Brandon Q. Gales v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2013-KA-00435-SCT

BRANDON Q. GALES a/k/a BRANDON GALES

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 02/26/2013
TRIAL JUDGE: HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: PHILLIP BROADHEAD
OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
STAN PERKINS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
JOHN R. HENRY, JR.
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/09/2014
FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

COLEMAN, JUSTICE, FOR THE COURT:

¶1. The instant matter is before the Court on appeal filed by Brandon Q. Gales against the

State of Mississippi. Gales was convicted in the Washington County Circuit Court of armed

robbery and conspiracy to commit armed robbery with sentences of life imprisonment and

five years, respectively. Gales appealed, raising three issues. While the trial court
committed error, such errors are harmless, and the remaining issues lack merit. Thus, the

Court affirms the judgment of the trial court, albeit on different grounds.

FACTS AND PROCEDURAL HISTORY

¶2. On December 19, 2011, at about 10:00 p.m., Abdulhakim Weber was in the process

of closing his convenience store, the Hyatt Food Mart, for the night. As an employee was

about to lock the front door, two black males masked with white t-shirts came into the store.

One of the intruders had a pistol and yelled “nobody move” before firing a shot into the

ceiling. The shooter took the money that Weber had been counting at the register, while the

shooter’s partner took money from Weber’s pockets. The shooter then demanded a pack of

cigarettes before both robbers fled the scene. Weber’s employee called 911.

¶3. The store was equipped with twelve security cameras, which captured the quick

exchange. The video shows two black males, wearing white t-shirts as masks, entering the

store. The shooter wore a black hoodie, light blue jeans, and brown casual shoes. The

shooter’s partner wore a black sweatshirt, gray pants, and black and gray shoes.

¶4. Within minutes of the 911 call, officers arrived at the store and viewed the

surveillance footage. Officer Jeremy Arendale described the fugitives to dispatch, which

issued a “be on the look out” description. The description depicted a black male with a blue

shirt, black pants, and a white hoodie and did not describe the suspect’s footwear. Soon after

hearing the description, Officer Tabari Thomas spotted a young black male, later identified

as Brandon Gales, running roughly five blocks from the Hyatt Food Mart. According to

Officer Thomas, Gales was running but attempted to make it seem like he was walking upon

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noticing the police presence. Officer Thomas stopped Gales and asked him why he was out

of breath. Gales responded that he had just left a gambling house.

¶5. Officer Thomas then conducted a Terry1 pat-down of Gales. While Officer Thomas

did not find a weapon on Gales, he felt a bulge in Gales’s back pocket. According to his

testimony, Officer Thomas either asked Gales to “let him see what was in his pocket” or

Gales voluntarily emptied his pockets, showing him money that Gales said he had won

gambling. Officer Thomas asked dispatch for another description of the suspects. Dispatch

responded, describing an individual with a black hoodie, light jeans, and brown casual shoes.

Gales was not wearing a black hoodie, but instead a gray, long-sleeved shirt; however, he

was wearing light jeans and brown casual shoes. Officer Thomas noted that Gales seemed

suspicious, as he was out of breath and wearing light clothes for a December night. Because

Gales partially matched the description of one of the robbers, Officer Thomas handcuffed

and detained Gales for further investigation and soon after drove him to the crime scene.

¶6. Arriving at the Hyatt Food Mart, Officer Thomas told Officer Arendale that he had

detained a person of interest. Officer Arendale spoke with Gales and photographed the

money in Gales’s pockets. There are some discrepancies in the record as to what exactly

happened next. According to Officer Arendale’s recount, he went back into the store and

asked Weber how much money was stolen and in what denominations. Officer Arendale

returned to Gales, took the money from his pockets, and proceeded to count the money,

which Officer Arendale testified was consistent with Weber’s description. Officer Arendale,

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Terry v. Ohio, 392 U.S. 1 (1968).

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noting a five dollar bill with a red stamp on it, went back to Weber and asked him if there

was anything unusual about any of the bills. Weber proceeded to describe a five dollar bill

with a red stamp on it that he had received from the bank.

¶7. According to Weber’s recount, after the police detained the suspect, Officer Arendale

immediately brought the money inside the store and placed it on the counter. Officer

Arendale asked Weber if he knew any of the serial numbers, and, after viewing the bills,

Weber recognized the bill with the stamp on it as one that he had acquired through regular

business and not from a bank. Gales was placed under arrest and brought to the police

station once the police connected him to the bill with the red stamp.

¶8. At the station, officers swabbed Gales’s hands for gunshot residue. The swabs were

sent to the Mississippi Crime Lab, where forensic scientist Chad Suggs analyzed them for

the presence of gunshot residue. Suggs found only a particle indicative of gunshot residue

on the back of Gales’s left hand; however, he was unable to “identify it as gunshot residue

to the exclusion of all other environmental sources.”

¶9. The morning after Gales’s arrest, officers found a black hoodie and a Smith & Wesson

handgun in an alley near North Harvey and Bland Street, near where Gales was detained.

The handgun and a spent shell casing found at the crime scene were sent to the crime lab for

comparison. Forensic scientist Brian McIntire determined that the bullet fired at the Hyatt

Food Mart had been fired from the discovered pistol.

¶10. Gales was indicted for two counts of armed robbery and one count of conspiracy to

commit armed robbery. Gales filed a motion to suppress all evidence stemming from his

unreasonable search and seizure. A hearing was held on the motion, after which the trial

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court entered an order denying the motion and finding that Officer Thomas’s stop and frisk

of Gales was proper under Terry. The trial court granted a directed verdict on one count of

armed robbery. A jury convicted Gales on the remaining counts of armed robbery and

conspiracy, and the trial court sentenced him to life imprisonment and five years,

respectively, with the sentences to run concurrently. Gales appealed.

DISCUSSION

¶11. For the sake of organization, Gales’s arguments have been divided into five issues.

The first three issues concern alleged improprieties as to the Terry stop, Gales’s arrest, and

the recitation of Miranda warnings, respectively, while the remaining two arguments focus

on the narration of the surveillance video and whether there was legal and evidentiary

sufficiency supporting the verdict.

I. Whether the trial court erred by refusing to suppress the fruits of an
impermissible stop and an unreasonable warrantless search of Gales,
when the stated reason for the stop was to conduct a Terry pat-down,
but the search and seizure of Gales did not meet the constitutional
prerequisites for the police officer’s actions.

¶12. Gales’s first issue deals with whether Officer Thomas properly performed a Terry stop

in detaining Gales. For the sake of clarity, the issue has been subdivided into three parts: (a)

the initial Terry stop, (b) the Terry pat-down, and (c) the continued detainment and search

of Gales following the Terry stop.

¶13. The Court applies a mixed standard of review to Fourth-Amendment claims. Eaddy

v. State, 63 So. 3d 1209, 1212 (¶ 11) (Miss. 2011) (citing Dies v. State, 926 So. 2d 910, 917

(Miss. 2006)). “Whether probable cause or reasonable suspicion exists is subject to a de

novo review. But the Court limits the de novo review of the trial court’s determination to

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historical facts reviewed under the substantial evidence and clearly erroneous standards.”

Id. (emphasis added) (citations omitted). When reviewing evidentiary rulings made by a trial

court, the Court employs an abuse of discretion standard. Brown v. State, 965 So. 2d 1023,

1026 (¶ 10) (Miss. 2007) (citing Peterson v. State, 671 So. 2d 647, 655 (Miss. 1996),

overruled on other grounds by Caldwell v. State, 6 So. 3d 1076 (Miss. 2009)). “[The] Court

must first determine if the proper legal standards were applied.” Id. “Where error involves

the admission or exclusion of evidence, [the] Court will not reverse unless the error adversely

affects a substantial right of a party.” Ladnier v. State, 878 So. 2d 926, 933 (¶ 27) (Miss.

2004) (quoting Whitten v. Cox, 799 So. 2d 1, 13 (Miss. 2000)).

A. The Initial Stop

¶14. First, Gales argues that Officer Thomas did not have a “reasonable suspicion” to stop

Gales, as Officer Thomas was responding to the initial, inaccurate description, which

described a black male wearing a blue shirt, black pants, and a white hoodie. The description

also stated that the suspects were headed in the direction of Belle Aire Street; however, Gales

was not walking in that direction. It should be noted that in Gales’s motion to suppress,

which the trial court denied, Gales conceded that “the Greenville Police Department had the

right to stop and question the defendant, and even the right to conduct a pat-down for

weapons.” Accordingly, the issue of whether Officer Thomas had legal grounds to conduct

the Terry stop of Gales in the first place was conceded and not argued before the trial court.

“Failure to raise an issue at trial bars consideration on an appellate level.” Walker v. State,

913 So. 2d 198, 217 (¶ 49) (Miss. 2005); see also Johnson v. State, So. 3d , 2014 WL

6
971542, *4 (¶ 6) (Miss. Mar. 13, 2014). Regardless, the Court will proceed with an analysis

of the stop and pat-down.

