Opinion
No. 2000-KA-01034-SCT.
October 24, 2002. Rehearing Filed January 3, 2003.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. BOBBY BURT DELAUGHTER, DATE OF JUDGMENT: 5/4/2000
DISPOSITION: AFFIRMED
ATTORNEYS FOR APPELLANT: ROBERT M. RYAN, THOMAS M. FORTNER, LARRY NEAL McMURTRY, CHARLES R. SALTZMAN
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY: EDWARD J. PETERS
EN BANC.
¶ 1. James V. White appeals to this Court from the Circuit Court of Hinds County where he was convicted of Count II, possession of more than one ounce of marijuana with the intent to distribute, but found not guilty of Count I, sale of more than one ounce of marijuana. White raises three issues. First, he challenges the validity of the search of his apartment. Second, he contends that the trial court improperly denied his request for a limiting instruction as to statements regarding his prior bad acts. Finally, he contends that the trial court erred in refusing to give lesser included offense instructions to the jury. We note the issue of telephonic search warrants as an issue of first impression, and we reject such search warrants. This is a subject for the Legislature as such searches are primarily creatures of statute. However, we adopt the good faith exception recognized in United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) and find the officers acted reasonably. We also find exigent circumstances existed. Thus, the search was reasonable and the evidence seized was admissible. Finding no reversible error, we affirm the judgment of the trial court.
FACTS
¶ 2. Jeremy Stevens and Brandon Wigley were suspected of dealing marijuana. On January 28, 1998, the Warren County Sheriff's Department set up a "sting" operation in which undercover officer Tim Williams attempted to buy $40 of marijuana from Stevens. Stevens offered to find some marijuana for Williams if he would front him $40. Stevens was given $40 to make the buy.
¶ 3. Wigley picked up Stevens, and after an unsuccessful trip to Delta, Louisiana, the pair headed to Hinds County. The Hinds County Sheriff was called, and arrangements were made for Hinds County officials to assist the Warren County investigators in the undercover operation. Stevens and Wigley arrived in Clinton and proceeded to White's apartment where they bought marijuana. Wigley was pulled over, and the two were arrested at the Hinds/Warren County line.
¶ 4. Both the White residence and Wigley's car were placed under surveillance after the buy took place. The officers watching White's apartment grew concerned that he might be tipped off as a result of Stevens's and Wigley's arrests. Detective Jeff Crevitt testified that some friends of Jeremy's at Jeremy's trailer were "expecting Stevens and Wigley to return to Warren County." Hinds County Judge Chet Henley was contacted by Officer Larry Iles by telephone, and an "oral/telephonic search warrant" was procured for the White residence. A search of the apartment yielded marijuana, pagers, cell phones, bank statements, a Crown Royal bag, a gun and the $40 given to Stevens to make the buy. White was taken into custody.
DISCUSSION
I. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE FRUITS OF A SEARCH CONDUCTED BY LAW OFFICERS PURSUANT TO A TELEPHONIC SEARCH WARRANT AS SAID SEARCH WAS THE SAME AS A WARRANTLESS SEARCH AND VIOLATED THE RELEVANT PROVISIONS OF THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS.
¶ 5. White contends that the trial court erred in denying his motion in limine to exclude the fruits of what he alleges was an illegal search. It is true that the officers did not have a paper warrant when they searched White's apartment. They had, however, received approval of the search from a judge resulting from a phone call by one of the officers to a county judge.
¶ 6. While not statutorily provided for in Mississippi, telephonic search warrants could possibly act as a buffer against warrantless searches which often undermine Fourth Amendment protections. In the trial court's ruling as to the reasonableness of the search, the judge stated his belief that this Court would prefer "a finding of probable cause by a neutral and detached magistrate telephonically" in a situation where the only other alternative would be a warrantless search. While this may be true, there are other problems with this procedure which warrants a detailed examination and discussion by this Court. If exigent circumstances existed so as to preclude obtaining a proper search warrant, as long as the officers were in good faith in their request and followed other procedural safeguards, evidence found as a result of the issuance of a "telephonic search warrant" would be admissible at trial. However, nothing under current Mississippi law provides for this type of search warrant.
¶ 7. White argues that to uphold the "telephonic search warrant" would be a violation of the Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution. Though Rule 41 of the Federal Rules of Criminal Procedure sets out procedures to be complied with in order to obtain a "telephonic search warrant," we have no such rule and our state constitution says nothing about such warrants. White also submits that in the absence of a specific statute, telephonic search warrants are contrary to the applicable law of Mississippi and the search of his apartment should be treated as a warrantless search.
¶ 8. It is for this Court as the final interpreter of Mississippi's Constitution to determine the legality of this type of search. Penick v. State , 440 So.2d 547, 551 (Miss. 1983). This Court finds that the search was a warrantless search, as Mississippi has yet to recognize the viability of telephonic warrants. In Boyd v. State , 40 So.2d 303 (Miss. 1949), we reversed a conviction based on the illegality of a warrant. There the officer had signed the affidavit at his office, and a judge in another county signed off on the warrant. The officer never appeared before the judge, and thus the warrant was illegally obtained. We note that the process of appearing before the judge is important in Mississippi. The current status of our jurisprudence requires the affiant's and the affidavit's presence before the issuing magistrate before a search warrant may properly issue. See Miss. Code Ann. § 41-29-157(a)(2) (2001). The form of an affidavit for a search warrant also indicates the presence of the affiant at issuance. See Miss. Code Ann. § 99-25-15 (2000). Thus, by requiring a sworn affidavit before issuance of a warrant, we insure the affidavit is free from facts which might be discovered later and included in a subsequently filed affidavit to support the finding of probable cause. Whiteley v. Warden , 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).
¶ 9. In the case sub judice, no recording was made of the phone call in which this search warrant was authorized, and no paper copy of the search warrant existed at the time of the search. There does exist a document made under oath in this record which resembles a search warrant affidavit, executed by the narcotics officer the day after this search. Also in the record is a warrant bearing the judge's signature which also was executed the day afterwards.
