Preamble

We, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

RESEARCH REFERENCES

Am. Jur.

16 Am. Jur. 2d, Constitutional Law § 62.

JUDICIAL DECISIONS

1. In general.

As shown by the preamble to the Constitution, the purpose for which the state exists is to promote the peace, happiness and prosperity of its citizens. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 1938 Miss. LEXIS 53 (Miss. 1938).

Article I The Congress

§ 1. Legislative Powers Vested in Congress

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

RESEARCH REFERENCES

Am. Jur.

16 Am. Jur. 2d, Constitutional Law §§ 214 et seq.

CJS.

C.J.S. Census §§ 4, 11.

C.J.S. Commerce §§ 19, 37-50, 68-73, 99, 103, 111, 143, 145.

C.J.S. Constitutional Law §§ 54-59, 111 to 168, 188, 191, 217, 218, 228-263, 429-431.

C.J.S. Habeas Corpus §§ 2-7, 144, 145.

C.J.S. Internal Revenue § 4.

C.J.S. Judges §§ 95-98, 112, 113.

C.J.S. Statutes §§ 407-431.

C.J.S. United States §§ 16-46, 156, 158.

§ 2. House of Representatives

1. The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

2. No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.

3. [Representatives and direct taxes shall be apportioned among the several states which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.] The actual enumeration shall be made within three years after the first meeting of the congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made, the state of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

4. When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies.

5. The House of Representatives shall choose their Speaker and other officers; and shall have the sole power of impeachment.

Editor’s Note —

The clause in the third paragraph enclosed in brackets was amended, as to the mode of apportionment of Representatives among the several states, by the Fourteenth Amendment, § 2, and as to taxes on incomes without apportionment, by the Sixteenth Amendment.

Cross References —

Appointment of Representatives, see USCS Const. Amend. XIV, § 2.

Commencement and end of terms, see USCS Const. Amend. XX, § 1.

Power to fill vacancies in Senate, see USCS Const. Art. II, § 2, cl.

RESEARCH REFERENCES

Am. Jur.

3B Am. Jur. 2d, Aliens and Citizens § 1879.

3C Am. Jur. 2d, Aliens and Citizens § 2271.

16A Am. Jur. 2d, Constitutional Law § 247.

25 Am. Jur. 2d, Elections §§ 11, 20, 21.

26 Am. Jur. 2d, Elections §§ 238, 259.

63C Am. Jur. 2d, Public Officers and Employees § 218.

77 Am. Jur. 2d, United States §§ 8, 9.

§ 3. Senate

1. [The Senate of the United States shall be composed of two Senators from each state, chosen by the Legislature thereof, for six years; and each Senator shall have one vote.]

2. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year; [and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.]

3. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that State for which he shall be chosen.

4. The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

5. The Senate shall choose their other officers, and also a President Pro Tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.

6. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.

7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

Editor’s Note —

The first paragraph and the bracketed portion of the second paragraph were superseded by the Seventeenth Amendment.

Cross References —

Composition and vacancies Senate, see USCS Const. Amend. XVII.

Power of impeachment, House of Representatives, USCS Const. Art. I, § 2, cl 5.

Power of each House to judge qualifications of its own members, USCS Const., Art. I, § 5, cl. 1.

Incapacity and removal of President, see USCS Const. Amend. XXV.

RESEARCH REFERENCES

Am. Jur.

3B Am Jur 2d, Aliens and Citizens § 1879.

3C Am Jur 2d, Aliens and Citizens § 2271.

16A Am Jur 2d, Constitutional Law § 247.

77 Am Jur 2d, United States § 8.

§ 4. Congressional Elections; Sessions of Congress

1. The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

2. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

Cross References —

Date for the annual meeting changed to the third day of January, see USCS Const. Amend. XX.

RESEARCH REFERENCES

Am. Jur.

16A Am Jur 2d, Constitutional Law § 222.

25 Am Jur 2d, Elections §§ 3, 5, 10.

26 Am Jur 2d, Elections §§ 230, 267.

JUDICIAL DECISIONS

1. In general.

State supreme court’s interpretation of state statutes to determine whether an election contest was timely filed did not violate the Elections Clause because the deadline already existed, as it was put in place by the state legislature and continued into newest versions of statutes, and the court was resolving ambiguities in the law instead of creating a deadline. McDaniel v. Cochran, 158 So.3d 992, 2014 Miss. LEXIS 535 (Miss. 2014).

§ 5. Legislative Proceedings

1. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide.

2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.

3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one-fifth of those present, be entered on the journal.

4. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.

Cross References —

Qualifications of Representatives, generally, see USCS Const., Art. I, § 2, cl. 2.

Qualifications of Senators, generally, see USCS Const., Art. I, § 3, cl. 3.

RESEARCH REFERENCES

Am. Jur.

26 Am Jur 2d, Elections § 399.

77 Am Jur 2d, United States §§ 3, 8, 15.

CJS.

C.J.S. Armed Services §§ 1-41, 341-348.

C.J.S. Commerce §§ 2, 5.

C.J.S. Counterfeiting §§ 2, 8.

C.J.S. Customs Duties § 1.

C.J.S. District of Columbia §§ 9-12.

C.J.S. Federal Courts §§ 3-4.

C.J.S. Internal Revenue § 4.

C.J.S. International Law §§ 2 to 5.

C.J.S. Patents §§ 1, 6-9.

C.J.S. Postal Service and Offenses Against Postal Laws §§ 2, 3.

C.J.S. Statutes §§ 12, 13, 41, 43.

C.J.S. United States §§ 16-33, 153-162.

C.J.S. War and National Defense §§ 2, 16, 17-20, 23.

Lawyers’ Edition.

Federal court’s power to determine election or qualifications of member of legislative body. 17 L Ed 2d 911.

§ 6. Members

1. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.

2. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States, shall be a member of either House during his continuance in office.

Editor’s Note —

The text appearing after the semicolon in the second sentence of the first paragraph is popularly known as the “Speech or Debate Clause.”

The second paragraph is popularly known as the “Incompatibility Clause” and also as the “Ineligibility Clause.”

Cross References —

Change in compensation of members of Congress, effective date, see USCS Const. Amend. XXVII.

RESEARCH REFERENCES

Am. Jur.

5 Am Jur 2d, Arrest § 108.

16A Am Jur 2d, Constitutional Law § 258.

23 Am Jur 2d, Depositions and Discovery § 57.

62A Am Jur 2d, Privacy § 215.

62B Am Jur 2d, Process § 16.

63C Am Jur 2d, Public Officers and Employees §§ 64-66, 68-78, 271-279, 281, 284-298, 433, 435-439.

77 Am Jur 2d, United States §§ 5, 6, 7.

Lawyers’ Edition.

United States Senators’ and Representatives’ privileges and immunities relating to arrest and to speech or debate, under Art. 1, cl. 1 of Federal Constitution. 23 L. Ed. 2d 915.

Construction and application of speech or debate clause of United States Constitution (Art I, § 6, Cl 1)—Supreme Court Cases. 60 L Ed 2d 1166.

§ 7. Bills, Orders, Resolutions, or Votes

1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.

2. Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

3. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Editor’s Note —

The first paragraph is popularly known as the “Origination Clause.”

The second paragraph, often together with the third paragraph, is popularly known as the “Presentment Clause(s).”

In addition, the third paragraph is popularly known as the “Veto Clause” or the “Orders, Resolutions and Votes Clause.”

RESEARCH REFERENCES

Am. Jur.

16A Am Jur 2d, Constitutional Law § 247.

Lawyers’ Edition.

Supreme court’s construction and application of Federal constitution’s appropriations clause (Art I, § 9, cl 7). 110 L Ed 2d 773.

Supreme Court’s construction and application of Federal Constitution’s Art I, § 7, cl 2 and 3, concerning presentment of congressional bills, orders, resolutions, and votes to President and their approval or disapproval (veto) by President. 141 L Ed 2d 825.

§ 8. Powers of Congress.

The Congress shall have Power

1. To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

2. To borrow money on the credit of the United States;

3. To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

4. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

6. To provide for the punishment of counterfeiting the securities and current coin of the United States;

7. To establish post offices and post roads;

8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

9. To constitute tribunals inferior to the Supreme Court;

10. To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

13. To provide and maintain a navy;

14. To make rules for the government and regulation of the land and naval forces;

15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;

16. To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress;

17. To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by session of particular states, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;–And

18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

Editor’s Note —

Parts of the first paragraph are popularly known as the “Taxation Clause,” the “General Welfare Clause,” the “Spending Clause,” and the “Uniformity Clause.”

Parts of the third paragraph are popularly known as the “Commerce Clause,” the “Interstate Commerce Clause,” the “Indian Commerce Clause,” and the “Dormant Commerce Clause.”

Parts of the fourth paragraph are popularly known as the “Naturalization Clause” and the “Bankruptcy Clause.”

Part of the fifth paragraph is popularly known as the “Coinage Clause.”

The sixth paragraph is popularly known as the “Postal Clause.”

The eighth paragraph is popularly known as the “Patent and Copyright Clause” or variations thereof.

The ninth paragraph is popularly known as the “Inferior Tribunals Clause.”

Part of the tenth paragraph is popularly known as the “Offenses Clause.”

The fifteenth and sixteenth paragraphs are popularly known as the “Militia Clauses.”

The eighteenth paragraph is popularly known as the “Necessary and Proper Clause” or the “Sweeping Clause.”

Cross References —

Apportionment of taxes, see USCS Const., Art. 1, § 2, cl. 3.

Power of Congress to provide for punishment of counterfeiting, USCS Const., Art. 1, § 8, cl. 6.

Articles exported from any state, see USCS Const., Art. 1, § 9, cl. 5.

Right to bear arms, see USCS Const. Amend. 2.

Persons born or naturalized in United States as citizens, generally, USCS Const., Amend. 14, § 1.

Power to lay and collect taxes on incomes, see USCS Const., Amend. 16.

ATTORNEY GENERAL OPINIONS

A school district could make a direct sale of the property to the General Services Administration for use as a United States District Courthouse pursuant to Section 3-5-1, and was not required to follow the procedures and provisions of Sections 37-7-451 et seq. and 37-7-471 et seq., so long as fair market value was obtained for the property. 2000 Miss. Op. Att'y Gen. 171.

RESEARCH REFERENCES

ALR.

State tax in connection with transportation or distribution of oil or gas through pipe lines as affected by commerce clause. 154 A.L.R. 623.

License or excise tax on merchandise brokers or persons performing similar functions as affected by commerce clause. 155 A.L.R. 239.

Regulation of practice of photography. 7 A.L.R.2d 416.

Aircraft operated wholly within state as subject to Federal regulation. 9 A.L.R.2d 485.

Loading or unloading interstate freight in performance of obligation resting upon one other than interstate carrier as interstate carrier as regards local taxation. 10 A.L.R.2d 651.

Validity, construction, and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking. 53 A.L.R.4th 801.

Maps or charts as protected by copyright under Federal Copyright Acts. 4 A.L.R. Fed. 466.

Copyright, under Federal Copyright Act (17 USCS §§ 1 et seq.), in advertising materials, catalogs, and price lists. 5 A.L.R. Fed. 625.

What are proceedings by governmental units to enforce police or regulatory powers which are excepted from operation of automatic stay provisions of Bankruptcy Code of 1978 (11 USCS § 362(b)(4), (5)). 58 A.L.R. Fed. 282.

Construction and application of 18 USCS § 542 prohibiting entry of goods into commerce of United States by means of false statements. 58 A.L.R. Fed. 850.

Artist’s speech and due process right in artistic production which has been sold to another. 93 A.L.R. Fed. 912.

Am. Jur.

2 Am. Jur. 2d, Admiralty §§ 3, 5.

3 Am. Jur. 2d, Agriculture §§ 22, 30.

3A Am. Jur. 2d, Aliens and Citizens § 3.

3B Am. Jur. 2d, Aliens and Citizens § 1940.

3C Am. Jur. 2d, Aliens and Citizens § 2270.

7A Am. Jur. 2d, Automobiles and Highway Traffic § 17.

9 Am. Jur. 2d, Bankruptcy §§ 8-11, 741, 795, 825, 829.

9A Am. Jur. 2d, Bankruptcy §§ 1401-1403, 1522.

9D Am. Jur. 2d, Bankruptcy § 3582.

15 Am. Jur. 2d, Civil Rights §§ 3, 9, 218, 223.

15 Am. Jur. 2d, Commerce § 8-26.

15A Am. Jur. 2d, Civil Service §§ 1-19, 25-27, 31-42, 44, 46, 51, 55, 58, 62, 63, 71, 73, 74, 76-78, 81-85.

15B Am. Jur. 2d, Community Property §§ 4, 5, 220.

16A Am. Jur. 2d, Constitutional Law §§ 226, 247, 343, 399.

18 Am. Jur. 2d, Copyright and Literary Property §§ 1, 19.

18A Am. Jur. 2d, Corporations § 157.

20 Am. Jur. 2d, Counterfeiting § 2.

21 Am. Jur. 2d, Criminal Law § 445.

21A Am. Jur. 2d, Custom Duties and Import Regulations §§ 6, 7, 8, 16.

24 Am. Jur. 2d, District of Columbia §§ 1, 21.

25 Am. Jur. 2d, Elections § 105.

26 Am. Jur. 2d, Eminent Domain §§ 8, 20, 100.

27 Am. Jur. 2d, Energy and Power Sources § 146.

32A Am. Jur. 2d, Federal Courts §§ 583, 980.

35 Am. Jur. 2d, Federal Tax Enforcement § 1009.

35A Am. Jur. 2d, Fires § 1.

35A Am. Jur. 2d, Food § 5.

36 Am. Jur. 2d, Foreign Corporations §§ 199, 202, 204, 218, 319, 386, 429.

41 Am. Jur. 2d, Indians; Native Americans §§ 33, 37, 183, 198.

42 Am. Jur. 2d, Injunctions § 61.

42 Am. Jur. 2d, Insolvency § 7.

44B Am. Jur. 2d, Insurrection § 2.

45 Am. Jur. 2d, Intoxicating Liquors §§ 19, 30, 34.

45A Am. Jur. 2d, Job Discrimination § 19.

50 Am. Jur. 2d, Levees and Flood Control § 3.

54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 709, 777, 792, 825.

57A Am. Jur. 2d, Negligence § 696.

60 Am. Jur. 2d, Patents §§ 1, 135, 155.

63B Am. Jur. 2d, Product Liability § 494.

64 Am. Jur. 2d, Public Securities and Obligations § 34.

64 Am. Jur. 2d, Public Works and Contracts §§ 4, 20.

65 Am. Jur. 2d, Receivers § 95.

67B Am. Jur. 2d, Sales and Use Taxes § 154.

70 Am. Jur. 2d, Shipping § 41.

77 Am. Jur. 2d, United States §§ 30, 33.

78 Am. Jur. 2d, War §§ 9, 10, 74.

78 Am. Jur. 2d, Waters §§ 3, 17.

Lawyers’ Edition.

Statute or ordinance regulating or prohibiting advertising as unconstitutional burden on interstate commerce–federal cases. 10 L Ed 2d 1386.

Commerce clause of Federal Constitution as violated by state or local regulation or prohibition affecting business of selling, distributing, packaging, packing, labeling, or processing food intended for human consumption–Supreme Court cases. 25 L Ed 2d 846.

Validity, under commerce clause of Federal Constitution, of state tolls or taxes on, or affecting, interstate or foreign air carriers or passengers. 31 L Ed 2d 975.

Validity, under commerce clause of Federal Constitution, of state gross receipts or income taxes involving interstate transactions–Supreme Court cases. 34 L Ed 2d 749.

Supreme Court’s views as to constitutionality of state or municipal regulation of peddlers, drummers, canvassers, and the like. 48 L Ed 2d 917.

Constitutionality of state laws which discriminate against nonresidents or aliens as to fishing or hunting rights. 52 L Ed 2d 824.

Validity, under commerce clause of Federal Constitution, of state restrictions on interstate movement of goods, products, and natural resources originating from within state–Supreme Court cases. 71 L Ed 2d 890.

Validity, under commerce clause of Federal Constitution, of state statutes regulating securities transactions–Federal cases. 73 L Ed 2d 1454.

Validity, under Federal Constitution, statutes, and treaties, of state or local tax as affected by its imposition on Indians, their property or activities, or in connection with an Indian reservation–Supreme Court cases. 73 L Ed 2d 1506.

Supreme Court’s views as to validity of particular state and local taxes on federal securities and obligations. 74 L Ed 2d 1155.

Supreme Court’s views as to constitutionality of federal tax legislation under uniformity clause of Article I § 8, clause 1 of Federal Constitution.76 L. Ed. 2d 868.

Validity of federal regulation of wage rates and hours of service as affected by commerce clause of Federal Constitution (Art I, § 8, cl. 3). 83 L Ed 2d 1163.

State regulation or taxation of alcoholic beverages as violating commerce clause of Federal Constitution. 90 L Ed 2d 1109.

Taxation: Supreme Court’s views as to whether federal statute unconstitutionally delegates Congress power. 104 L. Ed. 2d 1099.

Supreme court’s construction and application of federal constitution’s militia clauses (Art I, § 8, cl. 15 and 16), allocating power over militia between congress and states. 110 L. Ed. 2d 738.

Supreme Court’s views as to when books or other written or printed materials are copyrightable under federal law. 113 L. Ed. 2d 771.

Validity, under Federal Constitution, of state or local sales or use tax provisions requiring one person to collect tax imposed upon another–Supreme Court cases. 119 L. Ed. 2d 629.

Supreme Court’s views as to extent of states’ regulatory powers concerning or affecting intoxicating liquors, under Federal Constitution’s Twenty-First Amendment.134 L Ed 2d 1015.

Federal-law aspects of government regulation, on grounds assertedly related to users’ health, of tobacco and tobacco products–Supreme Court cases. 146 L Ed 2d 1007.

Power of Indian tribe, nation, or band to impose tax on non-Indians–Supreme Court cases. 149 L Ed 2d 1211.

Supreme Court’s construction and application of provision in Federal Constitution’s Art I, § 8, cl. 8 authorizing Congress to provide “for limited Times” copyright and patent protection. 154 L Ed 2d 1185.

Supreme Court’s views as to Congress’ power under spending clause in Federal Constitution’s Art I, § 8, cl. 1. 158 L. Ed. 2d 1131.L. Ed.

Supreme Court’s views as to validity, construction, and application of Truth in Lending Act (TILA), as amended (15 USCS §§ 1601 et seq.). 160 L Ed 2d 1141.

Supreme Court’s views as to validity, construction, and application of 28 USCS § 1367, concerning supplemental jurisdiction of federal courts. 162 L Ed 2d 1031.

Federal Arbitration Act (FAA) (9 U.S.C.S. § 1 et seq.) as pre-empting state law–Supreme Court cases. 169 L Ed 2d 995.

Law Reviews.

Turner, Solid Waste Flow Control: The Commerce Clause and Beyond, 19 Miss C.L. Rev. 53 (Fall, 1998).

Separation of Powers at the State Level, Part II: Service in a Civilian Public Office and in the National Guard, 74 Miss. L.J. 47, Fall, 2004.

Recent Decision: Constitutional Law—The Dormant Commerce Clause and the Twenty-First Amendment—Reconciling the Two Constitutional Provisions to Allow The Direct Shipment of Wine, 75 Miss. L.J. 619, Winter, 2006.

Constitutional Limits on State Taxation of a Nonresident Trustee: Gavin Misinterprets and Misapplies Both Quill and McCulloch, 76 Miss. L.J. 1, Fall, 2006.

Denning, Is the Dormant Commerce Clause Expendable? A Response to Edward Zelinsky. 77 Miss L.J,. 623, (Winter 2007).

Zelinsky, The Incoherence of Dormant Commerce Clause Nondiscrimination: A Rejoinder to Professor Denning. 77 Miss L.J. 653, (Winter 2007).

JUDICIAL DECISIONS

1. In general.

2. Burden upon interstate commerce.

3. Incident to interstate commerce.

4. Law governing.

5. Intrastate activities of foreign corporations.

6. Carriers, generally.

7. Telegraph and telephones, generally.

8. Fish and game laws.

9. Workers’ compensation.

10. Service of process.

11. Letting of public contracts.

12. Taxation–In general.

13. – Sales and use taxes.

14. – Income taxes.

15. – Carriers, taxation.

16. – Telegraph and telephones, taxation.

17. – Gas and petroleum products, taxation.

18. – Miscellaneous taxes.

19. Bankruptcy laws.

20. Post offices and post roads.

21. Copyright laws.

22. Regulation of land and naval forces.

1. In general.

The commerce clause of Constitution does not operate to commit to federal courts or withhold from state court, jurisdiction of all suits relating to regulation, or attempted regulation, of interstate commerce. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Legislation by Congress under the commerce clause, and administrative orders made in pursuance to such legislation, are controlling both in the state and the Federal courts. Stoner & Co. v. Blocton Export Coal Co., 135 Miss. 390, 100 So. 5, 1924 Miss. LEXIS 42 (Miss. 1924).

The commerce clause was designed to prevent each state from legislating with reference to its own interest regardless of the interest of others, and should be so construed as to accomplish that end, and should be limited to that. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885).

Not every state action which may incidentally or consequentially affect interstate commerce may be held void. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885).

2. Burden upon interstate commerce.

Miss. Code Ann. §27-7-15(4)(i) violated the dormant commerce clause under the internal consistency test because a taxpayer’s dividend income from in-state subsidiaries was excluded from income, while such income from out-of-state subsidiaries was not, as the income had not already borne a tax under the statute, resulting in malapportionment. Miss. Dep't of Revenue v. AT&T Corp., 202 So.3d 1207, 2016 Miss. LEXIS 448 (Miss. 2016).

Miss. Code Ann. §27-70-5 (2010) violated the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, as it was internally inconsistent since: (1) if another state enacted an identical law and a distributor obtained cigarettes in Mississippi for sale outside of Mississippi, then Mississippi would impose a fee on a transaction and the other state would impose a fee on a transaction; (2) if the cigarettes acquired by the Mississippi distributor were sold intrastate, they would be subject to only one fee; and (3) if another state enacted an identical statute, interstate commerce would bear a burden that intrastate commerce would not. Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

The State Oil and Gas Board requirement that an interstate pipeline company take ratably the natural gas produced from a common source of supply was not an impermissible burden on interstate commerce under Article 1, § VIII. Transcontinental Gas Pipeline Corp. v. State Oil & Gas Bd., 457 So. 2d 1298, 1984 Miss. LEXIS 1869 (Miss. 1984), rev'd, 474 U.S. 409, 106 S. Ct. 709, 88 L. Ed. 2d 732, 1986 U.S. LEXIS 47 (U.S. 1986).

Mississippi Board of Health Regulation, excluding milk from another state unless such other state accepted Mississippi milk on a reciprocal basis, unduly burdened interstate commerce and could not be justified either as a permissible exercise of state power in maintaining health standards, particularly since such milk was excluded regardless of whether it met health standards, or as a free trade provision promoting trade between the states. Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 96 S. Ct. 923, 47 L. Ed. 2d 55, 1976 U.S. LEXIS 91 (U.S. 1976).

The Mississippi Milk Products Sales Act (Code 1942 §§ 4560-101 et seq., Laws, 1960, ch 156) is not unconstitutional as a burden upon interstate commerce. State ex rel. Patterson v. Pure Vac Dairy Prods. Corp., 251 Miss. 457, 170 So. 2d 274, 1964 Miss. LEXIS 364 (Miss. 1964).

In an action for personal injuries sustained in Louisiana, contentions of a Georgia corporation, operating motor freight lines along a highway through the coastal counties of Mississippi, including the county of plaintiff’s residence, and maintaining an agency and warehouse in Mississippi to solicit business and to facilitate its interstate business, that maintenance of the action against it in Mississippi would create an undue burden on interstate commerce in violation of the Federal Constitution, arising from the inconvenience of requiring the attendance of witnesses from outside the state of Mississippi was untenable since there could arise no conclusive presumption of an undue burden on interstate commerce from such circumstance. M. & A. Motor Freight Lines, Inc. v. Villere, 190 Miss. 848, 1 So. 2d 788, 1941 Miss. LEXIS 100 (Miss. 1941).

3. Incident to interstate commerce.

A statute making the sale of malt liquors unlawful does not, in invalidating a contract between a non-resident manufacturer and a local dealer for the exclusive right to make local sales involve the denial right of any incident to interstate commerce where such agreement contained no such suggestion that the contemplated resales were to be made in the original imported packages. Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 33 S. Ct. 44, 57 L. Ed. 184, 1912 U.S. LEXIS 2145 (U.S. 1912).

4. Law governing.

In an action for death of a railroad employee, earnings or income of deceased from business other than employment with defendant held entitled to be considered in determining damages, as against the contention that earnings having no relation to interstate commerce are not within the legislative power of Congress. Illinois C. R. Co. v. Humphries, 174 Miss. 459, 164 So. 22, 1935 Miss. LEXIS 60 (Miss. 1935).

5. Intrastate activities of foreign corporations.

Where business of foreign corporation is interstate in nature, state may not burden such business with state qualification requirements unless business of corporation includes distinct and separable intrastate focus, or corporation has “localized” its business within state. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

By contributing to unitary interstate transaction, radio station’s remote broadcasting activities fell within governance, and hence protections, of commerce clause. Remote broadcasting from Mississippi area entailed transmission of live, promotional messages from premises of advertisers in Mississippi to Alabama station, from which messages were rebroadcast via FCC licensed interstate transmitter to listeners in Alabama and Mississippi. Such remote broadcasting is inseparable from underlying interstate sale of air time. Radio station’s remote broadcasting from Mississippi was not localization where (1) only a single commercial transaction relating to remote broadcasts could be identified, and that was sale of air time to advertiser; (2) remote radio transmissions directly involved the delivery of services across state lines, and (3) services were essential to and inseparable from underlying interstate sales transactions themselves. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

Maintenance by Alabama radio station of substantial sales force in Mississippi is insufficient to establish either localization or distinct and separable business activity within Mississippi. Constitutional right to transact business in interstate commerce without obstruction from state regulation includes right to search out business opportunities. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

Alabama radio station’s contractual relations with Mississippi merchants and citizens as business consumer did not support decision of localization where record indicated that all radio station’s contacts with Mississippi businesses and citizens related to its sales operation. Foreign corporation must enjoy same access to domestically-provided goods and services required to complete its interstate business as is enjoyed by domestic corporations. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

Because Alabama radio station’s business activities within state of Mississippi demonstrated pattern of unitary interstate transactions rather than of localized or separable intrastate focus, denial of access to Mississippi courts imposed impermissible burden on interstate commerce. Radio WHKW, Inc. v. Yarber, 838 F.2d 1439, 1988 U.S. App. LEXIS 3068 (5th Cir. Miss. 1988).

A statute prohibiting any corporation from owning or operating any cotton gin where such corporation is interested in the manufacture of cottonseed oil or cottonseed meal does not, as applied to a nonresident corporation operating cotton gins in Mississippi from which it ships all of its cottonseed which may be purchased in connection with its ginning operation to its oil mill in its own state, violate the commerce clause. Crescent Cotton Oil Co. v. Mississippi, 257 U.S. 129, 42 S. Ct. 42, 66 L. Ed. 166, 1921 U.S. LEXIS 1325 (U.S. 1921).

A state statute making it a misdemeanor for an agent of a foreign insurance company which has not complied with the laws of the state, to come into the state and adjust a loss for such company, does not violate the commerce clause. Moses v. State, 65 Miss. 56, 3 So. 140, 1887 Miss. LEXIS 14 (Miss. 1887), writ of error dismissed, 145 U.S. 647, 12 S. Ct. 985, 36 L. Ed. 851, 1891 U.S. LEXIS 3095 (U.S. 1891).

6. Carriers, generally.

Whether the shipment of oil from a gathering point to railroad loading racks, both points being in the same state, is intrastate or interstate transportation, is a federal question, which the Supreme Court of the United States decides for itself from the undisputed facts in the record. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

Code 1942 § 7785, requiring segregation of races on common carriers, referred to in a case involving the question whether a similar statute of Virginia violated the commerce clause. Morgan v. Virginia, 328 U.S. 373, 66 S. Ct. 1050, 90 L. Ed. 1317, 1946 U.S. LEXIS 3039 (U.S. 1946).

Separate accommodations for white and colored passengers may be required of railroads without violating the commerce clause. Louisville, N. O. & T. R. Co. v. Mississippi, 133 U.S. 587, 10 S. Ct. 348, 33 L. Ed. 784, 1890 U.S. LEXIS 1935 (U.S. 1890).