¶15. In response, the State argues that Gales essentially is attacking Officer Thomas’s

credibility. Further, the State notes that the trial court sits as the finder of fact at suppression

hearings and thus is solely responsible for determining witness credibility and resolving any

conflicts in the evidence, citing Glasper v. State, 914 So. 2d 708 (Miss. 2005). The State

contends that Officer Thomas had a reasonable suspicion to stop Gales because (1) he was

spotted minutes after an armed robbery and only about five blocks away from the crime

scene; (2) he partially matched the description of one of the robbers; and (3) he was running

and appeared nervous.

¶16. “Police officers may detain a person for a brief, investigatory stop consistent with the

Fourth Amendment when the officers have ‘reasonable suspicion, grounded in specific and

articulable facts . . .’ that allows the officers to conclude the suspect is wanted in connection

with criminal behavior.” Eaddy, 63 So. 3d at 1213 (¶ 14) (citing Walker v. State, 881 So.

2d 820, 826 (Miss. 2004)); see also Terry v. Ohio, 392 U.S. 1 (1968). Based on the evidence

in the record, the trial court in the case sub judice did not err in finding that Officer Thomas

had formed a reasonable suspicion in his detention of Gales. Gales was in the immediate

vicinity of the crime scene soon after the robbery, partially matched the description of one

of the robbers, and appeared nervous. Officer Thomas’s suspicions were further piqued

when Gales, who was wearing casual shoes, stopped running when he noticed Officer

Thomas’s presence. Based on the above facts, Officer Thomas’s actions were grounded in

a reasonable suspicion that Gales was connected with the armed robbery.

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 B. Officer Thomas’s Terry Pat-Down

¶17. Second, Gales argues that, even assuming Officer Thomas had reasonable suspicion

initially to stop Gales, Officer Thomas exceeded the scope of Terry by ordering Gales to take

money out of his pocket, knowing that it was not a weapon. Gales argues that such a search

violates the “plain feel” doctrine enunciated by the Supreme Court in Minnesota v.

Dickerson, 508 U.S. 366, 375-76 (1993) (“If a police officer lawfully pats down a suspect’s

outer clothing and feels an object whose contour or mass makes its identity immediately

apparent . . . its warrantless seizure would be justified by the same practical considerations

that inhere in the plain-view context.”). The State argues that Gales misconstrues the record

and quotes Officer Thomas’s statement at the suppression hearing: “when I felt that bulge

in his pocket, I didn’t know if it was a knife or something wrapped up in something.”

According to the State as well as the trial court’s factual findings, Officer Thomas then asked

Gales what was in his pocket, and Gales voluntarily pulled the money out, claiming he had

just won it gambling.2 Because Gales voluntarily showed Officer Thomas the money, Gales

no longer had a “reasonable expectation of privacy” as to the money under the Fourth

Amendment. Katz v. United States, 389 U.S. 347, 359 (1967) (Harlan, J. concurring).

2
There are some discrepancies as to what Officer Thomas said to Gales to prompt him
to remove the money from his pocket. At the suppression hearing, Officer Thomas stated
that he asked Gales what was in his pocket. Later during the hearing, Officer Thomas seems
to say that Gales simply removed the money after the pat-down, without Officer Thomas
asking anything. At trial, Officer Thomas testified that he had seen money hanging out of
Gales’s pocket, prompting him to ask Gales “Why do you have all this money?” Gales then
produced the money and claimed he won it from gambling. Regardless of which account
is the most accurate, the trial court found, relying on Officer Thomas’s testimony at the
suppression hearing, that Gales voluntarily had produced the money.

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Officer Thomas’s suspicions were piqued, resulting in his requesting a fresh description,

which was more accurate and partially matched Gales.

¶18. “The rationale underlying the Terry stop is the protection of the officer.” Ellis v.

State, 573 So. 2d 724, 725 (Miss. 1990). To that effect, the U.S. Supreme Court has said that

the search “must therefore be confined in scope to an intrusion reasonably designed to

discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”

Terry, 392 U.S. at 29. “When an object is soft or does not reasonably resemble a weapon,

the Terry analysis does not justify removing it from the suspect’s clothing and searching it.”

Ellis, 573 So. 2d at 725 (citing 3 W. Lafave, Search and Seizure § 9.4(b) (2d ed. 1987)). It

is noteworthy that, unlike in the case sub judice, the police officer in Ellis testified that he

had suspected the object he felt during the Terry pat-down to be drugs and did not testify that

he was concerned about a concealed weapon. Id. Additionally, “[s]ince Terry, [the U.S.

Supreme Court has] held repeatedly that mere police questioning does not constitute a

seizure.” Florida v. Bostick, 501 U.S. 429, 434 (1991); see also United States v. Shabazz,

993 F.2d 431, 436 (5th Cir. 1993).

¶19. Here, Officer Thomas was pursuing an armed robbery suspect who was last seen

brandishing a pistol. Officer Thomas had reason to believe that Gales might have been

armed, necessitating a frisk of his person. While Officer Thomas did not feel anything that

was immediately recognizable as a weapon, he felt a unknown bulge in Gales’s pocket,

prompting concern for his safety. Despite his concern, Officer Thomas did not search

Gales’s pocket but merely asked what was in it. Gales voluntarily emptied his pockets,

showed the money to Officer Thomas, and claimed that he had won it gambling. Based on

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these facts, the trial court did not err in finding that Officer Thomas constitutionally

performed a Terry pat-down.

C. Gales’s Continued Detainment and Officer Arendale’s Conduct

¶20. Gales also argues that his continued detainment after Officer Thomas handcuffed him

and Officer Arendale’s searches exceeded the scope of Terry. Gales alternatively argued at

the suppression hearing that he was arrested when Officer Thomas handcuffed him and

brought him to the crime scene, and the officers should have Mirandized 3 Gales at the point

of arrest. In its brief, the State did not respond to the alleged Terry violations stemming from

Officer Arendale’s conduct other than saying that it was “justified and permissible.” The

State further argues that Officer Thomas’s encounter with Gales was a Terry stop; thus,

Officer Thomas was not required to Mirandize Gales as he was not yet under arrest.

¶21. After the hearing on Gales’s motion to suppress, the trial court entered an order

denying the motion and finding that Officer Thomas’s stop and pat-down of Gales was

proper under Terry. While the order mentioned that Officer Thomas took Gales to the crime

scene, it did not analyze the fact under Terry. The order referenced Officer Arendale’s

taking pictures of the money but failed to mention his emptying Gales’s pocket. The order

stated that “Officer Jeremy Arendale testified the accused was arrested when a stamped bill

was confirmed by the owner to be one of his stolen bills.”

¶22. While the Court agrees with the trial court’s order that Officer Thomas’s initial stop

and pat-down was proper, upon de novo review, the trial court erred in restricting its analysis

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Miranda v. Arizona, 384 U.S. 436 (1966).

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to the initial stop and not further analyzing Gales’s prolonged detainment and searches by

Officer Arendale. The U.S. Supreme Court has stated that Terry searches are “confined in

scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden

instruments for the assault of the police officer.” Terry, 392 U.S. at 29. Officer Thomas

already had conducted a proper Terry search, concluding that Gales was unarmed and had

only money in his pockets. While an additional search may have been justified to further

ensure officers’ safety, Officer Arendale did not pat-down Gales for weapons but instead

took money from his pockets and showed it to Weber, who recognized the stamped bill.

¶23. Officer Thomas’s continued detainment of Gales and Officer Arendale’s conduct in

taking Gales’s money are not congruent with Terry. Gales was in custody, having been

handcuffed and placed in a police cruiser. The officers had ample time to attain a search

warrant, which would have made Officer Arendale’s actions decisively proper. Regardless,

the trial court correctly determined Officer Arendale’s actions were “justified and

permissible,” although potentially under a different rationale, as Gales no longer had a

“reasonable expectation of privacy” after he voluntarily showed Officer Thomas his money.

Katz, 389 U.S. at 360. See also Dies v. State, 926 So. 2d 910, 918 (¶¶ 23-24) (Miss. 2006).

Alternatively, if the officers determined that probable cause existed following Officer

Thomas’s Terry pat-down, the officers could have arrested him at that point, potentially

allowing the officers to conduct a search incident to arrest. However, Officer Arendale

testified that he did not arrest Gales until after Weber identified the stamped bill. As Gales

argues, “if Arendale had probable cause to arrest based on what he learned following the

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search at the Food Mart [that Weber recognized the bill], then clearly he did not have

probable cause to search [Gales] when [he] arrived at the scene with Thomas.”

¶24. The trial court erred in finding that Gales was not arrested until the bill was confirmed

by Weber to be one of the stolen bills. When Officer Thomas handcuffed Gales, placed him

in his cruiser, and transported him to another location, Gales was “effectively seized for the

purposes of the Fourth Amendment. These circumstances surely amount to a show of official

authority such that a reasonable person would have believed he was not free to leave.”

Florida v. Royer, 460 U.S. 491, 501-02 (1983) (quoting United States v. Mendenhall, 446

U.S. 544, 554 (1980)). Because his detainment would qualify as a Fourth Amendment

seizure, the arresting officers were required either to attain a search warrant or to find an

applicable exception to the warrant requirement in order to search Gales.