¶ 10. The several states that have accepted telephonic warrants require specific procedures most of which were not met here. The Federal Rules of Criminal Procedure allow for such warrants, and map out a procedure whereby they may comply with constitutional mandates. See Fed.R.Crim.P. 41. Such a process should certainly be allowed considering the changing times and advancements in technology. Further, more than one-third of the States have expressly adopted such warrants by statute, court rule or case law. See generally Ala.R.Crim.P. 3.8(b); Alaska Stat. §§ 12.35.010 and 12.35.015 (1991); Ariz. Rev. Stat. § 13-3914 (1999); Cal. Penal Code § 1526 (1998); Idaho Code § 19-4404 (1994); Ind. Code § 35-33-5-8 (1998); Iowa Code § 321J.10 (1998); § 462A.14D (2000) (However, these two code sections allow for telephonic warrants in cases where an officer is demanding blood or urine specimens from those suspected of driving or operating a boat while under the influence. Iowa does not authorize telephonic search warrants in general cases. See Iowa Code § 808.3 (1998)); Kan. Stat. Ann. § 22-2502 (1995); La. Code Crim. Proc. Ann. art 162.1 (1999); Mich. Comp. Laws Ann. § 780.651 (1998); Minn.R.Crim.P. 36.08; State v. Andries , 297 N.W.2d 124 (Minn. 1980); Mont. Code Ann. § 46-5-221 (1991); Neb. Rev. Stat. §§ 29-814.03 and 29-814.05 (2001); Nev. Rev. Stat. 179.045(2) (1997); N.J. Rules of Court 3:5-3; N.Y. Crim. Pro. Law §§ 690.35 and 690.36 (1998); N.C. Gen. Stat Ann. § 15A-244, 245 (2001) ( See Criminal Code Commission Commentary); N.D. R.Crim.P. 41(c)(2); Or. Rev. Stat. § 133.545(5) (1999); S.D. Codified Laws § 23a-35-5 (2001); Utah Code Ann. § 77-23-204(2) (1998); Wash. Sup. Ct. Crim. R. 2.3 (c); Wis. Stat. Ann. § 968.12(3) (1998).
¶ 11. Nonetheless, that is not the current state of law in Mississippi. We note that in our sister state jurisdictions telephonic search warrants are primarily a creature of statute. Where they have been accepted in the ordinary course of police investigation, certain specific safeguards exist in these jurisdictions to insure authenticity and proper issuance upon the finding of probable cause. Typical of these safeguards are the requirements: (l) that the entire telephone conversation be recorded; (2) that the officer seeking the warrant is placed under oath by the impartial magistrate while the officer relates the facts supporting a finding of probable cause; and (3) that a paper copy is prepared and provided to the premises owner-either by means of facsimile machine or by requiring the magistrate to read aloud word-for-word the contents of the search warrant he or she has authorized for copying by the officer executing the warrant. See generally ABA Criminal Justice Section, Guidelines for the Issuance of Search Warrants, 73-76 (1990). Telephonic search warrants are constitutionally infirm absent the existence of procedural safeguards and compliance with them. See United States v. Richardson , 943 F.2d 547, 549 (5th Cir. 1991). Thus, we find that the search here was a warrantless search.
¶ 12. We decline to accept telephonic search warrants as valid. We hold that it is for the Legislature to create a statutory procedure for telephonic search warrants providing a constitutionally sound method to procure such a search warrant to properly issue using existing procedure. Here, we conclude that the telephonic search warrants is merely one action of the officer to be examined by this Court as to whether the officers acted reasonably under the circumstances then existing.
¶ 13. Nonetheless, while the search was a warrantless search, it is possible that a warrantless search can be found reasonable. The United States Supreme Court has found that Fourth Amendment exclusionary rule should not be applied to bar the use in the prosecution's case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid. United States v. Leon , 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Mississippi has yet to determine whether such a "good faith" exception applies under its own law. In Leon , the Court held:
[W]here the officer's conduct is objectively reasonable, 'excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.
Id . at 919-20 (quoting Stone v. Powell , 428 U.S. 465, 539-540, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (White, J., dissenting). Law enforcement officers may effect a warrantless entry of a residence where exigent circumstances exist. See Welsh v. Wisconsin , 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Exigent circumstances include the imminent destruction of evidence, and such exigency cannot be the likely consequences of the government's own actions. See United States v. Vega , 221 F.3d 798, 799 (5th Cir. 2000). See also United States v. Blount , 123 F.3d 831, 837 (5th Cir. 1997) (citing United States v. Rico , 51 F.3d 495, 501 (5th Cir. 1995)).
¶ 14. Recently, we reiterated our own test in Baker v. State , 802 So.2d 77, 79 (Miss. 2001) (citing Smith v. State , 419 So.2d 563, 570 (Miss. 1982)). In Baker , we found three applicable factors should be considered: (1) there are reasonable grounds to believe that an emergency situation exists and that there is an immediate need for police assistance in order to protect life and property; (2) the primary motivation for the search is not to make an arrest and/or to seize evidence; and (3) there is some reasonable basis, approximating probable cause, to associate the emergency with the area or place searched. Id. at 79.
¶ 15. The Fourth Amendment gives Americans freedom from unreasonable searches and seizures. Consequently, all searches should be judged on their reasonableness. However, both the United States Supreme Court and this Court have recognized certain exceptions to the warrant requirement, despite the constitutional preference for searches conducted pursuant to a warrant. See Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1976); Watts v. State , 196 So.2d 79, 86-87 (Miss. 1967).
¶ 16. Miss. Code Ann. § 41-29-157 (b)(4) states that entries and seizures of property without a warrant are acceptable in several circumstances, including in an exceptional or emergency situation where there is no time to apply for a warrant. The presumption of unreasonableness of a warrantless search may be overcome by a showing that the police had probable cause and that there were exigent circumstances which justified failure to procure a warrant. Probable cause exists when facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient within themselves to justify a person of average caution in the belief that a crime has been committed and that a particular person committed it. Bevill v. State , 556 So.2d 699, 712 (Miss. 1990). Here, information obtained from Stevens and Wigley about White selling them marijuana, where he lived, and his nickname ("Blue") along with the fact that officers were already aware of an individual named Blue, who lived in Clinton and had been suspected of dealing marijuana amounts to a finding of probable cause.