The state may require an interstate railroad to abolish at own expense highway grade crossing, without regard to financial ability, if reasonably required by public safety. New Orleans & N.E.R. Co. v. State Hwy. Comm'n, 164 Miss. 343, 144 So. 558, 1932 Miss. LEXIS 251 (Miss. 1932).

An attachment proceeding against a nonresident interstate railroad in which traffic balances due defendant from other interstate railroads were impounded does not unlawfully burden interstate commerce. Clark v. Louisville & N. R. Co., 158 Miss. 287, 130 So. 302, 1930 Miss. LEXIS 51 (Miss. 1930).

The attachment of railway cars which came into the possession of a railroad company in interstate commerce, does not unconstitutionally burden such commerce. Illinois C. R. Co. v. Terry, 137 Miss. 371, 102 So. 391, 1924 Miss. LEXIS 232 (Miss. 1924).

An order of the State Railroad Commission made in the exercise of its discretionary authority, requiring a railway company to stop its interstate mail trains at a specified county seat, unconstitutionally interferes with interstate commerce where proper and adequate railway passenger facilities are otherwise afforded station. Mississippi R. Com. v. Illinois C. R. Co., 203 U.S. 335, 27 S. Ct. 90, 51 L. Ed. 209, 1906 U.S. LEXIS 1595 (U.S. 1906).

The state railroad commission may fix rates for intrastate transportation, so long as there is no discrimination against persons or property from other states. Stone v. Yazoo & Miss. V. Ry., 62 Miss. 607, 1885 Miss. LEXIS 120 (Miss. 1885).

Power to establish and regulate ferries is not taken from the states by the commerce clause. Marshall v. Grimes, 41 Miss. 27, 1866 Miss. LEXIS 2 (Miss. 1866), overruled, Helena-Glendale Steam Ferry Co. v. State, 101 Miss. 65, 57 So. 362, 1911 Miss. LEXIS 99 (Miss. 1912).

The sale, mortgage, and hypothecation of United States vessels employed in foreign or interstate commerce and the recording necessary to the validity of such instruments may be regulated by Congress under the commerce clause. Shaw v. McCandless, 36 Miss. 296, 1858 Miss. LEXIS 97 (Miss. 1858).

7. Telegraph and telephones, generally.

The provision of the state constitution which declares telegraph companies to be common carriers and subject to liability as such does not conflict with the commerce clause. Postal Tel. & Cable Co. v. Wells, 82 Miss. 733, 35 So. 190, 1903 Miss. LEXIS 193 (Miss. 1903).

Semble, that a state statute imposing a penalty for delay in the transmission of a telegram from one state to another would be an unconstitutional interference with interstate commerce, but that a statute penalizing delay in delivery by the office of destination would not. Marshall v. Western Union Tel. Co., 79 Miss. 154, 27 So. 614, 1901 Miss. LEXIS 1 (Miss. 1901).

A telegraph company engaged in domestic as well as interstate transmission of messages is subject to such reasonable police regulations as the state may impose. Western Union Tel. Co. v. Mississippi R. Com., 74 Miss. 80, 21 So. 15, 1896 Miss. LEXIS 145 (Miss. 1896).

8. Fish and game laws.

Laws regulating fishing, as applied to persons taking fish with intent to ship them out of the state, do not violate the commerce clause. Ex parte Fritz, 86 Miss. 210, 38 So. 722, 1905 Miss. LEXIS 75 (Miss. 1905).

9. Workers’ compensation.

Since, under the circumstances, the exemption in Code 1942, § 6998-55(c), was inapplicable, the Mississippi Workmen’s Compensation Act applied where an employee, employed in Georgia, sustained disability while operating his employer’s truck upon a Mississippi highway, and received extensive medical treatment in the state for which payment had not been received, notwithstanding the Georgia employer’s contention that the application of the Act would violate the full faith and credit clause of the United States Constitution, constitute an interference with, or impairment of, the right to contract, and interfere with interstate commerce. Mandle v. Kelly, 229 Miss. 327, 92 So. 2d 246, 1957 Miss. LEXIS 303 (Miss. 1957).

10. Service of process.

Statute (Laws 1940 ch 246, 1942 code, §§ 1437-1440) providing for service on nonresidents by service of process on Secretary of State and making provision for reasonable notice and opportunity to defend, as applied to corporate citizen of another state engaged in levy construction work of large proportions in Mississippi, employing many men to operate trucks and other heavy and cumbersome machinery and equipment, is not unconstitutional as burdening interstate commerce where defendant was not engaged in interstate commerce. Sugg v. Hendrix, 142 F.2d 740, 1944 U.S. App. LEXIS 3496 (5th Cir. Miss. 1944).

11. Letting of public contracts.

A statute prohibiting counties from letting contracts for blank books, printed forms, stationery or office supplies to any bidder who is not a bona fide resident of the state actually engaged in the printing business or who, being a nonresident, has not a printing plant in the state, does not violate the commerce clause. State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258, 1917 Miss. LEXIS 205 (Miss. 1917).

12. Taxation–In general.

The four criteria that a taxing statute must satisfy to withstand a challenge under the commerce clause and due process clause of the United States Constitution are: (1) the tax must be applied to an activity with a substantial nexus with the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; and (4) the tax must be fairly related to services provided by the taxing state; the failure to meet any one prong of the test renders the tax invalid. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

For the purpose of determining the constitutionality of a state tax statute, the Supreme Court of the United States accepts as binding the interpretation given to it by the highest court of the state. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

The fact that the imposition of a state tax adds to the cost of interstate commerce is not alone sufficient to invalidate the tax as an interference with such commerce. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

The commerce clause in the Federal Constitution affords immunity to property from local taxation when, but only when, it is in transit as interstate or foreign commerce. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

A state may require one whose property and business enjoys the protection of local laws to bear its proper share of the expense of state government, where the tax is nondiscriminatory and does not constitute a direct burden on interstate commerce. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

A state statute is not invalidated by the commerce clause of the Federal Constitution merely because it imposes a direct tax on the privilege of engaging in interstate commerce. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

It is well settled by the Federal Supreme Court that in imposing taxes for state purposes a state is not exercising any power which the Federal Constitution has conferred upon Congress, but it is only when the tax operates to regulate commerce between the states or with foreign nations, to an extent which infringes the authority conferred upon Congress, that the tax exceeds the limitations imposed by the Federal Constitution. State Tax Com. v. Memphis Natural Gas Co., 197 Miss. 583, 19 So. 2d 477, 1944 Miss. LEXIS 325 (Miss. 1944).

The purpose of the commerce clause is to protect interstate commerce from discriminatory state action, but this purpose must be reconciled with the right of the state taxing power to cause interstate commerce to bear its share of state tax burdens to the end that there shall be no discrimination against intrastate commerce. Stone v. York Ice Machinery Corp., 193 Miss. 638, 10 So. 2d 380, 1942 Miss. LEXIS 145 (Miss. 1942).

The present trend of judicial decisions in upholding state tax statutes is in favor of a more liberal construction and holding that unless the tax complained of tends to prohibit interstate commerce or place it at a disadvantage in competition with intrastate commerce, it does not violate the commerce clause of the Federal Constitution, and especially where the tax is not on the commerce but is levied on the right to engage in a local activity for the exercise of which local citizens are required to pay. Stone v. York Ice Machinery Corp., 193 Miss. 638, 10 So. 2d 380, 1942 Miss. LEXIS 145 (Miss. 1942).

The commerce clause does not shield those carrying on interstate and foreign commerce from nondiscriminating state taxation. Stone v. Interstate Natural Gas Co., 103 F.2d 544, 1939 U.S. App. LEXIS 3610 (5th Cir. Miss.), aff'd, 308 U.S. 522, 60 S. Ct. 292, 84 L. Ed. 442, 1939 U.S. LEXIS 16 (U.S. 1939).

Impairment of the commerce power of Congress really arises only if the state by intention or in actual effect regulates commerce by license or other special taxation, or burdens it unduly so as to impede it; or if the state law imposing the tax conflicts with some regulation made by the Congress in its supreme right. Stone v. Interstate Natural Gas Co., 103 F.2d 544, 1939 U.S. App. LEXIS 3610 (5th Cir. Miss.), aff'd, 308 U.S. 522, 60 S. Ct. 292, 84 L. Ed. 442, 1939 U.S. LEXIS 16 (U.S. 1939).

13. – Sales and use taxes.

State sales tax on full price of ticket from taxing state to another state is consistent with Commerce Clause of United States Constitution because sale of interstate transportation services had sufficient nexus to state where ticket was purchased and service originated and tax was properly apportioned, did not discriminate against interstate commerce and was fairly related to services provided by state. Oklahoma Tax Comm'n v. Jefferson Lines, 514 U.S. 175, 115 S. Ct. 1331, 131 L. Ed. 2d 261, 1995 U.S. LEXIS 2418 (U.S. 1995).

The imposition of use and excise taxes pursuant to §27-67-7 et seq. on a pipeline company’s use of natural gas taken from its interstate gas pipeline as fuel for its compressor engines located along the pipeline was permissible under the commerce clause and the due process clause of the United States Constitution since the activity taxed–the consumption of natural gas in compressor stations located in Mississippi–had a sufficient nexus with the State to justify the tax, the tax was fairly apportioned to assess only local activities and did not discriminate against interstate commerce by subjecting interstate taxpayers to a double taxation where similarly situated intrastate taxpayers would be subject to only single taxation, and the tax was fairly related to the benefits provided by the State to the pipeline company. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

An Alabama carpet store did not avail itself of the substantial privilege of carrying on business within Mississippi, so that there was no constitutional basis for a sales tax assessment, where the store’s 2 local carpet installers were independent contractors rather than agents or employees of the store, the local installers received no compensation from the store, and they provided their own equipment and were not subject to the control of the store in the details or final results of their work. Mississippi State Tax Com. v. Bates, 567 So. 2d 190, 1990 Miss. LEXIS 444 (Miss. 1990).

Wholesale markup on liquor sold to federal military installations in Mississippi constituted a sales tax, the legal incident of which rested upon instrumentalities of the United States as the purchasers, and therefore the markup was unconstitutional as a tax imposed upon the United States and its instrumentalities. Since the legal incidence of the tax was upon the United States, the federal immunity with respect to sales of liquor to the two exclusively federal enclaves was preserved by § 107(a) of the Buck Act (4 USCS §§ 105-110). United States v. Tax Comm'n of Mississippi, 421 U.S. 599, 95 S. Ct. 1872, 44 L. Ed. 2d 404, 1975 U.S. LEXIS 120 (U.S. 1975).

Decision on former appeal of same case that Use Tax Law of this state is unconstitutional in its requirement that foreign seller collect and pay use tax on goods sold to Mississippi residents when seller is nondomesticated foreign corporation having no place of business or any agent in this state, its only intrastate activity being sending into state of non-resident solicitors to take orders effective only when approved at home office and sales being completed by delivery of goods to common carrier in foreign state, will be adhered to on subsequent appeal, and case does not become new case because state of Tennessee, from which state goods are shipped, is claimed to have relevant Sales Tax Law; because coming to rest in this state feature of original law has been eliminated; or because two salesmen of seller happen to reside in Mississippi for their own personal convenience and not that of employer, since principles controlling law of case doctrine are more binding upon courts than law of precedent. Stone v. Reichman-Crosby Co., 43 So. 2d 184 (Miss. 1949), cert. denied, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Non-resident seller engaged exclusively in interstate commerce is neither subject to state’s taxing power nor to state’s jurisdiction to subject seller to personal liability for failure to collect and pay tax levied against citizens of this state. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Use Tax Law, Chapter 120, Laws of 1942 (Code 1942 §§ 10146-10167), is unconstitutional as to its requirement that a non-resident seller shall collect and pay tax on sales consummated in Tennessee by delivery of property to a common carrier for transportation to purchasers in Mississippi, when the non-resident seller is not doing business in Mississippi and property was sold on orders taken by non-resident salesmen, as it violates the commerce clause by imposing a burden on interstate commerce and denies to seller equal protection and due process of law. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

Laws 1948 ch. 457, amending Code 1942 § 10148, levying Use Tax, by eliminating provision that tax imposed shall not apply to use of article of tangible personal property sold or processed outside of state until transportation is ended and article commingled with property within state does not affect former decision that statute is unconstitutional in its requirement that foreign seller must collect and pay tax on goods sold on orders given to non-resident solicitors, effective only when approved at home office, sales being completed by delivery to common carrier in foreign state by non-domesticated foreign corporation, having no place of business in this state. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

State has right to assess a use tax against its residents for use within state of property which has been transported to them in interstate commerce. Reichman-Crosby Co. v. Stone, 204 Miss. 122, 37 So. 2d 22, 1948 Miss. LEXIS 350 (Miss. 1948), dismissed, 339 U.S. 917, 70 S. Ct. 625, 94 L. Ed. 1342, 1950 U.S. LEXIS 2179 (U.S. 1950).

14. – Income taxes.

Income of a business operating in interstate commerce is not immune from a fairly apportioned state taxation. However, for a state to tax income generated in interstate commerce, the Due Process Clause of the Fourteenth Amendment and the Commerce Clause of the United States Constitution require that the tax must be applied to an activity with a substantial nexus with the taxing state, the tax must be fairly apportioned, the tax must not discriminate against interstate commerce, and the tax must be fairly related to services provided by the taxing state. Marx v. Truck Renting & Leasing Asso., 520 So. 2d 1333, 1987 Miss. LEXIS 2855 (Miss. 1987), overruled in part, Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

Section 27-65-23, which provides for a 6 percent tax on the gross income of a business which rents “transportation equipment with a situs within or without the State to common, contract or private commercial carriers,” and is taxed on that part of the income derived from use within the State, violates the Due Process Clause of the Fourteenth Amendment and the Commerce Clause of the United States Constitution because the tax is imposed on an activity without a substantial nexus within Mississippi. Marx v. Truck Renting & Leasing Asso., 520 So. 2d 1333, 1987 Miss. LEXIS 2855 (Miss. 1987), overruled in part, Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

A legislative delegation to the tax commission of the duty to determine the portion of taxable income of a given person or corporation which should be allocated to sources within the state is a delegation of a fact-finding duty, and where the legislature provided the standard to be followed in evaluating the taxpayer’s earned income in Mississippi, as distinguished from its earned income from other sources, such a delegation is not unconstitutional. Columbia Gulf Transmission Co. v. Barr, 194 So. 2d 890, 1967 Miss. LEXIS 1424 (Miss. 1967).

Laws 1934, ch. 120, § 3(1), as amended (Code 1942, § 9222 (1)(2)), and § 11(1)(a), as amended (Code 1942, § 9231(a)), imposing a tax on the net income of a foreign corporation attributable to its activities and ownership of property in Mississippi, although such property is used exclusively in the furtherance of the corporation’s interstate business, do not violate the commerce clause of the Federal Constitution. State Tax Com. v. Memphis Natural Gas Co., 197 Miss. 583, 19 So. 2d 477, 1944 Miss. LEXIS 325 (Miss. 1944).

A tax on net income does not unconstitutionally burden interstate commerce, although such income includes income derived from such commerce. State ex rel. Knox v. Gulf, M. & N. R. Co., 138 Miss. 70, 104 So. 689, 1925 Miss. LEXIS 106 (Miss. 1925).

15. – Carriers, taxation.

An ad valorem tax on leased trucks domiciled in Mississippi did not violate the commerce clause because it was both internally and externally consistent. Thomas Truck Lease, Inc. v. Lee County, 768 So. 2d 870, 1999 Miss. LEXIS 306 (Miss. 1999).

A state license tax for the privilege of operating a cotton warehouse and compress which receives cotton having at the time no ascertainable destination without the state but afterward shipped, upon the orders of holders of warehouse receipts therefor, in interstate commerce, does not impose a forbidden burden on interstate commerce, even though cotton coming to the warehouse by rail is, on being reshipped, given the benefit of a through rate from the point of origin to destination, and the company operating the warehouse and compress has been designated by an interstate rail carrier as its agent to receive the cotton from and deliver it to the railroad and to load and unload cotton upon and from its cars, and the warehouse has been designated by the railroad as a cotton depot. Federal Compress & Warehouse Co. v. McLean, 291 U.S. 17, 54 S. Ct. 267, 78 L. Ed. 622, 1934 U.S. LEXIS 486 (U.S. 1934).

A privilege tax levied on a sleeping car company is for the privilege of doing intra-state business and does not violate the commerce clause. Miller v. Gulf, M. & N. R. Co., 157 Miss. 69, 127 So. 690, 1930 Miss. LEXIS 266 (Miss. 1930).

A statute imposing a privilege tax on railroad companies based upon mileage and gross earnings, without excepting earnings derived from interstate commerce, does not impose an unconstitutional burden upon interstate commerce. New Orleans, M. & C.R. Co. v. State, 110 Miss. 290, 70 So. 355, 1915 Miss. LEXIS 37 (Miss. 1915).

Imposition on sleeping and palace car companies of a privilege tax of $100 and, in addition thereto, 25 cents per car mile, does not violate the commerce clause. Pullman Palace Car Co. v. Adams, 78 Miss. 814, 30 So. 757, 1901 Miss. LEXIS 158 (Miss. 1901), aff'd, 189 U.S. 420, 23 S. Ct. 494, 47 L. Ed. 877, 1903 U.S. LEXIS 1366 (U.S. 1903).

A privilege tax imposed by the state on sleeping car companies carrying passengers from one point to another within the state cannot be deemed an unconstitutional regulation of commerce because of the declaration in the state constitution that sleeping car companies are common carriers and so subject to liability as such where such provision is regarded by the state courts as imposing no obligation on the company to transport local passengers. Pullman Co. v. Adams, 189 U.S. 420, 23 S. Ct. 494, 47 L. Ed. 877, 1903 U.S. LEXIS 1366 (U.S. 1903).

16. – Telegraph and telephones, taxation.

Privilege taxes measured by the number of miles of telegraph line within the state, on the line and on the business carried, does not violate the commerce clause, such taxes being levied for the privilege of doing a domestic business. Postal Telegraph-Cable Co. v. Miller, 155 Miss. 522, 124 So. 434, 1929 Miss. LEXIS 300 (Miss. 1929).

A charge levied by the state upon a foreign telegraph company doing business within the state and also doing interstate business in the form of a franchise tax–but arrived at with reference to, and graduated according to, the value of its property within the state, and in lieu of all other taxes, and held by the highest tribunal of the state to be a just equivalent for other taxes, does not amount to a regulation of interstate commerce nor put an unconstitutional restraint thereon. Stuart v. City of Easton, 156 U.S. 46, 15 S. Ct. 268, 39 L. Ed. 341, 1895 U.S. LEXIS 452 (U.S. 1895).

17. – Gas and petroleum products, taxation.

Where a foreign corporation was engaged in constructing pipelines, and the work was new construction work and pipeline companies furnished right of way and pipe, and the pipelines had not become instrumentalities of interstate commerce, a sales tax imposed upon the foreign corporation was not invalid as a direct burden on interstate commerce. Anderson Bros. Corp. v. Stone, 227 Miss. 26, 85 So. 2d 767, 1956 Miss. LEXIS 653 (Miss. 1956).

A privilege tax, imposed upon an interstate pipeline operator whose operations were wholly and exclusively in interstate commerce, violated the commerce clause of the Federal Constitution and was not proper subject of state taxation. Coleman v. Trunkline Gas Co., 218 Miss. 285, 63 So. 2d 73, 1953 Miss. LEXIS 543 (Miss.), cert. denied, 346 U.S. 824, 74 S. Ct. 41, 98 L. Ed. 349, 1953 U.S. LEXIS 1789 (U.S. 1953).

Transportation of oil from places within the state to destinations outside the state, either by interstate trunk pipelines or railroads, on a continuous journey, constitutes that character of commerce “which the State of Mississippi is prohibited from taxing under the Constitution of the United States.” Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

State privilege tax, equal to 2 per cent of the gross income of its intrastate business, imposed by Code 1942 §§ 10105 and 10109 upon a foreign pipeline company transporting oil in its pipelines from lease tanks in various oil fields in Mississippi to loading racks adjacent to railroads in such state, does not offend the commerce clause of the Federal Constitution, notwithstanding that while there was no through bill of lading from the point of origin at the field to the destination outside the state, the oil, when delivered to the taxpayer, was accompanied by shipping orders from the producer or owner directing that it be transported to out-of-state destination. Interstate Oil Pipe Line Co. v. Stone, 337 U.S. 662, 69 S. Ct. 1264, 93 L. Ed. 1613, 1949 U.S. LEXIS 2952 (U.S. 1949).

Imposition of franchise tax (Code 1942 § 9314) measured by the value of capital used, invested or employed within the state held not unconstitutionally to burden interstate commerce in the case of an interstate natural gas pipeline company, a portion of whose line passed through the state but which did no local business therein. Memphis Natural Gas Co. v. Stone, 335 U.S. 80, 68 S. Ct. 1475, 92 L. Ed. 1832, 1948 U.S. LEXIS 2808 (U.S. 1948), but see, Western M. R.R. v. Goodwin, 167 W. Va. 804, 282 S.E.2d 240, 1981 W. Va. LEXIS 667 (W. Va. 1981).

Laws 1934, ch. 120, § 3(1), as amended (Code 1942, § 9222), and § 11(1), as amended (Code 1942, § 9231), imposing a tax on the net income derived from the sale by foreign corporation of natural gas at wholesale to a nonresident-corporation doing business in Mississippi, delivered at various points in Mississippi along such corporation’s main pipe line extending from gas field in Louisiana, through Arkansas and Mississippi, and terminating at Memphis, Tennessee, do not contravene the commerce clause of the Federal Constitution. State Tax Com. v. Memphis Natural Gas Co., 197 Miss. 583, 19 So. 2d 477, 1944 Miss. LEXIS 325 (Miss. 1944).

A privilege tax on gasoline neither sold nor distributed in package in which it was shipped from a sister state, but only after it had been transferred therefrom and in broken quantities, held not objectionable as burden on interstate commerce. Treas v. Price, 167 Miss. 121, 146 So. 630, 1933 Miss. LEXIS 88 (Miss. 1933).

The state privilege tax imposed upon foreign corporations selling to distributors in the state, natural gas, piped from another state, after reducing the pressure, unconstitutionally burdens interstate commerce. State Tax Com. v. Interstate Natural Gas Co., 284 U.S. 41, 52 S. Ct. 62, 76 L. Ed. 156, 1931 U.S. LEXIS 460 (U.S. 1931).

18. – Miscellaneous taxes.

Appellants were not entitled to attorney’s fees under 42 U.S.C.S. § 1988, even though they correctly alleged that Miss. Code Ann. 27-70-5 (2010) violated the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, as they had an adequate remedy, which they invoked, declaratory relief under Miss. R. Civ. P. 57; under the Tax Injunction Act, 28 U.S.C.S. § 1341, the constitutionality of a state tax could not be challenged under 42 U.S.C.S. § 1983 in state court if an adequate remedy was available under state law. Commonwealth Brands v. Morgan, 110 So.3d 752, 2013 Miss. LEXIS 141 (Miss. 2013).

Privilege tax (Laws 1944, ch. 137, § 143) imposed on persons taking photographs in the state and developing the same outside the state at a slightly higher rate than that imposed on resident photographers does not violate the commerce clause when construed as a tax only on the person who actually takes the pictures, the tax being payable in every county and municipality wherein he takes photographs. Craig v. Mills, 203 Miss. 692, 33 So. 2d 801, 1948 Miss. LEXIS 315 (Miss. 1948).

The local activity of a foreign corporation, not qualified to do business in the state as such, performed in the installation, adjustment and testing of certain air conditioning systems in buildings located in the state and constituting a substantial part of the performance of the contract for the sale of the machinery and equipment which it manufactured outside the state and shipped into the state in interstate commerce for use in air conditioning such buildings, was subject to the tax imposed by state statute; and the imposition of such tax was not a violation of the interstate commerce clause of the United States Constitution. Stone v. York Ice Machinery Corp., 193 Miss. 638, 10 So. 2d 380, 1942 Miss. LEXIS 145 (Miss. 1942).

Assuming that the mailing of securities from the office of a dealer in Mississippi to the office of a finance company outside the state should be deemed to transact the business of interstate commerce, a tax placed upon doing business of purchasing and acquiring promissory notes, etc., secured by liens, was not a tax on the particular transaction, whether they took place in the state in interstate commerce, or wholly without the state, but the tax is on the privilege of engaging in those activities which were defined in the statute as doing business in the state. C.I.T. Corp. v. Stone, 193 Miss. 344, 7 So. 2d 811, 1942 Miss. LEXIS 85 (Miss.), aff'd, 317 U.S. 591, 63 S. Ct. 66, 87 L. Ed. 484, 1942 U.S. LEXIS 236 (U.S. 1942).

A franchise or excise tax imposed on a foreign corporation, having qualified to do business in the state of Mississippi as such, and owning pipelines and telephone lines in such state, and measured by the amount of capital used, invested or employed within the state, did not violate the commerce clause regardless of whether such corporation was engaged solely in interstate commerce, where such tax was neither discriminatory against foreign corporations or against interstate commerce, the tax being imposed upon business corporations having capital in Mississippi just for being there with their capital and not directly affecting interstate transportation. Stone v. Interstate Natural Gas Co., 103 F.2d 544, 1939 U.S. App. LEXIS 3610 (5th Cir. Miss.), aff'd, 308 U.S. 522, 60 S. Ct. 292, 84 L. Ed. 442, 1939 U.S. LEXIS 16 (U.S. 1939).

Question whether ordinance imposing privilege tax on operator of steamers conducting pleasure excursions was invalid because operator’s steamers were duly licensed by Federal Government to operate excursions on navigable streams could not be determined, where operator offered no evidence on such question. Streckfus Steamers, Inc. v. Kiersky, 174 Miss. 125, 163 So. 830, 1935 Miss. LEXIS 46 (Miss. 1935).

A tobacco tax statute requiring a retailer purchasing from a wholesaler not having permit to present tobacco to wholesaler having permit to have stamps affixed does not burden interstate commerce. Edward Hines Lumber Co. v. Hall, 148 So. 373 (Miss. 1933).

A state privilege tax on express companies does not, as applied to a company doing both an intrastate and an interstate business, unconstitutionally burden interstate commerce. Robertson v. Southeastern Express Co., 130 Miss. 305, 94 So. 210, 1922 Miss. LEXIS 206 (Miss. 1922), aff'd, 264 U.S. 535, 44 S. Ct. 421, 68 L. Ed. 836, 1924 U.S. LEXIS 2534 (U.S. 1924).

A tax of three cents a barrel on oysters packed or canned in the state, or shipped raw by dealers, may constitutionally be applied to oysters taken from the waters of another state. Barataria Canning Co. v. State, 101 Miss. 890, 58 So. 769, 1912 Miss. LEXIS 23 (Miss. 1912).

19. Bankruptcy laws.

The enactment of a Federal bankruptcy law supersedes all state laws and state constitutional provisions on the subject. McRaney v. Riley, 128 Miss. 665, 91 So. 399, 1922 Miss. LEXIS 156 (Miss.), cert. denied, 260 U.S. 727, 43 S. Ct. 90, 67 L. Ed. 484, 1922 U.S. LEXIS 2635 (U.S. 1922).

In the field of bankruptcy, Federal legislation is supreme. Russell v. Cheatham, 16 Miss. 703, 1847 Miss. LEXIS 75 (Miss. 1847).

20. Post offices and post roads.

That a telegraph company secured its right to erect its lines along the post roads in the state from the Federal government does not release it from any and all local police regulation. Western Union Tel. Co. v. Mississippi R. Com., 74 Miss. 80, 21 So. 15, 1896 Miss. LEXIS 145 (Miss. 1896).

21. Copyright laws.

Sale of home videotape recorders to general public does not constitute contributory infringement of copyrights on television programs since there is significant likelihood that substantial numbers of copyright holders who license their work for broadcast on free television would not object to having their broadcasts time-shifted by private viewers; furthermore, plaintiff copyright holders in this case did not demonstrate that time-shifting would cause any likelihood of non-minimal harm to potential market for, or value of, their copyrighted work. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S. Ct. 774, 78 L. Ed. 2d 574, 1984 U.S. LEXIS 19 (U.S. 1984).