¶25. Because Officer Arendale’s subsequent searches of Gales prior to his being placed

under arrest may have exceeded the scope of Terry, we must also analyze whether Gales’s

arrest and subsequent searches were legally justified.

II. Whether, assuming that Gales was arrested when Officer Thomas
placed him in his police cruiser, Officer Thomas had probable cause
to arrest Gales and Officer Arendale had a proper basis to conduct a
warrantless search of Gales’s person.

A. Probable Cause

¶26. Before analyzing whether Officer Arendale’s search of Gales was proper, the Court

must first determine whether probable cause existed to place Gales under arrest. “Probable

cause exists when the facts and circumstances within an officer’s knowledge or of which he

has reasonable trustworthy information, are sufficient in themselves to justify a man of

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average caution in belief that a crime has been committed and that a particular individual has

committed it.” Hall v. State, 455 So. 2d 1303, 1304 (Miss. 1984) (citing Holland v. State,

263 So. 2d 566 (Miss. 1972)). The test for probable cause is not reducible to “precise

definition or quantification.” Maryland v. Pringle, 540 U.S. 366, 371 (2003). “Finely tuned

standards such as proof beyond a reasonable doubt or by a preponderance of the evidence .

. . have no place in the [probable-cause] decision.” Illinois v. Gates, 462 U.S. 213, 235

(1983). “All [the U.S. Supreme Court has] required is the kind of ‘fair probability’ on which

‘reasonable and prudent [people,] not legal technicians, act.’” Florida v. Harris, 133 S.Ct.

1050, 1055 (2013) (quoting Gates, 462 U.S. at 238, 231)).

¶27. Here, Officer Thomas responded to dispatch’s description of armed robbery suspects

in the vicinity of the Hyatt Food Mart. While the initial description of the suspect was

inaccurate, Officer Thomas noticed a suspicious individual running away from the Hyatt

Food Mart. Officer Thomas saw that the man began walking upon noticing police presence.

Officer Thomas properly performed a Terry stop and pat-down of Gales. While Gales was

detained, Officer Thomas noticed that he was sweating, appeared nervous, and was wearing

light clothing on a cold December night. Gales voluntarily showed Officer Thomas wads of

money, which he claimed he had won gambling. Officer Thomas then asked dispatch to

repeat the description of the suspect. Dispatch then had a more accurate description of the

suspect, describing an individual with a black hoodie, light blue jeans, and brown casual

shoes. Gales matched the description, other than the black hoodie.

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¶28. Based on the totality of the circumstances, there was more than enough information

for a reasonable person to ascertain a fair probability that Gales had just committed the crime

in question. Officer Thomas’s arrest of Gales was proper.

B. Exceptions to the Warrant Requirement

¶29. We return to the question of whether Officer Arendale’s subsequent search of Gales’s

pockets and seizure of the money within were proper in the absence of a warrant. “Searches

conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably

showing probable cause,’ Agnello v. United States, 269 U.S. 20, 33, [(1925)] . . . for the

Constitution requires ‘that the deliberate, impartial judgment of a judicial officer . . . be

interposed between the citizen and the police . . . .’” Katz v. United States, 389 U.S. 347,

357 (1967) (quoting Wong Sun v. United States, 371 U.S. 471, 481-82 (1963)). Searches

conducted without a warrant are deemed “per se unreasonable under the Fourth Amendment

– subject only to a few specifically established and well-delineated exceptions.” Id.

¶30. Despite not having a warrant, Officer Arendale’s search of Gales’s money did not

violate the Fourth Amendment. When Gales voluntarily took out his money and

demonstrated it to Officer Thomas, Gales extinguished his “reasonable expectation of

privacy” as to the money, just as when illegal contraband is in plain view of a police officer.

Dies v. State, 926 So. 2d 910, 918 (¶¶ 23-24) (Miss. 2006). As the United States Supreme

Court has stated, “once police are lawfully in a position to observe an item first-hand, its

owner’s privacy interest in that item is lost . . . .” Illinois v. Andreas, 463 U.S. 765, 771

(1983). Alternatively, if Gales did not relinquish his constitutionally protected expectation

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of privacy, Officer Arendale’s conduct alternatively falls under an exception to the warrant

requirement.

¶31. One exception to the warrant requirement is a search incident to arrest, which has been

deemed a reasonable search permitted by the Fourth Amendment, even without a search

warrant. Chimel v. California, 395 U.S. 752 (1969), overruled in part by Arizona v. Gant,

556 U.S. 332 (2009). “Under the search incident to arrest scenario, police may search the

arrestee’s person and ‘the area “within his immediate control” –construing that phrase to

mean the area within which he might gain possession of a weapon or destructible evidence.’”

United States v. Johnson, 846 F.2d 279, 281 (5th Cir. 1988) (quoting Chimel, 395 U.S. at

763). “Law enforcement officers may, pursuant to a valid arrest, search any container on the

person or within his reach.” Johnson, 846 F.2d at 282. However, the search must be

substantially contemporaneous with the arrest. Id.

¶32. What qualifies as “substantially contemporaneous” is not controlled by a bright-line

test; however, the Fifth Circuit wrote that the “search incident to an arrest must be reasonably

contemporaneous to that arrest, but it is a test of reasonableness in light of the particular

circumstances that must be applied.” United States v. Maslanka, 501 F.2d 208, 214 (5th Cir.

1974) (citing Cooper v. California, 386 U.S. 58 (1957); United States v. Preston, 376 U.S.

364 (1964)); see also United States v. Edwards, 415 U.S. 800, 805-06 (1974) (search of

defendant’s clothes valid though conducted ten hours after arrest); Curd v. City Court of

Judsonia, 141 F.3d 839, 843 (8th Cir. 1998) (search of purse valid when conducted at police

station fifteen minutes after defendant was arrested at home); United States v. Williams, 416

F.2d 4 (5th Cir. 1969) (overcoming objections to an arrest-seizure delay of nine hours).

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¶33. Here, Officer Thomas arrested Gales and immediately brought him to the crime scene.

The robbery occurred around 10:00 p.m.; dispatch notified officers of the crime at 10:02; and

Officer Thomas stopped Gales at 10:08. It is unclear how long it took Officer Thomas to

drive to the crime scene, but the record suggests that it was shortly after he placed Gales in

his cruiser. Officers were still investigating the robbery, as evidenced by their presence at

the scene. Bringing suspects to the crime scene is not a standard policy of the Greenville

Police Department; however, it has occurred in certain situations.

¶34. The record reflects that Officer Arendale’s search of Gales’s pockets and money

qualifies as a search incident to arrest.

III. Whether the trial court erred by refusing to suppress any statements
made by Gales prior to being properly Mirandized.

¶35. Next, Gales argues that he was not timely Mirandized when he was arrested. The

following exchange, discussing when Officer Thomas placed Gales into his police cruiser,

was the only time defense counsel questioned a witness – Officer Thomas – concerning

Miranda at the suppression hearing:

Q: Beg the Court’s indulgence. Did you Mirandize him at any point?
A: Why would I Mirandize him if he wasn’t placed under arrest by me?
BY THE COURT: Sir, you can either say yes or no.
Q: You didn’t?
A: No.
Q: You didn’t Mirandize him?
A: No, because I didn’t arrest him.
Q: I see. I believe that’s all.

After the suppression hearing, the trial court entered an order denying the motion to suppress.

The order stated that Gales was arrested when the stamped bill was confirmed by Weber to

be one of his bills and that Gales then was brought to the police station and read his Miranda

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rights. The order did not cite any law concerning Miranda; instead, it focused on the alleged

Terry violations. The order concluded by stating the following:

Furthermore, the accused voluntarily removed the item from his back pocket.
No action or conduct taken by this officer was “sufficiently deliberate that the
exclusion can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system.” The officer’s action
was good police work, not culpable conduct which must be deterred by the
exclusionary rule.

¶36. In his brief, Gales argues that Officer Thomas violated Miranda by questioning him

about the source of his money. Officer Thomas questioned Gales about the money during

the Terry stop, which was just before Gales arrested. Gales voluntarily showed Officer

Thomas his money, claiming he had won it gambling. Furthermore, nothing in the record

indicates that Gales said anything at all after he was placed in Officer Thomas’s police

cruiser, much less anything incriminating. According to Officer Arendale, Gales voluntarily

got out of the police cruiser when brought to the crime scene, but the record is silent as to

anything Gales said between the time of arrest and the time he was read his Miranda rights.

¶37. The Court has stated that “[e]ven in a case where a violation is demonstrated to have

actually occurred, . . . it will be considered harmless error if the whole record demonstrates

beyond a reasonable doubt that it was without any substantial prejudicial effect under all of

the facts and circumstances of the case.” Cooley v. State, 391 So. 2d 614, 623 (Miss. 1980)

(citing United States v. Whitaker, 592 F.2d 826 (5th Cir. 1979)). Here, it is not even clear

that there was a Miranda violation, and the record does not demonstrate any potential

prejudice, because the record does not state what, if anything, Gales said during the period

in question. Further, the Court limits its review to the historical facts determined at trial.