¶ 17. White contends that there were no exigent circumstances at the time of the search. If this were true, the search would be unreasonable, and any evidence resulting from the search would be inadmissible in court. Absent our adoption of the good faith exception, we find that this search was reasonable under an exception to the warrant requirement. Such exceptions include search incident to arrest, search of a vehicle, plain view, stop and frisk, hot pursuit and emergency search, administrative search, and others. Here, the officers feared White would be tipped off and evidence destroyed. In the case sub judice an emergency search would be the only viable exception. "In determining whether evidence should be suppressed, a trial court's findings of fact are not disturbed on appeal absent a finding that the 'trial judge applied an incorrect legal standard, committed manifest error, or made a decision contrary to the overwhelming weight of the evidence.'" Taylor v. State , 733 So.2d 251, 255 (Miss. 1999) (citing Crawford v. State , 716 So.2d 1028 (Miss. 1998)). The basic elements of the emergency exception are: (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property; (2) The search must not be primarily motivated by intent to arrest and seize the evidence; (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. Smith v. State , 419 So.2d 563, 570 (Miss. 1982) (rev'd on other grounds). The reasonableness of those circumstances must be evaluated on a case by case basis. Smith v. State , 419 So.2d at 570. However, while it may be pertinent to consider whether there was time to obtain a written search warrant, the three factors still remain the essential test to determine exigency.
The Supreme Court has found as a matter of law that exigent circumstances will justify a warrantless search or seizure in many circumstances: when there is probable cause for the search or seizure and there is an imminent danger that someone will destroy evidence , Cupp v. Murphy , 412 U.S. 291, 294-96, 93 S.Ct. 2000, 2003-04, 36 L.Ed.2d 900 (1973), when the safety of law enforcement officers or the general public is threatened, Hayden , 387 U.S. at 298-99, 87 S.Ct. at 1645-46, or when a suspect is likely to flee before the officer can obtain a warrant, Minnesota v. Olson , 495 U.S. 91, 100, 110 S.Ct. 1684, 1689-90, 109 L.Ed.2d 85 (1990).
Tamez v. City of San Marcos , 118 F.3d 1085, 1095 (5th Cir. 1997) (emphasis added).
¶ 18. In determining the existence of exigent circumstances, the Fifth Circuit considers factors such as "information indicating that the possessors of the contraband are aware that the police are on their trail" as well as "the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic." United States v. Blount , 123 F.3d 831, 837 (5th Cir. 1997) (citing United States v. Richard , 994 F.2d 244, 247 (5th Cir. 1993)). We find that the officers here had probable cause and a reasonable belief that exigent circumstances existed. The officers' fears that White might be tipped off were more than mere speculation. Surveillance was set up on Stevens's residence when Stevens agreed to buy marijuana for the undercover officer. The officers were aware that at least one individual was waiting for Stevens and Wigley to return. Further, the officers' beliefs need only be reasonable, not accurate.
¶ 19. Here, the exigency arguably did not diminish over the course of the evening of these events. Our Court is therefore faced with the question whether our Constitution supports application of the exigent circumstances exception if it was reasonable for the law enforcement officers to believe: (1) that those waiting on the purchasers' return would know or conclude they were arrested; Detective Crevitt testified that friends located at Jeremy's trailer expected Wigley and Stevens to return to Warren County; (2) that those awaiting the purchasers' return knew they had gone to White's apartment; and (3) that they would call White with the news, taking into account that the purchasers were now three hours overdue.
¶ 20. We find that the conclusions these officers made in the field with limited time and information to be reasonable under the circumstances. The officers were attempting to prevent the destruction of evidence instead of effectuating arrest and seizure. We conclude that the officers reasonably believed in good faith they had a valid telephonic search warrant and were acting reasonably in the midst of exigent circumstances. Therefore, we find that all three requirements of Baker have been satisfied and that Leon is applicable.
¶ 21. Today, we adopt the Leon good faith exception to warrantless searches and further find that it applies to the case at bar. The officer stated that a district attorney had informed them in police procedures training that such warrants were permissible under appropriate circumstances. Further, the officer stated that he had obtained such a warrant on one or two prior occasions. Beyond that, the oral statement was given under oath to a neutral magistrate. More importantly, the following morning, the officer filled out a written warrant and record of the telephone conversation and presented it to the authorizing judge. Thus, a follow up procedure utilizing some, though admittedly not all, of the generally recognized safeguards was used here. Instead of immediately entering the apartment and conducting a warrantless search, these officers "did their duty" by pursuing a more careful, prudent course. Thus, the officers had a reasonable good faith belief that they were executing a valid warrant, and the exclusionary rule should not operate in this case. We hold that the trial court, even in the absence of a state statute regarding telephonic search warrants, properly upheld the search as a reasonable warrantless search.
¶ 22. Noting the deference allowed to the trial court, and the situation presented below, we find that the search was reasonable under the Leon good faith exception, as well as the exigent circumstances exception to the warrant requirement. Thus, the trial court is affirmed on this issue.
II. WHETHER THE TRIAL COURT ERRED IN DENYING A MOTION IN LIMINE REGARDING PRIOR BAD ACTS OF DEFENDANT AND IN DENYING THE DEFENSE A CAUTIONARY JURY INSTRUCTION IN THAT REGARD.
¶ 23. The admissibility of evidence related to prior acts is governed, partially, by Rule 404(b) of the Mississippi Rules of Evidence. The reason for the rule is to prevent the State from raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged. Lancaster v. State , 472 So.2d 363 (Miss. 1985); Davis v. State , 377 So.2d 1076 (Miss. 1979).
