With respect to the consent exception to the warrant requirement, "the United States Supreme Court has long recognized that a voluntary consent to a search eliminates an officer's need to obtain a search warrant." Gazaway v. State , 708 So.2d 1385, 1388 (¶ 9) (Miss. Ct. App. 1998) ; seeDavis v. United States , 328 U.S. 582, 593, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). Similarly, "Mississippi has long recognized that a defendant can waive his or her rights under the warrant requirement by consenting to a search."
Additionally, “[t]his right is protected by the warrant clauses of both provisions, which require the government to obtain a warrant based on probable cause before a search is conducted.” Gazaway v. State, 708 So.2d 1385, 1387 (¶ 8) (Miss.Ct.App.1998). However, this right is not absolute; certain exceptions to the warrant requirement have been established.
Additionally, "[t]his right is protected by the warrant clauses of both provisions, which require the government to obtain a warrant based on probable cause before a search is conducted." Gazaway v. State, 708 So. 2d 1385, 1387 (¶8) (Miss. Ct. App. 1998). However, this right is not absolute; certain exceptions to the warrant requirement have been established.
Logan v. State, 773 So.2d 338, 343 (¶ 12) (Miss. 2000). To be valid, the consent must be voluntary. Gazaway v. State, 708 So.2d 1385, 1388 (¶ 10) (Miss.Ct.App. 1998). In reviewing the trial court's determination of the voluntariness of a consent to a blood draw, the Court applies an abuse of discretion standard.
As a result of Smith's refusals, and based upon sufficient evidence in support of probable cause to suspect Smith of DUI, acquired both at the scene of the accident and at the police station, Bean was required to obtain a warrant for the removal of a sample of Smith's blood. Gazaway v. State, 708 So.2d 1385, 1387 (¶ 8) (Miss. 1998). The State asserts, and this Court agrees, that any delay between the collision and the drawing of blood was reasonable under the circumstances and attributable solely to Smith, who put the State to the time consuming task of obtaining a warrant, late on a Saturday evening, and then transporting him to a local hospital where blood could be drawn.
We can not infer prejudice from that type of communication. Gazaway v. State, 708 So.2d 1385, 1387 (¶ 7) (Miss. Ct. App. 1998). As a result, the issue is procedurally barred.
Only if there is proof that a particular defendant has less than normal ability to reason will the State's obligation to prove knowledge arise. See also Gazaway v. State, 708 So.2d 1385, 1388-89 (Miss. Ct. App. 1998) (recognizing limitation on Penick requirements). ¶ 51.
¶ 8. The right to be free from unreasonable searches and seizures is guaranteed by the Fourth Amendment of the United States Constitution as well as Article 3, Section 23 of the Mississippi Constitution. Gazaway v. State, 708 So.2d 1385, 1387 (Miss.App. 1998). When a warrant supports the search, the reviewing court must insure that the issuing magistrate had a substantial basis for concluding that probable cause existed.