22. Regulation of land and naval forces.

Statute providing proceeds of adjusted service certificates should not be subject to attachment, levy, or seizure was passed by Congress under authority of war powers and is binding on State. De Baum v. Hulett Undertaking Co., 169 Miss. 488, 153 So. 513, 1934 Miss. LEXIS 66 (Miss. 1934).

§ 9. Powers Prohibited to United States

1. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

2. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

3. No bill of attainder or ex post facto law shall be passed.

4. No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

5. No tax or duty shall be laid on articles exported from any State.

6. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another: nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.

7. No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

8. No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

Editor’s Note —

The second paragraph is popularly known as the “Suspension Clause.”

Parts of the third paragraph are popularly known as the “Bill of Attainder Clause” and the “Ex Post Facto Clause.”

The third paragraph of Article I, § 2, and the fourth paragraph of this section are popularly known as the “Direct Tax Clauses.”

The fourth paragraph has been affected by the Sixteenth Amendment.

The fifth paragraph is popularly known as the “Export Clause.”

The sixth paragraph is popularly known as the “Port Preference Clause.”

Parts of the seventh paragraph are popularly known as the “Appropriations Clause” and the “Statement and Accounts Clause.”

Cross References —

Attainder of treason, see USCS Const. Art. III, § 3, cl. 2.

Apportionment of direct taxes, generally, see USCS Const., Art. I, § 2, cl. 3.

Federal income tax, see USCS Const. Amend. XVI.

Similar limitation of state power concerning ex post facto laws, see USCS Const. Art. I, § 10.

RESEARCH REFERENCES

Am. Jur.

3B Am. Jur. 2d, Aliens and Citizens §§ 1613, 1848.

16A Am. Jur. 2d, Constitutional Law § 247, 689-734.

21A Am. Jur. 2d, Custom Duties and Import Regulations §§ 2, 8.

23 Am. Jur. 2d, Descent and Distribution § 41.

32 Am. Jur. 2d, Federal Courts § 466.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies §§ 3, 4, 92.

50 Am. Jur. 2d, Larceny § 62.

77 Am. Jur. 2d, United States § 49.

Lawyers’ Edition.

Writ of habeas corpus ad prosequendum in federal courts—federal cases. 5 L Ed 2d 964.

Necessity of hearing in federal habeas corpus proceedings challenging validity of conviction of crime—Supreme Court cases. 9 L Ed 2d 1246.

Supreme Court’s construction and application of Federal Constitution’s suspension clause (Art I, § 9, cl 2), restricting suspension of privilege of writ of habeas corpus. 135 L Ed 2d 1169.

JUDICIAL DECISIONS

1. Habeas corpus.

2. Ex post facto law.

1. Habeas corpus.

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art. I § 9 of the United States Constitution and Art. 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. Mississippi, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

Conditional grant of writ of habeas corpus by federal habeas corpus court simply requires state to release defendant from custody based upon invalid convictions unless he is retried within certain number of days or months; this allows state to retain person in custody pursuant to invalid conviction for this period without releasing him; conditional grant does not prevent state from retrying defendant after expiration of time set in order of court; it only requires that defendant be released from custody on basis of conviction that was vacated; thus, defendant was still properly in custody of State of Mississippi on basis of valid indictment lodged against him and detainers placed on him by other states and jurisdictions. Pruett v. State, 512 So. 2d 689, 1987 Miss. LEXIS 2784 (Miss. 1987).

2. Ex post facto law.

The amendment to Miss. Code Ann. §47-5-138.1 was not an ex post facto law; even though the amended statute held that an offender was not eligible for trusty status if the offender was convicted of trafficking in controlled substances, defendant continued to receive the 10 days for 30 days time benefit under the prior statute. Ross v. Epps, 922 So. 2d 847, 2006 Miss. App. LEXIS 141 (Miss. Ct. App. 2006).

No constitutional prohibition existed on the Mississippi Department of Corrections’ new interpretation of Miss. Code Ann. §99-19-21 where administrative correction of a prior misinterpretation of parole laws did not violate the ex post facto clause; because the Mississippi parole statutes used the word “may” rather than “shall,” prisoners had no constitutionally recognized liberty interest in parole. Snow v. Johnson, 913 So. 2d 334, 2005 Miss. App. LEXIS 257 (Miss. Ct. App. 2005).

5 USCS § 8148(a), which concerns disability benefit eligibility, does not implicate the ex post facto clause of this section or violate the Eighth Amendment. Garner v. United States DOL, 221 F.3d 822, 2000 U.S. App. LEXIS 21105 (5th Cir. Miss. 2000), cert. denied, 532 U.S. 906, 121 S. Ct. 1230, 149 L. Ed. 2d 140, 2001 U.S. LEXIS 2025 (U.S. 2001).

§ 10. Powers Prohibited to States

1. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts, or grant any title of nobility.

2. No State shall, without the consent of the congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.

3. No State shall, without the consent of congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Editor’s Note —

Parts of paragraph 1 are popularly known as the “Treaty or Alliance Clause”, the “Ex Post Facto Clause” and the “Contracts Clause.”

The part of paragraph 1 dealing with ex post facto laws and the part of paragraph 3 of Article I, § 9, dealing with the same are popularly known as the ‘Ex Post Facto Clauses.”

Paragraph 2 is popularly known as the “Import-Export Clause.”

Parts of paragraph 3 are popularly known as the “Tonnage Clause” and the “Compact Clause.”

Cross References —

Power of Congress as to coinage and money, generally, see USCS Const., Art. I, § 8, cls. 2, 5.

Congress as prohibited from passing bills of attainder or ex post facto laws, USCS Const., Art. I, § 9, cl. 3.

Congress as prohibited from laying tax or duty on articles exported from any state, see USCS Const., Art. I, § 9, cl. 5

United States as prohibited from granting titles of nobility, see USCS Const., Art. I, § 9, cl. 8.

Attainder of treason, see USCS Const. Art. III, § 3, cl. 2.

ATTORNEY GENERAL OPINIONS

The amendment to subsection (1), denying certain offenders eligibility for the Intensive Supervision Program has no effect on the length of incarceration and consequently does not violate the ex post facto clause when applied to those convicted prior to its passage. 2001 Miss. Op. Att'y Gen. 673.

RESEARCH REFERENCES

ALR.

Statute providing for apportionment between lessor and lessee of a tax imposed upon the producer of oil, gas, or other natural production as violation of the constitutional provision against impairment of the obligation of contracts. 160 A.L.R. 980.

Comment note–Tax exemptions and the contract clause. 173 A.L.R. 15.

Constitutionality, construction, and application of statute or ordinance providing for reduction of pension or retirement benefit of public officer or employee because of independent income. 7 A.L.R.2d 692.

Am. Jur.

4 Am. Jur. 2d, Ambassadors, Diplomats and Consular Officials § 1.

7A Am Jur 2d, Automobiles and Highway Traffic § 142.

9 Am. Jur. 2d, Bankruptcy § 11.

9A Am. Jur. 2d, Bankruptcy §§ 1405, 1522.

15A Am. Jur. 2d, Civil Service § 5.

16A Am. Jur. 2d, Constitutional Law §§ 222, 382, 392-394.

16B Am. Jur. 2d, Constitutional Law §§ 689-734, 753-789.

21 Am Jur 2d, Criminal Law § 503.

21A Am Jur 2d, Custom Duties and Import Regulations §§ 1, 153.

23 Am. Jur. 2d, Descent and Distribution § 41.

26 Am. Jur. 2d, Eminent Domain §§ 8, 96.

32A Am. Jur. 2d, Federal Courts § 919.

36 Am. Jur. 2d, Foreign Corporations §§ 174, 185.

39 Am. Jur. 2d, Highways, Streets, and Bridges § 264.

42 Am. Jur. 2d, Insolvency § 3.

44A Am. Jur. 2d, Insurance § 1689.

45 Am Jur 2d, Intoxicating Liquors § 30.

49 Am. Jur. 2d, Landlord and Tenant § 835.

59A Am. Jur. 2d, Partnership § 120.

60 Am. Jur. 2d, Peddlers, Solicitors, and Transient Dealers § 62.

64 Am. Jur. 2d, Public Securities and Obligations § 325.

67B Am Jur 2d, Sales and Use Taxes §§ 9, 10, 146.

70 Am Jur 2d, Shipping § 77.

82 Am. Jur. 2d, Workers’ Compensation § 9.

CJS.

C.J.S. Commerce § 120.

C.J.S. Constitutional Law §§ 409-413, 421-431.

C.J.S. Payment § 10.

C.J.S. States §§ 31-34, 143, 251.

C.J.S. Treaties § 4.

C.J.S. United States § 162.

Lawyers’ Edition.

Effect on state or local taxes of Federal Constitution’s import-export clause (Art I, § 10, cl 2)—Supreme Court cases. 122 L Ed 2d 853.

Supreme Court’s construction and application of Federal Constitution’s Art. I, § 10, cl. 3 provision that no state, without consent of Congress, shall lay any duty of tonnage. 174 L Ed 2d 637.

JUDICIAL DECISIONS

1. State compacts.

2. Bills of credit.

3. Ex post facto laws – In general.

4. – Crimes and offenses, ex post facto laws.

5. – Sentences and punishment, ex post facto laws.

6. Impairment of contract obligations – In general.

7. – Change in judicial decision, impairment of contract obligations.

8. – Changing limitation period, impairment of contract obligations.

9. – Debtor’s exemptions, impairment of contract obligations.

10. – Moratory legislation, impairment of contract obligations.

11. – Tax liability, impairment of contract obligations.

12. – Tax sales, impairment of contractual obligations.

13. – Municipal corporations, impairment of contract obligations.

14. – State grants and contracts, impairment of contract obligations.

15. – Public indebtedness, impairment of contract obligations.

16. – Public office, impairment of contract obligations.

17. – Banks and banking, impairment of contract obligations.

18. – Corporate charter, impairment of contract obligations.

19. – Franchises and privileges, impairment of contract obligations.

20. – Retirement death benefits, impairment of contract obligations.

21. Imposts or duties.

22. Wharfage.

1. State compacts.

Where a parolee was arrested in Mississippi by agreement between Mississippi and sending state, pending his being retaken by authorities of the sending state under the statute which provides that parolee who is in receiving state by agreement between receiving and sending state may be retaken, this did not violate the parolee’s constitutional right. Stone v. Robinson, 219 Miss. 456, 69 So. 2d 206, 1954 Miss. LEXIS 352 (Miss. 1954).

The consent of Congress to a compact between states may be manifested by resolution as well as by formal act. State v. Cunningham, 102 Miss. 237, 59 So. 76, 1912 Miss. LEXIS 49 (Miss. 1912).

Compact between Mississippi and Arkansas, that the jurisdiction of each over criminal offenses shall extend from shore to shore of the Mississippi river, sustained. State v. Cunningham, 102 Miss. 237, 59 So. 76, 1912 Miss. LEXIS 49 (Miss. 1912).

2. Bills of credit.

Warrants on the state treasury, issued by the auditor of public accounts, are not bills of credit within the meaning of this provision. Pagaud v. State, 13 Miss. 491, 1845 Miss. LEXIS 91 (Miss. 1845).

3. Ex post facto laws – In general.

The retroactive application of the 1995 amendment to the statute, which substantively changed the elements of the crime by deleting the requirement of proving that the children were left in destitute and necessitous circumstances and raising the age of the children protected, violated the constitutional prohibition against ex post facto laws. Knowles v. State, 708 So. 2d 549, 1998 Miss. LEXIS 57 (Miss. 1998).

When there is state constitutional entitlement to some due process right, state may not enact legislation to impede that right under ex post facto analysis. Christmas v. State, 700 So. 2d 262, 1997 Miss. LEXIS 246 (Miss. 1997).

Statutes regulating the selection of grand and petit jurors are not ex post facto as applied in the case of one charged with homicide committed before their enactment. Gibson v. Mississippi, 162 U.S. 565, 16 S. Ct. 904, 40 L. Ed. 1075, 1896 U.S. LEXIS 2233 (U.S. 1896).

Retrospective legislation, other than that undertaking to punish as a crime an act which was indifferent at the time of its performance, does not violate the provision against ex post facto laws. Carson v. Carson, 40 Miss. 349, 1866 Miss. LEXIS 76 (Miss. 1866).

4. – Crimes and offenses, ex post facto laws.

Trial court erred in summarily dismissing a prisoner’s motion for post-conviction relief; an evidentiary hearing was necessary to decide whether application of the amended version of Miss. Code Ann. §47-5-138.1 to the prisoner, who had pleaded guilty to the crime of sale and transfer of cocaine, constituted an ex post facto violation. Gray v. State, 13 So.3d 283, 2008 Miss. App. LEXIS 611 (Miss. Ct. App. 2008), cert. denied, 2009 Miss. LEXIS 344 (Miss. July 23, 2009).

Defendant’s conviction for conspiracy to violate Racketeer Influenced and Corrupt Organizations Act (RICO) arising from alleged scheme to defraud Mississippi casino did not violate ex post facto clause to extent that underlying offenses occurred prior to Mississippi’s enactment of statutes that prohibited cheating at gambling games and marking or altering of gaming equipment or devices, given absence of showing that cheating at gambling was legal in Mississippi prior to statutes’ enactment. United States v. Vaccaro, 115 F.3d 1211, 1997 U.S. App. LEXIS 13724 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1047, 118 S. Ct. 689, 139 L. Ed. 2d 635, 1998 U.S. LEXIS 57 (U.S. 1998).

Prosecution for fondling under amendment to statute of limitations extending limitation period in effect at time of crime was not ex post facto violation; statute of limitations is procedural and does not come within recognized exception creating substantive right as fondling statute is separate from limitations period statute, defendant’s acts were criminal at time of their commission, and defendant was not subjected to longer punishment by prosecution under lengthier limitations period. Christmas v. State, 700 So. 2d 262, 1997 Miss. LEXIS 246 (Miss. 1997).

Section 97-3-95(c) was not applied retroactively to defendant where subsection (c) was added to statute in 1983 to be effective from and after March 29, 1983, and incident giving rise to prosecution occurred in August, 1983. Cantrell v. State, 507 So. 2d 325, 1987 Miss. LEXIS 2478 (Miss. 1987).

An administrative correction of a prior misinterpretation of parole laws is not a change in the law so as to violate the ex post facto clause of the United States or Mississippi Constitutions; even if the correction of a former mistaken interpretation of parole law did reach the level of a change in law, administrative decisions with regard to parole law eligibility are not “laws annexed to the crime when committed.” Taylor v. Mississippi State Probation & Parole Board, 365 So. 2d 621, 1978 Miss. LEXIS 2418 (Miss. 1978).

No indictment may be brought under a statute for an offense committed before the statute was a law. Barton v. State, 94 Miss. 375, 47 So. 521, 1908 Miss. LEXIS 12 (Miss. 1908).

An amendment eliminating a qualifying clause from a statute making it an offense to carry concealed weapons, and fixing a minimum penalty, is, as applied to conduct prior to its enactment, unconstitutional as an ex post facto law. Lindsey v. State, 65 Miss. 542, 5 So. 99, 1888 Miss. LEXIS 41 (Miss. 1888).

5. – Sentences and punishment, ex post facto laws.

After the supreme court remanded defendant’s matter for resentencing and the circuit court resentenced defendant to life imprisonment without the possibility of parole, defendant challenged the applicability of Miss. Code Ann. §99-19-107; however, defendant’s challenge was procedurally barred because defendant failed to raise the issue before the matter was remanded, and further, application of that statute as opposed to Miss. Code Ann. §97-3-21, which was in effect at the time of the commission of the offense, did not violate ex post facto provisions. Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Bell v. State, 160 So.3d 188, 2015 Miss. LEXIS 4 (Miss. 2015).

The application of the amended capital sentencing statute, §97-3-21, ameliorated the stark options that were presented to pre-amendment juries, and, therefore, the retroactive application of the statute does not give rise to an illegal ex post facto law. West v. State, 725 So. 2d 872 (Miss. 1998), overruled by Wilson v. State, 194 So.3d 855 (Miss. 2016), to the extent that West improperly changed Section99-19-33 to substitute the word ‘shall‘ for the word ‘may‘ in the first sentence, thereby issuing a holding that would hold trial courts in error for sentencing a defendant under the older of two sentencing statutes.

The amendment of §97-3-21 to include life imprisonment without parole as a possible sentence was ameliorative and not onerous as the amendment did not increase the possible penalty for murder; thus, the application of the amended statute in the prosecution of a defendant for a murder that occurred before the effective date of the amendment did not violate the ex post facto clause of the federal constitution. Tavares v. State, 725 So. 2d 803, 1998 Miss. LEXIS 277 (Miss. 1998).

Application of amendment to state statute which allows decrease in frequency of parole suitability hearings to prisoners who committed their crimes before enactment of statute does not violate Ex Post Facto Clause of United States Constitution. California Dep't of Corrections v. Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed. 2d 588, 1995 U.S. LEXIS 3037 (U.S. 1995).

In a capital murder prosecution arising from a murder committed in 1976, the application of §99-19-81 in sentencing the defendant constituted an ex post facto law in violation of Art. I, § X of the United States Constitution and Art. 3, § 16 of the Mississippi Constitution because §99-19-81 was not yet in effect at the time the murder was committed; the defendant should have been sentenced pursuant to §97-3-21, which governed the penalty for capital murder in 1976. Johnston v. State, 618 So. 2d 90, 1993 Miss. LEXIS 181 (Miss. 1993).

A 7-year sentence for armed robbery committed with a knife in 1980 in violation of §97-3-79 was not an unconstitutional application of an ex post facto law, even though §47-7-3 denied eligibility for parole prior to 1982 only when a robbery was committed with the display of a firearm, where the sentencing order merely established that the defendant serve 7 years and made no mention of “mandatory” or “without parole.” Additionally, the sentencing chapter and the parole chapter are separate and distinct; the granting of parole or denial of parole under §47-7-3 is the exclusive responsibility of the state parole board, which is independent of the circuit court’s sentencing authority. Thus, sentencing authority was provided for under §97-3-79, rather than § 47-7-3, and the defendant was not “sentenced” under the parole statute, which was later amended. Mitchell v. State, 561 So. 2d 1037, 1990 Miss. LEXIS 258 (Miss. 1990).

A petitioner who enters a guilty plea to armed robbery pursuant to plea bargain agreement upon erroneous advice of counsel that petitioner will be eligible for earned good time and will be subject to release after serving 7 years of sentence is not subjected to ex post facto law when Mississippi Department of Corrections changes administrative policy to comply with §§47-5-139 and47-7-3, causing petitioner to serve minimum of 10 years. Coleman v. State, 483 So. 2d 680, 1986 Miss. LEXIS 2336 (Miss. 1986).

Defendant’s argument, after being sentenced as a habitual offender to 15 years in prison without eligibility for probation or parole following his conviction for uttering a forged check, that the enhancement statute (§99-19-81) constituted an ex post facto law in violation of the United States Constitution, Art. I, § 10, inasmuch as his prior convictions had occurred before the enhancement statute became effective, was without merit, where defendant’s sentence as a habitual criminal was not to be viewed as either a new jeopardy or an additional penalty for his earlier crimes, but rather, as a stiffened penalty for his latest crime, which was an aggravated offense in that it was a repetitive one. Smith v. State, 465 So. 2d 999, 1985 Miss. LEXIS 1918 (Miss. 1985).

Application of sentencing enhancement statute (§99-19-81) to convicted defendant whose prior convictions occurred before January 1, 1977, date §99-19-81 became effective, does not violate ex post facto clause of United States Constitution. Smith v. State, 465 So. 2d 999, 1985 Miss. LEXIS 1918 (Miss. 1985).

Defendant who committed capital murder and was originally tried prior to enactment of current death penalty statute (§§99-19-101 et seq.) may nonetheless be sentenced to death under that statute, which does not affect substance of capital murder law but merely changes procedure by which capital cases are to be tried. Jordan v. State, 464 So. 2d 475, 1985 Miss. LEXIS 1880 (Miss. 1985), vacated, 476 U.S. 1101, 106 S. Ct. 1942, 90 L. Ed. 2d 352, 1986 U.S. LEXIS 2914 (U.S. 1986).

A defendant convicted of armed robbery after 1977 and sentenced to serve less than 10 years in the penitentiary, and who was therefore not eligible for parole pursuant to §47-7-3, was not subjected to enforcement of an ex post facto law by a policy of the Department of Corrections administratively barring him from earning good time after January, 1981, although good time earned prior to that date was not taken away, notwithstanding the provisions of §47-5-139(7), since the statutory provisions regarding good time remained unchanged, and since administrative interpretation of a clearly worded statute is not a “law” within the scope and contemplation of the ex post facto clauses of the federal and state Constitutions. Tiller v. State, 440 So. 2d 1001, 1983 Miss. LEXIS 2981 (Miss. 1983).

An inmate was properly denied credit for time served upon her original sentence for time spent out of prison on parole prior to its revocation, even though credit is allowed for time spent on work release, which is functionally similar to parole; nor did denying her credit for time served while on parole deprive her of rights secured under the double jeopardy clause, deny her due process of law, or subject her to an ex post facto law. Segarra v. State, 430 So. 2d 408, 1983 Miss. LEXIS 2578 (Miss. 1983).

Where sale of marijuana for which appellant was convicted occurred when maximum penalty for such sale was four years imprisonment or a fine of two thousand dollars, or both, trial court erred in sentencing appellant to a term of ten years and fining him five thousand dollars under provisions of Code 1972, §41-29-139, which did not become effective until after sale in question had occurred; punishment for a crime may not be increased after the crime has been committed under the provisions of Miss. Const. § 16 and U.S. Const. Art. 1 § 10 Cl. 1. King v. State, 304 So. 2d 650, 1974 Miss. LEXIS 1466 (Miss. 1974).

Where a new law gave condemned a choice as to the method of infliction of death penalty, the law was not an ex post facto law as to persons who were sentenced to death before the enactment of statute. Wetzel v. Wiggins, 226 Miss. 671, 85 So. 2d 469, 1956 Miss. LEXIS 448 (Miss.), cert. denied, 352 U.S. 807, 77 S. Ct. 80, 1 L. Ed. 2d 39, 1956 U.S. LEXIS 400 (U.S. 1956).

6. Impairment of contract obligations – In general.

Miss. Const. Art. 3, § 16 and U.S. Const. Art. 1, § 10, cl. 1 were violated when a decision was retroactively applied to releases executed in a personal injury case; the law in effect at the time the releases were executed stated that the release of an agent had no effect on a principal’s vicarious liability. The validity and obligation of a contract could not have been impaired by a court decision altering the construction of the law. Whitaker v. T & M Foods, Ltd., 7 So.3d 893, 2009 Miss. LEXIS 166 (Miss. 2009).

Section 25-11-103(f), which provides that the spouse of a member of the Public Employees’ Retirement System shall be the member’s beneficiary unless the member has designated another beneficiary subsequent to the date of marriage, does not constitute an unreasonable impairment of an employee’s contractual right contrary to the United States and Mississippi Constitutions because it provides protection to those whose spouse fails to redesignate due to “inadvertence” while allowing an employee to make a “conscious decision” to redesignate if he or she does not want his or her spouse to receive the death benefits. Dillon v. Beal, 632 So. 2d 1298, 1994 Miss. LEXIS 113 (Miss. 1994).

A college, consumer of electricity, was not denied due process when it was given an opportunity to be heard (which it utilized fully) in a proceeding in which the public service commission issued a cease and desist order against one utility company which was furnishing service to the college within the certificated area of another utility; nor did the issuance of the order impair the contract between the college and the first utility company, for the contract was not paramount to the legislative authority vested in the commission at the time the contract was made. Ford v. State, 218 So. 2d 707, 1969 Miss. LEXIS 1611 (Miss. 1969).

In an eminent domain action where both a mortgagor and mortgagee were parties defendant it was error to grant an instruction that under Article 1, § 10, of the United States Constitution, no state should enact a law impairing the obligation of prior contracts, for the reason that such an instruction had no place in the action. Mississippi State Highway Com. v. Nixon, 253 Miss. 636, 178 So. 2d 680, 1965 Miss. LEXIS 1022 (Miss. 1965).

Where, under the law of Georgia where the contract was made, the workmen’s compensation carrier was not obligated to pay to any person any benefits under any compensation law except the Georgia Act, the liability of the carrier might not be extended by application of the Mississippi Workmen’s Compensation Act contrary to the express terms of the policy. Mandle v. Kelly, 229 Miss. 327, 92 So. 2d 246, 1957 Miss. LEXIS 303 (Miss. 1957).

Where the circuit court reversed an order of the state oil and gas board integrating all interest in gas under lands in two drilling units as authorized by statute, and where on appeal it was argued that the statute and order violated due process and the impairment of contract clause of the state and federal constitutions, the supreme court must decide the question of constitutionality of statute although the judgment was not based on any constitutional grounds. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).

The constitutional provision that “laws impairing the obligation of contract shall not be passed” is qualified by proper exercise of the police power of the state. Superior Oil Co. v. Foote, 214 Miss. 857, 59 So. 2d 85, 1952 Miss. LEXIS 524 (Miss. 1952).

Where on former appeals, terminating in a decision by the Federal Supreme Court, the point raised by demurrer to insurer’s plea involved the question whether a provision in a fidelity bond requiring any claim thereunder to be made within 15 months after the termination of the suretyship, was subject to the law of Tennessee where the contract was made at a time when the insured was then located in Tennessee, or subject to the laws of Mississippi, to which insured had removed and where the defalcation occurred, and resulted in a determination that the laws of Tennessee governed, such determination did not preclude subsequent litigation as to the effect of such provision under Tennessee decisions as being a condition precedent to liability of the insurer or merely a postponement of the right to sue. Hartford Acci. & Indem. Co. v. Delta & Pine Land Co., 189 Miss. 496, 195 So. 667, 1940 Miss. LEXIS 100 (Miss.), cert. denied, 311 U.S. 610, 61 S. Ct. 25, 85 L. Ed. 387 (U.S. 1940).

Constitution is not violated by statute where rights existing thereunder are neither taken away nor diminished and reasonable time is provided in which they may be enforced. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

“Obligation of contract” within constitutional provisions means law under which contract was made as well as all remedies for its enforcement or after provided remedies equally adequate. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

Legislation of State impairing obligation of contract made under its authority is void, and courts in enforcing contract will pursue same course and apply same remedies as though such void legislation had never existed. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

A duty arising by operation of law is not a contract in the constitutional sense. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

The inhibition of state legislation impairing the obligation of contracts does not apply to acts of Congress dealing with interstate matters. W.M. Carter Planing Mill Co. v. New Orleans, M. & C. R.R., 112 Miss. 148, 72 So. 884, 1916 Miss. LEXIS 79 (Miss. 1916).

A statute providing that contracts for the payment of money entered into between certain dates shall be presumed to have intended Confederate money, does not unconstitutionally impair the obligation of such contracts. Cowan v. McCutchen, 43 Miss. 207, 1870 Miss. LEXIS 26 (Miss. 1870).

Statutes allowing, increasing, or diminishing the rate of, interest may not constitutionally be given a retrospective operation. Eastin v. Vandorn, 1 Miss. 214, 1826 Miss. LEXIS 1 (Miss. 1826).

7. – Change in judicial decision, impairment of contract obligations.

The validity of a sale of state land pursuant to the law as expounded by the state supreme court, cannot be impaired by any subsequent decision altering the construction of the law. Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247, 1910 Miss. LEXIS 317 (Miss. 1910).

The contract clause cannot be invoked against a change of decision by a state court. National Mut. Bldg. & Loan Asso. v. Brahan, 193 U.S. 635, 24 S. Ct. 532, 48 L. Ed. 823, 1904 U.S. LEXIS 904 (U.S. 1904).

8. – Changing limitation period, impairment of contract obligations.

Shortening a limitation period without giving reasonable time for the preservation of existing rights, unconstitutionally impairs contract obligations. Bell v. Union & Planters' Bank & Trust Co., 158 Miss. 486, 130 So. 486, 1930 Miss. LEXIS 58 (Miss. 1930).

The periods of limitation of actions may be shortened, and new rules of evidence and judicial procedure may be adopted, without unconstitutionally impairing the obligations of existing contracts, so long as such changes do not deprive the party of all remedy, or destroy the validity of the proof on which his claim rests. Briscoe v. Anketell, 28 Miss. 361, 1854 Miss. LEXIS 182 (Miss. 1854).

9. – Debtor’s exemptions, impairment of contract obligations.