¶ 24. There are exceptions, however. Evidence of a prior offense is admissible if offered, not to show the accused's criminal tendencies, but to prove identity, knowledge, intent, common criminal scheme or plan, or absence of mistake. Robinson v. State , 497 So.2d 440, 442 (Miss. 1986). We have held that evidence of prior acts offered to show intent to distribute is not barred by M.R.E. 404(b) and is properly admissible if it withstands scrutiny under M.R.E. 403 and is accompanied by a proper limiting instruction. Swington v. State , 742 So.2d 1106, 1111 (Miss. 1999); Smith v. State , 656 So.2d 95, 100 (Miss. 1995); Holland v. State , 656 So.2d 1192, 1196 (Miss. 1995).
¶ 25. The ultimate resolution of this issue depends on the purpose for which the evidence was offered. White's previous misdemeanor conviction for possession of marijuana and Stevens's and Wigley's accounts of previous sales of marijuana by White are not admissible "to show that he acted in conformity therewith." M.R.E. 404(b). The State contends that the statements in the officer's report were offered "to establish whether the defendant had the requisite intent to distribute or sell marijuana." The suggestion is that if he intended to distribute before, he intended to distribute this time. The distinction is that while the prior act is not accepted as evidence of the entire crime, it is accepted as evidence of a constituent element of the crime. In prior opinions, we have followed the general trend and held that previous involvement with drugs can be admitted on the issue of intent to distribute. See Swington v. State , 742 So.2d at 1111; Smith v. State , 656 So.2d at 100; Jowers v. State , 593 So.2d 46, 47 (Miss. 1992). Given the difficulty of proving subjective intent, we see no reason to categorically exclude evidence of prior sales. The trial court did not err in denying White's motion in limine regarding the exclusion of statements discussing prior bad acts.
¶ 26. Even when other-crimes evidence is admissible under M.R.E. 404(b), it must pass through the "ultimate filter" of M.R.E. 403. Jenkins v. State , 507 So.2d 89, 93 (Miss. 1987). Furthermore, the jury must be informed as to the limited purpose for which they are allowed to consider the other-crimes evidence. This cannot be accomplished if "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." In Smith , the defendant argued that it was error for the trial court not to grant a cautionary instruction, sua sponte. We agreed and held that "wherever 404(b) evidence is offered and there is an objection which is overruled, the objection shall be deemed an invocation of the right to M.R.E. 403 balancing analysis and a limiting instruction." 656 So.2d at 100. See also Bounds v. State , 688 So.2d 1362, 1371-72 (Miss. 1997).
¶ 27. In the case at bar, White argues that the trial court erred in denying his request for an instruction as to the limited purposes for which the other-crimes evidence could be considered. While it is true that the trial court denied the defense's proffered limiting instruction, he did not fail to give one. Court instruction C-6 clearly states:
The Court instructs the jury that, as to Count 2, evidence of alleged sales of marijuana, either on the date in question or on previous occasions , are offered in an effort to show motive, opportunity, intent, plan, and/or preparation regarding the defendant James White. In other words, if you find beyond a reasonable doubt that the defendant possessed marijuana on the date alleged, then you may consider any evidence of alleged marijuana sales in determining whether the defendant possessed the marijuana with the intent to distribute or sell it, giving such evidence whatever weight, worth, and credibility, if any you think it deserves for that purpose.
Further, if you find the defendant guilty of the sale alleged in Count 1, you may consider that sale as possible evidence of guilty knowledge by the defendant of the nature and presence of any marijuana that he is charged with possessing in count 2.
You are not, however, under any circumstances, to consider any evidence of alleged prior marijuana sales in reaching a verdict as to Count 1, or for any other purpose not specifically authorized by this instruction.
(emphasis added).
¶ 28. The instruction requested by defense (D-9) states:
Ladies and gentlemen of the jury you have heard evidence concerning the defendant's alleged involvement in drug related activities. The Court instructs you that the evidence was offered in an effort to show motive, opportunity, intent, and preparation, regarding the defendant James White. You may give this testimony such weight and credibility as you deem proper under the circumstances. However, you can not and must not consider this testimony in any way regarding whether or not James White is guilty or not guilty of the charge for which he is presently on trial.
The instruction given by the court was very similar to that submitted by the defense, and perfectly adequate under the dictates of this Court's case law. Thus, there was no error in admitting the evidence of prior bad acts, and the jury was properly instructed as to the limits on their consideration of such acts. This allegation of error is without merit.
III. WHETHER THE TRIAL COURT ERRED IN DENYING LESSER-INCLUDED OFFENSE INSTRUCTIONS.
¶ 29. A defendant is entitled to have jury instructions given which present his theory of the case. Smith v. State , 802 So.2d 82, 88 (Miss. 2001) (collecting authorities). This principle of law is not boundless, as the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Id . Jury instructions should be given only when evidence in the case being tried supports them. Walker v. State , 740 So.2d 873, 888 (Miss. 1999). This Court has found that a lesser-included offense instruction is authorized if a rational or reasonable jury could find the defendant not guilty of the principal offense in the indictment, but guilty of the lesser-included offense. Pleasant v. State , 701 So.2d 799, 804 (Miss. 1997). White was found guilty of possession of more than one ounce of marijuana with the intent to distribute. He alleges error in that the jury was not given an instruction on the lesser-included offense of simple possession. We find that there is no foundation in the evidence which would mandate such an instruction.
¶ 30. In order to prove possession, the State must prove that White had dominion and control over the marijuana found in his apartment. Jackson v. State , 689 So.2d 760, 767 (Miss. 1997); Berry v. State , 652 So.2d 745, 748 (Miss. 1995); Campbell v. State , 566 So.2d 475, 477 (Miss. 1990). White admitted that he had purchased approximately two ounces of marijuana at his apartment on the night of his arrest and that he shared some with his friends. We find that this conclusively shows dominion and control. Thus, the possession portion of the offense is clearly met.