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¶38. The trial court did not abuse its discretion in determining that the exclusionary rule

should not apply. As the trial court said in its order, Officers Thomas and Arendale did not

deliberately act in such a way that the exclusionary rule would deter such future behavior.

The officers were mistaken as to when Gales was arrested; however, nothing in the record

suggests Gales said anything after being arrested, much less that he was interrogated, which

is required for Miranda to apply. Miranda, 384 U.S. at 439. Therefore, the trial court did

not err in refusing to suppress Gales’s statements prior to his being Mirandized.

¶39. Additionally, Gales did not discuss at trial or in his brief whether Officer Arendale

may have violated Miranda. The Court consistently has held that alleged Miranda

violations raised for the first time on appeal are procedurally barred. Stone v. State, 94 So.

3d 1078, 1082 (¶ 12) (Miss. 2012); see also Starr v. State, 997 So. 2d 262, 266 (¶¶ 8-10)

(Miss. Ct. App. 2008). Thus, to the extent that Gales now alleges a Miranda violation

committed by Officer Arendale, such an argument is, alternatively, procedurally barred. The

issue is without merit, or, alternatively, procedurally barred.

IV. Whether the trial court erred when it failed to sustain Gales’s
objection to Officer Arendale’s narrative of the video surveillance
recording when the original video was available in violation of the
best evidence rule.

¶40. In his next issue, Gales argues that Officer Arendale’s narration of the surveillance

video prior to its being shown to the jury was plain error and violated the best evidence rule.

Gales also argues that Officer Arendale’s testimony invaded the province of the jury as fact-

finders, as he made factual determinations of the events occurring in the video.

18
¶41. The State counters that the best evidence rule provides only that “A duplicate is

admissible to the same extent as an original unless (1) a genuine question is raised as to the

authenticity of the original or (2) in the circumstances it would be unfair to admit the

duplicate in lieu of the original.” Miss. R. Evid. 1003. The State also notes that the best

evidence rule pertains only to documentary evidence. Quinn v. State, 479 So. 2d 706,709

(Miss. 1985). It is permissible for a witness to narrate video evidence when the narration

simply describes what is occurring in the video, but it is impermissible if the witness

“attempts to place his own subjective interpretation of events transpiring in the video based

on nothing beyond the witness’s own inspection of the contents of the videotape.” Pulliam

v. State, 873 So. 2d 124, 127 (¶ 18) (Miss. Ct. App. 2004). However, the State contends that

Gales did not assert such an objection at trial; thus the argument is waived. Even if the

argument was not waived, the State argues that Officer Arendale’s narration consisted only

of saying that a man said “good night” and a description of what the robbers were wearing,

neither of which is a “subjective interpretation” of what happened.

¶42. The Court “retains the inherent authority to notice error to prevent the manifest

miscarriage of justice, despite trial counsel’s failure to preserve the error.” Alpha Gulf

Coast, Inc. v. Jackson, 801 So. 2d 709, 727 (¶ 60) (Miss. 2001) (citing Johnson v. Fargo,

604 So. 2d 306, 311 (Miss. 1992)). However, “[i]t is well-settled that issues presented for

the first time on appeal are procedurally barred from consideration.” Lewis v. Forest Family

Practice Clinic, P.A., 124 So. 3d 654, 658 (¶ 16) (Miss. 2013).

19
¶43. First, the trial court did not err in overruling defense counsel’s objection, which was

based solely on the best evidence rule. The best evidence rule applies to documentary

evidence and is concerned with the authenticity of such evidence. Quinn, 479 So. 2d at 709.

Where proof of a conversation has been of two different kinds, namely a
recording thereof and testimony by witnesses who overheard it, it has been
argued that both the recording and the testimony were best evidence; however,
the courts have not relegated either to a secondary position, but have held that
both types of evidence are equally competent primary evidence, and that one
is not to be excluded because of the existence of the other.

Id. (quoting 29 Am. Jur. 2d, Evidence § 436 (1967)) (emphasis in original). Accordingly,

the trial court did not err in overruling defense counsel’s objection, and the additional

arguments raised by defense counsel – which do not rely on the best evidence rule – are

procedurally barred. With that said, we will fully examine defense counsel’s underlying

argument in search of the alleged plain error.

¶44. Officer Arendale testified as a lay witness; thus his testimony must first pass the

muster of Mississippi Rule of Evidence 701. Rule 701 requires lay witness testimony to be

rationally based on the witnesses’s perception, helpful to understand his testimony or a fact

in issue, and not based on expert knowledge, which is controlled by Rule 702. Miss. R. Evid.

701. The comment to Rule 701 goes on to state, in part:

The traditional rule regarding lay opinions has been, with some exceptions, to
exclude them from evidence. Rule 701 is a departure from the traditional rule.
It favors the admission of lay opinions when two considerations are met. The
first consideration is the familiar requirement of first-hand knowledge or
observation. The second consideration is that the witness’s opinion must be
helpful in resolving the issues. Rule 701, thus provides flexibility when a
witness has difficulty in expressing the witness’s thoughts in language which
does not reflect an opinion. Rule 701 is based on the recognition that there is
often too thin a line between fact and opinion to determine which is which.

20
Miss. R. Evid. 701 cmt.

¶45. “As the comment to [Rule] 701 explains, there is a two-part prerequisite test for the

admissibility of lay witness opinion testimony. First, the information must assist the trier of

fact; and second, the opinion must be based on first-hand knowledge.” Wells v. State, 604

So. 2d 271, 278 (Miss. 1992). There is no substitute for either requirement. Id.; see also

Roberson v. State, 569 So. 2d 691 (Miss. 1990); Rose v. State, 556 So. 2d 728 (Miss. 1990);

Jackson v. State, 551 So. 2d 132 (Miss. 1989).

¶46. In the case sub judice, Officer Arendale narrated the surveillance footage of the Hyatt

Food Mart robbery before it was shown to the jury. Officer Arendale stated that Justin Jones

came to the front door and said “goodnight” to an employee; however, defense counsel did

not object to the statements. Officer Arendale continued, stating that Jones exited, took a few

steps, “looked behind him to see if anybody was looking at him,” and “fled on foot” out of

view of the cameras. Officer Arendale then stated that, about fifteen seconds later, two black

males came from the direction in which Jones had run. As Officer Arendale began to

describe the individuals, defense counsel raised an objection under the best evidence rule,

urging the trial court to play the video in place of Officer Arendale’s narration. The trial

court overruled the objection, and Officer Arendale described the individuals in the video.

Immediately after Officer Arendale’s narration, the trial court played the video for the jury.

¶47. Officer Arendale was not present at the time of the robbery; thus he did not have first-

hand knowledge of the events that took place in the video. Additionally, the footage lacked

audio, so a lay viewer, without having prior information, would not have been able to

determine conclusively what was said. While Officer Arendale did not expressly speculate

21
that Jones may have been casing the joint for the robbers, his testimony seems to imply the

possibility. The majority of Officer Arendale’s narration consisted of descriptions of events

that can be seen clearly in the video. It is noteworthy that Weber and Michael Burchfield,

the employee to whom Jones talked prior to the robbery, were both testifying witnesses who

had firsthand knowledge of the events that Officer Arendale described.

¶48. The trial court’s admission of Officer Arendale’s narration may have been improper;

however, it did not amount to a miscarriage of justice necessary to constitute a plain error.

The witness should not tell the jury what they can clearly see for themselves
on the tape, as [Officer Arendale] did. It naturally follows that if the jury can
clearly see for themselves and if the witness is in no greater position to relate
what is depicted by personal observation of the events, then his opinion is not
one which is helpful to the trier of fact.

Wells, 604 So. 2d at 279. Moreover, Officer Arendale testified as to what Jones said to

Burchfield, which cannot be heard in the video and was not heard by Officer Arendale;

therefore, such testimony necessarily fails the firsthand observation prong of Rule 701.

¶49. However, the trial court’s improper admission of Officer Arendale’s narration did not

amount to a miscarriage of justice. First, defense counsel did not object contemporaneously

to the testimony until Officer Arendale began describing the suspects; thus any argument to

exclude the testimony prior to the objection is procedurally barred. Havard v. State, 928 So.

2d 771, 793 (¶ 39) (Miss. 2006). Even if the arguments were not barred, Officer Arendale’s

simple description that Jones said “goodnight,” has little, if any, bearing on the case at hand.

Such a statement is mere exposition to the armed robbery. While Officer Arendale may have

implied that Jones may have had some connection with the robbers’ immediate, subsequent

entry, he did not expressly state an opinion on the matter. Such a statement certainly is less

22
speculative than the description in Wells, in which a lay witness, narrating a video of a

cashier, speculated as to how the cashier was improperly taking money, which the Court

deemed harmless error. See Wells, 604 So. 2d at 280. The segment of Officer Arendale’s

narration which followed defense counsel’s objection consisted merely of describing the

individuals seen in the video, the recording system itself, and the chain of custody of the

video. Therefore, while the trial court improperly admitted Officer Arendale’s narration of

the video, defense counsel did not raise a proper objection to the narration. Thus, Gales

waived the narration argument on appeal, and, regardless, the error does not amount to plain

error because it did not result in a miscarriage of justice.