H.B. 997, clarifying Miss. Code Ann. §§77-3-13,77-3-17, and17-3-21 did not violate the Contracts Clause of the federal and state constitutions because the regulation of the state’s public utilities fell within the legislature’s authority, and where a city failed to secure Mississippi Public Service Commission approval for an acquisition from a power company, its contractual rights had not vested. City of Starkville v. 4-County Elec. Power Ass'n, 909 So. 2d 1094, 2005 Miss. LEXIS 189 (Miss. 2005).

In a proceeding to distribute the surplus fund remaining after a foreclosure sale of real property, the trial court erred in concluding that the defaulting landowners were entitled to a $15,000 homestead exemption where all but one of their creditors had obtained and enrolled judgments against them prior to the effective date of the law increasing the homestead exemption from $5,000 to $15,000; nor did the increased exemption apply to the remaining creditor where its claim was pending on the effective date of the new law. Thus, the $15,000 exemption was applicable to all of the creditors’ claim. Builders Supply Co. v. Pine Belt Sav. & Loan Asso., 369 So. 2d 743, 1979 Miss. LEXIS 2257 (Miss. 1979).

A tort action does not come within the constitutional provision prohibiting impairment of existing contracts, and statute increasing the homestead exemption could properly be applied to judgment which was rendered after the passage of the act, even though the cause of action arose before the statute was passed. Odom v. Luehr, 226 Miss. 661, 85 So. 2d 218, 1956 Miss. LEXIS 446 (Miss. 1956).

Where an amendment to the statute raised homestead exemption from $3,000 to $5,000, if applied to creditors whose claims arose out of contracts entered into prior to the passage of amendment, this application would violate constitutional provision against impairment of obligation of contract by state law. Fidelity & Deposit Co. v. Lovell, 108 F. Supp. 360, 1952 U.S. Dist. LEXIS 2271 (S.D. Miss. 1952), aff'd, 214 F.2d 565, 1954 U.S. App. LEXIS 4399 (5th Cir. Miss. 1954).

A material increase of the amount of an exemption over the amount allowed when a debt was incurred, as where a homestead exemption is increased from 160 acres of land not exceeding $1500 in value, to 240 acres of land regardless of its value, materially impairs the contract obligation. Lessley v. Phipps, 49 Miss. 790, 1874 Miss. LEXIS 14 (Miss. 1874).

10. – Moratory legislation, impairment of contract obligations.

In considering the moratoria enacted by the legislature every two years, before the legislature would be authorized to invoke the police power, under the Federal Constitution the public emergency must be urgent within the state; and when the emergency ceases, the statute permitting the court to enjoin the enforcement of a perfectly valid contract immediately ceases; and its enforcement after the emergency no longer exists violates the contract clause of the Federal Constitution. Jefferson Standard Life Ins. Co. v. Noble, 185 Miss. 360, 188 So. 289, 1939 Miss. LEXIS 159 (Miss. 1939).

The Mississippi Moratorium Act of 1938, passed after the Public Emergency for which it was enacted originally to meet had ceased, was unconstitutional as violating this constitutional provision. Jefferson Standard Life Ins. Co. v. Noble, 185 Miss. 360, 188 So. 289, 1939 Miss. LEXIS 159 (Miss. 1939).

Holders of deed of trust could not complain of delay in fixing benefits to be paid by mortgagor under Act providing for postponement of mortgage foreclosure sales, where holders moved for dissolution of injunction restraining foreclosure sale on ground that Act was unconstitutional without claiming benefits under Act which are properly determinable on final hearing. Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123, 1935 Miss. LEXIS 173 (Miss. 1935).

Act authorizing postponement of mortgage foreclosure sales and extension of time for redemption from such sales with certain limitations held not violative of Federal Constitution prohibiting impairment of obligations of contracts. Wilson Banking Co. Liquidating Corp. v. Colvard, 172 Miss. 804, 161 So. 123, 1935 Miss. LEXIS 173 (Miss. 1935).

State moratory legislation closing the courts as to all remedies for a period of two years was held an unconstitutional impairment of the obligation of existing contracts. Coffman v. Bank of Kentucky, 40 Miss. 29, 1866 Miss. LEXIS 44 (Miss. 1866).

11. – Tax liability, impairment of contract obligations.

The Federal courts have general jurisdiction of an action by a foreign corporation seeking to enjoin administrative officers of the state of Mississippi from assessing its real and personal property for ad valorem taxes for years during which such corporation was granted, under Mississippi law, exemption from ad valorem taxation as a new enterprise, because, among other things, plaintiff alleged in good faith and upon reasonable grounds that the state was attempting to violate a contractual obligation. Interstate Natural Gas Co. v. Gully, 4 F. Supp. 697, 1933 U.S. Dist. LEXIS 1317 (D. Miss. 1933), rev'd, 292 U.S. 16, 54 S. Ct. 565, 78 L. Ed. 1088, 1934 U.S. LEXIS 692 (U.S. 1934).

Liquor licenses may constitutionally be taxed under a statute enacted after they were granted. C. H. Reed & Co. v. Beall, 42 Miss. 472, 1869 Miss. LEXIS 16 (Miss. 1868), overruled, Coulson v. Harris, 43 Miss. 728, 1871 Miss. LEXIS 1 (Miss. 1871); Coulson v. Harris, 43 Miss. 728, 1871 Miss. LEXIS 1 (Miss. 1871).

The Federal courts have general jurisdiction of an action by a foreign corporation seeking to enjoin administrative officers of the state of Mississippi from assessing its real and personal property for ad valorem taxes for years during which such corporation was granted, under Mississippi law, exemption from ad valorem taxation as a new enterprise, because, among other things, plaintiff alleged in good faith and upon reasonable grounds that the state was attempting to violate a contractual obligation. Interstate Natural Gas Co. v. Gully, 4 F. Supp. 697, 1933 U.S. Dist. LEXIS 1317 (D. Miss. 1933), rev'd, 292 U.S. 16, 54 S. Ct. 565, 78 L. Ed. 1088, 1934 U.S. LEXIS 692 (U.S. 1934).

12. – Tax sales, impairment of contractual obligations.

Rights of parties to contract of sale of land by State for taxes thereon are determined by statute under which sale was made and cannot thereafter be substantially impaired. Reid v. Federal Land Bank, 166 Miss. 392, 148 So. 392, 1933 Miss. LEXIS 394 (Miss. 1933); Russell Inv. Corp. v. Russell, 182 Miss. 411, 182 So. 102 (1938).

In absence of constitutional limitation if thing which constitutes defect, irregularity or illegality in tax sale proceedings is something legislature might have dispensed with by prior statute, legislature may dispense with it by subsequent statute, provided, there has not been a total departure from statutory method. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

Statute providing that action attacking validity of tax sale of land to State must be brought within two years after land is sold or forfeited to State, does not cure or validate defects, irregularities and illegalities in assessment, levy and sale, nor take away any vested rights, but fixes a reasonable time in which they may be asserted, and leaves former owner the right to sue and have sale declared void because of such defects, etc. Russell Inv. Corp. v. Russell, 182 Miss. 385, 178 So. 815, 182 So. 102, 1938 Miss. LEXIS 130 (Miss. 1938).

State’s obligation under 1922 Act, on sale of land for unpaid taxes, to notify lienholders of record since 1915 of such sale, was not impaired by 1930 Act, which required State to notify only those lienholders who recorded liens within six years prior to land sale. Reid v. Federal Land Bank, 166 Miss. 392, 148 So. 392, 1933 Miss. LEXIS 394 (Miss. 1933).

13. – Municipal corporations, impairment of contract obligations.

A municipal charter is not a contract in the sense of the Federal Constitution; but this statement is subject to the qualification that under authority conferred by the charter the municipality may come under such duties or engagements with third persons as to create the sanctity of contract. Accordingly, a municipality may be deprived of its rights to the proceeds of liquor licenses. State Board of Education v. Aberdeen, 56 Miss. 518, 1879 Miss. LEXIS 157 (Miss. 1879).

14. – State grants and contracts, impairment of contract obligations.

The state could not invalidate sixteenth section leases that were entered into before the ratification of the 1890 Mississippi Constitution on the ground that the rental and renewal terms were invalid because they perpetuated rents that were now nominal in violation of the prohibition of the donation of public property to private parties as such an invalidation would impair the renewal terms of the lease contracts. Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494, 2001 U.S. App. LEXIS 21405 (5th Cir. Miss. 2001), cert. denied, 535 U.S. 988, 122 S. Ct. 1541, 152 L. Ed. 2d 467, 2002 U.S. LEXIS 2388 (U.S. 2002).

The contract clause prevents state action which would impair obligation of contracts of the state and its political subdivisions as well as those of persons, partnerships, and corporations engaged in private business. Pryor v. Goza, 172 Miss. 46, 159 So. 99, 1935 Miss. LEXIS 105 (Miss. 1935).

State grants and executed contracts of a state are within the inhibition of legislation impairing the obligation of contracts. Swann v. Buck, 40 Miss. 268, 1866 Miss. LEXIS 71 (Miss. 1866).

15. – Public indebtedness, impairment of contract obligations.

Statute providing for scaling down of indebtedness of a drainage district when assessed benefits received are less than its bonded or other indebtedness, and providing for issuance of liquidation certificates, which may be made payable at dates different from original obligations, and providing that payment of such certificates would prevent further levy on lands for the benefits received, held unconstitutional as impairing obligation of contracts evidenced by bonds issued before enactment of the statute. Pryor v. Goza, 172 Miss. 46, 159 So. 99, 1935 Miss. LEXIS 105 (Miss. 1935).

Where statute repealing game and fish laws did not expressly repudiate indebtedness incurred by county in enforcing repealed laws, and interpretation of statute to repudiate such debt would make statute unconstitutional as impairing obligation of contract, legislature would be presumed not to have intended to repudiate debt. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

Interpretation of statute repealing game and fish laws as abrogating obligation incurred by county for printing licenses and copies of game and fish law used in carrying out repealed law would impair obligation of contract and make repealing Act void to extent it impaired obligation of contract. Tucker Printing Co. v. Board of Sup'rs, 171 Miss. 608, 158 So. 336, 1934 Miss. LEXIS 285 (Miss. 1934).

A statute requiring the holders of outstanding county bonds to present them within a prescribed time for registration, with an affidavit showing the names of the different persons through whom the holder derives his title, as a condition of future payment of interest and principal, unconstitutionally impairs the obligation of existing unmatured bonds payable to bearer. Priestly v. Watkins, 62 Miss. 798, 1885 Miss. LEXIS 151 (Miss. 1884).

No legislative alteration of the security for the payment of levee district bonds is permissible. Gibbs v. Green, 54 Miss. 592, 1877 Miss. LEXIS 56 (Miss. 1877).

16. – Public office, impairment of contract obligations.

Public officer possesses contract right to his earned fees while holding office, and the legislature cannot deprive him of them, though he has no contract right to office. United States Fidelity & Guaranty Co. v. Gully, 168 Miss. 740, 150 So. 828, 1933 Miss. LEXIS 196 (Miss. 1933).

Salaries due board of supervisors of county in class five for services rendered prior to November 1, 1930, not exceeding $1,250, could be allowed after November 1, though in excess of $1,000, maximum compensation allowable after that time. United States Fidelity & Guaranty Co. v. Gully, 168 Miss. 740, 150 So. 828, 1933 Miss. LEXIS 196 (Miss. 1933).

Laws prescribing for the future the duties to be performed by or the salaries or other compensation to be paid to public officers, enacted during their term of office, are not precluded by the contract clause. Mississippi ex rel. Robertson v. Miller, 276 U.S. 174, 48 S. Ct. 266, 72 L. Ed. 517, 1928 U.S. LEXIS 71 (U.S. 1928).

The unconstitutional impairment of a contract results from the enactment of a statute permitting the successor of a revenue agent to report on the merits attending suits for collection of delinquent taxes and share in the commissions allowed on the amount collected by such suits, where the prior statute under which the suits were brought permitted the agent to continue suits brought by him in the name of successor and enjoy the resulting compensation. Mississippi ex rel. Robertson v. Miller, 276 U.S. 174, 48 S. Ct. 266, 72 L. Ed. 517, 1928 U.S. LEXIS 71 (U.S. 1928).

Appointment to office does not create a contract obligation in such sense that the office may not be abolished during the term of an incumbent. Kendall v. City of Canton, 53 Miss. 526, 1876 Miss. LEXIS 108 (Miss. 1876).

An office is not a contract within the constitutional provision against legislation impairing contract obligations. Hyde v. State, 52 Miss. 665, 1876 Miss. LEXIS 272 (Miss. 1876).

The right of a public officer to recover compensation is not a contract, and therefore a resolution of the legislature suspending the drawing of warrants upon the state treasurer does not offend this prohibition. Swann v. Buck, 40 Miss. 268, 1866 Miss. LEXIS 71 (Miss. 1866).

17. – Banks and banking, impairment of contract obligations.

A statute empowering the court of chancery to reopen a closed bank in accordance with a plan proposed by at least three fourths of the creditors and recommended by the superintendent of banks, if the court is satisfied after hearing that the plan is feasible and just, and the superintendent is satisfied that the bank is solvent and can repay its depositors, providing that assenting and nonassenting creditors shall be required to accept payment in accordance with the terms of the approved plan and that the superintendent shall have no power to diminish to the prejudice of creditors any assets otherwise available for payment, does not impair contractual rights. Doty v. Love, 295 U.S. 64, 55 S. Ct. 558, 79 L. Ed. 1303, 1935 U.S. LEXIS 305 (U.S. 1935).

A state bank guaranty statute providing for the issuance of non-interest-bearing guaranty certificates does not unconstitutionally impair the contract obligation of existing interest-bearing guaranty certificates of deposit issued under an earlier statute. Love v. Mangum, 160 Miss. 590, 135 So. 223, 1931 Miss. LEXIS 227 (Miss. 1931).

Regulations warranted by the police power do not unconstitutionally impair the contract created by a bank’s charter. Bank of Oxford v. Love, 111 Miss. 699, 72 So. 133, 1916 Miss. LEXIS 374 (Miss. 1916), aff'd, 250 U.S. 603, 40 S. Ct. 22, 63 L. Ed. 1165, 1919 U.S. LEXIS 1782 (U.S. 1919).

A statute providing that the liability of debtors of a bank shall not be released by the forfeiture of the bank’s charter, but that they shall continue liable to its liquidating trustees, does not, as applied to existing debtors, unconstitutionally impair any contract obligation. Nevitt v. Bank of Port Gibson, 14 Miss. 513, 1846 Miss. LEXIS 100 (Miss. 1846).

18. – Corporate charter, impairment of contract obligations.

The obligation of the state’s undertaking in a special act incorporating a bank that “the business of said bank shall be confided to and controlled by its stockholders under such rules of laws and regulations as said company may see fit to adopt, provided the same may not be in conflict with the Constitution of the United States or of this state,” was not unconstitutionally impaired by the subsequent enactment of legislation providing for reasonable examinations and reports by duly authorized officers of the state banking department created by such legislation, and for an enforced annual contribution to the expenses of such department, of a specified fraction of the bank’s total assets. Bank of Oxford v. Love, 250 U.S. 603, 40 S. Ct. 22, 63 L. Ed. 1165, 1919 U.S. LEXIS 1782 (U.S. 1919).

The grant by the state to a corporation of power to acquire and hold real estate is a contract which the state may not impair by a statute prohibiting corporations from acquiring agricultural lands. Southern Realty Co. v. Tchula Co-operative Stores, 114 Miss. 309, 75 So. 121, 1917 Miss. LEXIS 36 (Miss. 1917).

The imposition of an additional privilege tax on railroads claiming exemption, under charter, from state rate control, unconstitutionally impairs a contract right. Gulf & S. I. R. Co. v. Adams, 90 Miss. 559, 45 So. 91, 1907 Miss. LEXIS 128 (Miss. 1907).

A legislative grant to a railroad company of the right to fix rates, within maximum limits, may not be impaired by subsequent legislation. Stone v. Yazoo & M. Valley R. Co., 62 M 607; Gulf & Ship Island R.R. v. Adams, 90 Miss. 559, 45 So. 91 (1907).

The charter of the Mobile and Ohio Railroad Co. by which it is empowered from time to time to fix, regulate and receive the tolls and charges to be received by it for transportation contains no contract the obligation of which is in any way impaired by the Mississippi statute of March 11, 1884, creating a commission to provide for the regulation of freight and passenger rates, to prevent unjust discrimination, and to enforce certain police regulations affecting railroad companies doing business in that state. Stone v. Farmers' Loan & Trust Co., 6 S. Ct. 388 (U.S. 1886).

A charter granted by the state to a corporation is a contract within the meaning of this provision; and the contract subsisting between the stockholders and the corporation is equally within the protection of the Constitution. New Orleans, J. & G. N. R. Co. v. Harris, 27 Miss. 517, 1854 Miss. LEXIS 88 (Miss. 1854).

The obligation of the contract between the state and a bank chartered by it whereby it was allowed to take negotiable notes, and to sell or to transfer them, and that with the maker enabling the bank to assign his note and a recovery to be had on it by the assignee, are unconstitutionally impaired by a statute declaring that it shall not be lawful for any bank of a state to transfer by endorsement or otherwise any note, bill receivable, or other evidence of debt, and if it shall appear in evidence upon the trial of any action upon any such note, bill receivable, or other evidence of debt, that the same was transferred, the same shall abate upon the plea of the defendant. Planters' Bank of Mississippi v. Sharp, 47 U.S. 301, 12 L. Ed. 447, 1848 U.S. LEXIS 318 (U.S. 1848).

19. – Franchises and privileges, impairment of contract obligations.

For a case holding that a telephone and telegraph company had acquired vested rights under Chapter 38, Laws of 1886, SO that Chapter 372, Laws of 1956, to the extent that it authorizes municipalities to impose charges on such company for the use of the highways and streets, is unconstitutional, see City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S. Ct. 455, 3 L. Ed. 2d 562 (1959) However, the judgment in this case was vacated by the Supreme Court of the United States and the case remanded to the District Court with directions to hold the cause until the parties repaired to a state tribunal for an authoritative declaration of applicable state law. .

A contract fixing rates which is protected against impairment by the contract clause could be made by the city of Vicksburg under the authority of the Mississippi Laws of 1886, c. 358, § 5, empowering it to provide for the erection and maintenance of a system of waterworks to supply that city with water, and to that end to contract with a party or parties who shall build and operate waterworks. City of Vicksburg v. Vicksburg Waterworks Co., 206 U.S. 496, 27 S. Ct. 762, 51 L. Ed. 1155, 1907 U.S. LEXIS 1178 (U.S. 1907).

The privilege of conducting a lottery bestowed upon a corporation by its charter does not preclude the state from thereafter outlawing lotteries. Moore v. State, 48 M 147, (writ of error dismissed in 21 Wall (US) 636, 22 L Ed 653); Stone v. Mississippi, 101 U.S. 814, 25 L. Ed. 1079, 1879 U.S. LEXIS 1990 (U.S. 1880).

The contract obligation of a nonexclusive franchise is not unconstitutionally impaired by granting a franchise to a competitor. Collins v. Sherman, 31 Miss. 679, 1856 Miss. LEXIS 141 (Miss. 1856).

20. – Retirement death benefits, impairment of contract obligations.

Section 25-11-114(2)(a), which mandates that the pre-retirement death benefits of a Mississippi Public Employees’ Retirement System member must go to the member’s surviving spouse, regardless of whom the member has duly designated as his or her beneficiary, was unconstitutional as applied as it impaired a contractual right that the deceased employee acquired when he became a member of the public retirement system. Public Emples. Retirement Sys. v. Porter, 763 So. 2d 845, 2000 Miss. LEXIS 39 (Miss. 2000).

21. Imposts or duties.

A tax of three cents a barrel on oysters packed or canned in the state, or shipped raw by dealers, may constitutionally be applied to oysters taken from the waters of another state. Barataria Canning Co. v. State, 101 Miss. 890, 58 So. 769, 1912 Miss. LEXIS 23 (Miss. 1912).

An ad valorem tax imposed by a city on boats wherein goods, wares, and merchandise are sold within the city limits, is not “an impost or duty” within these provisions. Harrison v. Mayor & Council of Vicksburg, 11 Miss. 581, 1844 Miss. LEXIS 92 (Miss. 1844).

22. Wharfage.

The exaction by a port, of wharfage on vessels landing there, is not repugnant to this provision. O'Conley v. President & Selectmen of Natchez, 9 Miss. 31, 1843 Miss. LEXIS 143 (Miss. 1843).

Article II The President

§ 1. Executive power, term; Presidential elections; Time of election; etc

1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:

2. Each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

3. [The electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said house shall in like manner choose the president. But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the senate shall choose from them by ballot the Vice President.]

4. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

5. No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

6. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

7. The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

8. Before he enter on the execution of his office, he shall take the following oath or affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Editor’s Note —

Clause 3, enclosed in brackets, was superseded by the Twelfth Amendment.

Cross References —

Manner of election, see USCS Const. Amend. XII.

Commencement of term, see USCS Const. Amend. XX, § 1.

Death of or failure of President-elect or Vice President-elect to qualify, see USCS Const. Amend. XX, § 3.

Death of person chosen by Congress to act, see USCS Const. Amend. XX, § 4.

Limitation as to term, see USCS Const. Art. XXII.

Presidential and Vice Presidential electors for District of Columbia, see USCS Const., Amend. XXIII.

Removal, inability, death, or resignation of President, see USCS Const. Amend. XXV.

Vacancy in the office of Vice President, see USCS Const. Amend. XXV, § 2.

RESEARCH REFERENCES

ALR.

Presidential and vice-presidential electors. 153 A.L.R. 1006.

Executive privilege with respect to presidential papers and recordings. 19 A.L.R. Fed. 472.

Am. Jur.

16 Am Jur 2d, Constitutional Law §§ 216-218.

3B Am Jur 2d, Aliens and Citizens § 1879.

3C Am Jur 2d, Aliens and Citizens § 2271.

25 Am Jur 2d, Elections § 6.

63C Am Jur 2d, Public Officers and Employees §§ 111, 113, 118, 122.

77 Am Jur 2d, United States §§ 17-20.

Lawyers’ Edition.

Treaty or international executive agreement as limiting recovery available to United States citizens or businesses. 80 L Ed 2d 871.

Supreme Court’s views as to extent, under Federal Constitution, of privileges and immunities of United States President or former President, by reason of that office, as to judicial proceedings or process. 137 L Ed 2d 1135.`

Supreme Court’s construction and application of federal constitutional provisions (Art II, § 1, cl 2, 4; Amendments 12, 23) concerning appointment of, or voting by, Presidential electors. 148 L Ed 2d 1087.

JUDICIAL DECISIONS

1. Presidential electors.

The provisions of Code 1942 § 3107 which provide a method whereby the state political party conventions may select two slates of presidential electors, one slate pledged to support the nominee of the national political party, and one slate unpledged offends no provision of the United States Constitution, for this section expressly provides that nothing therein shall prohibit a slate of electors pledged to support the national party candidate from running on the same general election ballot, and Code 1942 § 3260 enables such a slate to get on the ballot upon the petition of 1,000 voters. Gray v. Mississippi, 233 F. Supp. 139, 1964 U.S. Dist. LEXIS 7357 (N.D. Miss. 1964).

The United States Constitution does not require all states to provide voters with an opportunity to vote for pledged electors running under a national party label. Gray v. Mississippi, 233 F. Supp. 139, 1964 U.S. Dist. LEXIS 7357 (N.D. Miss. 1964).

§ 2. Powers of President

1. The President shall be the Commander-in-Chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

2. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

3. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Editor’s Note —

Parts of clause 1 are popularly known as the “Commander in Chief Clause,” the “Opinion Clause” and the “Pardon Clause.”

Parts of clause 2 are popularly known as the “Treaty Clause” and the “Appointments Clause.”

Clause 3 is popularly known as the ‘Recess Appointments Clause.”

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Ambassadors, Diplomats and Consular Officials §§ 2, 5.

16 Am. Jur. 2d, Constitutional Law § 57.

16A Am. Jur. 2d, Constitutional Law §§ 247, 325.

21A Am. Jur. 2d, Custom Duties and Import Regulations § 16.

32 Am. Jur. 2d, Federal Courts § 19.

35 Am. Jur. 2d, Federal Tax Enforcement §§ 603, 604.

46 Am. Jur. 2d, Judges § 9.

77 Am. Jur. 2d, United States § 24.

Lawyers’ Edition.

Treaty or international executive agreement as limiting recovery available to United States citizens or businesses. 80 L Ed 2d 871.

Supreme Court’s construction and application of appointments clause of Art. II, § 2, cl. 2, of Federal Constitution.101 L. Ed. 2d 1072.

§ 3. Messages; Convene and Adjourn Congress; Receive Ambassadors; Executive Laws; Commission Officers

He shall from time to time give to the Congress information of the State of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

Editor’s Note —

Parts of this clause are popularly known as the “State of the Union Clause,” the “Recommendation Clause” and the “Take Care Clause.”

RESEARCH REFERENCES

Am. Jur.

4 Am. Jur. 2d, Ambassadors, Diplomats and Consular Officials § 1.

16A Am. Jur. 2d, Constitutional Law § 247.

77 Am. Jur. 2d, United States § 20.

Lawyers’ Edition.

Supreme Court’s views as to extent, under Federal Constitution, of privileges and immunities of United States President or former President, by reason of that office, as to judicial proceedings or process. 137 L Ed 2d 1135.

Supreme Court’s construction and application of Federal Constitution’s Art. II, § 3 provision that President shall take care that laws be faithfully executed. 170 L Ed 2d 1045.

§ 4. Impeachment

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

RESEARCH REFERENCES

Am. Jur.

63C Am. Jur. 2d, Public Officers and Employees §§ 218-222.

RESEARCH REFERENCES

CJS.

C.J.S. Ambassadors and Consuls §§ 1-9.

C.J.S. Armed Services §§ 1-5, 21, 23.

C.J.S. Constitutional Law §§ 134-136, 203, 204, 215-227.

C.J.S. Judges §§ 20-27, 58-77.

C.J.S. Pardon and Parole §§ 3, 4, 11-33.

C.J.S. Treaties § 4.

C.J.S. United States §§ 45-53, 56, 57.

Article III The Judiciary

§ 1. Judiciary; powers; tenure; compensation

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

RESEARCH REFERENCES

ALR.

Executive privilege with respect to presidential papers and recordings. 19 A.L.R. Fed. 472.

Am. Jur.

2 Am. Jur. 2d, Administrative Law § 63.

9 Am. Jur. 2d, Bankruptcy §§ 741, 825, 826.

16 Am. Jur. 2d, Constitutional Law §§ 219-226.

24 Am. Jur. 2d, District of Columbia § 21.

32 Am. Jur. 2d, Federal Courts §§ 1, 5, 18-20, 469, 470, 537.

32A Am. Jur. 2d, Federal Courts § 582.

46 Am. Jur. 2d, Judges §§ 11, 50, 57.

Lawyers’ Edition.

Validity, under Federal Constitution, of arbitration statutes. 87 L Ed 2d 787.

Supreme Court’s views as to state court’s concurrent jurisdiction over federal cause of action in absence of federal legislation expressly granting such jurisdiction. 107 L Ed 2d 1182.

Supreme Court’s view as to when congressional enactment violates separation-of-powers principles through directing case’s result in—or through providing for executive or legislative suspension or revision of judgment by—federal court established under Article III of Federal Constitution. 147 L Ed 2d 1137.

Supreme Court’s views as to validity, construction, and application of 28 USCS § 1367, concerning supplemental jurisdiction of federal courts. 162 L Ed 2d 1031.

Supreme Court’s views concerning common-law doctrine of forum non conveniens with respect to lower federal courts. 167 L Ed 2d 1179.

§ 2. Jurisdiction of Courts; Supreme Court, Original and Appellate Jurisdiction; Criminal Trial by Jury

1. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

3. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

Editor’s Note —

The part of clause 1 related to controversies “between a State and Citizens of another State” has been affected by Amendment 11.

Parts of clause 1 are popularly known as the “Arising Under Clause” and the “Case or Controversy Clause” or “Case and Controversies Clause.”

Part of clause 2 is popularly known as the “Exceptions Clause.”

Cross References —

Right to impartial jury, see USCS Const. Amend. VI.

Right to jury trial in civil cases, see USCS Const. Amend. VII.

Suits between a state and citizens of another state, see USCS Const. Amend. XI.

RESEARCH REFERENCES

ALR.

Right to jury trial in stockholder’s derivative action. 32 ALR4th 1411.