¶ 31. The more difficult question is whether based upon the evidence presented a reasonable jury could have found White guilty of possession, as opposed to possession with intent to distribute. White's assertion at trial was that he did not intend to distribute the marijuana within his possession, rather he intended only to share a "smoke sack" with two of his friends. This is similar to the argument recently presented to and dismissed by this Court in Meek v. State , 806 So.2d 236 (Miss. 2002). In Meek , the defendant argued that "his actions did not constitute a transfer because he did not intend to place the contraband in commerce nor intend to distribute the substance for economic gain." Id . at 239. This Court has equated the general terms "transfer" and "deliver." Evans v. State , 460 So.2d 824, 828 (Miss. 1984). In Meek , we noted that distributing "includes transactions which are sales as well as transactions which may not be considered sales." Meek , 806 So.2d at 239-40; Rogers v. State , 599 So.2d 930, 934 (Miss. 1992). The intent of the delivery and transfer of narcotics statute is "to thwart the exchange or transfer of the substance whether accompanied by consideration or not." Id. ; Wilkins v. State , 273 So.2d 177 (Miss. 1973).
¶ 32. This Court has held that it is not necessary for the transferor to make a profit or that there be consideration for the transaction to constitute a transfer or distribution under the statute. Rogers v. State , 599 So.2d 930 (Miss. 1992); Turner v. State , 573 So.2d 1340 (Miss. 1990); Minor v. State , 482 So.2d 1107 (Miss. 1986); Boone v. State , 291 So.2d 182, 184 (Miss. 1974). Further, as we stated in Meek :
A transfer is a change of possession from one person to another. See Commonwealth v. McCue , 338 Pa. Super. 117, 487 A.2d 880, 883 (1985). Also, a transfer is any act by which the holder of an object delivers it to another with the intent of passing whatever rights he has in the latter. See United States v. Nutter , 13 M.J. 803, 803-04 (A.F.C.M.R. 1981). . . . We find that the only intent necessary is an intent to relinquish possession and control. The intent of the recipient is immaterial. All that is required is that Meek, the transferor, have knowledge of the character and presence of the controlled substance and that he intentionally transfer it to another with the intent to part with possession and control.
Meek v. State , 806 So.2d at 240. Here, the evidence put on by White on his own behalf clearly meets the definition of possession with intent to distribute. We find that White was not entitled to a jury instruction on lesser-included offenses; and therefore, the trial judge did not err in denying his request. This issue is similarly without merit.
CONCLUSION
¶ 33. This Court cautions that today's finding of a good faith Leon exception in this particular case and finding that the officers acted reasonably in accordance with Baker is no recognition of the validity of telephonic search warrants. To the contrary, we reject such a notion. The subject of telephonic search warrants is for the Legislature to address. Here, the officers' use of a telephonic search warrant merely aids and reenforces the reasonableness of their actions in this case.
¶ 34. In adopting the Leon , good faith exception we note what the Supreme Court stated:
In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause. . . . The affidavit related the results of an extensive investigation and, as the opinions of the divided panel of the Court of Appeals make clear, provided evidence sufficient to create disagreement among thoughtful and competent judges as to the existence of probable cause. Under these circumstances, the officers' reliance on the magistrate's determination of probable cause was objectively reasonable, and application of the extreme sanction of exclusion is inappropriate.
¶ 35. We find no error in admitting evidence of prior bad acts, nor do we find error in the denial of a lesser-included offense instruction. We, therefore, affirm the trial court.
¶ 36. CONVICTION OF POSSESSION OF MARIJUANA IN AN AMOUNT OF MORE THAN ONE (1) OUNCE WITH INTENT TO DISTRIBUTE AND SENTENCE OF NINE (9) YEARS, SIX (6) YEARS SUPERVISED PROBATION WITH NINE (9) YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT SHALL RECEIVE CREDIT FOR TIME SERVED AND SHALL REIMBURSE HINDS COUNTY FOR ATTORNEY FEES AT THE RATE OF $35 PER MONTH TO BEGIN 60 DAYS AFTER RELEASE. WALLER, EASLEY AND CARLSON, JJ., CONCUR. COBB, J., CONCURS WITH SEPARATE WRITTEN OPINION. PITTMAN, C.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ AND GRAVES, JJ. McRAE, P.J., NOT PARTICIPATING.
¶ 37. I agree with the majority with regard to the telephonic search warrant and the adoption and application of Leon , as well as the "bad acts" evidence and disputed jury instruction. I write separately out of my concern that the majority's discussion regarding exigent circumstances may create confusion about, and possibly do harm to, our existing body of law regarding warrantless searches under exigent circumstances. I also write separately to address the Chief Justice's concerns with regards to the Leon good-faith exception.
¶ 38. Once we accept that the officers had a good-faith basis for entering and searching White's apartment for drugs, that ends the discussion: no invocation of the exigent circumstances doctrine is necessary.
¶ 39. In the present case, it is clear that the entry was justified and permissible under the exigent circumstances requirement. However, that does not mean that a full search would therefore be allowed, absent the "good faith" exception we adopt today. See United States v. Robles , 37 F.3d 1260, 1264 (7th Cir. 1994). In Robles , the officers lacked a warrant but had probable cause to believe that narcotics were in the defendant's residence and that someone might be inside where he or she could destroy them. Id. Thus, exigent circumstances permitted the police to enter; but, "[t]he exigent circumstances only permitted their entry and securing of the residence, and once this was complete any threat of evidence being destroyed was eliminated." Id. (emphasis added). Evidence in plain view when the residence is secured may be seized, but a full search must await a warrant. Id. In other words, "[t]he 'plain-view' doctrine provides an exception to the warrant requirement for the seizure of property, but it does not provide an exception for a search." United States v. Jackson , 131 F.3d 1105, 1108 (4th Cir. 1997). "Under exigent circumstances, even a warrantless search does not violate the Fourth Amendment, so long as the scope of the search is no broader than necessary to deal with the exigency." Tamez v. City of San Marcos , 118 F.3d 1085, 1093 (5th Cir. 1997). Cf. United States v. Mendoza-Burciaga , 981 F.2d 192, 197 (5th Cir. 1992) (seizure during exigent-circumstances entry upheld where officers "took only minimally necessary steps to secure the house: they made an immediate and quick visual search and looked no further until they obtained a warrant"); United States v. Thompson , 700 F.2d 944, 951 (5th Cir. 1983) ("The fact that the agents expected to find contraband, which is easily destroyed, on the premises does not preclude operation of the plain view exception to the warrant requirement"). See also Seguara v. United States , 468 U.S. 796, 810-12, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (separate analysis for entry and search; officers properly secured residence until obtaining warrant for search 19 hours later).