IV. Whether the trial court erred when it denied Gales’s motion to set
aside the jury verdict for legal insufficiency in the prosecution’s case
or, alternatively, denied Gales a new trial where the verdict was
against the overwhelming weight of the evidence.

¶50. Gales’s final argument challenges the legal sufficiency of the verdict and also

contends that the verdict was against the overwhelming weight of the evidence. In facing

challenges to the legal sufficiency of the evidence, the relevant question for the Court is

“whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Bush v. State, 895 So. 2d 836, 843 (¶ 16) (Miss. 2005) (quoting Jackson v.

Virginia, 443 U.S. 307, 315 (1979)). “When reviewing a denial of a motion for a new trial

based on an objection to the weight of the evidence, we will only disturb a verdict when it

is so contrary to the overwhelming weight of the evidence that to allow it to stand would

sanction an unconscionable injustice.” Bush, 895 So. 2d at 844 (¶ 18).

23
¶51. Thus, as to the legal sufficiency, Gales argues that no rational trier of fact could have

found Gales was one of the robbers. Gales attempts to bolster his argument by demonstrating

the circumstantial nature of the case; for example, no one was able to identify Gales

positively as one of the robbers, and the description of the robbers was vague and later was

modified. Gales also argues Weber’s testimony demonstrated his inability to remember the

robbery. Additionally, Gales repeats Officer Thomas’s statements that there were other black

males on nearby streets when he stopped Gales, yet Officer Thomas did not stop those

individuals.

¶52. As to the “overwhelming weight of the evidence” argument, Gales iterates that “blue

jeans, brown shoes, and a red stamp on a five-dollar bill” are the only items of evidence that

convicted him. Gales notes that the police never arrested the co-conspirator and that the

black hoodie was not found until the next morning, despite searches that night. Gales also

notes that the recovered money was not tested for Weber’s fingerprints.

¶53. The State counters by arguing that a rational jury could, and did, convict Gales of the

crimes. The Mississippi Crime Lab found a particle indicative of gunshot residue on Gales’s

hand, and the lab also matched the pistol found the next day with the spent shell casing

recovered at the crime scene. Further, the fact that no other conspirators were charged does

not preclude the finding of a conspiracy. While Gales was convicted by circumstantial

evidence, it was sufficient for a rational juror to make a conclusion of guilt. Arguments

regarding the weight of the evidence are to be decided by the jury as the finder of fact.

Moore v. State, 869 So. 2d 153, 156 (¶ 11) (Miss. Ct. App. 2007).

24
¶54. The verdict was both legally sufficient and not against the overwhelming weight of

the evidence. The majority of Gales’s stated arguments are factual in nature. “The weight

and credibility to be given to a witness’s testimony ‘are within the sole province of the jury

as fact finder.’” Butler v. State, 102 So. 3d 260, 268 (¶ 22) (Miss. 2012) (quoting King v.

State, 798 So. 2d 1258, 1262 (Miss. 2001)). “[The] Court has repeatedly held that ‘the jury

is the final arbiter of a witness’s credibility.’” Howell v. State, 860 So. 2d 704, 731 (Miss.

2003) (quoting Williams v. State, 794 So. 2d 1019, 1028 (¶ 59) (Miss. 2001)). While much

of the evidence supporting Gales’s conviction was circumstantial, “[c]irumcumstantial

evidence need not exclude every ‘possible doubt,’ but only every other ‘reasonable’

hypothesis of innocence.” Campbell v. State, 798 So. 2d 524, 529 (¶ 13) (Miss. 2002)

(quoting Tolbert v. State, 407 So. 2d 815, 820 (Miss. 1981)).

¶55. Taking into account the role of the jury as the fact finder, as well as the evidence and

testimony elicited by both parties, Gales’s verdict was both legally sufficient and not against

the overwhelming weight of the evidence.

CONCLUSION

¶56. The trial court correctly determined that Officer Thomas performed a proper Terry

stop and pat-down of Gales. However, the trial court erred in its determination that Gales

was not arrested until Weber identified the five-dollar bill. Despite such error, upon de novo

review, Officer Gales had probable cause properly to arrest Gales after Gales voluntarily

showed him his money during the Terry stop. Further, Officer Arendale properly searched

Gales incident to the arrest, allowing him to seize the money and show it to Weber. The trial

court correctly determined that the exclusionary rule is not applicable in the case sub judice,

25
in part because there was no Miranda violation. While the trial court improperly allowed

Officer Arendale to narrate the surveillance video prior to its being shown to the jury, the

decision of the trial court did not create a miscarriage of justice amounting to plain error.

Finally, the correct legal standard was applied to Gales’s case, and the verdict is not against

the overwhelming weight of the evidence. Therefore, the Court affirms the judgment of the

trial court.

¶57. COUNT II: CONVICTION OF CONSPIRACY TO COMMIT ARMED
ROBBERY AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III:
CONVICTION OF ARMED ROBBERY AND SENTENCE OF LIFE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. SENTENCES SHALL RUN CONCURRENTLY.

WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER
AND PIERCE, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KING, J.

KITCHENS, JUSTICE, DISSENTING:

¶58. The majority finds the actions of the police justified, reasoning that Gales’s

apprehension was based on reasonable suspicion to conduct a Terry stop and probable cause

to arrest. With respect, I disagree. Gales was a black man who happened to be in possession

of some cash and who may or may not have been running at the time he was detained. That

is not a sufficient basis for the full custodial detention of Gales, at gunpoint, which

immediately followed the initial police sighting of him. The Fourth Amendment to the United

States Constitution guarantees:

The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or

26
 affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

To like effect, Article 3, Section 23, of the Mississippi Constitution guarantees:

The people shall be secure in their persons, houses, and possessions, from
unreasonable seizure or search; and no warrant shall be issued without
probable cause, supported by oath or affirmation, specially designating the
place to be searched and the person or thing to be seized.

¶59. In Terry v. Ohio, the United States Supreme Court held:

[C]ourts still retain their traditional responsibility to guard against police
conduct which is over-bearing or harassing, or which trenches upon personal
security without the objective evidentiary justification which the Constitution
requires. When such conduct is identified, it must be condemned by the
judiciary and its fruits must be excluded from evidence in criminal trials. And,
of course, our approval of legitimate and restrained investigative conduct
undertaken on the basis of ample factual justification should in no way
discourage the employment of other remedies than the exclusionary rule to
curtail abuses for which that sanction may prove inappropriate.

Terry v. Ohio, 392 U.S. 1, 15, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (emphasis added).

Because the actions of the arresting officer in the case at hand were not predicated upon

ample factual justification, I respectfully dissent.

¶60. The Greenville Police Department commenced an investigation following a robbery

at the Hyatt Food Mart on December 19, 2011. Investigator Jeremy Arendale, who had been

called to the scene, viewed the store’s surveillance videos and observed a black male wearing

a blue shirt, black pants, and a white hoodie. Arendale conveyed that descriptive information

to the police dispatcher who relayed it via police radio. Officer Tabari Thomas, having

almost completed his shift for the evening, heard the dispatch and “thought [he] saw

somebody running” in the area of Bland Street and North Harvey Street, at least five blocks

from the scene of the crime. Thomas testified that he “turned [his police car] back around”

27
and saw Brandon Gales, a black male who was wearing a long-sleeved gray shirt and blue

jeans. Gales allegedly was “trying to walk to try to play it off at that time like he wasn’t

running.” Thomas drew his gun, pointed it at Gales, and approached him, holding Gales at

gunpoint from the outset of their encounter. When asked why he was out of breath, Gales

reportedly responded that he had just left a gambling house.

¶61. Officer Thomas then patted Gales down. Upon feeling “a little bulge in [Gales’s] back

pocket,” Thomas asked what it was. Gales responded that it was money he had won at the

gambling house. Thomas sought an updated description from dispatch, which revealed that

the suspect being sought was wearing blue jeans, not black pants as Thomas had thought

when he stopped Gales. Thomas then handcuffed Gales, which he testified was “a safety

issue for mine and his,” and was instructed to take Gales to the scene of the crime. Thomas

did not understand that he had, in fact, arrested Gales at that point, but testified that he was

detaining him “for further investigation.”

¶62. Gales was driven by Officer Thomas to the Hyatt Food Mart. Investigator Arendale

testified at the suppression hearing that he pulled a handcuffed Gales from the back seat of

the police cruiser, saw “money in his back pocket,” and “took some pictures of the money

that was in his back pocket and also in his front pocket.” Arendale then returned into the

store where he had been watching surveillance videos and asked the store clerk, Abdulhakim

Weber, about the specific denominations of cash which had been stolen. Arendale returned

to the police cruiser and removed the cash from Gales’s pocket. Rifling through the cash,

Arendale discovered a red stamp on one of the bills, returned inside the Hyatt Food Mart, and

asked Weber whether “anything [was] unusual about the cash” taken from his store.