Right to jury trial in action for declaratory relief in state court. 33 A.L.R.4th 146.

Right of accused, in state criminal trial, to insist, over prosecutor’s or court’s objection, on trial by court without jury. 37 A.L.R.4th 304.

Small claims: jury trial rights in, and on appeal from, small claims court proceeding. 70 A.L.R.4th 1119.

Applicability of maritime law rule of comparative negligence to strict products liability cases brought in admiralty. 74 A.L.R. Fed. 316.

Am. Jur.

2 Am. Jur. 2d, Administrative Law § 419.

2 Am. Jur. 2d, Admiralty §§ 2, 4-6, 8, 91.

3C Am. Jur. 2d, Aliens and Citizens §§ 2110, 2119.

4 Am. Jur. 2d, Ambassadors, Diplomats and Consular Officials § 17.

4 Am. Jur. 2d, Appellate Review §§ 1, 7, 8, 17, 39.

5 Am. Jur. 2d, Appellate Review §§ 557, 597, 806.

9 Am. Jur. 2d, Bankruptcy §§ 603, 707.

16 Am. Jur. 2d, Constitutional Law § 131.

17 Am. Jur. 2d, Contempt § 179.

22A Am. Jur. 2d, Declaratory Judgments § 30.

24 Am. Jur. 2d, District of Columbia § 10.

32 Am. Jur. 2d, Federal Courts §§ 470, 471, 495.

32A Am. Jur. 2d, Federal Courts §§ 582, 584, 618, 622, 653, 884, 935.

39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies § 97.

44B Am. Jur. 2d, International Law § 171.

54 Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 379, 510.

61C Am. Jur. 2d, Pollution Control § 989.

70 Am. Jur. 2d, Shipping § 13.

77 Am. Jur. 2d, United States § 61.

Lawyers’ Edition.

Validity and construction of Federal Criminal Procedure Rule 23, dealing with trial by jury or by the court. 13 L Ed 2d 1119.

Noncompliance with state procedural rule as constituting “adequate state ground” for denial of relief so as to preclude Supreme Court review of federal question. 24 L Ed 2d 837.

Construction and application of 28 USCS § 1253 permitting direct appeal to Supreme Court from order of three-judge District Court granting or denying injunction. 26 L Ed 2d 947.

Construction and application of 28 USCS § 1254(2) authorizing appeal to Supreme Court from Court of Appeals judgment invalidating state statute. 27 L Ed 2d 840.

What judgment or decree of state court in civil cases is final for purpose of review by United States Supreme Court under 28 USCS § 1257 and similar predecessors. 29 L Ed 2d 872.

Considerations affecting grant, continuance, reduction, or revocation of bail by individual Justice of Supreme Court. 30 L Ed 2d 952.

Supreme Court’s view as to what is a “case or controversy” within the meaning of Article III of the Federal Constitution or an “actual controversy” within the meaning of the Declaratory Judgment Act (28 USCS § 2201). 40 L Ed 2d 783.

What circumstances render civil case, or issues arising therein, moot so as to preclude Supreme Court’s consideration of their merits. 44 L Ed 2d 745.

Supreme Court’s views as to when, in litigation, to allow exception to general rule that party does not have standing to assert third party’s rights or interests. 50 L Ed 2d 902.

Original jurisdiction of United States Supreme Court in suits between states. 68 L Ed 2d 969.

Requirements of Article III of Federal Constitution as affecting standing to challenge particular conduct as violative of federal law–Supreme Court cases. 70 L Ed 2d 941.

Supreme Court’s views as to scope of “arising under” clause of Article III § 2, Clause 1 of Federal Constitution.76 L Ed 2d 831.

Accused’s constitutional right to public trial held applicable to suppression hearing. 81 L. Ed. 2d 31.

Validity, under Federal Constitution, of arbitration statutes. 87 L Ed 2d 787.

Distinction between “petty” and “serious” offenses for purposes of federal constitutional right to trial by jury–Supreme Court cases. 103 L. Ed. 2d 1000.

Supreme Court’s construction and application of Federal Constitution’s Art III, § 2, cl. 2 provision that Supreme Court’s appellate jurisdiction is subject to such exceptions and regulations as Congress shall make. 133 L Ed 2d 965.

Taxpayer’s standing to raise federal constitutional question in federal court–Supreme Court cases. 136 L Ed 2d 963.

Supreme Court’s views as to extent, under Federal Constitution, of privileges and immunities of United States President or former President, by reason of that office, as to judicial proceedings or process. 137 L Ed 2d 1135.

Supreme Court’s views concerning its original jurisdiction, under Art III, § 2, cl. 2 of Federal Constitution, over “all cases affecting Ambassadors, other public Ministers and Consuls”. 140 L Ed 2d 1163.

Supreme Court’s view as to when congressional enactment violates separation-of-powers principles through directing case’s result in—or through providing for executive or legislative suspension or revision of judgment by—federal court established under Article III of Federal Constitution. 147 L Ed 2d 1137.

Supreme Court’s views concerning ripeness, for adjudication, of claim that regulatory taking violated just compensation clause of Federal Constitution’s Fifth Amendment.150 L Ed 2d 893.

Supreme Court’s views as to validity, construction, and application of 28 USCS § 1367, concerning supplemental jurisdiction of federal courts. 162 L Ed 2d 1031.

Supreme Court’s views as to what, in federal-court patent litigation, is case or controversy, within meaning of Article III of Federal Constitution, or actual controversy, within meaning of Declaratory Judgment Act (28 USCS § 2201, or similar predecessor). 166 L Ed 2d 1047.

Supreme Court’s views as to what changes in circumstances render moot (so as to preclude consideration of merits) habeas corpus case, or issues in such case, concerning criminal proceedings. 169 L Ed 2d 975.

Intervention or joinder of parties in proceeding in Supreme Court under its original jurisdiction. 175 L Ed 2d 1145.

JUDICIAL DECISIONS

1. In general.

2. Guilty plea.

3. Admiralty.

4. Venue.

5. Others; standing not found.

1. In general.

Facial challenges brought by church against city’s ordinance under which church had been denied renovation permit were easily ripe because, first, they were fit for judicial decision because they raised pure questions of law, and second, church would have suffered hardship, including probable losing of its lease and curtailment of its religious exercise rights, if review were delayed. Opulent Life Church v City of Holly Springs, Miss. 697 F.3d 279, U.S. App. LEXIS 20283 (5th Cir. 2012).

Lawsuit brought by church challenging city’s ordinance under which it had been denied renovation permit did not become moot when on eve of oral argument that city repealed ordinance and replaced it with one which would have banned church altogether from using building it had leased; furthermore, church seeking actual damages and attorney fees ensured actual live controversy. Opulent Life Church v City of Holly Springs, Miss. 697 F.3d 279, U.S. App. LEXIS 20283 (5th Cir. 2012).

Requirements of U.S. Const. Art. III are not satisfied merely because a party requests a court of the United States to declare its legal rights; plaintiff political party’s attempts to demonstrate actual or threatened injury by (a) declaring its intention, were the statute not in place, to hold closed primaries, (b) asserting a threat of prosecution against it for violating state election law, and (c) protesting its inability to modify party rules without legislative sanction, failed to satisfy its burden to show a case or controversy. Although the party contended its executive committee’s decision to authorize a suit was sufficient to give it standing to challenge the statute, without concrete plans or any objective evidence to demonstrate a “serious interest” in a closed primary, the party suffered no threat of imminent injury. Miss. State Democratic Party v. Barbour, 529 F.3d 538, 2008 U.S. App. LEXIS 11395 (5th Cir. Miss. 2008).

Although plaintiff political party unquestionably pleaded a constitutional injury by alleging that Mississippi’s semi-closed primary statute required it to associate with members of the other party during its candidate-selection process, it took no internal steps to limit participation in its primaries to party members and thus could not claim that Miss. Code Ann. §23-15-575 actually had an unconstitutional effect; this lack of “actual controversy” made the case too remote and abstract an inquiry for the proper exercise of the judicial function under U.S. Const. Art. III. Miss. State Democratic Party v. Barbour, 529 F.3d 538, 2008 U.S. App. LEXIS 11395 (5th Cir. Miss. 2008).

Plaintiffs who showed that challenged statutes either impinged upon their protected rights to register to vote or burdened organizational efforts to assist prospective voters in registering had standing to sue to challenge Mississippi’s dual registration requirement and prohibition on satellite registration as violative of their rights and all persons similarly situated. Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1987 U.S. Dist. LEXIS 10925 (N.D. Miss. 1987).

A motion brought by the State of Ohio for leave to file a bill of complaint for abatement of a nuisance, alleging that the defendants, Wyandotte Chemicals Corporation and Dow Chemical Company, both out-of-state corporations, and Dow Chemical Company of Canada, Limited, were responsible for contaminating Lake Erie by the dumping of mercury into tributaries outside of Ohio, was denied, even though the complaint stated a cause of action within the court’s original jurisdiction, and notwithstanding the public importance of the matters at issue, on the ground that the court has discretion to decline jurisdiction in order to protect itself from abuse of the opportunity to resort to its original jurisdiction in the enforcement by states of claims against citizens of another state or country, particularly in controversies based upon complex questions of fact but involving no difficult or important problems of federal law. Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 91 S. Ct. 1005, 28 L. Ed. 2d 256, 1971 U.S. LEXIS 109 (U.S. 1971).

Where, after making contract of employment in Louisiana between citizens of that State for work on dredge, operations were subsequently carried on in Mississippi where employee was injured while at work on dredge without own motive power and engaged in making channel through point to shorten Mississippi river, employee’s remedy held not that afforded by Federal Seamen’s Act, but by Louisiana Compensation Act, if employer had complied with it, otherwise that afforded by Mississippi law. Orleans Dredging Co. v. Frazie, 173 Miss. 882, 161 So. 699, 1935 Miss. LEXIS 228 (Miss. 1935), cert. denied, 296 U.S. 653, 56 S. Ct. 383, 80 L. Ed. 465, 1936 U.S. LEXIS 486 (U.S. 1936).

2. Guilty plea.

A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial, and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

3. Admiralty.

To hold that one taking possession of a barge swept down the Mississippi by a flood, but not abandoned by its owner, is not entitled to retain possession as against the owner, is not to invade the exclusive admiralty jurisdiction of the Federal courts. Mengel Box Co. v. Joest, 127 Miss. 461, 90 So. 161, 1921 Miss. LEXIS 245 (Miss. 1921).

4. Venue.

Defendant’s convictions for attempting a burglary, arson, and a murder, were proper where venue was proper in the county where defendant attempted to burn the structure; venue was proper pursuant to U.S. Const. Art. III, § 2 cl. 3, U.S. Const. amend. VI, and Miss. Const. Art. 3, § 26 because there was nothing conceptually outrageous or bizarre in bringing charges in the county for an attempt to burn a building in that county. Holbrook v. State, 877 So. 2d 525, 2004 Miss. App. LEXIS 23 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 865 (Miss. 2004), cert. denied, 543 U.S. 1166, 125 S. Ct. 1340, 161 L. Ed. 2d 141, 2005 U.S. LEXIS 1746 (U.S. 2005).

5. Others; standing not found.

In the context of standing, while any person may file a complaint with the Mississippi Ethics Commission under Mississippi law, only local district attorneys, the Mississippi Attorney General, or the Commission itself may file direct actions in court challenging the ethical conduct of public officials. As a result, where the parents sought reversal of the confirmations of two school board members by the city council, alleging that certain council members were required to have recused themselves due to conflicts of interest, the parents were not “persons aggrieved” for purposes of Miss. Code Ann. §11-51-75, and they did not meet the statutory requirements to file a bill of exceptions under the facts presented; their sole remedy was to file a complaint with the Commission. City of Jackson v. Greene, 869 So. 2d 1020, 2004 Miss. LEXIS 337 (Miss. 2004).

§ 3. Treason; Punishment of Treason

1. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

2. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attained.

Cross References —

Attainder and ex post facto laws, see USCS Const. Art. 1, § 9, cl. 3 and Art. 1, § 10, cl. 1.

RESEARCH REFERENCES

Am. Jur.

3C Am Jur 2d, Aliens and Citizens § 2212.

23 Am Jur 2d, Descent and Distribution § 37.

70 Am Jur 2d, Sedition, Subversive Activities, and Treason §§ 4, 29, 58, 61, 62, 64-66, 71.

JUDICIAL DECISIONS

1. In general.

A statute which, as construed by the state courts, makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophesies concerning the state of this and other nations, irrespective of whether the communication was with an evil or sinister purpose or advocated or incited subversive action against the nation or state, or threatened any clear and present danger to American institutions or government, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

A statute making it a criminal offense to indoctrinate any creed, theory, or any set of principles which reasonably tends to create an attitude of stubborn refusal to salute, honor or respect the flag of the United States or of the state, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

RESEARCH REFERENCES

CJS.

C.J.S. Admiralty §§ 1 to 89, 228.

C.J.S. Convicts § 4.

C.J.S. Federal Civil Procedure §§ 313-340, 398, 522, 534.

C.J.S. Federal Courts §§ 3, 4, 89-102, 104-112, 116-157.

C.J.S. Treason §§ 2-9.

Article IV States; Reciprocal relationship between states and with United States

§ 1. Full faith and credit

Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.

Federal Aspects —

Full faith and credit to protection orders, 18 USCS § 2265.

Full faith and credit to arbitral tribunal awards under Convention Establishing the Multilateral Investment Guarantee Agency, 22 USCS § 290k-11.

Full faith and credit to tribal actions under certain tribal ordinances, 25 USCS § 2207.

Full faith and credit to Acts, records, and judicial proceedings of states, territories, and possessions, 28 USCS § 1738.

Full faith and credit to child custody determinations, 28 USCS § 1738A.

Full faith and credit to child support orders, 28 USCS § 1738B.

Full faith and credit to nonjudicial records kept in public office, 28 USCS § 1739.

Extension of Art. IV, Sec. 1 to Guam, 48 USCS § 1421b.

Extension of Art. IV, Sec. 1 to Virgin Islands, 48 USCS § 1561.

RESEARCH REFERENCES

ALR.

Judgment subject to appeal as entitled to full faith and credit. 2 A.L.R.3d 1384.

Full faith and credit “last-in-time” rule as applicable to sister state divorce or custody judgment which is inconsistent with the forum state’s earlier judgment. 36 A.L.R.5th 527.

Am. Jur.

4 Am Jur 2d, Alternative Dispute Resolution § 204.

6 Am Jur 2d, Attachment and Garnishment § 544.

16 Am Jur 2d, Conflict of Laws § 14.

16A Am Jur 2d, Constitutional Law § 222.

19 Am Jur 2d, Corporations § 2145.

20 Am Jur 2d, Courts § 90.

22A Am Jur 2d, Death § 268.

23 Am Jur 2d, Desertion and Nonsupport §§ 74, 80, 81.

24A Am Jur 2d, Divorce and Separation §§ 1073, 1075, 1083, 1086-1088, 1090, 1093, 1098, 1100, 1105, 1114, 1126, 1130.

27 Am Jur 2d, Eminent Domain § 624.

29 Am Jur 2d, Evidence § 229.

29A Am Jur 2d, Evidence §§ 1323, 1339.

36 Am Jur 2d, Foreign Corporations §§ 19, 49, 186, 248, 377, 434.

47 Am Jur 2d, Judgments § 764.

57 Am Jur 2d, Municipal, County, School, and State Tort Liability § 31.

63B Am Jur 2d, Product Liability §§ 1430, 1441.

80 Am Jur 2d, Wills § 894.

82 Am Jur 2d, Workers’ Compensation § 567.

Law Reviews.

Hoffheimer, Mississippi Conflict of Laws. 67 Miss. L. J. 175, Fall, 1997.

JUDICIAL DECISIONS

1. Construction and application.

2. Jurisdiction of court.

3. Venue.

4. Nonfinal judgment.

5. Law governing.

6. Evidentiary matters.

7. Fraud or mistake.

8. Divorce and support.

9. Child custody and visitation.

10. Probate proceedings.

11. Limitation of actions.

12. Contracts violative of Mississippi law.

13. Workers’ compensation.

14. Foreign guardianship.

1. Construction and application.

Comity, which gives effect to laws and judicial decision of other courts beyond that mandated by full faith and credit clause, should not be applied when its application would render meaningless substantial rights of non-moving party. Harrison v. Boyd Mississippi, Inc., 700 So. 2d 247, 1997 Miss. LEXIS 235 (Miss. 1997).

“Comity” suggests that forum courts, as matter of judicial courtesy, should give effect to laws and judicial decisions of other courts beyond that mandated by full faith and credit clause of United States Constitution. Harrison v. Boyd Mississippi, Inc., 700 So. 2d 247, 1997 Miss. LEXIS 235 (Miss. 1997).

Mississippi is required by the United States Constitution, Art. IV, Sec. 1, to give full faith and credit to all final judgments of other states and federal courts unless (1) the foreign judgment was obtained as a result of some false representation without which the judgment would not have been rendered, or (2) the rendering court did not have jurisdiction over the parties or the subject matter; however, in order to challenge a foreign judgment on this ground, it is necessary that the challenge be timely and properly filed in Mississippi pursuant to §15-1-45. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

2. Jurisdiction of court.

Hospital showed that a foreign judgment confirming an arbitration award in favor of a staffing company was invalid on the ground that the arbitrator and the Missouri court lacked personal jurisdiction over it because the contract and lease affirmatively showed that the hospital was not the entity that contracted with the company; the lease established that during the contract period, the county board of supervisors had leased the hospital facility to a private entity and had ceased operating it. Linde Health Care Staffing v. Claiborne County Hosp., 198 So.3d 318, 2016 Miss. LEXIS 320 (Miss. 2016).

Doctor enrolled the New Mexico judgment on March 3, 1999, and the clerk mailed notice of the enrollment on that date, and the attorney then had 20 days to contest the enrollment of the judgment; where the attorney’s response was filed on April 28, 1999, outside the 20-day limit, the attorney’s defenses to the enrollment which alleged false representations by the doctor were not properly before the trial court. Schwartz v. Hynum, 933 So. 2d 1039, 2006 Miss. App. LEXIS 521 (Miss. Ct. App. 2006).

Doctrine of comity, which gives effect to laws and judicial decision of other courts beyond that mandated by full faith and credit clause, would not be considered, where non-forum court lacked subject matter jurisdiction. Harrison v. Boyd Mississippi, Inc., 700 So. 2d 247, 1997 Miss. LEXIS 235 (Miss. 1997).

In order for full faith and credit to apply, the foreign court must have addressed the merits of the case in rendering its judgment. However, this general rule does not apply if the rendering court did not have jurisdiction over the parties or the subject matter or if the foreign judgment itself was obtained as a result of some false representation without which the judgment would not have been rendered. If a foreign judgment is collaterally attacked on subject matter grounds, the court may consider extrinsic evidence only to show that the foreign judgment is void. When the attack is on grounds of extrinsic fraud, a distinction must be made between fraud involving the merits and fraud which enables a party to procure a judgment that he or she otherwise would not have obtained. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

Chancery Court has jurisdiction to hear and adjudicate controversy involving validity and effect of power of attorney, which has not been acknowledged and recorded in manner of conveyance of land, with respect to conveyance of real property situated in Republic of Greece where all parties reside in Mississippi and have been effectively subjected to in personam jurisdiction of Chancery Court; court may enter personal judgment, even though controlling substantive law is that of Greece; final adjudication would effectively bind parties in Mississippi and presumably in all other states even though adjudication may not be enforceable in Greece as matter of right and maybe not even as matter of comity. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Where jurisdiction of a foreign court or that of a state is brought into question in a suit in courts of another state or sovereignty, the law of the forum is controlling upon the question of jurisdiction of the court rendering the judgment. Wheeler v. Kight, 233 Miss. 425, 102 So. 2d 374, 1958 Miss. LEXIS 398 (Miss. 1958).

Where at the time of rendering judgment assessing certain policy holders, the Texas court had jurisdiction of the subject matter of the class suit by the statutory receiver for an unincorporated reciprocal insurance exchange, but did not have territorial jurisdiction of the person of the defendant who then lived in Mississippi, and who was not served with process except by mailing of the same to him at his place of residence, the court did not err in refusing to give full faith and credit to the judgment when defendant was sued in Mississippi. Wheeler v. Kight, 233 Miss. 425, 102 So. 2d 374, 1958 Miss. LEXIS 398 (Miss. 1958).

Records and proceedings of courts of other states are entitled to full faith and credit only insofar as such courts have jurisdiction of the subject matter and the parties, and facts necessary to give jurisdiction to the court rendering judgment may be inquired into. Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414, 1936 Miss. LEXIS 200 (Miss. 1936); American Cas. Co. v. Kincade, 219 Miss. 653, 69 So. 2d 820, 1954 Miss. LEXIS 374 (Miss. 1954).

Where the full faith and credit clause is invoked to compel enforcement of a judgment or decree in another state, the question of jurisdiction in the court of rendition is always open to inquiry. Steele v. Steele, 152 Miss. 365, 118 So. 721, 1928 Miss. LEXIS 227 (Miss. 1928).

Full faith and credit does not require the admission in evidence of a judgment of a court of a sister state, rendered in a suit commenced by attachment against the property of a person who was without such state and was not personally served with process. Chew & Relf v. Randolph, 1 Miss. 1, 1818 Miss. LEXIS 1 (Miss. 1818).

3. Venue.

A Mississippi resident who went into Tennessee and contracted with a Tennessee corporation providing placement services to seek employment for him in any one of 3 states, one of which was Tennessee, was amenable to personal jurisdiction in the Tennessee courts, and the Mississippi court could not decline to give full faith and credit to the Tennessee court judgment on ground that venue was not proper in the Tennessee court. Educational Placement Services v. Wilson, 487 So. 2d 1316, 1986 Miss. LEXIS 2445 (Miss. 1986).

4. Nonfinal judgment.

A Louisiana judgment was a valid final one entitled to full faith and credit in the courts of Mississippi, notwithstanding the contention that it was not final since a copy of the notice of the signing of the judgment had not been mailed to the attorney of record, where the Louisiana case had not been taken under advisement and no written request for a notice of judgment had been filed; thus no such notice was required under Louisiana law. Marsh v. Luther, 373 So. 2d 1039, 1979 Miss. LEXIS 2324 (Miss. 1979).

A judgment which is not final and which is subject to change and modification at any time when a change of conditions demands it, and has no conclusive effect in the state where rendered, has no constitutional claim under the full faith and credit clause of the Constitution to final conclusive effect in the state of the forum. Latham v. Latham, 223 Miss. 263, 78 So. 2d 147, 1955 Miss. LEXIS 377 (Miss. 1955).

5. Law governing.

Section 75-1-105 authorizes application of Mississippi substantive law on privity, disclaimers and limitations of remedies in warranty action only when transaction giving rise to warranty claim bears some reasonable and appropriate relationship to Mississippi, and in absence of such relation, application of Mississippi substantive warranty law violates constitutional guarantees. Price v. International Tel. & Tel. Corp., 651 F. Supp. 706, 2 U.C.C. Rep. Serv. 2d (CBC) 1552, 1986 U.S. Dist. LEXIS 17192 (S.D. Miss. 1986).

Where on former appeals, terminating in a decision by the Federal Supreme Court, the point raised by demurrer to insurer’s plea involved the question whether a provision in a fidelity bond requiring any claim thereunder to be made within 15 months after the termination of the suretyship, was subject to the law of Tennessee where the contract was made at a time when the insured was then located in Tennessee, or subject to the laws of Mississippi, to which insured had removed and where the defalcation occurred, and resulted in a determination that the laws of Tennessee governed, such determination did not preclude subsequent litigation as to the effect of such provision under Tennessee decisions as being a condition precedent to liability of the insurer or merely a postponement of the right to sue. Hartford Acci. & Indem. Co. v. Delta & Pine Land Co., 189 Miss. 496, 195 So. 667, 1940 Miss. LEXIS 100 (Miss.), cert. denied, 311 U.S. 610, 61 S. Ct. 25, 85 L. Ed. 387 (U.S. 1940).

6. Evidentiary matters.

Congress cannot make promissory notes lacking an internal revenue stamp inadmissible evidence in state courts. Wilson v. State, 80 Miss. 388, 31 So. 787, 1902 Miss. LEXIS 250 (Miss. 1902).

7. Fraud or mistake.

One qualification to rule requiring Mississippi Courts to give full faith and credit to final judgments of all other states and federal courts is that if foreign judgment itself was obtained as result of some false representation without which judgment would not have been rendered, and of such nature that court of that state would relieve judgment debtor from its effect, court of Mississippi may refuse to enforce it; it is not fraud involving merits of case which may be attacked, but fraud that enables party to procure judgment he otherwise would not have obtained. Reeves Royalty Co. v. ANB Pump Truck Service, 513 So. 2d 595, 1987 Miss. LEXIS 2825 (Miss. 1987).

Full faith and credit would not be afforded to an Oklahoma judgment against a Mississippi corporation where the Oklahoma court, if it had been advised of the jurisdictional facts before the Mississippi courts, would not have asserted in personam jurisdiction over the Mississippi corporation. Galbraith & Dickens Aviation Ins. Agency v. Gulf Coast Aircraft Sales, Inc., 396 So. 2d 19, 1981 Miss. LEXIS 1979 (Miss. 1981).

8. Divorce and support.

Chancery court did not err in denying a first wife’s motion to vacate because it had no authority to vacate a Florida divorce decree issued more than fifteen years before without a complete record and with limited facts; because the first wife initially filed the motion to vacate in the Florida court but voluntarily withdrew it, she could not come to Mississippi and attack the validity of a Florida judgment issued in 1995 without providing a full record. Fernando v. Sapukotana (In re Estate of Sapukotana), 179 So.3d 1105, 2015 Miss. LEXIS 636 (Miss. 2015).

An ex-husband’s filing of a suit in tort against his ex-wife was not a proper response to her attempt to enforce foreign judgments for unpaid child support and attorney’s fees, in spite of his argument that the law suit was a consolidated answer to the efforts to enroll and execute on the 4 judgments. Even if the law suit were a timely and proper response, it would otherwise fail because the record reflected proper notice in accordance with §11-7-301 et seq., and the “response” collaterally attacked the validity and amounts of the underlying judgments which may not be attacked in Mississippi. Thus, the judgments were entitled to full faith and credit in Mississippi. Davis v. Davis, 558 So. 2d 814, 1990 Miss. LEXIS 19 (Miss. 1990).

A chancery court abused its discretion in exercising jurisdiction over a divorce action brought by the wife where a divorce had been granted by a Maine court in an action filed by the husband; the wife was estopped from asserting the invalidity of the Maine decree since she remarried soon after the decree became final, thereby indicating her reliance on its validity. Scribner v. Scribner, 556 So. 2d 350, 1990 Miss. LEXIS 23 (Miss. 1990).

The trial court correctly ordered the payment of past due child support pursuant to a Louisiana divorce decree, notwithstanding defendant husband’s contention that the decree was not final and was thus not entitled to full faith and credit, where Louisiana case law held that past due alimony was not subject to annulment or alteration. Hinds v. Primeaux, 367 So. 2d 925, 1979 Miss. LEXIS 2218 (Miss. 1979).

Recovery of past due installments for support of minor child under a divorce decree was permitted under the full faith and credit clause where the foreign court has no authority to modify decree as to past due installments, notwithstanding the foreign court reserved jurisdiction to modify the decree as to future installments. Hatrak v. Hatrak, 206 Miss. 239, 39 So. 2d 779, 1949 Miss. LEXIS 258 (Miss. 1949).

Divorce decree of foreign state directing payments in installments for support of minor child may not be modified by Mississippi courts as to future installments under the full faith and credit clause, where jurisdiction to amend such future installments was retained by the court granting the divorce. Hatrak v. Hatrak, 206 Miss. 239, 39 So. 2d 779, 1949 Miss. LEXIS 258 (Miss. 1949).

A Louisiana judgment as to past due installments of alimony is final, and consequently is enforceable in Mississippi under the full faith and credit clause. Compton v. Compton, 188 Miss. 670, 196 So. 635, 1940 Miss. LEXIS 84 (Miss. 1940).

While one State may, on principles of interstate comity, recognize and give effect to divorce granted in another State, but not within protection of full faith and credit provision of Federal Constitution, such recognition will not be given to divorce granted on constructive service of process in State other than that of matrimonial domicile, and in which neither party is domiciled. Miller v. Miller, 173 Miss. 44, 159 So. 112, 1935 Miss. LEXIS 192 (Miss. 1935).