¶ 40. In the present case, the officers testified as to their motive for entering White's residence. They feared that he would infer from the failure of Wigley and Stevens to return to Vicksburg that he was under surveillance, and would then destroy evidence. However, once they entered White's apartment, placed him in custody, and secured the dwelling, the officers exhausted the legal scope of their activity absent a valid warrant. Because they in good faith believed they had a valid telephonic warrant, they proceeded with a full search of the premises, which was proper under the Leon exception we apply today. However, I believe that the search exceeded the bounds of a proper exigent circumstances search, standing alone, and that is one reason why I write separately: as a warning to law enforcement and prosecutors to sparingly and carefully rely on the Leon exception in future cases. If a case fails to meet the Leon standards, then it is critical that the search meets the proper, existing criteria for an exigent circumstances and/or plain view search.
The Eleventh Circuit considered very similar facts to those before us, and rejected the claim of exigent circumstances:
The Government's next argument in favor of the warrantless entry is that Ramirez and Santa would have become suspicious if the CI did not return promptly with the money, and that their suspicion would have motivated them to destroy the drugs. . . . There is no evidence in the record, however, to suggest how soon Ramirez and Santa expected the CI to return with the money. . . . Mere speculation about Ramirez and Santa's suspicions, without any factual support, is not enough to overcome the warrant requirement.
United States v. Santa , 236 F.3d 662, 670-71 (11th Cir. 2000) (citations omitted emphasis added). As the court noted, "A mere possibility that evidence will be destroyed . . . is not enough. Otherwise the requirement of a warrant would have little meaning in the investigation of drug crimes." Id. (quoting United States v. Salgado , 807 F.2d 603, 609 (7th Cir. 1986)). There is no "drug crime exception" to the warrant requirement.
¶ 41. In the present case, the record shows that, after securing the three persons (including White) in the apartment, the officers went further. They all took part in searching the rooms, including a bedroom where a shoe box and a Crown Royal bag containing marijuana were found under the bed. Also, "a quantity of marijuana" was also found on a night stand next to the bed. The state crime lab found that the marijuana inside the Crown Royal bag weighed 48.73 grams (almost 2 ounces) and that inside the other bag weighed 7.74 grams (slightly more than 1/4 ounce).
Neither the testimony of the officers nor Barnes specifically describes the marijuana on the night stand; however, it is logical to infer that it was "the other bag" containing the 7.74 grams. Since White was convicted only on the count of possessing more than one ounce, the admissibility of the Crown Royal bag's contents is crucial to the verdict.
¶ 42. Since the marijuana inside the Crown Royal bag was not in plain view, the police had no authority to search that bag without a warrant, absent the Leon exception. Nor does the small amount of marijuana in plain view on the night stand justify a full search such as was done in the present case. Our case law is consistent with the opinions of the federal courts.
The plain view exception is intended to allow police officers to seize incriminating items that are discovered in the course of their legitimate activities, [citations omitted], not to justify warrantless, exploratory searches of containers that purport to contain innocuous materials.
Brown v. State , 690 So.2d 276, 286 (Miss. 1996) (citations omitted).
"Plain view" in and of itself is never enough to justify the warrantless seizure of objects. No amount of probable cause alone will suffice to justify such a "plain view" seizure. However, when the "plain view" of an object is coupled with sufficiently "exigent circumstances," the warrantless seizure of such an object is permitted.
Smith v. State , 419 So.2d 563, 571 (Miss. 1982), vacated on other grounds, 503 U.S. 930 (1992). In upholding the seizure of objects that had been in plain view during exigent circumstances, this Court specifically noted in support that " nor was there any expansion of the scope of the search." Id. (emphasis added).
Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the [ Fourth] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.
United States v. Place , 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).
Although probable cause, as well as exigent circumstances, may support the warrantless seizure of an enclosed opaque container, see Texas v. Brown , 460 U.S. 730, 743, 103 S.Ct. 1535, 1544, 75 L.Ed.2d 502 (1983) (involving validity of warrantless seizure of tied-off balloon containing drugs), the same probable-cause showing is not necessarily sufficient to justify its subsequent warrantless search.
United States v. Doe , 61 F.3d 107, 111 (1st Cir. 1995). With so many cases clearly delineating the allowable scope of the exigent-circumstances exception, I am unable to join the majority's "argument in the alternative" that exigency alone permitted the search of White's apartment. I must also disagree with that portion of the Chief Justice's opinion which dissents from the majority, because on my reading of Leon , the majority is correct to invoke it in the present case.
The U.S. Supreme Court's brief opinion in Kirk v. Louisiana , 536 U.S. ___, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002) (per curiam), proves only that if exigent circumstances justified a warrantless search, then it would be a grave error for an appellate court to omit the issue in reviewing the trial court. But the Court explicitly refrained from reaching any opinion on that issue. Id. at 2459. It did, however, state that "police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home." The key word for our present case is entry. Exigent circumstances will get the police into the door for the narrowly limited purpose of addressing the exigency; they will not permit a full-blown search when no exigency drives it.
¶ 43. The dissent argues that Leon 's requirement of good faith is not met for two reasons: (1) neither this Court nor the Legislature has endorsed telephonic warrants or set forth an official procedure for them, and (2) no officer could reasonably believe himself entitled to enter a residence without a warrant, exigent circumstances, or consent.
For convenience, and since I am focusing on those portions of the Chief Justice's concurrence in part/dissent in part where he has dissented from the majority opinion, I refer to the opinion as "the dissent," partially inaccurate though that designation is.
¶ 44. The second reason begs the question: these officers did not in fact believe they could enter without a warrant, which is why they sought a telephonic warrant. Whether or not such a warrant was valid, if they thought they had one, then they weren't consciously proceeding without one. Therefore, the only real question centers on the dissent's first reason: could the officers in good faith have believed that the telephonic warrant was valid?
