting facts appear from this opinion: first, the request for video was not received until AFTER it had already been destroyed. If the destruction (however innocent or inadvertent) had occurred after the request was received, the outcome may have been different (as it has been in other opinions).

Second, the appeals court failed to address the applicability of Mississippi Code Annotated section 63–11–15, which arguably required preservation of this video independently from the due process clause. Some states have found that a destruction of a video, while not a violation of the due process clause, was still sanctionable for violating state discovery rules.


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