28
According to Arendale, Weber responded that “one of the bills he got from the banker had

a red stamp on it.” Because the red stamp on the bill seemingly matched the bill taken from

Weber’s pocket, according to Arendale, Gales was placed under arrest (like Thomas,

apparently not appreciating that the handcuffed Gales already had been arrested).

1. Officer Thomas articulated no reasonable suspicion to justify Gales’s initial
apprehension.

¶63. The majority notes Gales’s concession in his motion to suppress that “the Greenville

Police Department had the right to stop and question the defendant, and even the right to

conduct a pat-down for weapons.” According to the majority, this acknowledgment

forecloses appellate review, since “the issue of whether Officer Thomas had legal grounds

to conduct the Terry stop of Gales in the first place was conceded and not argued before the

trial court.” Yet Gales’s counsel clearly raised the propriety of the initial stop ore tenus

during the hearing on the motion to suppress: “[i]n this case, the radio transmissions clearly

gave one description. This individual fits another. He is five blocks from the location.”

Moreover, the trial court’s order denying Gales’s motion to suppress directly analyzed the

initiation of the police stop: “whether the officer’s actions were justified at its inception, that

is, did the officer point to specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant the intrusion.” (Emphasis added.) Further,

in his written motion to suppress, Gales stated the following: “[the police] did not have the

right to transport [Gales] anywhere, nor did they have the right to conduct a search. The

discovery of the money was a result of this violation of the defendant’s Fourth Amendment

29
Rights.” The question of whether the police exceeded the scope of Terry thus is squarely

before the Court.

¶64. Terry held the following, nothing more:

We merely hold today that where a police officer observes unusual conduct
which leads him reasonably to conclude in light of his experience that criminal
activity may be afoot and that the persons with whom he is dealing may be
armed and presently dangerous, where in the course of investigating this
behavior he identifies himself as a policeman and makes reasonable inquiries,
and where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others’ safety, he is entitled for the protection
of himself and others in the area to conduct a carefully limited search of the
outer clothing of such persons in an attempt to discover weapons which might
be used to assault him.

Terry, 392 U.S. at 30 (emphasis added). In that case, one Officer McFadden suspected “two

men of ‘casing a job, a stick-up’” because they conducted a “casual and oft-repeated

reconnaissance of the store window on Huron Road . . . .” Id. at 6. He had observed one man

leave the other, walk to the storefront, pause to peer into the store window, and return to the

other man, who then did the same. Id. All in all, “[t]he two men repeated this ritual

alternately between five and six times apiece—in all, roughly a dozen trips.” Id. Later, a third

man appeared, conversed with the two men, and then walked off. Id. His suspicions aroused,

Officer McFadden approached the men and asked their names, fearing that they may have

had a gun. Id.

¶65. “When the men ‘mumbled something’ in response to his inquiries,” Officer McFadden

ordered the three men to go inside a store and “to face the wall with their hands raised.” Id.

at 7. McFadden then patted Terry down, felt a handgun, removed Terry’s overcoat, and

located a .38-caliber revolver in Terry’s overcoat pocket. Id. He also located another revolver

30
on Chilton, the second suspect, but found no weapons on Katz, the third suspect. Id. He did

not put his hands beneath the outer garments of either Terry or Chilton until he had

discovered weapons. Id. Finding that McFadden had a reasonable, articulable suspicion “to

believe that [Terry] was armed and dangerous,” the Supreme Court affirmed Terry’s

conviction for carrying concealed weapons and concluded that the revolver seized from Terry

was “properly admitted in evidence against him.” Id. at 30.

¶66. Here, both the majority and the trial court concluded that Officer Thomas’s initial

apprehension of Gales was “grounded in a reasonable suspicion that Gales was connected

with the armed robbery.” That conclusion was reached notwithstanding that the most Officer

Thomas observed was a young man walking—or maybe running down a street. This cannot

be said to be “unusual conduct,” and the officer harkened back to nothing in his experience

which led him to conclude from that observation “that criminal activity may be afoot” and

that “[Gales] may be armed and presently dangerous.” Id.

¶67. At the suppression hearing, Thomas testified that the “be-on-the-lookout” radio

transmission described a black male wearing a blue shirt, black pants, and a white hoodie

heading toward Belle Aire Street. Officer Thomas testified that Gales “had on a gray shirt

. . . blue jeans and a brown pair of, I would say Clark Wallabees,” and was “walking south.”

On direct examination, Officer Thomas testified that Gales’s pants and shoes matched the

description of the suspect associated with the robbery of the Hyatt Food Mart which the

officer had heard over his police radio, “everything except for the hoodie.” But on cross

examination, Officer Thomas admitted that Gales was wearing no blue shirt, no black pants,

and no white hoodie. He also conceded that Gales was not heading in the direction of Belle

31
Aire Street. Officer Thomas answered “[t]hat’s true” when asked whether he “knew he

[Gales] didn’t fit any of the description. . . .” Further, Officer Thomas admitted that the initial

description included no information regarding the suspect’s shoes. Nevertheless, he testified

that he “just felt that that was a little suspicious at the time. On the description, as far as the

clothing description. . . .”

¶68. Because the record does not support their assertions, both the majority and the trial

court failed to articulate what “reasonable suspicion, grounded in specific and articulable

facts,” justified the initial stop of Gales. Eaddy v. State, 63 So. 3d 1209, 1213 (Miss. 2011)

(quoting Walker v. State, 881 So. 2d 820, 826 (Miss. 2004)); Terry, 392 U.S. at 21 (“the

police officer must be able to point to specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant that intrusion.”) Nevertheless,

the majority finds the existence of reasonable suspicion because [they say] “Gales was in the

immediate vicinity of the crime scene soon after the robbery, partially matched the

description of one of the robbers, and appeared nervous.” Additionally, according to the

majority, “Officer Thomas’s suspicions were further piqued when Gales, who was wearing

casual shoes, stopped running when he noticed Officer Thomas’s presence.”

¶69. The transcript from the suppression hearing makes clear that Gales was at least five

city blocks from the crime scene at the time of his apprehension, which cannot be said to be

“in the immediate vicinity” of the crime scene. In no respect, save and except his being a

black male, did Gales “match the description of one of the robbers” at the time Officer

Thomas stopped him; his clothing was starkly distinct from that of the suspect described

over the police radio. Further, the appearance of nervousness noted by the majority is

32
understandable. An appearance of nervousness is especially understandable here, in light of

Officer Thomas’s testimony at trial that he summoned Gales at gunpoint:

I drew my firearm, pointed it out at him, and I told him to stop, drop any
weapons if he had any, and I told him to come to me. He put his hands up. He
said he didn’t have any weapons, and he started to approach me. At that time,
he appeared to be very nervous also. . . .

(Emphasis added.)

¶70. And this was not Brandon Gales’s first meeting with the officer; Thomas testified at

the suppression hearing that he had arrested Gales only “a week or two earlier” for “public

profanity, something like that.” Moreover, Officer Thomas’s testimony regarding Gales’s

behavior is not as unequivocal as the majority suggests. At the suppression hearing, Thomas

testified that, “I thought I saw somebody running but I kept on driving so I turned back

around and I slowed down, and that’s when I saw Brandon Gales. He was kind of trying to

walk to try to play it off at that time like he wasn’t running.” (Emphasis added.) But Officer

Thomas contradicted that statement at the suppression hearing by acknowledging that, in his

report prepared at the time, he said only that Gales was walking. Even if Gales had been

running, then stopped running when he noticed Officer Thomas, and this change of gait had

“piqued” Thomas’s suspicions, one wonders why those suspicions were not dispelled by the

striking differences between the suspect described in the radio transmission and the way that

Gales actually looked.

¶71. It cannot be said that these factors, taken together, “amount to reasonable suspicion.”

U.S. v. Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). Only Gales’s race

and gender matched the description of the robbery suspect, and are thus the only

33
characteristics warranting “suspicion” that are substantial in the transcript of the suppression

hearing. The majority’s conclusion suggests that a Terry stop of any black male within

approximately one mile of a crime scene would be justified. Consequently, I conclude that

Officer Thomas’s initial stop of Gales was not justified by any “reasonable suspicion,

grounded in specific and articulable facts.” Beyond mere speculation regarding Gales’s

alleged conduct, Officer Thomas articulated no “unusual conduct” on the part of Gales which

might have led “him reasonably to conclude in light of his experience that criminal activity

may be afoot” and that Gales “may [have] be[en] armed and presently dangerous.” Terry,

392 U.S. at 30. This simply is not a Terry case, and the stop was thus invalid from its outset.

Gales’s concession that the police had a right to stop him and pat him down for weapons was

mistaken and is of no legal significance.

2. Gales’s continued detention far exceeded the permissible scope of a Terry stop.

¶72. The majority concedes that “Officer Thomas’s continued detention of Gales and

Officer Arendale’s conduct in taking Gales’s money are not congruent with Terry” and that

“[t]he officers had ample time to attain a search warrant, which would have decisively made

Officer Arendale’s actions proper.” I agree that this, standing alone, is an accurate statement.