¶ 45. Police officers understandably defer to what judges tell them the law allows. "In the ordinary case, an officer cannot be expected to question the magistrate's . . . judgment that the form of the warrant is technically sufficient." United States v. Leon , 468 U.S. 897, 921, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). If the judge tells the officer that a "telephonic warrant" is proper, how is the purpose behind the exclusionary rule furthered by punishing the officer for the judge's mistake? "Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." Id.
¶ 46. The Leon Court did enumerate four circumstances under which any officer should know better than to proceed on a warrant, no matter what the magistrate tells him:
Suppression therefore remains an appropriate remedy if [1]the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. The exception we recognize today will also not apply in cases where [2] the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York , 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on [3] a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Finally, depending on the circumstances of the particular case, [4] a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.
468 U.S. at 923 (citations omitted boldfaced numerals added). None of these exceptions goes to a purely formal issue like whether the warrant was issued on paper or via telephone, fax, or e-mail. The exclusionary rule does not achieve its purpose when evidence is barred, and criminals go free, merely "because the form of the warrant was improper in some respect." Id. at 915-17. Only when the exclusionary rule can have some meaningful effect is it to be applied:
Suppressing evidence obtained pursuant to a technically defective warrant supported by probable cause also might encourage officers to scrutinize more closely the form of the warrant and to point out suspected judicial errors. We find such arguments speculative and conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.
Id. at 918.
¶ 47. In a companion case to Leon , the Court even more emphatically held that a technical deficiency should not trigger the exclusionary rule: "we refuse to rule that an officer is required to disbelieve a judge who has just advised him, by word and by action, that the warrant he possesses authorizes him to conduct the search he has requested." Massachusetts v. Sheppard , 468 U.S. 981, 989-90, 104 S.Ct. 3424, 82 L.Ed.2d 727 (1984). The Court went on to state:
An error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not the police officers, who made the critical mistake. "[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges."
Id. at 990 (quoting Illinois v. Gates , 462 U.S. 213, 263, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
¶ 48. Therefore, I consider that the majority is correct to hold that the technical inadequacy of the telephonic warrant does not justify the imposition of the exclusionary rule in this case.
¶ 49. The dissent casts doubt on the believability of the officer who claimed to have been granted the telephonic warrant, given that his notes are gone and that we have no corroboration. But this is the kind of determination in which a reviewing court ordinarily defers to the trial court, which was in a far better position to evaluate the officer's truthfulness than this Court can be with only a cold record before it. As for the fact that the officers did not comply with the procedures of the federal rule, there is no reason why they should have thought that they needed to, absent the judge's telling them to. They were proceeding according to their (mistaken) notion of Mississippi law, not according to federal rules.
¶ 50. Reiteration that the Leon exception is not an exception to the warrant requirement is beside the point. There is no question that the warrant was defective. The question is whether the exclusionary rule should be applied to bar the evidence obtained under the defective warrant, and Leon does provide an exception to the exclusionary rule for officers acting in good faith who believe, wrongly, that they have a valid warrant. That is what happened in this case, and that is why the majority correctly applies Leon today.
¶ 51. Finally, the dissent suggests that we are "implicitly" endorsing telephonic warrants by offering to shelter their ill-gotten fruits under Leon . That is not how I read the majority opinion. We are sending a clear message that such warrants are not valid, such that from this day on, no officer (or judge!) will be able to claim ignorance of the clearly-stated law in this respect. In this particular instance before us, however, where the officers and the judge did not have the benefit of this opinion's guidance, we are affirming the trial court's determination that the officers demonstrated their good faith belief that they were adhering to the letter of the Fourth Amendment.
¶ 52. In conclusion, I urge all law enforcement officers and prosecutors to understand that our adoption today of the Leon "good faith" exception should not be interpreted, in any way, as an opportunity for them to be less diligent or less thorough in following the mandates of the United States Constitution, the Mississippi Constitution, or case law interpretations thereof, regarding search and seizure. Use this new tool wisely and sparingly.
¶ 53. I agree with the majority's conclusions and join them with regard to the lesser included offense jury instruction, and the admission of evidence of prior bad acts over the defendant's objection without a cautionary instruction. The majority also reaches the correct conclusion that the evidence seized in this case was seized without a search warrant. See Majority Op. ¶ 11. However, the majority and concurrence today embrace two incompatible positions: finding both the search conducted here to be one without a warrant, yet adopting the Leon good faith exception to the exclusionary rule; an exception I find, and the majority states, requires a warrant at execution. See Majority Op. ¶¶ 11, 12. The majority states, "it is possible that a warrantless search can be found reasonable," yet in nearly the same breath it explains that the "exclusionary rule should not be applied [where] . . . officers [were] acting in reasonable reliance on a search warrant. . . ." See Majority Op. ¶ 13 (emphasis added). At the same time that it rejects searches authorized by telephone, it upholds this search based upon permission obtained by telephone. See Majority Op. ¶¶ 12, 33. I think that Leon cannot apply to the instant case. Therefore, I must respectfully dissent.
¶ 54. Leon presupposes the existence of a tangible warrant at the time of the search. Cf. Illinois v. Krull , 480 U.S. 340, 342, 107 S.Ct. 1160, 1163, 94 L.Ed.2d 364 (1987) ("In United States v. Leon , . . . this Court ruled that the Fourth Amendment exclusionary rule does not apply to evidence obtained by police officers who acted in objectively reasonable reliance upon a search warrant issued by a neutral magistrate, but where the warrant was ultimately found to be unsupported by probable cause. See also Massachusetts v. Sheppard , 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984).") (emphasis added). Leon , while an exception to the exclusionary rule, is not an exception to the warrant requirement to search the home. "With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States , 533 U.S. 27, 31, 121 S.Ct. 2038, 2042, 150 L.Ed.2d 94 (2001) (citing Illinois v. Rodriguez , 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (consent is one exception); Payton v. New York , 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (exigent circumstances is another)). See also Steagald v. United States , 451 U.S. 204, 211-12, 101 S.Ct. 1642, 1647-48, 68 L.Ed.2d 38 (1981). Absent one of these exceptions, such searches are unreasonable and violate the Constitution. Id. at 222, 101 S.Ct. at 1652-53.