Full faith and credit clause of Federal Constitution held not to require recognition and enforcement of Arkansas divorce decree in Mississippi court, where Arkansas court had no jurisdiction of marriage status or of person of wife, who was only constructively served with process. Miller v. Miller, 173 Miss. 44, 159 So. 112, 1935 Miss. LEXIS 192 (Miss. 1935).

A decree of another state awarding alimony which may be annulled, varied, or modified by the court rendering it, is not enforceable in Mississippi by virtue of the full faith and credit clause. Gallant v. Gallant, 154 Miss. 832, 123 So. 883, 1929 Miss. LEXIS 189 (Miss. 1929), overruled, Hinds v. Primeaux, 367 So. 2d 925, 1979 Miss. LEXIS 2218 (Miss. 1979).

9. Child custody and visitation.

Mother’s petition to terminate father’s visitation rights with minor on the ground that he had sexually abused child was dismissed, because Mississippi court would give full faith and credit to the judgment of the Ohio court that father had not abused child. In Interest of K.M.G., 500 So. 2d 994, 1987 Miss. LEXIS 2242 (Miss. 1987).

Where temporary custody of the child had been vested in the mother by virtue of an order entered by a Pennsylvania court pursuant to a stipulation between the mother and father, and the courts of Pennsylvania had jurisdiction of an indisposed of proceeding between the parties regarding the custody of the child and of the father’s suit for divorce at the time suit was brought in the Mississippi court solely seeking custody of the child, any complaint that the father had as to the mother’s delay in presenting evidence as to her fitness to have custody of the child should have been addressed to the Pennsylvania court, and the Mississippi court should have declined to take jurisdiction of the proceeding and dismissed the father’s bill of complaint. Cox v. Cox, 233 Miss. 747, 102 So. 2d 799, 1958 Miss. LEXIS 437 (Miss. 1958).

In a proceeding for the custody of a minor child who had lived with his maternal grandparents in Mississippi since the death of its mother, the Mississippi court would not give full faith and credit to a decree of a Texas court awarding custody of the child to its natural father where process was obtained upon the maternal grandparents, who did not appear in the Texas court, by having process mailed by the clerk of the Texas court to the sheriff of the Mississippi county where the maternal grandparents and child resided, although under a Texas law the domicile of a child reverts to the father at the time of the mother’s death. Hutchins v. Moore, 231 Miss. 772, 97 So. 2d 748, 1957 Miss. LEXIS 565 (Miss. 1957).

Where the father invoked the jurisdiction of a Texas court to obtain custody of his children, after the mother, to whom custody had been largely awarded by the Mississippi court, had taken the children to that state, the judgment of the Texas court, awarding exclusive custody of the children to the mother, superseded the earlier decree of the Mississippi court, and was entitled to full faith and credit, and was res adjudicata of the facts and circumstances existing at the time of the rendition of the judgment. Logan v. Rankin, 230 Miss. 749, 94 So. 2d 330, 1957 Miss. LEXIS 419 (Miss. 1957).

A Tennessee court which had awarded custody of child to maternal grandparents residing in Mississippi by divorce decree leaving open question of further custody had no jurisdiction to award custody to father, where father had abandoned child, and child had never been domiciled in Tennessee, and decree awarding custody to father was not binding on Mississippi courts under full faith and credit clause of Federal Constitution, since that clause does not apply to the judgment of a court of another State having no jurisdiction. McAdams v. McFerron, 180 Miss. 644, 178 So. 333, 1938 Miss. LEXIS 30 (Miss. 1938).

Court having control of custody of children may permit their removal beyond limits of State and require proper bond for their return, but such power should be exercised with caution. Campbell v. Lovgren, 175 Miss. 4, 166 So. 365, 1936 Miss. LEXIS 19 (Miss. 1936).

10. Probate proceedings.

Question of whether beneficial interest in trust constitutes real or personal property is not subject to full faith and credit as judgment of sister state because Mississippi courts may intervene when disposition of decedent’s interests involve property interests which are subject to Mississippi’s jurisdiction. Estate of Waitzman, 507 So. 2d 24, 1987 Miss. LEXIS 2318 (Miss. 1987).

That certificate of probate court of sister State appointing administratrix de bonis non did not comply with Federal statute held not to preclude this State from giving effect thereto. Mobile & O.R. Co. v. Swain, 164 Miss. 825, 145 So. 627, 1933 Miss. LEXIS 255 (Miss. 1933).

A dismissal in another state of a probate claim for late filing is not required by the full faith and credit clause to be treated as a bar to the claim in ancillary probate proceedings in Mississippi. Buckingham Hotel Co. v. Kimberly, 138 Miss. 445, 103 So. 213, 1925 Miss. LEXIS 62 (Miss. 1925).

The judgment of another state establishing an instrument as a will, is not rendered, by the full faith and credit clause, conclusive as to real estate in Mississippi. Woodville v. Pizzati, 119 Miss. 442, 81 So. 127, 1919 Miss. LEXIS 22 (Miss. 1919).

11. Limitation of actions.

A dismissal for expiration of a statute of limitations is not an adjudication upon the merits and, therefore, such a dismissal is not entitled to full faith and credit in sister states under Art. 4 § 1 of the United States Constitution even if the dismissal is “with prejudice.” Lee v. Swain Bldg. Materials Co., 529 So. 2d 188, 1988 Miss. LEXIS 363 (Miss. 1988).

A statute prescribing a limitation period of three years for bringing suit upon a foreign judgment against a citizen of the state who was a resident of the state when suit was filed in the foreign state, is not in conflict with the full faith and credit clause. Bosich v. Skermetti, 146 Miss. 491, 112 So. 385, 1927 Miss. LEXIS 248 (Miss. 1927).

A statute providing that judgments recovered in other states against citizens of Mississippi shall not be enforced in the tribunals of that state if the cause of action which was the foundation of the judgment would have been barred in its tribunals by its statute of limitations, is unconstitutional. Christmas v. Russell, 72 U.S. 290, 18 L. Ed. 475, 1866 U.S. LEXIS 938 (U.S. 1866).

A statute providing that judgment obtained in any other state prior to its passage should be barred unless suit is brought on the judgment within two years after the passage of the act, does not deny full faith and credit to the judgment. President & Directors of Bank of Alabama v. Dalton, 50 U.S. 522, 13 L. Ed. 242, 1850 U.S. LEXIS 1440 (U.S. 1850).

12. Contracts violative of Mississippi law.

A judgment of another state may not be denied full faith and credit because it grew out of a transaction in “futures,” unlawful under Mississippi law. Armstrong v. Minkus, 93 Miss. 621, 47 So. 467, 1908 Miss. LEXIS 145 (Miss. 1908); Fauntleroy v. Lum, 210 U.S. 230, 28 S. Ct. 641, 52 L. Ed. 1039, 1908 U.S. LEXIS 1506 (U.S. 1908).

13. Workers’ compensation.

The full faith and credit clause does not go so far as to require this state to withhold the application of its workmen’s compensation laws because they conflict with the workmen’s compensation laws of another state. Mandle v. Kelly, 229 Miss. 327, 90 So. 2d 645, 1956 Miss. LEXIS 613 (Miss. 1956).

Where, under the law of Georgia where its contract was executed, the workmen’s compensation carrier was not obligated to pay to any person any benefit under any compensation law except the Georgia Act, the liability of the carrier could not be extended by application of the Mississippi Workmen’s Compensation Act contrary to the express terms of the policy. Mandle v. Kelly, 229 Miss. 327, 90 So. 2d 645, 1956 Miss. LEXIS 613 (Miss. 1956).

Where, under the circumstances, the exemption in Code 1942 § 6998-55(c), did not apply, the Mississippi Workmen’s Compensation Act was applicable to a situation where an employee, employed in Georgia, sustained injuries while operating his employer’s truck upon a Mississippi highway, and received extensive medical treatment while in the state for which payment had not been received, notwithstanding the Georgia Employer’s contention that the application of the Act would violate the full faith and credit clause of the United States Constitution, would constitute an interference with, or impairment of, the right to contract, and would interfere with interstate commerce. Mandle v. Kelly, 229 Miss. 327, 90 So. 2d 645, 1956 Miss. LEXIS 613 (Miss. 1956).

14. Foreign guardianship.

Where a natural mother and maternal grandmother of an adopted child were afforded their due process rights in an Arizona guardianship termination proceedings, and Arizona law provided that a guardianship established by consent of the natural parent was terminable upon revocation of that consent, the Mississippi Supreme Court was obliged to give full faith and credit to an Arizona judgment terminating the grandmother’s guardianship over the child. C.T. v. R.D.H., 843 So. 2d 690, 2003 Miss. LEXIS 201 (Miss. 2003).

§ 2. Privileges and immunities; Extradition; Fugitives Slaves

1. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

2. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.

3. No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

Editor’s Note —

The third clause was affected by the Thirteenth Amendment.

Cross References —

Privileges and immunities of citizens of the United States, see USCS Const. Amend. XIV, § 1.

Federal Aspects —

States as precluded from making or enforcing laws abridging privileges or immunities, USCS Constitution, Amendment 14.

Privileges and immunities in Puerto Rico, 48 USCS § 737.

Extension of Art. IV, Sec. 2, Cl. 1 to Guam, 48 USCS § 1421b.

Extension of Art. IV, Sec. 2, Cl. 1 to Virgin Islands, 48 USCS § 1561.

RESEARCH REFERENCES

ALR.

Constitutionality, construction, and application of Federal Fugitive Felon Act. 154 ALR 1168.

Am. Jur.

1 Am Jur 2d, Abortion and Birth Control § 14. 3B Am Jur 2d, Aliens and Citizens § 1850. 5 Am Jur 2d, Arrest § 39.

3B Am Jur 2d, Aliens and Citizens § 1850. 5 Am Jur 2d, Arrest § 39.

5 Am Jur 2d, Arrest § 39.

15 Am Jur 2d, Civil Rights § 3.

16A Am Jur 2d, Constitutional Law §§ 222, 398.

16B Am Jur 2d, Constitutional Law §§ 660, 790-822.

32A Am Jur 2d, Federal Courts § 923.

36 Am Jur 2d, Foreign Corporations § 183.

42 Am Jur 2d, Inheritance, Estate, and Gift Taxes § 19.

42 Am Jur 2d, Insolvency § 3.

82 Am Jur 2d, Workers’ Compensation § 26.

Lawyers’ Edition.

Constitutionality of state laws which discriminate against nonresidents or aliens as to fishing or hunting rights. 52 L Ed 2d 824.

Supreme Court’s construction and application of privileges and immunities clause of United States Constitution (Article IV, § 2, cl 1). 79 L Ed 2d 918.

Interstate extradition: Supreme Court’s construction of Extradition Act (18 USCS § 3182, and similar predecessor provisions) and of extradition clause (Art. IV, § 2, cl. 2) of Federal Constitution. 96 L. Ed. 2d 750.

Federal constitutional right to interstate travel–Supreme Court cases. 143 L Ed 2d 1101.

JUDICIAL DECISIONS

1. Privileges and immunities generally.

2. Taxes.

3. Child custody.

4. Long-arm statute.

5. Extradition.

1. Privileges and immunities generally.

Nonresident who engages in business in this state which is subject to state control is subject to suit for damages in this state on cause of action accruing here out of business transacted in this state and is properly brought into court by service of process upon secretary of state in manner provided by Code 1942 § 1438, and statutes so providing do not violate due process or immunities and privileges clauses of Federal Constitution. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

A statute prohibiting counties from letting contracts for blank books, printed forms, stationery, or office supplies, to any bidder who is not a bona fide resident of the state actually engaged in the printing business, or who, being a nonresident, has not a printing plant in the state, does not infringe upon the privilege and immunities of citizens of the several states. State ex rel. Collins v. Senatobia Blank Book & Stationery Co., 115 Miss. 254, 76 So. 258, 1917 Miss. LEXIS 205 (Miss. 1917).

2. Taxes.

A privilege tax (Laws 1944, chap. 137, § 143) imposed on persons taking photographs in the state for development of the same outside the state, when construed as a tax only on the person who actually takes the pictures, is not unconstitutionally discriminatory in favor of local photographers by reason of the slight difference in the amount of tax as between the two classes. Craig v. Mills, 203 Miss. 692, 33 So. 2d 801, 1948 Miss. LEXIS 315 (Miss. 1948).

Classification of property for inheritance tax purposes, according to decedent’s residence, is permissible. Enochs v. State, 133 Miss. 107, 97 So. 534, 1923 Miss. LEXIS 125 (Miss. 1923).

3. Child custody.

Continuing and exclusive nature of chancery court jurisdiction over issues involving child custody precludes Youth Court from having exclusive original jurisdiction over proceedings involving abused child, where allegations of abuse are raised in context of custody proceeding over which chancery court already exercises jurisdiction. Rights of minor child suspected of having been sexually abused by parent, to access to court, were not impaired by chancery court’s considering allegations of sexual abuse without referring matter to Youth Court. Chrissy F. v. Mississippi Dep't of Public Welfare, 780 F. Supp. 1104, 1991 U.S. Dist. LEXIS 17998 (S.D. Miss. 1991), aff'd in part and rev'd in part, 995 F.2d 595, 1993 U.S. App. LEXIS 16843 (5th Cir. Miss. 1993).

4. Long-arm statute.

The “doing business” provision of the Mississippi long-arm statute cannot be invoked by a nonresident plaintiff in a diversity action against a nonresident defendant and the statute, so construed, does not deny a nonresident plaintiff privileges and immunities secured under the federal constitution. Breeland v. Hide-A-Way Lake, Inc., 585 F.2d 716 (C.A.5 (Miss.) 1978), on rehearing 593 F.2d 22.

Nonresident engaging in business of termite eradication and control in this state under license from State Plant Board authorizing him to conduct such business is subject to action for damages in this state for breach of contract entered into and to be performed in this state and may be brought into court by service of process upon secretary of state in manner provided by Code 1942 § 1438. Condon v. Snipes, 205 Miss. 306, 38 So. 2d 752, 1949 Miss. LEXIS 433 (Miss. 1949).

5. Extradition.

State statutes and decisions relating to habeas corpus and extradition are not applicable to interstate extradition except to extent that they may be in aid of, and not inconsistent with, the Constitution and laws of United States on the question. Bishop v. Jones, 207 Miss. 423, 38 So. 2d 920, 42 So. 2d 421, 1949 Miss. LEXIS 353 (Miss.), op. withdrawn, different results reached on reconsid., 207 Miss. 423, 42 So. 2d 421, 1949 Miss. LEXIS 352 (Miss. 1949).

Decision of governor of asylum state in extradition proceedings is subject to review by habeas corpus proceedings prior to granting relief to demanding state. Bishop v. Jones, 207 Miss. 423, 38 So. 2d 920, 42 So. 2d 421, 1949 Miss. LEXIS 353 (Miss.), op. withdrawn, different results reached on reconsid., 207 Miss. 423, 42 So. 2d 421, 1949 Miss. LEXIS 352 (Miss. 1949).

Decree of court in habeas corpus proceedings adjudging extradition proceedings to be insufficient both in form and substance but providing for discharge of relator unless within a stated period of time the sheriff should be served with a proper, legal and sufficient extradition warrant based upon proper, legal and sufficient papers and proceedings, violated accused’s constitutional right to have the trial judge as a judicial officer to not only pass upon the sufficiency of the extradition proceedings then before the court but also the sufficiency of any such papers that were to be thereafter supplied in their stead. Bishop v. Jones, 207 Miss. 423, 38 So. 2d 920, 42 So. 2d 421, 1949 Miss. LEXIS 353 (Miss.), op. withdrawn, different results reached on reconsid., 207 Miss. 423, 42 So. 2d 421, 1949 Miss. LEXIS 352 (Miss. 1949).

The interstate extradition of criminals is governed by the laws of the United States, and the Federal Constitution and statutes must be looked to for authority in extradition matters. Ex parte Walters, 106 Miss. 439, 64 So. 2, 1913 Miss. LEXIS 151 (Miss. 1913).

§ 3. Admission of new states; Public lands

1. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress.

2. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.

RESEARCH REFERENCES

Am. Jur.

27 Am Jur 2d, Energy and Power Sources § 137. 32A Am Jur 2d, Federal Courts § 583. 45 Am Jur 2d, Irrigation § 84. 77 Am Jur 2d, United States §§ 30, 32.

32A Am Jur 2d, Federal Courts § 583.

45 Am Jur 2d, Irrigation § 84.

77 Am Jur 2d, United States §§ 30, 32.

§ 4. Republican government

The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the Legislature, or of the executive (when the Legislature can not be convened) against domestic violence.

RESEARCH REFERENCES

Am. Jur.

16 Am Jur 2d, Constitutional Law § 21.

16B Am Jur 2d, Constitutional Law §§ 681-688.

32A Am Jur 2d, Federal Courts § 598.

JUDICIAL DECISIONS

1. In general.

In light of the carefully-drafted language and legislative history of 47 USCS § 227(e)(1), and in spite of the presumption against preemption that attaches to the state’s exercise of its police power, there is an inherent federal objective in the Truth in Caller ID Act of 2009 to protect non-harmful spoofing; Mississippi Caller ID Anti-Spoofing Act’s proscription of non-harmful spoofing (spoofing done without intent to defraud, cause harm, or wrongfully obtain anything of value) frustrates this federal objective and is, therefore, conflict-preempted. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

Because court held that Mississippi Caller ID Anti-Spoofing Act was conflict-preempted by Truth in Caller ID Act of 2009, court did not need to consider its validity under dormant Commerce Clause or First Amendment. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

An indictment found by a grand jury from which negro citizens were intentionally excluded is at variance with the Constitutional guarantee of a republican form of government. Farrow v. State, 91 Miss. 509, 45 So. 619, 1907 Miss. LEXIS 130 (Miss. 1907).

Article V Amendments

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the Legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.

RESEARCH REFERENCES

Am. Jur.

16 Am Jur 2d, Constitutional Law §§ 12, 15, 45.

CJS.

C.J.S. Constitutional Law § 5.

JUDICIAL DECISIONS

1. In general.

Circuit court did not have subject matter jurisdiction over election contest, arising of primary election for state representative in which issue was which candidate received the most votes, inasmuch as question was one peculiarly within competence of legislature itself. Henry v. Henderson, 697 So. 2d 447, 1997 Miss. LEXIS 298 (Miss. 1997), overruled in part, Dillon v. Myers, 227 So.3d 923, 2017 Miss. LEXIS 134 (Miss. 2017).

Article VI Debts Validated; Supreme Law of Land; Oath of Office

1. All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

2. This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.

3. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this Constitution; but no religious tests shall ever be required as a qualification to any office or public trust under the United States.

ATTORNEY GENERAL OPINIONS

The Department of Public Safety may implement the federal ‘Driver’s Protection Act of 1994’ by enacting regulations, if necessary, under the Mississippi Administrative Procedures Act (Miss. Code Section 25-43-1 et seq.) to effectuate superseding federal exemptions to the Mississippi Public Records Act, and if it so desires, may adopt regulations pertaining to an ‘opt-out’ system. Ingram, Aug. 29, 1997, A.G.Op. #97-0515.

RESEARCH REFERENCES

ALR.

Binding effect upon state courts of opinion of United States Supreme Court supported by less than a majority of all its members. 65 A.L.R.3d 504.

Application of state and local construction and building regulations to contractors engaged in construction projects for the federal government. 131 A.L.R. Fed. 583.

Am. Jur.

16 Am Jur 2d, Constitutional Law §§ 50-55.

CJS.

C.J.S. Banks and Banking §§ 485, 551 to 552.

C.J.S. Constitutional Law §§ 2 to 4, 528.

C.J.S. Employer-Employee Relationship § 68.

C.J.S. Insurance §§ 33 to 35.

C.J.S. Officers and Public Employees § 34.

C.J.S. States §§ 43-51.

JUDICIAL DECISIONS

1. Supremacy of law.

2. Oath or affirmation.

1. Supremacy of law.

In light of 47 USCS § 227(e)(1)’s carefully-drafted language and legislative history, and in spite of presumption against preemption that attaches to State’s exercise of its police power, there is inherent federal objective in Truth in Caller ID Act of 2009 to protect non-harmful spoofing; Mississippi Caller ID Anti-Spoofing Act’s proscription of non-harmful spoofing (spoofing done without intent to defraud, cause harm, or wrongfully obtain anything of value) frustrates this federal objective and is, therefore, conflict-preempted. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

Because court held that Mississippi Caller ID Anti-Spoofing Act was conflict-preempted by Truth in Caller ID Act of 2009, court did not need to consider its validity under dormant Commerce Clause or First Amendment. Teltech Sys. v. Bryant, 702 F.3d 232, 2012 U.S. App. LEXIS 25217 (5th Cir. Miss. 2012).

As defendant manufacturer’s cigarette lighter complied with an established federal safety standard for child resistance, plaintiffs’ state law products liability claim was preempted by federal law, and the manufacturer was properly granted summary judgment. Frith v. BIC Corp., 863 So. 2d 960, 2004 Miss. LEXIS 14 (Miss. 2004).

Chancellor properly considered a former spouse’s veteran’s disability benefits in an award of alimony; the former spouse’s claim that it violated the Supremacy Clause to consider such benefits in calculating the spouse’s ability to pay was rejected. Steiner v. Steiner, 788 So. 2d 771, 2001 Miss. LEXIS 165 (Miss. 2001).

Cornerstone of preemption is that state law which conflicts with federal law is invalid under Supremacy Clause. Cooper v. GMC, 702 So. 2d 428, 1997 Miss. LEXIS 713 (Miss. 1997).

State civil service statute and system of administrative appeal or judicial review is not unconstitutional or contrary to federal supremacy clause because, as matter of federal law, state agencies cannot be sued for damages in state court under 42 U.S.C.S. § 1983. Wright v. White, 693 So. 2d 898, 1997 Miss. LEXIS 160 (Miss. 1997), overruled in part, E. Miss. State Hosp. v. Callens, 892 So. 2d 800, 2004 Miss. LEXIS 361 (Miss. 2004).

Retroactive application of §81-5-105, which limits the personal liability of a former officer of a failed federal savings and loan association to gross negligence, intentional tortious conduct, intentional breach of the duty of loyalty, and corporate waste, does not violate the Supremacy Clause; §81-5-105 mirrors the policy embodied in 12 USCS § 1821(k) (Financial Institutions, Reform, Recovery, and Enforcement Act), showing that state law compliments federal policy. Resolution Trust Corp. v. Scott, 887 F. Supp. 937, 1995 U.S. Dist. LEXIS 8119 (S.D. Miss. 1995).

Physician whose hospital staff privileges were suspended was not denied procedural due process where statutory scheme provided for appeal to the Chancery Court; 30-day period for appeal to Chancery Court in such matter did not violate Supremacy Clause of Article VI of the US Const. Caine v. Hardy, 943 F.2d 1406, 1991 U.S. App. LEXIS 22455 (5th Cir. Miss. 1991), cert. denied, 503 U.S. 936, 112 S. Ct. 1474, 117 L. Ed. 2d 618, 1992 U.S. LEXIS 1727 (U.S. 1992).

By virtue of the supremacy clause, the Federal Uniformed Services Former Spouses’ Protection Act overrides Mississippi’s long-arm statutes to the extent that Mississippi law would exceed the limitations of the federal enactment. Thus, a former husband’s absence from Mississippi for 15 continuous years precluded personal jurisdiction by reason of residence or domicile since the language of the federal Act makes it clear that only current domicile or residence may suffice to confer authority upon a court to adjudge rights in a former service person’s military retirement pension. Petters v. Petters, 560 So. 2d 722, 1990 Miss. LEXIS 201 (Miss. 1990).

The fact that a trial judge lacks sentenc-ing discretion does not necessarily mean the prescribed sentence meets federal constitutional proportionality requirements. Thus, notwithstanding §99-19-81, which requires habitual offenders to be sentenced to a maximum term, the trial court had authority, as a function of the Supremacy Clause, to review a particular sentence in light of constitutional principles of proportionality. Clowers v. State, 522 So. 2d 762, 1988 Miss. LEXIS 94 (Miss. 1988), limited, Barnwell v. State, 1997 Miss. LEXIS 495 (Miss. Oct. 9, 1997), limited, Espinoza v. State, 1998 Miss. App. LEXIS 618 (Miss. Ct. App. July 28, 1998).

Under Article VI, § 2, federal law has preemptive effect when the Congress, acting within its constitutional powers, expressly so provides. Transcontinental Gas Pipeline Corp. v. State Oil & Gas Bd., 457 So. 2d 1298, 1984 Miss. LEXIS 1869 (Miss. 1984), rev'd, 474 U.S. 409, 106 S. Ct. 709, 88 L. Ed. 2d 732, 1986 U.S. LEXIS 47 (U.S. 1986).

Truth in Lending claims and defenses are well within the competence of state courts, since they are the subject of concurrent federal and state jurisdiction, and thus, under US Const Art 6 § 2, a state court was not free to refuse jurisdiction over a Truth in Lending claim, based as it is on rights created by the Constitution and laws of the United States. Brown v. Credit Ctr., Inc., 444 So. 2d 358, 1983 Miss. LEXIS 3053 (Miss. 1983).

Every treaty made by the authority of the United States is superior to the constitution or laws of any individual state and the law of the state, if contrary to the treaty, is void. Guiseppe v. Cozzani, 238 Miss. 273, 118 So. 2d 189, 1960 Miss. LEXIS 401 (Miss. 1960).

The imposition of a privilege tax on an amount received from a Federal agency for services rendered in compressing cotton was not violative of the Federal Constitution as being a tax on one of the Federal governmental agencies, since the tax was not imposed on a Federal governmental agency but on income derived from such an agency. Compress of Union v. Stone, 188 Miss. 49, 193 So. 329, 1940 Miss. LEXIS 6 (Miss.), cert. denied, 311 U.S. 668, 61 S. Ct. 27, 85 L. Ed. 429, 1940 U.S. LEXIS 411 (U.S. 1940).

2. Oath or affirmation.

The requirement of oath to support the Constitution of the United States, imposed upon members of state legislatures and all executive and judicial officers of the state, is not merely directory, but compliance therewith is essential. Taylor v. Thomas, 89 U.S. 479, 22 L. Ed. 789, 1874 U.S. LEXIS 1282 (U.S. 1875).

Article VII Ratification of Original Articles

The ratification of the conventions of nine States, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.

Done in convention by the unanimous consent of the States present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty-seven and of the Independence of the United States of America the twelfth. In Witness whereof we have hereunto subscribed our names,

Go. WASHINGTON — President and Deputy from Virginia. New Hampshire. John Langdon, Nicholas Gilman. Massachusetts. Nathaniel Gorham, Rufus King. Connecticut. Wm. Saml. Johnson, Roger Sherman. New York. Alexander Hamilton. New Jersey. Wil. Livingston, Wm. Paterson, David Brearley, Jona. Dayton. Pennsylvania. B. Franklin, Thomas Mifflin, Robt. Morris, Geo. Clymer, Tho. Fitzsimmons, Jared Ingersoll. James Wilson, Gouv. Morris. Delaware. Geo. Read, Jun’r, Gunning Bedford, John Dickinson, Richard Bassett. Jaco. Broom, Maryland. James Mc’Henry, Dan. of St. Thos. Jenifer, Danl Carroll. Virginia. John Blair, James Madison, Jr. North Carolina. Wm. Blount, Rich’d Dobbs Spaight, Hu. Williamson. South Carolina. J. Rutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler, Georgia. William Few, Abr. Baldwin. Attest: WILLIAM JACKSON, Secretary

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Editor’s Note —

In May, 1785, a committee of Congress made a report recommending an alteration in the Articles of Confederation, but no action was taken on it, and it was left to the State Legislatures to proceed in the matter. In January, 1786, the Legislature of Virginia passed a resolution providing for the appointment of five commissioners, who, or any three of them, should meet such commissioners as might be appointed in the other States of the Union, at a time and place to be agreed upon, to take into consideration the trade of the United States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act, relative to this great object, as, when ratified by them, will enable the United States in Congress effectually to provide for the same. The Virginia commissioners, after some correspondence, fixed the first Monday in September as the time, and the city of Annapolis as the place for the meeting, but only four other States were represented, viz.: Delaware, New York, New Jersey, and Pennsylvania; the commissioners appointed by Massachusetts, New Hampshire, North Carolina, and Rhode Island failed to attend. Under the circumstances of so partial a representation, the commissioners present agreed upon a report, (drawn by Mr. Hamilton, of New York,) expressing their unanimous conviction that it might essentially tend to advance the interests of the Union if the States by which they were respectively delegated would concur, and use their endeavors to procure the concurrence of the other States, in the appointment of commissioners to meet at Philadelphia on the second Monday of May following, to take into consideration the situation of the United States; to devise such further provisions as should appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in Congress assembled as, when agreed to by them, and afterwards confirmed by the Legislatures of every State, would effectually provide for the same.