But, as an initial matter, the majority fails specifically and sufficiently to identify the

authority under which the police justified a continued detention of Gales, although it does

attempt to answer this inquiry by noting that “Gales no longer had a ‘reasonable expectation

of privacy’ after he voluntarily showed Officer Thomas his money.” (citing Katz v. U.S., 389

U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)) (Harlan, J., concurring). I disagree.

34
Powerful thing that it is, cash is not a weapon as contemplated by Terry. See Terry, 392 U.S.

at 29, 30.

¶73. The majority’s reliance on Justice Harlan’s concurrence in Katz is misplaced. In that

case, the FBI, having obtained no warrant, utilized an “electronic listening and recording

device” to eavesdrop on the conversations the defendant was having over the telephone in

a public, but enclosed, telephone booth. Katz, 389 U.S. at 349. The majority of the United

States Supreme Court reversed Katz’s conviction, holding that, “[w]herever a man may be,

he is entitled to know that he will remain free from unreasonable searches and seizures.” Id.

at 359. Katz is inapposite from the present case, which does not involve a reasonable

expectation of privacy in a constitutionally protected area, such as a “home, an office, or a

hotel room” or “a telephone booth.” Katz certainly does not provide justification for the

continued detention of Gales following his illegal arrest.

¶74. Illinois v. Andreas, also cited by the majority as support for its argument that Gales’s

privacy interest in the cash was extinguished when he showed it to Officer Thomas, provides

that “[n]o protected privacy interest remains in contraband in a container once government

officers lawfully have opened that container and identified its contents as illegal.” Illinois

v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 77 L. Ed. 2d 1003 (1983) (emphasis added).

In this case, Gales was not in possession of anything that had been identified as contraband.

Rather, he merely was in possession of nondescript cash, not specifically identifiable at the

time the police observed it as the cash stolen from the Hyatt Food Mart. The mere fact that

Gales may have brought some cash into plain view did not extinguish his reasonable

expectation of privacy in the unique features of the particular cash in his pocket, later brought

35
to light when Gales was searched. Thus, the officers were not justified in examining the cash,

as Gales lost no privacy interest in what from all appearances was a legal item.

¶75. Even if Gales had lost his reasonable expectation of privacy in the money by showing

it to Officer Thomas, loss of a reasonable expectation of privacy in some currency does not

justify continued detention of a suspect absent legitimate authority for so doing, e.g.,

probable cause to arrest. Here, the police drove Gales to the scene of a crime, where Weber

claimed to recognize a bill marked with some sort of ill-defined red stamp. The majority

implicitly takes the position that this event validated the otherwise-deficient arrest of Gales.

¶76. Once the ostensible Terry stop—which never should have occurred in the first place—

had revealed that Gales was in possession of no weapons, he should have been free to leave

police custody. This Court has held unequivocally that “[a]n investigative stop must be

limited in scope . . . . ‘Where a detention . . . exceeds the scope of an investigative stop, it

approaches a seizure. To justify a search and seizure without a warrant, the state must show

probable cause for arrest.” Floyd v. State, 500 So. 2d 989, 992 (Miss. 1999) (quoting

McCray v. State, 486 So. 2d 1247, 1250 (Miss. 1986)).The patent illegality of Gales’s

continued detention, far in excess of the permissible scope of a genuine Terry stop, mandates

exclusion of the evidence obtained thereby. See Terry, 392 U.S. at 29 (“The sole justification

of the search . . . is the protection of the police officer and others nearby, and it must

therefore be confined in scope to an intrusion reasonably designed to discover guns, knives,

clubs, or other hidden instruments for the assault of the police officer.”)

¶77. Regardless of whether Gales had a reasonable expectation of privacy in the cash that

was in his pocket, the majority implicitly holds here that, because the cash found on Gales

36
was believed to be evidence of an armed robbery, the detention, although unlawful from its

inception, was made legitimate by Weber’s rather tenuous identification of one of the bills

in Gales’s pocket as part of the loot from the robbery. Such a rule would turn the

exclusionary rule on its head, rendering it wholly impotent. The majority’s acquiescence in

this retroactive legitimation of illegal police conduct strips the Fourth Amendment of its

purpose and its power. Indeed, the United States Supreme Court flatly has rejected the notion

“that a search unlawful at its inception may be validated by what it turns up.” Wong Sun v.

U.S., 371 U.S. 471, 484, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (citing Byars v. U.S., 273 U.S.

28, 47 S. Ct. 248, 71 L. Ed. 520 (1927); U.S. v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 228, 92

L. Ed. 210 (1948)). Here, the fact that the cash found on Gales may have been evidence of

the armed robbery simply does not justify or legitimize his wrongful apprehension, his

continued detention, and the search which led to a police belief that the cash in Gales’s

possession was, indeed, the cash stolen from the Hyatt Food Mart. As in Wong Sun, “[a]

contrary holding here would mean that a vague suspicion could be transformed into probable

cause for arrest by reason of ambiguous conduct which the arresting officers themselves have

provoked.” Wong Sun, 371 U.S. at 484. Here, after arresting Gales with no reasonable

suspicion for so doing, Officer Thomas prompted him to remove what was in his pocket.

Even if, as the majority insists, Gales removed the cash of his own volition, its production

was the direct result of an illegal arrest, and the fruit thus harvested must therefore be

suppressed.

3. No probable cause justified Gales’s arrest.

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¶78. The majority finds that, “[w]hen Officer Thomas handcuffed Gales, placed him into

his cruiser, and transported him to another location, Gales was ‘effectively seized for the

purposes of the Fourth Amendment. These circumstances surely amount to a show of official

authority such that a ‘reasonable person would have believed he was not free to leave.’’”

(quoting Florida v. Royer, 460 U.S. 491, 501-02 (1983) (quoting U.S. v. Mendenhall, 466

U.S. 544, 554 (1980))). I wholeheartedly agree with the majority that “[b]ecause [Gales’s]

detainment would qualify as a Fourth Amendment seizure, the arresting officers were

required to either attain a search warrant or to find an applicable exception to the warrant

requirement in order to search Gales.”

¶79. The majority is mistaken in holding that the totality of the present circumstances

provides “more than enough information for a reasonable person to ascertain a fair

probability that Gales had just committed the crime in question.” The majority finds that

probable cause justified Officer Thomas’s arrest of Gales because, “[w]hile the initial

description of the suspect was inaccurate, Officer Thomas noticed a suspicious individual

running away from the Hyatt Food Mart.” (Emphasis added.) That Gales was not running

toward the Hyatt Food Mart does not necessarily mean that he was running “away” from it.

The majority’s choice of words implies that Officer Thomas observed Gales actually fleeing

the scene. This is wholly unsubstantiated in the record of the suppression hearing, since it is

undisputed that Gales was at least five city blocks away from the Hyatt Food Mart at the time

of his being arrested by Thomas. Further, the majority states that “Officer Thomas saw that

the man began walking upon noticing police presence.” With respect, this statement is not

supported in the record of the suppression hearing. Thomas equivocated: “I thought I saw

38
somebody running but I kept on driving so I turned back around and I slowed down, and

that’s when I saw Brandon Gales. He was kind of trying to walk to try to play it off at that

time like he wasn’t running.” On cross examination, however, Officer Thomas acknowledged

that, in his written report prepared at the time, he had said that Gales was walking.

¶80. Struggling to support its contention that Officer Thomas had probable cause to arrest

Gales, the majority says, “Officer Thomas noticed that he was sweating, appeared nervous,

and was wearing light clothing on a cold December night.” No evidence was adduced, either

at the suppression hearing or at trial, regarding specifically how cold it was that night.

Officer Thomas testified that Gales was wearing a “gray thermal-type shirt, long sleeve,” at

the time he was apprehended. The majority continues that “Gales voluntarily showed Officer

Thomas wads of money, which he claimed he had won gambling.” The colloquy between

defense counsel and Officer Thomas at the suppression hearing reads as follows:

Q: How was the money gotten out of his pants?

A: He pulled it out himself and said, “This money, I just left the gambling
house.”

Q: Well, hold on, let’s think about this. You just told me he had a bulge in his
pockets and you wouldn’t reach in there and get it.

A: Right. Before I cuff him, he said, “All I got is this money from gambling,”
and he showed me the money. I was like, “Okay, put it back in your
pocket.” He put it back in his pocket, and then I detained him as a suspect
because the money was balled up. It wasn’t like somebody had been
gambling and would have folded it.

Q: Well, that depends. You say, “balled up.” In crap games, a lot of times
you win a ten and five as you go, and you are grabbing it and balling it up,
aren’t you?

A: I don’t know, I don’t gamble.

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 Q: Okay, then you really wouldn’t know how the money was supposed to be,
would you? All right, you determined he had money on him, right?

A: At that time, yes.

¶81. The majority states that “Officer Thomas then asked his dispatcher to repeat the

description of the suspect. Dispatch then had a more detailed description of the suspect,

describing an individual wearing a black hoodie, light blue jeans, and brown casual shoes.”