¶ 55. Leon also requires objective good faith on the part of the persons executing the warrant. Leon , 468 U.S. at 920. This means that this Court is to answer the question, considering all the circumstances, whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization. Id. at 923 n. 23. First, I find the glaring absence of instruction from this Court or the Legislature concerning the proper procedure to obtain telephonic search warrants objective proof enough that a law enforcement officer of this state cannot act reasonably and in good faith when executing any "telephonic search warrant," much less one where the warrant did not exist at the time of the search. Second, I think it doubtful that any reasonably well-trained law enforcement officer in this state considers it permissible to enter someone's home without a warrant and without exigent circumstances or consent.
¶ 56. Telephonic search warrants are not authorized by law in this state, notwithstanding testimony to the trial court that the narcotics officer had obtained telephonic search warrants in the past and had been told they were proper. Furthermore, since this Court knows nothing about these previous telephonic search warrants (nor what the narcotics officer was told), its reliance upon them to prove reasonableness is misplaced. This Court has not before approved any telephonic search warrants, and the majority implicitly approves such behavior which may be widely considered unreasonable, possibly even in law enforcement circles. One can contrive a set of facts that can cause a telephonically requested and issued search warrant to pass federal muster, and we would be hard-pressed to find the search constitutionally deficient. However, enough deficiencies in the procedure used to obtain this "warrant" exist in this record which force the majority to state that this is a search without a warrant.
¶ 57. Let us be clear about the facts of this case. No warrant had been issued, and no search warrant existed at the time of the search. All the executing officers had was verbal permission from a judge and notes from the telephone conversation with that judge which were later destroyed. All we know about the telephone conversation is that the judge used his standard method of putting the officer under oath (the judge asked the officer if he knew he was under oath), and that it lasted approximately five minutes. No recording nor any transcript of the conversation exists. In the record we merely have the affidavit which was composed the day after the search, and the understandably faded recollections of the narcotics officer to tell us about the substance of that conversation. Even using Rule 41 of the Federal Rules of Criminal Procedure as a baseline, this search would not pass muster.
And why shouldn't they have been destroyed? They were, after all, merely notes, and not something as undeniably important as a constitutionally-mandated search warrant.
For the deficiencies with the oath given in this case, see United States v. Richardson , 943 F.2d 547, 549 (5th Cir. 1991). For the deficiencies with the lack of recording or transcript, see Fed.R.Crim.P. 41(b)(2)(D) (the judge shall record all the conversation or stenographic or longhand verbatim record shall be made after desire for warrant is expressed) ( shall changed to must Dec. 1, 2002). Also, in all the federal telephonic search warrant cases I have reviewed there exists a copy of the warrant at the execution of the search. Telephone conversations, although not completely recorded, and warrants, although not exactly identical to what was stated, had more than sufficient proof of accuracy in the record to justify upholding the search. Here we do not have such proofs of accuracy to allay suspicion.
¶ 58. These defects prohibit the use of the Leon good faith exception in the instant case. Most notable is the absence a warrant informing the executing officers of the limitations of the places to be searched and the things to be seized. Without a warrant to guide the search and to satisfy appellate review, the majority stretches the good faith exception beyond what is constitutionally acceptable. While the officers in this case are to be commended for seeking impartial review by a court of this state, their authority to subsequently act without a warrant and without appearing with an affidavit before a magistrate before the issuance of a warrant renders this search presumptively unreasonable. The good faith exception is not suited to avoid suppression of the seized contraband here, even though there is little, if any, police misconduct which warrants the remedy of the exclusionary rule.
¶ 59. The good faith exception is not among the exceptions to the warrant requirement, therefore it cannot be applied to the facts at hand. I would support the adoption of the good faith exception under different circumstances. See, e.g., Maryland v. Garrison , 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (good faith exception applied where police with a warrant search the wrong apartment on a floor after the warrant was issued under the mistaken belief that the apartment was the only one on the floor). However, given the use of telephonic permission to search a private residence here, I must disagree with this Court's present adoption of the exception. It is more prudent to await circumstances which lend themselves to the proper adoption of this exception.
¶ 60. Finally, I refer to the recent United States Supreme Court opinion in Kirk v. Louisiana , 536 U.S. ___, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002). The United States Supreme Court, in a per curiam opinion, discussed Payton , the reasonableness of searches, and the warrant requirement. Specifically, it stated:
We held that because "the Fourth Amendment has drawn a firm line at the entrance to the house . . . [, a]bsent exigent circumstances, that threshold may not reasonably be crossed without a warrant." [Payton] , at 590. And we noted that an arrest warrant founded on probable cause, as well as a search warrant, would suffice for entry. Id. , at 603.
. . . .
As Payton makes plain, police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home. The Court of Appeal's ruling to the contrary, and consequent failure to assess whether exigent circumstances were present in this case, violated Payton .
Kirk , 122 S.Ct. at 2459 (emphasis added). This case both reinforces the need of a tangible warrant before law enforcement officers cross the threshold of the home and states unequivocally that it is unreasonable for law enforcement officers to cross that threshold without one.
¶ 61. More than a simple telephone call is required in order to obtain a telephonic search warrant. United States v. Manfredi , 722 F.2d 519, 523 (9th Cir. 1983); United States v. Cuaron , 700 F.2d 582, 590 (10th Cir. 1983); United States v. Hackett , 638 F.2d 1179, 1184-85 (9th Cir. 1980). When we examine the record of the search as it existed the night it was conducted, a telephone call is all that is there. There was no warrant, only notes which were discarded. The procedure used to obtain what the majority calls a warrant is infirm under the federal rules. Therefore, I must conclude that the facts do not support this Court's adoption of the good faith exception to the exclusionary rule as announced in Leon . This Court should be content to await facts which support the law it announces instead of jumping the gun under less-than-ideal circumstances. Furthermore, this Court should strike any movement toward telephonically approved searches. Such a search is outside the state statutes, and contrary to the Mississippi Constitution and the Constitution of the United States.