Congress, on the 21st of February, 1787, adopted a resolution in favor of a convention, and the Legislatures of those States which had not already done so (with the exception of Rhode Island) promptly appointed delegates. On the 25th of May, seven States having convened, George Washington, of Virginia, was unanimously elected President, and the consideration of the proposed Constitution was commenced. On the 17th of September, 1787, the Constitution as engrossed and agreed upon was signed by all the members present, except Mr. Gerry, of Massachusetts, and Messrs. Mason and Randolph, of Virginia. The president of the convention transmitted it to Congress, with a resolution stating how the proposed Federal Government should be put in operation, and an explanatory letter. Congress, on the 28th of September, 1787, directed the Constitution so framed, with the resolutions and letter concerning the same, to “be transmitted to the several Legislatures in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the convention.”

On the 4th of March, 1789, the day which had been fixed for commencing the operations of Government under the new Constitution, it had been ratified by the conventions chosen in each State to consider it, as follows: Delaware, December 7, 1787; Pennsylvania, December 12, 1787; New Jersey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788; Massachusetts, February 6, 1788; Maryland, April 28, 1788; South Carolina, May 23, 1788; New Hampshire, June 21, 1788; Virginia, June 25, 1788; and New York, July 26, 1788.

The President informed Congress, on the 28th of January, 1790, that North Carolina had ratified the Constitution November 21, 1789; and he informed Congress on the 1st of June, 1790, that Rhode Island had ratified the Constitution May 29, 1790. Vermont, in convention, ratified the Constitution January 10, 1791, and was on March 4, 1791, by an act of Congress approved February 18, 1791, “received and admitted into this Union as a new and entire member of the United States.”

AMENDMENTS

Amendment I Freedom of religion, speech and press; peaceful assemblage; petition of grievances

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Editor’s Note —

Proposal and Ratification of Amendments 1 to 10. The first ten amendments to the Constitution of the United States, which comprise the Bill of Rights, set out in 1 Stat. 97, were proposed to the Legislatures of the several States by the First Congress, on September 25, 1789. They were ratified by the following States, and the notifications of ratification by the Governors or Secretaries of State thereof were communicated successively by the President to Congress: New Jersey, November 20, 1789; Maryland, December 19, 1789; North Carolina, December 22, 1789; South Carolina, January 19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; New York, February 27, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; and Virginia, December 15, 1791. The Legislatures of Connecticut, Georgia, and Massachusetts ratified them on April 19, 1939, March 18, 1939, and March 2, 1939, respectively.

Twelve articles were proposed on September 25, 1789. The first two, which failed of adoption, read as follows:

“Art. I. After the first enumeration required by the first article of the Constitution, there shall be one representation for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor more than one representative for every fifty thousand persons.

“Art. II. No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.”

Cross References —

Freedom of speech and press as protected by the Fourteenth Amendment against state action, see Fourteenth Amendment.

RESEARCH REFERENCES

ALR.

Freedom of speech and press as limitation on power to punish for contempt. 159 A.L.R. 1379.

Right of owner of housing development or apartment houses to restrict canvassing, peddling, solicitation of contributions, etc. 3 A.L.R.2d 1431.

Public regulation and prohibition of sound amplifiers or loud-speaker broadcasts in streets and other public places. 10 A.L.R.2d 627.

Propriety of exclusion of press or other media representatives from civil trial. 79 A.L.R.3d 401.

Validity, under establishment of religion clause of federal or state constitution, of provision making day of religious observance a legal holiday. 90 A.L.R.3d 752.

Validity, under state constitution and laws, of issuance by state or state agency of revenue bonds to finance or refinance construction projects at private religious-affiliated colleges or universities. 95 A.L.R.3d 1000.

Validity, propriety, and effect of allowing or prohibiting media’s broadcasting, recording, or photographing court proceedings. 14 A.L.R.4th 121.

Right of jailed or imprisoned parent to visit from minor child. 15 A.L.R.4th 1234.

Advertising as ground for disciplining attorney. 30 A.L.R.4th 742.

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization. 44 A.L.R.4th 1207.

Validity, construction, and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking. 53 A.L.R.4th 801.

Newspaper’s liability to reader-investor for negligent but nondefamatory misstatement of financial news. 56 A.L.R.4th 1162.

Intrusion by news-gathering entity as invasion of right of privacy. 69 A.L.R.4th 1059.

Free exercise of religion as applied to individual’s objection to obtaining or disclosing social security number. 93 A.L.R.5th 1.

Validity of state statutes and administrative regulations regulating internet communications under commerce clause and First Amendment of federal constitution.98 A.L.R.5th 1.

Search warrant as authorizing search of structures on property other than main house or other building, or location other than designated portion of building. 104 A.L.R.5th 165.

First Amendment protection afforded to commercial and home video games. 106 A.L.R.5th 337.

First amendment challenges to display of religious symbols on public property. 107 A.L.R.5th 1.

First Amendment protection afforded to comic books, comic strips, and cartoons. 118 A.L.R.5th 213.

Landlord’s refusal to rent to unmarried couple as protected by landlord’s religious beliefs. 10 A.L.R.6th 513.

Wearing of Religious Symbols in Courtroom as Protected by First Amendment. 18 A.L.R.6th 771.

Nonsexual Misconduct or Irregularity as Amounting to “Conduct Unbecoming an Officer,” Justifying Police Officer’s Demotion or Removal or Suspension from Duty. 19 A.L.R.6th 217.

Validity of Statutes and Ordinances Regulating Operation of Sexually Oriented Businesses–Legal Issues and Principles. 20 A.L.R.6th 161.

Propriety of Radio and Television Attorney Advertisements. 20 A.L.R.6th 385.

Validity of Statutes and Ordinances Regulating Operation of Sexually Oriented Businesses–Types of Businesses Regulated. 21 A.L.R.6th 425.

Validity of Bigamy and Polygamy Statutes and Constitutional Provisions. 22 A.L.R.6th 1.

Cable Television Equipment or Services as Subject to Sales or Use Tax. 23 A.L.R.6th 165.

Invocation and Effect of State Secrets Privilege. 23 A.L.R.6th 521.

Validity of Statutes and Ordinances Regulating the Operation of Sexually Oriented Businesses—Nature of Regulation. 23 A.L.R.6th 573.

Constitutional Validity of State or Local Regulation of Contributions by or to Political Action Committees. 24 A.L.R.6th 179.

Validity of Statutes Imposing Residency Restrictions on Registered Sex Offenders. 25 A.L.R.6th 227.

Constitutionality of Requiring Presentation of Photographic Identification in Order to Vote. 27 A.L.R.6th 541.

Validity of Super-Majority Voting Requirements in Constitutional, Statutory, and Other Public Provisions. 28 A.L.R.6th 439.

Claims for Vicarious and Individual Liability for Infliction of Emotional Distress Derived from Use of Internet and Electronic Communications. 30 A.L.R.6th 241.

First Amendment Protection Afforded to Web Site Operators. 30 A.L.R. 6th 299.

Constitutionality of Legislative Prayer Practices. 30 A.L.R.6th 459.

Validity, and Standing to Challenge Validity, of State Statute Prohibiting Flag Desecration and Misuse. 31 A.L.R.6th 333.

Validity, Construction, and Application of Exclusion or Inclusion of Religious Uses/Places of Worship in Single-Family Residential Zoning Districts. 31 A.L.R.6th 395.

Validity, Construction, and Application of State Statutes Prohibiting, Limiting, or Regulating Fishing or Hunting in State by Nonresidents. 31 A.L.R.6th 523.

Validity, Construction, and Application of State Statutes Imposing Criminal Penalties for Failure to Register as Required Under Sex Offender or Other Criminal Registration Statutes. 33 A.L.R.6th 91.

Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Electronic Communications. 33 A.L.R.6th 373.

Constitutionality of State Statutes and Local Ordinances Regulating Concealed Weapons. 33 A.L.R.6th 407.

Validity, Construction, and Application of State Statutory Requirements Concerning Placement of Independent Candidate for President of the United States on Ballot. 33 A.L.R.6th 513.

Construction and Application of Elections Clause of United States Constitution, U.S. Const. Art. I, § 4, cl.1, and State Constitutional Provisions Concerning Congressional Elections. 34 A.L.R.6th 643.

Validity, Construction, and Application of State and Municipal Enactments Regulating Lobbying and of Lobbying Contracts. 35 A.L.R.6th 1.

Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Verbal or Other Nonelectronic Communications. 35 A.L.R.6th 361.

First Amendment Protection Afforded to Blogs and Bloggers. 35 A.L.R.6th 407.

Constitutionality of State Acts Requiring Employers That Provide Group Insurance Coverage for Prescriptions to Include Prescription Contraceptives in That Coverage. 35 A.L.R.6th 593.

Constitutional Challenges to State Child Abuse Registries. 36 A.L.R.6th 475.

State Statutes or Ordinances Requiring Persons Previously Convicted of Crime to Register with Authorities as Applied to Juvenile Offenders–Constitutional Issues. 37 A.L.R.6th 55.

Defamation by Radio–Actual Malice. 40 A.L.R.6th 231.

Validity, Construction, and Application of State Statutes Regulating or Proscribing Payment in Connection with Gathering Signatures on Nominating Petitions for Public Office or Initiative Petitions. 40 A.L.R.6th 317.

Actions by or Against Individuals or Groups Protesting or Picketing at Funerals. 40 A.L.R.6th 375.

Validity, Construction, and Application of Statutory and Municipal Enactments and Conditions of Release Prohibiting Sex Offenders from Parks. 40 A.L.R.6th 419.

Recovery for Nonconsensual Human Medical Experimentation. 42 A.L.R.6th 301.

Defamation by Television–Actual Malice. 42 A.L.R.6th 353.

Validity, Construction, and Application of State Vexatious Litigant Statutes. 45 A.L.R.6th 493.

Validity of Restrictions Imposed During National Political Conventions Impinging Upon Rights to Freedom of Speech and Assembly Under First Amendment. 46 A.L.R.6th 465.

Validity of Statute Requiring Proof and Disclosure of Information as Condition of Registration to Vote. 48 A.L.R.6th 181.

Civil Liability of Internet Dating Services. 48 A.L.R.6th 351.

Practices Forbidden by State Deceptive Trade Practice and Consumer Protection Acts–Pyramid or Ponzi or Referral Sales Schemes. 48 A.L.R.6th 511.

Validity of Adverse Personnel Action or Adverse Action Affecting Student’s Academic Standing Based on Internet Posting or Expression, Including Social Networking. 49 A.L.R.6th 115.

Challenges to Regulation of Balloon Signs or Other Inflated Signs. 49 A.L.R.6th 153.

Validity of Statute Providing for Purging Voter Registration Lists of Inactive Voters. 51 A.L.R.6th 287.

Application of Municipal Taxpayer Standing Doctrine. 51 A.L.R.6th 333.

Constitutionality, Construction, and Application of Statute or Regulatory Action Respecting Political Advertising–Print Media Cases. 51 A.L.R.6th 359.

Restrictive Covenants or Homeowners’ Association Regulations Restricting or Prohibiting Flags, Signage, or the Like on Homeowner’s Property as Restraint on Free Speech. 51 A.L.R.6th 533.

Validity, Construction, and Application of State Statutes and Municipal Ordinances Proscribing Failure or Refusal to Obey Police Officer’s Order to Move On, or Disperse, on Street, as Disorderly Conduct. 52 A.L.R.6th 125.

Constitutionality, Construction, and Application of Statute or Regulatory Activity Respecting Political Advertising Nonprint Media Cases, or Cases Implicating Both Print and Nonprint Media. 53 A.L.R.6th 491.

Application of First Amendment’s “Ministerial Exception” or “Ecclesiastical Exception” to State Civil Rights Claims. 53 A.L.R.6th 569.

Validity, Construction, and Application of Interstate Corrections Compact and Implementing State Laws–Jurisdictional Issues, Governing Law, and Validity and Applicability of Compact. 54 A.L.R.6th 1.

Construction and Application of Libel-Proof Doctrine. 54 A.L.R.6th 165.

Validity of Statute Restricting Voter Registration Solicitations by Third Parties or Organizations. 55 A.L.R.6th 599.

Validity of Statute Limiting Time Period for Voter Registration. 56 A.L.R.6th 523.

Construction and Application of Interstate Corrections Compact and Implementing State Laws–Equivalency of Conditions and Rights and Responsibilities of Parties. 56 A.L.R.6th 553.

Validity of Criminal State Racketeer Influenced and Corrupt Organizations Acts and Similar Acts Related to Gang Activity and the Like. 58 A.L.R.6th 385.

Validity, Construction, and Application of State Requirements for Placement of Independent Candidates for United States Senate on Ballot. 59 A.L.R.6th 111.

Adoption of Child by Same-Sex Partners. 61 A.L.R.6th 1.

Application of Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) Statutes to Real Estate Development, Land Use, and Zoning Disputes. 64 A.L.R.6th 365.

When Does Use of Pepper Spray, Mace, or Other Similar Chemical Irritants Constitute Violation of Constitutional Rights. 65 A.L.R.6th 93.

Construction and Application of Supreme Court’s Holding in Citizens United v. Federal Election Com’n, 130 S. Ct. 876, 175 L. Ed. 2d 753, 187 L.R.R.M. (BNA) 2961, 159 Lab. Cas. (CCH) P 10166 (2010), That Government May Not Prohibit Independent and Indirect Corporate Expenditures on Political Speech. 65 A.L.R.6th 503.

Validity, Construction, and Application of State and Local Laws Providing for Civil Liability for Tobacco Sales or Distribution to Minors. 66 A.L.R.6th 315.

Propriety of Prohibition of Display or Wearing of Confederate Flag. 66 A.L.R.6th 493.

Regulation of Business of Tattooing. 67 A.L.R.6th 395.

Validity of Runoff Voting Election Methodology. 67 A.L.R.6th 609.

Constitutionality of State Laws Regulating Use or Sale of Physician-Identifying Prescription Information for Commercial Purposes. 67 A.L.R.6th 629.

Validity, Construction, and Application of Criminal Statutes and Ordinances to Prosecution for Dogfighting. 68 A.L.R.6th 115.

Validity, Construction, and Application of Statutes and Ordinances to Prosecution for Cockfighting. 69 A.L.R.6th 207.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum – Characteristics of Forum. 70 A.L.R.6th 513.

Validity of State and Municipal Indecent Exposure Statutes and Ordinances. 71 A.L.R.6th 283.

Constitutionality of Restricting Public Speech in Street, Sidewalk, Park, or Other Public Forum – Manner of Restriction. 71 A.L.R.6th 471.

Constitutional Challenges to Compelled Speech – General Principles. 72 A.L.R.6th 513.

Constitutional Challenges to Compelled Speech – Particular Situations or Circumstances. 73 A.L.R.6th 281.

Validity of Parental Responsibility Statutes and Ordinances Holding Parents Liable for Criminal Acts of Their Children. 74 A.L.R.6th 181.

Challenges to Write-in Ballots and Certification of Write-in Candidates. 75 A.L.R.6th 311.

Validity, Construction and Application of Telephone Consumer Protection Act (47 U.S.C.A. § 227 [47 USCS § 227])–State Cases. 77 A.L.R.6th 1.

Validity, Construction, and Effect of Statute, Ordinance, or Other Measure Involving Fluoridation of Public Water Supply. 78 A.L.R.6th 229.

Application, Recognition, or Consideration of Jewish Law by Courts in United States. 81 A.L.R.6th 1.

Application, Recognition, or Consideration of Islamic Law by Courts in United States. 82 A.L.R.6th 1.

Claims of Student Plagiarism and Student Claims Arising from Such Allegations. 83 A.L.R.6th 195.

Criminal and Civil Liability of Civilians and Police Officers Concerning Recording of Police Actions. 84 A.L.R.6th 89.

Application of Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) Statutes to Invasion of Privacy Claims. 85 A.L.R.6th 475.

Validity of Grandparent Visitation Statutes. 86 A.L.R.6th 1.

Validity, Construction, and Application of State Computer Crime and Fraud Laws. 87 A.L.R.6th 1.

Validity, Construction, and Application of Statutes Directly or Indirectly Proscribing Unauthorized Practice of Law on Internet. 87 A.L.R.6th 479.

Validity, under federal constitution, of public school or state college regulation of student newspapers, magazines, or other publications – federal cases. 16 A.L.R. Fed. 182.

Validity, construction, and application of provisions of Title VII of Civil Rights Act of 1964 (42 USCS §§ 2000e et seq.) and implementing regulations, making religious discrimination in employment unlawful. 22 A.L.R. Fed. 580.

Construction of the freedom of speech and assembly provisions of § 101(a)(2) of the Labor-Management Reporting and Disclosure Act of 1959 (29 USCS § 411(a)(2)), included in the Bill of Rights of members of labor organizations. 26 A.L.R. Fed. 806.

First Amendment as immunizing newsman from liability for tortious conduct while gathering news. 28 A.L.R. Fed. 904.

Prohibiting public employee from running for elective office as violation of employee’s federal constitutional rights. 44 A.L.R. Fed. 306.

Validity, under First Amendment and 42 USCS § 1983, of public college or university’s refusal to grant formal recognition to, or permit meetings of, student homosexual organizations on campus. 50 A.L.R. Fed. 516.

Prohibition of federal agency’s keeping of records on methods of individual exercise of First Amendment rights, under Privacy Act of 1974 (5 USCS § 552a(e)(7)). 63 A.L.R. Fed. 674.

Propriety, under First Amendment, of school board’s censorship of public school libraries or coursebooks. 64 A.L.R. Fed. 771.

Propriety of federal court’s exclusion of public from criminal or civil trial in order to protect trade secrets. 69 A.L.R. Fed. 892.

Dismissal of, or other adverse personnel action relating to, public employee for political patronage reasons as violative of First Amendment. 70 A.L.R. Fed. 371.

What oral statement of student is sufficiently disruptive so as to fall beyond protection of First Amendment. 76 A.L.R. Fed. 599.

Restriction on dissemination of information obtained through pretrial discovery proceedings as violating Federal Constitution’s First Amendment–federal cases. 81 A.L.R. Fed. 471.

Warrantless search by government employer of employee’s workplace locker, desk, or the like as violation of Fourth Amendment privacy rights–federal cases. 91 A.L.R. Fed. 226.

Physical examination of child’s body for evidence of abuse as violative of Fourth Amendment or as raising Fourth Amendment issue. 93 A.L.R. Fed. 530.

Free exercise of religion clause of First Amendment as defense to tort liability. 93 A.L.R. Fed. 754.

First Amendment guaranty of freedom of speech or press as defense to liability stemming from speech allegedly causing bodily injury. 94 A.L.R. Fed. 26.

Giving of invocation with religious content at public-school-sponsored events to which public is invited or admitted as violation of establishment clause of First Amendment. 98 A.L.R. Fed. 206.

What constitutes “hybrid rights” claim under Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876.163 A.L.R. Fed. 493.

Protection of Commercial Speech Under First Amendment – Supreme Court Cases. 164 A.L.R. Fed. 1.

Am. Jur.

3B Am. Jur. 2d, Aliens and Citizens §§ 1848, 1941.

7 Am. Jur. 2d, Attorneys at Law § 8.

9 Am. Jur. 2d, Bankruptcy § 11.

16 Am. Jur. 2d, Constitutional Law §§ 43, 137, 154, 336-355.

16A Am Jur 2d, Constitutional Law §§ 375-392.

16A Am. Jur. 2d, Constitutional Law §§ 397, 415-418, 424-606, 613, 618, 622, 627.

16B Am. Jur. 2d, Constitutional Law §§ 651, 652, 864.

21 Am. Jur. 2d, Criminal Law § 529.

24 Am. Jur. 2d, Disorderly Houses § 20.

24 Am. Jur. 2d, Divorce and Separation § 107.

25 Am. Jur. 2d, Elections §§ 3, 4, 102.

26 Am. Jur. 2d, Elections §§ 209, 228, 229, 233, 239, 241, 246-249, 252, 259, 286, 291.

29 Am. Jur. 2d, Evidence § 180.

32 Am. Jur. 2d, Federal Courts § 460.

35 Am. Jur. 2d, Federal Tax Enforcement § 728.

37A Am. Jur. 2d, Freedom of Information Acts § 480.

42 Am. Jur. 2d, Injunctions §§ 63, 76, 81, 82, 83, 85.

45A Am. Jur. 2d, Job Discrimination § 43.

45B Am. Jur. 2d, Job Discrimination § 804.

48 Am. Jur. 2d, Labor and Labor Relations §§ 89, 311.

50 Am. Jur. 2d, Libel and Slander § 513.

51 Am. Jur. 2d, Licenses and Permits § 16.

54 Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices § 454.

67B Am. Jur. 2d, Schools §§ 254, 276, 288, 301, 308, 355.

68 Am. Jur. 2d, Schools §§ 431, 432, 435, 446, 449-455, 457-459, 461, 465, 467.

70 Am. Jur. 2d, Sedition, Subversive Activities, and Treason §§ 4, 80.

70A Am. Jur. 2d, Social Security and Medicare § 2.

76 Am. Jur. 2d, Unemployment Compensation § 37.

77 Am. Jur. Trials, Representing Law Enforcement Officers in Personnel Disputes and Employment Litigation, p. 1.

91 Am. Jur. Trials, When Clergy Fail Their Flock: Litigating the Clergy Sexual Abuse Case, p. 151.

93 Am. Jur. Trials, Homeowners’ Association Defense: Free Speech, p. 293.

113 Am. Jur. Trials, Suing Your Cut-Rate Competitor: Store Brands and ‘Compare to‘ Packaging, p. 279.

114 Am. Jur. Trials, Electronic/Video Games Litigation, p. 1.

115 Am. Jur. Trials, Particular Public School District Liability Issues Arising from Student or Staff Use of Computers, Internet, or Other Electronic Media to Harass or Bully Students, p. 355.

118 Am. Jur. Trials, Litigation Concerning Religion in Workplace, p. 183.

119 Am. Jur. Trials, Litigating the Right of Publicity: Your Client’s Face Was on the News, Now It’s on T-Shirts and Video Games, p. 343.

63 Am. Jur. Proof of Facts 3d, Interference With the Right to Free Exercise of Religion, p. 195.

71 Am. Jur. Proof of Facts 3d, Proof of Circumstances Establishing Constitutional Malice in a Defamation Cause of Action, p. 321.

99 Am. Jur. Proof of Facts 3d, Proof of Facts Establishing Affirmative Defenses Against a Claim for Defamation, p. 393.

100 Am. Jur. Proof of Facts 3d, Proof of Instant Message, Blog, or Chat as Evidence, p. 89.

103 Am. Jur. Proof of Facts 3d, Invasion of Privacy By Public Disclosure of Private Facts, p. 159.

104 Am. Jur. Proof of Facts 3d, Proof of Facts Establishing a Party’s Entitlement to Punitive Damages in a Defamation Cause of Action, p. 221.

106 Am. Jur. Proof of Facts 3d, Proof of Public School District Liability for Student Peer-on-Peer Sexual Harassment or Harassment on the Basis of Gender or Sexual Orientation, p. 437.

108 Am. Jur. Proof of Facts 3d, Proof of Public School District Liability for Injuries or Damages to Student Resulting from Harassment of Student by Teacher or Other District Staff Member, p. 1.

109 Am. Jur. Proof of Facts 3d, Religious Group’s Proof of Claim of Violation in Zoning Matter and Defense by Municipality, p. 523.

CJS.

C.J.S. Constitutional Law §§ 513 to 517, 539, 542.

Lawyers’ Edition.

Constitutionality of federal and state regulation of obscene literature–federal cases. 1 L. Ed. 2d 2211; 4 L. Ed. 2d 1821.

The Supreme Court and right of free speech and press. 2 L. Ed. 2d 1706; 11 L. Ed. 2d 1116; 16 L. Ed. 2d 1053; 21 L. Ed. 2d 976.

Comment Note.–What provisions of the Federal Constitution’s Bill of Rights are applicable to the states. 18 L. Ed. 2d 1388; 23 L. Ed. 2d 985.

Provisions of Federal Constitution concerning establishment and freedom of religion. 21 L. Ed. 2d 928.

The Supreme Court and the right of free speech and press. 21 L. Ed. 2d 976.

Constitutionality of regulation of obscene motion pictures–federal cases. 22 L. Ed. 2d 949.

Constitutionality of statutes, ordinances, or administrative provisions prohibiting defiance, disrespect, mutilation, or misuse of American flag–federal cases. 22 L. Ed. 2d 972.

Constitutional aspects of libel and slander–Supreme Court cases. 28 L. Ed. 2d 885.

The Supreme Court and the First Amendment right to petition the Government for a redress of grievances. 30 L. Ed. 2d 914.

The Supreme Court and the First Amendment right of association. 33 L. Ed. 2d 865.

Validity, under Federal Constitution, of federal, state, or local antinoise laws and regulations. 36 L. Ed. 2d 1042.

Supreme Court cases involving establishment and freedom of religion clauses of Federal Constitution. 37 L. Ed. 2d 1147.

Supreme Court’s development of the “clear and present danger” rule and the related rule concerning advocacy of unlawful acts as limitations on the constitutional right of free speech and press. 38 L. Ed. 2d 835.

Supreme Court’s view as to the protection or lack of protection, under the Federal Constitution, of the utterance of “fighting words.” 39 L. Ed. 2d 925.

Supreme Court’s development, since Roth v United States, of standards and principles determining concept of obscenity in context of right of free speech and press. 41 L. Ed. 2d 1257.

Supreme Court’s views as to the federal legal aspects of the right of privacy. 43 L. Ed. 2d 871.

Supreme Court’s view as to overbreadth of legislation in connection with First Amendment rights. 45 L. Ed. 2d 725.

Supreme Court’s views as to constitutionality of state or municipal regulation of peddlers, drummers, canvassers, and the like. 48 L. Ed. 2d 917.

Supreme Court’s views as to validity of laws restricting or prohibiting sale or distribution to minors of particular types of goods or services otherwise available to adults. 52 L. Ed. 2d 892.

Progeny of New York Times v Sullivan in the Supreme Court. 61 L. Ed. 2d 975.

First Amendment guaranty of free speech and press as applied to licensing and regulation of broadcast media–Supreme Court cases. 69 L. Ed. 2d 1110.

First Amendment rights of free speech and press as applied to picketing and boycotts by labor unions and employees–Supreme Court cases. 72 L. Ed. 2d 872.

First Amendment rights of free speech and press as applied to public schools–Supreme Court cases. 73 L. Ed. 2d 1466.

Denial to incarcerated persons of contact visits as violation of federal constitutional rights. 82 L. Ed. 2d 1006.

Right of petition and assembly under Federal Constitution’s First Amendment.86 L. Ed. 2d 758.

Establishment and free exercise of religion clauses of Federal Constitution’s First Amendment as applied to employment. 86 L. Ed. 2d 797.

Free speech and press clauses of Federal Constitution’s First Amendment as affecting damages recoverable for defamation. 86 L. Ed. 2d 816.

Governmental regulation of public utility as violating utility’s First Amendment right to free speech or press. 89 L. Ed. 2d 930.

First amendment freedom of speech or press as giving news media right of access to criminal proceedings–Supreme Court cases. 92 L. Ed. 2d 797.

Supreme Court’s views as to prisoner’s right to free exercise of religion under Federal Constitution’s First Amendment.96 L. Ed. 2d 736.

Establishment and free exercise of religion clauses of Federal Constitution’s first Amendment as applied to public schools – Supreme Court Cases. 96 L. Ed. 2d 828.

Public employee’s right of free speech under Federal Constitution’s First Amendment – Supreme Court cases. 97 L. Ed. 2d 903.

Governmental regulation of nonlabor picketing as violating freedom of speech or press under Federal Constitution’s First Amendment – Supreme Court cases. 101 L. Ed. 2d 1052.

Tax legislation as violating Federal Constitution’s First Amendment – Supreme Court cases. 103 L. Ed. 2d 951.