But the record of the suppression hearing substantiates only that a subsequent description

identified the suspect as wearing blue jeans. Officer Thomas testified that an updated

description “said that they were blue jeans once I had the suspect in custody.” The majority

recognizes that Gales did not have on a black hoodie. But when asked by defense counsel at

what point “were you advised or did you learn that brown shoes were involved,” Officer

Thomas answered “I can’t recall.” When asked whether he learned of the brown shoes at the

scene of the crime, Officer Thomas replied, “[m]aybe.” On redirect, Officer Thomas testified

that Officer Jenkins later confirmed that Gales was the suspect because “that’s the pants and

that’s the shoes that the guy had on.”

¶82. Although, as observed by the majority, the standard for probable cause is less than

“proof beyond a reasonable doubt” or “preponderance of the evidence,” Illinois v. Gates, 462

U.S. 213, 235, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), some concreteness and particularity

are nevertheless required. See Roach v. State, 7 So. 3d 911, 917 (2009) (“probable cause

exists when the facts and circumstances within an officer’s knowledge are ‘sufficient to

justify a man of average caution in the belief that a crime has been committed and that a

particular individual committed it.’”) (quoting State v. Woods, 866 So. 2d 422, 426 (Miss.

40
2003) (quoting Strode v. State, 231 So. 2d 779, 782 (Miss. 1970))). The United States

Supreme Court has held that “‘[t]he substance of all the definitions of probable cause is a

reasonable ground for belief of guilt.’” Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct.

795, 157 L. Ed. 2d 769 (2003) (quoting Brinegar v. U.S., 338 U.S. 160, 175, 69 S. Ct. 1302,

93 L. Ed. 1879 (1949)). Indeed, “[t]o determine whether an officer had probable cause to

arrest an individual, we examine the events leading up to the arrest, and then decide ‘whether

these historical facts, viewed from the standpoint of an objectively reasonable police officer,

amount to’ probable cause.” Pringle, 540 U.S. at 371 (quoting Ornelas v. U.S., 517 U.S. 690,

696, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996)).

¶83. Mere speculation on the part of Officer Thomas failed to provide him probable cause

to arrest Gales, since none of the information Officer Thomas had at that point in time

connected Gales with the crime in question. Cf. Pringle, 540 U.S. at 371 (“a reasonable

officer could conclude that there was probable cause to believe Pringle committed the crime

of possession of cocaine,” where “[f]ive glassine baggies of cocaine were behind the back-

seat armrest and accessible to all three men,” occupants of the car.) I agree with the majority

that Gales was arrested when Officer Thomas handcuffed him. But, despite the fact that the

arrest was effected then, it was an invalid arrest, as no probable cause for an arrest existed

and Thomas had no warrant. Officer Thomas’s testimony at the suppression hearing

regarding Gales’s actions, his appearance, and his demeanor was contradictory and

inconsistent. Gales was at least five blocks away from the scene of the crime and his attire

matched an updated description of the suspect in only one particular, his blue jeans, an

extremely common item of clothing. It was only after Gales had been arrested that the shoes

41
the suspect had been wearing were identified as being similar to those Gales was wearing.

Moreover, the mere fact that Gales had nondescript cash in his possession and that it was

balled up in wads was not, in itself, enough for a reasonable officer to connect him to a

particular criminal act.

4. Gales’s arrest does not qualify as a search incident to arrest.

¶84. Additionally, the majority makes a quantum leap to arrive at its characterization of

Gales’s detention as a search incident to a lawful arrest. The United States Supreme Court

held that, “[u]nder Chimel [v. California], police may search incident to arrest only the space

within an arrestee’s ‘immediate control,’ meaning ‘the area from within which he might gain

possession of a weapon or destructible evidence.’ ” Arizona v. Gant, 556 U.S. 332, 335, 129

S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (quoting Chimel v. California, 395 U.S. 752, 763, 89

S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (overruled on other grounds)). Gant limited the scope

of Chimel to “reaching distance,” and the Supreme Court held that, because Gant was

handcuffed and secured at the time his car was searched, he “clearly was not within reaching

distance of his car at the time of the search.” Id. at 344. In the present case, the officer

handcuffed Gales, put him into the patrol car, drove him to the scene of the crime, and there

searched him.4 But, as in Gant, Gales was secured at the time the search occurred and prior

to the search, fully ameliorating any concerns over police safety. The search-incident-to-

4
At one point in its opinion, the majority states that “Gales voluntarily got out of the
police cruiser when brought to the crime scene.” Considering that Gales was shackled at the
time, the assertion that his exit from the police cruiser was voluntary strains credulity.
Further, Investigator Arendale testified at the suppression hearing that he pulled Gales out
of the police cruiser.

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arrest exception to the warrant requirement is thus inapposite from the present circumstances,

since “possession of a weapon or destructible evidence” was a practical impossibility for

Gales while he was in police custody and handcuffed.

¶85. The majority also erroneously suggests that the present search qualifies as a search

incident to arrest because it was “substantially contemporaneous with the arrest” and “Officer

Thomas arrested Gales and immediately brought him to the crime scene.” The United States

Supreme Court has held, however, that:

The rule allowing contemporaneous searches is justified, for example, by the
need to seize weapons and other things which might be used to assault an
officer or effect an escape, as well as by the need to prevent the destruction of
evidence of the crime—things which might easily happen where the weapon
or evidence is on the accused’s person or under his immediate control. But
these justifications are absent where a search is remote in time or place from
the arrest. Once an accused is under arrest and in custody, then a search made
at another place, without a warrant, is simply not incident to the arrest.

Preston v. U.S., 376 U.S. 364, 367, 84 S. Ct. 881, 11 L. Ed.2d 777 (1964) (emphasis added)

(citing Agnello v. U.S., 269 U.S. 20, 31, 46 S. Ct. 4, 70 L. Ed.2d 145 (1925)). The Court

there held that a search was unreasonable because it was “too remote in time or place to have

been made as incidental to the arrest.” Id. at 368. In the present case, a warrantless search

was made at the scene of the crime after Gales had been arrested, placed in police custody,

and transported across the city. The search of Gales, as in Preston, “is simply not incident

to the arrest.” Id. at 367.

5. The trial court committed reversible error by failing to grant Gales the motion
to suppress to which he was entitled.

¶86. Here, the police per se violated Gales’s rights by apprehending him in the absence of

reasonable suspicion, by arresting him in the absence of probable cause, and by hauling him

43
to the scene of the crime to be searched in the absence of any legal authority for so doing.

Consequently, the evidence obtained as the fruit of this unlawful detention ought to have

been excluded. The United States Supreme Court has held that “[w]e need not hold that all

evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but

for the illegal actions of the police.” Wong Sun, 371 U.S. at 487-88. “Rather, the more apt

question in such a case is ‘whether, granting establishment of the primary illegality, the

evidence to which instant objection is made has been come at by exploitation of that illegality

or instead by means sufficiently distinguishable to be purged of the primary taint.’” Id. at 488

(citing Maguire, Evidence of Guilt, 221 (1959)). In that case, the police, upon hearing that

one “Blackie Toy” sold an ounce of heroin to an informant, arrested a James Wah Toy in the

absence of any probable cause that he was the same person sought in the investigation. Wong

Sun, 371 U.S. at 481. The Supreme Court excluded the narcotics obtained through an illegal

arrest because they “were ‘come at by the exploitation of that illegality.’” Id. at 488. Here,

as in Wong Sun, the proper remedy is exclusion, since the cash obtained and identified was

“come at by exploitation of” the illegality. No mitigating feature serves to purge the primary

taint of the illegality of the initial stop, the continued detention, and the search.

¶87. Likewise, this Court has held that suppression was the appropriate remedy where no

“reasonable grounds” justified “the investigatory stop and subsequent search and seizure of

evidence from Eaddy.” Eaddy, 63 So. 3d at 1216. There, police stopped Eaddy’s vehicle

based on the tip of an informant that a different individual for whom the police had an arrest

warrant was in town. Id. at 1212. Upon approaching the car, the officer “saw the butt of a

gun under the driver’s seat, smelled alcohol, and saw an empty liquor bottle.” Id. A pat-down

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search of Eaddy revealed “two pill bottles that each appeared to hold cocaine.” Id.

Suppression was the appropriate remedy because the initial apprehension was invalid at

inception and the police lacked “reasonable suspicion to make an investigatory stop.” Id. at

1214. In the present case, the initial stop of Gales was invalid because it was not based on

reasonable suspicion. The cash in Gales’s possession, obtained as fruit of an illegal arrest,

should not have been used against him at trial. As in Eaddy, the motion to suppress should

have been granted.

6. Conclusion

¶88. Officer Thomas articulated no reasonable suspicion to justify his initial apprehension

of Gales. Gales’s continued detention and subsequent search had no basis in law and

constituted precisely the sort of unreasonable conduct on the part of the government which

is precluded by the Fourth Amendment to the United States Constitution and Article 3,

Section 23, of the Mississippi Constitution. I would reverse and remand for a new trial,

absent the fruit of the illegal arrest.

KING, J., JOINS THIS OPINION.

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