Supreme Court’s views as to constitutionality of laws prohibiting, or of criminal convictions for, desecration, defiance, disrespect, or misuse of American flag. 105 L. Ed. 2d 809.

Establishment and free exercise of religion clauses of Federal Constitution’s First Amendment as applied to governmental regulations or activities allegedly supporting public observance of Sabbath or of religious holiday. 106 L. Ed. 2d 752.

Employees’ rights regarding use of union dues or fees for purposes with which they disagree–Supreme Court cases. 114 L. Ed. 2d 783.

Supreme Court’s views as to application or applicability of doctrine of qualified immunity in action under 42 USCS § 1983, or in Bivens action, seeking damages for alleged civil rights violations. 116 L. Ed. 2d 965.

Supreme court’s views regarding Federal Constitution’s First Amendment right of association as applied to elections and other political activities. 116 L. Ed. 2d 997.

Supreme Court’s views regarding Federal Constitution’s First Amendment guarantees of freedom of speech or press as applied to electoral process. 119 L. Ed. 2d 607.

Noerr-Pennington doctrine, exempting from federal antitrust laws joint efforts to influence governmental action–Supreme Court cases. 123 L. Ed. 2d 707.

When will private right of action for damages (‘Bivens‘ action) be implied from provision of Federal Constitution–Supreme Court cases. 127 L. Ed. 2d 715.

Antiabortion activities–Supreme Court cases. 129 L. Ed. 2d 989.

Federal Constitution’s First Amendment guarantee of freedom of speech and press as protecting private right to refuse to foster, repeat, advertise, or disseminate view, message, or statement divergent from one’s own–Supreme Court cases. 132 L. Ed. 2d 961.

Supreme Court’s views as to extent of states’ regulatory powers concerning or affecting intoxicating liquors, under Federal Constitution’s Twenty-First Amendment.134 L. Ed. 2d 1015.

Rights of, and validity of provisions concerning or affecting, homosexuals, under Federal Constitution–Supreme Court cases. 134 L. Ed. 2d 1047.

Government regulation of cable television as violating Federal Constitution’s First Amendment guarantees of freedom of speech and press–Supreme Court cases. 135 L. Ed. 2d 1187.

Indigent’s federal constitutional right to maintain judicial proceedings as to civil matters without prepayment of costs or fees–Supreme Court cases. 136 L. Ed. 2d 935.

Government regulation of or concerning advertising as violation of Federal Constitution’s First Amendment rights of free speech and press–Supreme Court cases. 138 L. Ed. 2d 1085.

Racial discrimination, in students’ admissions or education, with respect to college, university, or other higher eduaction–Supreme Court cases. 145 L. Ed. 2d 1149.

Federal-law aspects of government regulation, on grounds assertedly related to users’ health, of tobacco and tobacco products–Supreme Court cases. 146 L. Ed. 2d 1007.

Governmental restrictions on individual’s publicly appearing live in nude or seminude condition as violating freedom of speech under Federal Constitution’s First Amendment–Supreme Court cases. 146 L. Ed. 2d 1019.

Establishment and free exercise of religion clauses of Federal Constitution’s First Amendment as applied to public schools–Supreme Court cases. 147 L. Ed. 2d 1117.

Civil rights laws prohibiting nongovernmental organization’s membership restriction or its members’ right of association under Federal Constitution’s First Amendment–Supreme Court cases. 147 L. Ed. 2d 1157.

Licensing and regulation of attorneys, with respect to matters other than advertisements, as restricted by rights of free speech, expression, and association under Federal Constitution’s First Amendment–Supreme Court cases. 149 L. Ed. 2d 1093.

Government regulation of prisons and prisoners as violating rights of free speech and press under Federal Constitution’s First Amendment–Supreme Court cases. 149 L. Ed. 2d 1193.

Governmental restrictions on use of public parks as violating freedom of speech or press under Federal Constitution’s First Amendment–Supreme Court cases. 151 L. Ed. 2d 1123.

Establishment and free exercise of religion clauses of Federal Constitution’s First Amendment as applied to public aid to sectarian schools or students at such schools–Supreme Court cases. 153 L. Ed. 2d 991.

Supreme Court’s view as to protection, under Federal Constitution’s First Amendment guarantees of freedom of speech and press, of expression, such as “fighting words,” purportedly constituting or causing breach of peace, disorderly conduct, or intimidation. 155 L. Ed. 2d 1211.

Governmental regulation of fundraising or of solicitation of financial contributions as violating Federal Constitution’s First Amendment guarantees of freedom of speech and press–Supreme Court cases. 155 L. Ed. 2d 1239.

Supreme Court’s views concerning effect of Federal Constitution’s First Amendment on state or local regulation of businesses that provide “adult” products or entertainment. 159 L. Ed. 2d 901.

Governmental regulation of financing of political campaign as violating freedom of speech, press, or association under Federal Constitution’s First Amendment–Supreme Court cases. 171 L. Ed. 2d 953.

Supreme Court’s views as to extent of prosecutorial immunity from liability for damages for alleged violations of civil rights. 172 L. Ed. 2d 905.

Law Reviews.

McMillan, With Religious Speech, Funding is Fundamental: Rosenberger v. Rector and Visitors of University of Virginia, 115 S. Ct. 2510 (1995), 17 Miss C L Rev, Fall, 1996.

Gordon, Reestablishment of Religious Freedom: Developing an Alternative Model Based on State Constitutionalism Privacy. 66 Miss. L. J. 127, Fall, 1996.

Currie, Butt In: 44 Liquormart, Inc. v. Rhode Island and its Implications on the Future of Cigarette Advertising and Commercial Speech. 18 Miss. College L. R., Fall, 1997.

Loewy, Constitutional Law and Civil Rights Symposium, Part 1: Rethinking Free Exercise of Religion After Smith and Boerne: Charting a Middle Course. 68 Miss. L. J. 105, Fall, 1998.

Berryhill, Recent Decision: Constitutional Law–First Amendment–Public Broadcasters May Exclude Politic Candidates From Debates as Long as Exclusion is Reasonable and Viewpoint-Neutral. 68 Miss. L. J. 391, Fall, 1998.

Goodman, Constitutional Law – First Amendment – Federal Prohibitions on Advertising for Private Casinos are Unconstitutional if Such Advertising is Broadcast from Stations in States Where Such Gaming is Lawful, 69 Miss. L.J. 575 (Fall, 1999).

Comment: Exploring the Constitutionality of Subsidizing Political Speech with Mandatory Student Activity Fees: Board of Regents of the University of Wisconsin System v. Southworth, 69 Miss. L.J. 1221 (2000).

Recent Decisions: Constitutional Law – First Amendment – Application of Public Accommodations Law Violates First Amendment When Organization’s Expressive Activity is Significantly Burdened, 70 Miss. L.J. 441 (2000).

Recent Decision: Constitutional Law – First Amendment – Government Must Demonstrate that There Is Not a Less Restrictive Alternative Before a Content-Based Restriction of Protected Speech Can Survive Strict Scrutiny, 70 Miss. L.J. 457 (2000).

Recent Decision: Constitutional Law – Establishment Clause – A Policy Allowing Potential Religious Expression at Government-Sponsored Events Violates the Establishment Clause if the Government Entity Created the Policy with the Purpose to Promote Religious Beliefs, 70 Miss. L.J. 473 (2000).

Constitutional Law – First Amendment – Speech Discussing Otherwise Permissible Subjects Cannot Be Excluded from a Limited Public Forum on the Ground That the Subject Is Discussed from a Religious Viewpoint, 71 Miss. L.J. 305, Fall, 2001.

Recent Decision: Constitutional Law–First Amendment–School Voucher Program Held Constitutional Under the Establishment Clause, 72 Miss. L.J. 885, Winter, 2002.

Recent Decision: Constitutional Law–Hate Speech–First Amendment Permits Ban on Cross Burning When Done with the Intent to Intimidate, 73 Miss. L.J. 323, Fall, 2003.

Note: The Conundrum of Applying an “Incoherent” First Amendment Jurisprudence: Glassroth v. Moore, 24 Miss. C. L. Rev. 115, Fall, 2004.

Free Speech and the End of Dress Codes and Mandatory Uniforms in Mississippi Public Schools, 24 Miss. C. L. Rev. 27, Fall, 2004.

Note: Should Shielding Children from Internet Pornography and Protecting Free Speech be Mutually Exclusive? Ashcroft v. American Civil Liberties Union, 25 Miss. C. L. Rev. 117, Fall, 2005.

Symposium on Religion, Religious Pluralism, and the Rule of Law: Introduction, 27 Miss. C. L. Rev. 1, 2007/2008.

Symposium on Religion, Religious Pluralism, and the Rule of Law: The Underlying Causes of Divergent First Amendment Interpretations, 27 Miss. C. L. Rev. 67, 2007/2008.

JUDICIAL DECISIONS

1. Statutes–In general.

2. – Freedom of association.

3. – Freedom of speech and press.

4. – Freedom of religion, statutes.

5. Freedom of speech violation not shown.

6. Flag display and salute.

7. Schools and school districts–In general.

8. – Prayer and religious observance, schools and school districts.

9. – Freedom of speech and press, schools and school districts.

10. Freedom of religion–In general.

11. – Establishment, freedom of religion.

12. Freedom of speech and press–In general.

13. – Criminal trials, freedom of speech and press.

14. – Correctional facilities, freedom of speech and press.

15. – Advertising, freedom of speech and press.

16. – Professional regulation, freedom of speech and press.

17. – Employment and job security, freedom of speech and press.

18. – Colleges and universities, freedom of speech and press.

19. – Parades and demonstrations, freedom of speech and press.

20. – Entertainment, freedom of speech and press.

21. – Defamation, freedom of speech and press.

22. – Obscenity, freedom of speech and press.

23. Freedom of association – Generally.

24. Elections and politics.

25. Constitutional vagueness.

1. Statutes–In general.

The mere fact that the discretion granted to the Secretary of State in the Public Trust Tidelands Act could be interpreted in different lights, does not automatically render it vague; the procedure established by the tidelands legislation has a reasonable relation to the governmental purpose of establishing the boundary of public trust lands and as such is not vague. Columbia Land Dev., LLC v. Sec'y of State, 868 So. 2d 1006, 2004 Miss. LEXIS 286 (Miss. 2004).

Where activity to be regulated is capable of reaching First Amendment rights, statute or ordinance should be subjected to heightened scrutiny when attacked as overbroad. Smith v. City of Picayune, 701 So. 2d 1101, 1997 Miss. LEXIS 379 (Miss. 1997).

Statutory language clearly prescribed for punishment only a class of true threats, and not social or political advocacy. Shackelford v. Shirley, 948 F.2d 935, 1991 U.S. App. LEXIS 29016 (5th Cir. Miss. 1991).

Plaintiffs who showed that challenged statutes either impinged upon their protected rights to register to vote or burdened organizational efforts to assist prospective voters in registering had standing to sue to challenge Mississippi’s dual registration requirement and prohibition on satellite registration as violative of their rights and all persons similarly situated. Mississippi State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1987 U.S. Dist. LEXIS 10925 (N.D. Miss. 1987).

The Mississippi Criminal Syndicalism Act (Code 1942 §§ 2066.5-01 to 2066.5-06) on its face unconstitutionally abridges the freedoms of speech, press and assembly. Ware v. Nichols, 266 F. Supp. 564, 1967 U.S. Dist. LEXIS 8407 (N.D. Miss. 1967).

2. – Freedom of association.

Statutes requiring that initiative petition circulators be qualified electors of State and prohibiting per-signature payment of circulators violated First Amendment; there was evidence that payment of primarily out-of-state circulators, who would only work on payment-per-signature basis, was most effective and economical avenue of political communication, and State failed to prove fraud or actual threat to citizens’ confidence in government from per-signature payment, or to demonstrate any reasonable justification for permitting signature gathering only by voters registered in State. Term Limits Leadership Council v. Clark, 984 F. Supp. 470, 1997 U.S. Dist. LEXIS 19485 (S.D. Miss. 1997).

A state criminal statute prohibiting, among other things, picketing in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any courthouses or other public buildings is not so broad, vague, indefinite, and lacking in definitely ascertainable standards as to be unconstitutional on its face, is not void for overbreadth, but is a valid law dealing with conduct subject to regulation so as to vindicate important interests of society. Cameron v. Johnson, 390 U.S. 611, 88 S. Ct. 1335, 20 L. Ed. 2d 182, 1968 U.S. LEXIS 1879 (U.S. 1968).

Sections of statutes which authorize certain state officials in their own judgment or discretion to suspend the terms of laws prohibiting certain activities on grounds occupied by capitol buildings, state office buildings, and the state executive mansion in favor of other activities of their choice are invalid and unconstitutional. Coppock v. Patterson, 272 F. Supp. 16, 1967 U.S. Dist. LEXIS 7062 (S.D. Miss. 1967).

3. – Freedom of speech and press.

Defendant’s free speech rights were not violated by his warrantless arrest where the confrontation occurred not out in public but at the sheriff’s department, the officer neither initiated nor had an opportunity to walk away from defendant’s words and combative conduct, defendant became agitated and began shouting profanities when the officer told him about the protocol he would have to follow to retrieve his vehicle from the impound lot, and defendant did not stop with simply expressing his displeasure. He was combative, and he created a stalemate that rose to the level of “fighting words” that were likely to inflict injury or incite an immediate breach of the peace. Odem v. State, 881 So. 2d 940, 2004 Miss. App. LEXIS 899 (Miss. Ct. App. 2004).

Statutes requiring that initiative petition circulators be qualified electors of State and prohibiting per-signature payment of circulators violated First Amendment; there was evidence that payment of primarily out-of-state circulators, who would only work on payment-per-signature basis, was most effective and economical avenue of political communication, and State failed to prove fraud or actual threat to citizens’ confidence in government from per-signature payment, or to demonstrate any reasonable justification for permitting signature gathering only by voters registered in State. Term Limits Leadership Council v. Clark, 984 F. Supp. 470, 1997 U.S. Dist. LEXIS 19485 (S.D. Miss. 1997).

Conviction of defendant for violation of state telephone harassment statute was upheld, and did not violate First Amendment, where defendant placed telephone call to former supervisor stating that next time supervisor came by defendant’s premises he would be ‘toting an ass whippin.’ Shackelford v. Shirley, 948 F.2d 935, 1991 U.S. App. LEXIS 29016 (5th Cir. Miss. 1991).

Telephone harassment statute prohibiting making telephone call threatening to inflict injury or physical harm, with intent to terrify, intimidate, or harass, is not unconstitutionally overbroad on its face. Shackelford v. Shirley, 948 F.2d 935, 1991 U.S. App. LEXIS 29016 (5th Cir. Miss. 1991).

Because trial judge’s jury instructions tracked language of statute, jury’s verdict represented finding that defendant, on trial for violating statute by placing telephone call to former supervisor stating that next time supervisor came by defendant’s premises he would be “toting an ass whippin,” engaged in unprotected, threatening speech. Shackelford v. Shirley, 948 F.2d 935, 1991 U.S. App. LEXIS 29016 (5th Cir. Miss. 1991).

Permanent injunction has been issued to prevent enforcement of §39-5-63 because this act and others relating to sealing of files of state sovereignty commission, which had a clandestine purpose of perpetuating racial inequality, unconstitutionally infringe on black citizens’ rights to free speech and association, personal privacy, and lawful search and seizure. ACLU v. Mabus, 719 F. Supp. 1345, 1989 U.S. Dist. LEXIS 9679 (S.D. Miss. 1989), vacated, 911 F.2d 1066, 1990 U.S. App. LEXIS 16085 (5th Cir. Miss. 1990).

The breach of the peace statute, Section 97-35-13, is not unconstitutionally vague. Although the statute may have been constructed with broad language and could arguably be construed in a manner which would reach constitutionally protected speech or conduct, a statute may not be construed “so as to infringe upon the state or federally protected constitutional rights” of any individual. Jones v. Meridian, 552 So. 2d 820, 1989 Miss. LEXIS 422 (Miss. 1989).

Ideas and opinions, although incorrect or faulty in their premise, are protected by the United States Constitution and cannot support a defamation action. Meridian Star, Inc. v. Williams, 549 So. 2d 1332, 1989 Miss. LEXIS 446 (Miss. 1989), overruled, Roussel v. Robbins, 688 So. 2d 714, 1996 Miss. LEXIS 533 (Miss. 1996).

Statute’s definition of “obscene, indecent, or immoral” was overbroad and violated the First Amendment to the United States Constitution according to the requirement set by the United States Supreme Court, and it could not be made constitutional by construing it and applying it or by reading into it the specificity and limitations required by the Supreme Court. ABC Interstate Theatres, Inc. v. State, 325 So. 2d 123, 1976 Miss. LEXIS 1975 (Miss. 1976).

A statute which prohibits signs, placards, advertisements, harangues, orations, loud language, parades, processions, assemblages, and partisan flags, banners, or devices on the grounds occupied by the state capitol buildings, office buildings, and executive mansion infringe no constitutional limitation. Coppock v. Patterson, 272 F. Supp. 16, 1967 U.S. Dist. LEXIS 7062 (S.D. Miss. 1967).

The Mississippi Criminal Syndicalism Act (Code 1942 §§ 2066.5-01 to 2066.5-06) on its face unconstitutionally abridges the freedoms of speech, press and assembly. Ware v. Nichols, 266 F. Supp. 564, 1967 U.S. Dist. LEXIS 8407 (N.D. Miss. 1967).

4. – Freedom of religion, statutes.

The Child Residential Home Notification Act (§§43-16-1 et seq.) did not interfere with the constitutional religious freedom rights of a church congregation which operated a children’s home. Fountain v. State, 608 So. 2d 705, 1992 Miss. LEXIS 676 (Miss. 1992).

A state statute making it a misdemeanor to teach in state supported public schools the scientific theory or doctrine that man ascended or descended from a lower form of animal violates the First Amendment to the United States Constitution and is thus unconstitutional. Smith v. State, 242 So. 2d 692, 1970 Miss. LEXIS 1390 (Miss. 1970).

5. Freedom of speech violation not shown.

Judge’s statements were not protected by the First Amendment as the judge’s comment concerning African-Americans in Hinds County was not a matter of legitimate public concern; the conference where the judge made her remarks was not a forum for expressing personal concerns about the alleged lack of educational background or demeanor of fellow judges or the alleged lack of intelligence of supervisors, nor was it the proper place for an alleged personal attack on a team participant, or an alleged attack on residents of Hinds County. Miss. Comm'n on Judicial Performance v. Boland, 975 So. 2d 882, 2008 Miss. LEXIS 120 (Miss. 2008).

Termination of the employee’s employment was proper where his U.S. Const. amend. I rights were not violated because his speech was not a cause or even a contributing factor in the employer’s decision to proceed with disciplinary action against him. Although his speech conduct (telephone calls, shouting, cursing, verbal threats) was clearly a large part of the reason for the disciplinary proceeding, that speech was in no way involved in or affected by the January 18, 2001 memo, which was what the circuit court found to be in violation of freedom of speech and freedom of association, evidencing conduct that the court could not condone. Miss. Transp. Comm'n v. Anson, 879 So. 2d 958, 2004 Miss. LEXIS 621 (Miss. 2004).

6. Flag display and salute.

Public reprimand against a judge was proper because he misused the powers of contempt and violated Miss. Code Jud. Conduct Canons 1, 3(B)(2), and 3(B)(8) when he held a defendant in criminal contempt for failing to recite the pledge of allegiance in open court. He violated Miss. Code Jud. Conduct Canons 2(A) and 3(B)(4) by incarcerating the defendant for expressing his rights under U.S. Const. amend. I. Miss. Comm'n on Judicial Performance v. Littlejohn, 62 So.3d 968, 2011 Miss. LEXIS 278 (Miss. 2011).

Mississippi statute (Laws, 1942, ch 178; Code 1942 § 2402) making it a criminal offense to indoctrinate any creed, theory or any set of principles which reasonably tend to create an attitude of stubborn refusal to salute, honor or respect the flag of the United States or of the state, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

7. Schools and school districts–In general.

Student could not complain of unconstitutional vagueness or overbreadth of school district alcohol policy as it applied to activities of third parties, but only as it applied to his own activities. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

School district policy is not facially unconstitutionally overbroad if: there are substantial number of situations where policy may be validly applied; policy covers range of easily identifiable conduct which may be constitutionally proscribed; and policy is susceptible to narrowing interpretation. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

School district’s alcohol policy was not facially overbroad as applied to conduct of student who admitted consuming alcohol before entering school property to attend school athletic function; policy validly applied to student’s conduct, district was constitutionally permitted to proscribe consumption of alcohol within limits, and policy was susceptible to narrowing interpretation. Board of Trustees v. T.H. by & Through T.H. (In the Interest of T.H.), 681 So. 2d 110, 1996 Miss. LEXIS 492 (Miss. 1996).

Public schools have authority to promulgate and enforce a reasonable dress code for faculty, staff and students, provided only that it does not infringe rights otherwise protected, and even then the schools may enforce such a code when undergirded by some compelling governmental interest reasonably related to their educational mission, so long as the least restrictive means reasonably available are employed. Mississippi Employment Sec. Com. v. McGlothin, 556 So. 2d 324, 1990 Miss. LEXIS 5 (Miss.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171, 1990 U.S. LEXIS 4937 (U.S. 1990).

8. – Prayer and religious observance, schools and school districts.

Miss Laws 1994, c. 609 § 1(2) (Section37-13-4.1), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was unconstitutional under test of Lemon v. Kurtzman, 403 US 602, where (1) its stated purpose “to accommodate the free exercise of religious rights of its student citizens in the public schools” was to advance prayer in public schools, (2) its effect was to advance religion over irreligion because it gave preferential exceptional benefit to religion that it did not extend to anything else, and (3) it excessively entangled government and religion in that government officials were allowed to lead students in prayer and punish students who left class or assemblies in order to avoid listening to prayer. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

Miss Laws 1994, c. 609 § 1(2) (Section37-13-4.1), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was unconstitutional under “coercion” tests where it would allow prayers to be given by any person, including teachers, school administrators, and clergy at school functions where attendance was compulsory, and students would be captive audience that could not leave without being punished by state or school board for truancy or excessive absences. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

Miss Laws 1994, c. 609 § 1(2) (Section37-13-4.1), permitting public school students to initiate nonsectarian nonproselytizing prayer at various compulsory and noncompulsory school events, was unconstitutional endorsement of religion where it allowed school officials in their capacity as representatives of state to lead students in prayer, and it set aside special time for prayer that it did not set aside for anything else. Ingebretsen v. Jackson Pub. Sch. Dist., 864 F. Supp. 1473 (S.D. Miss. 1994), aff’d, 88 F.3d 274 (5th Cir. 1996), reh’g and reh’g en banc denied (5th Cir. 1996), cert. denied, 519 U.S. 965, 117 S. Ct. 388, 136 L. Ed. 2d 304 (1996).

A high school athletic association’s anti-recruiting rule, which required that a participant in interscholastic activities attend a school in the school district of which his or her parents or guardian were bona fide residents, did not violate the constitutional right to free exercise of religion since the rule did not prevent a parent or child from actively practicing their chosen religion and did not regulate the conduct of student athletes to the point of interfering with any religious practice; any interference with religious practices was incidental to the stated purpose of the rule–to deter overzealous athletic recruiting practices–and the rule was reasonably related to that purpose. Mississippi High Sch. Activities Ass'n v. Coleman, 631 So. 2d 768, 1994 Miss. LEXIS 32 (Miss. 1994).

A public school teacher’s wearing of a head-wrap as an expression of her religious and cultural heritage as a member of the African Hebrew Israelites in violation of the school’s dress code was constitutionally protected religious and cultural expression, such that the Mississippi Employment Security Commission had no authority to deny her claim for unemployment compensation benefits after she was discharged for insubordination when she refused to discontinue wearing the head-wrap, even though there is no specific tenant of the African Hebrew Israelites mandating that women wear headdress, the teacher was not a regular participant in the organized activities of a particular church, synagogue or other religious body, she might have been “selective in wearing the traditional head-wrap” in that at times she did not wear it, and even though her conduct may have been misconduct had it not been constitutionally protected expression. Mississippi Employment Sec. Com. v. McGlothin, 556 So. 2d 324, 1990 Miss. LEXIS 5 (Miss.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171, 1990 U.S. LEXIS 4937 (U.S. 1990).

State statute authorizing moment of silence in public schools for “meditation or voluntary prayer”, for the sole express purpose of returning voluntary prayer to schools, violates establishment clause of First Amendment. Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29, 1985 U.S. LEXIS 91 (U.S. 1985).

9. – Freedom of speech and press, schools and school districts.

School administrator’s testimony concerning operation of public schools constitutes matter of “public concern” and is protected by First Amendment, because testimony was generally factual, concerning reading program in school district; where this testimony truthfully related facts and impressions of administrator concerning decision-making process of government officials responsible for personnel decisions of local school system, District Court was correct in concluding that administrator had been discharged for exercising rights of free expression protected by First Amendment. Reeves v. Claiborne County Bd. of Education, 828 F.2d 1096, 1987 U.S. App. LEXIS 13093 (5th Cir. Miss. 1987).

A public school teacher’s criticism of certain policies and practices of the school district in which she is employed, which criticism is communicated privately to a school principal, is subject to the protection of the First Amendment, since (1) such private expression of views is not beyond constitutional protection, and (2) the “captive audience” theory that there is no constitutional right to “press even ‘good’ ideas on an unwilling recipient” is inapplicable in view of the principal’s having opened his office door to the teacher. Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S. Ct. 693, 58 L. Ed. 2d 619, 1979 U.S. LEXIS 209 (U.S. 1979).

10. Freedom of religion–In general.

District court correctly granted an injunction barring enforcement of Miss. Const. art. XIV, § 263A and Miss. Code Ann. §93-1-1(2), because same-sex couples may exercise the fundamental right to marry and there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State. The First Amendment ensures that religious organizations may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. Campaign Southern Equal. v. Bryant, 791 F.3d 625, 2015 U.S. App. LEXIS 11581 (5th Cir. Miss. 2015).

Because a church pastor’s request for a temporary restraining order (TRO) presented a purely ecclesiastical controversy, the chancery court was without jurisdiction to hear it. As such, the chancellor erred when he issued the TRO and when he vacated the church’s vote to remove the pastor and ordered a new one. Greater Fairview Missionary Baptist Church v. Hollins, 160 So.3d 223, 2015 Miss. LEXIS 150 (Miss. 2015).

First Amendment forbids civil courts from resolving church property disputes by inquiring into and resolving disputed issues of religious doctrine and practice; however, subject matter jurisdiction existed over former parishioners’ claim that the church breached a fiduciary duty by improperly diverting funds designated for reconstruction of a church after Hurricane Katrina. Schmidt v. Catholic Diocese, 18 So.3d 814, 2009 Miss. LEXIS 427 (Miss. 2009).

First Amendment protections do not turn on whether the claimant’s conduct or form of expression has been mandated by doctrine or teaching of a particular religious organization or denomination, nor is it necessarily of concern that members of the particular faith may disagree with the claimant’s interpretation of church dogma. All that may be required is that the belief have a religious grounding and that the individual be expressing “sincerely held religious beliefs.” Mississippi Employment Sec. Com. v. McGlothin, 556 So. 2d 324, 1990 Miss. LEXIS 5 (Miss.), cert. denied, 498 U.S. 879, 111 S. Ct. 211, 112 L. Ed. 2d 171, 1990 U.S. LEXIS 4937 (U.S. 1990).

If disbarred attorney’s failure to participate in organized religion had been determinative of the denial of his petition for reinstatement, then his constitutional rights would have been violated. Williams v. Mississippi State Bar Asso., 492 So. 2d 578, 1986 Miss. LEXIS 2538 (Miss. 1986).

Jehovah’s Witness has right, based upon freedom of religion, to undergo surgery but refused to be given blood transfusion and such right outweighs interest of state in insuring that wounded Witness receive transfusion in order to insure that Witness is alive to testify in subsequent criminal trial. In re Brown, 478 So. 2d 1033, 1985 Miss. LEXIS 2285 (Miss. 1985).

Municipality’s inclusion of nativity scene in annual Christmas display is constitutional. Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604, 1984 U.S. LEXIS 37 (U.S. 1984).

State legislature’s practice of opening each legislative day with prayer by chaplain paid by state is not violative of establishment clause of First Amendment. Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019, 1983 U.S. LEXIS 107 (U.S. 1983).

11. – Establishment, freedom of religion.

First Amendment did not shield a church administration from civil claims of sexual abuse by priests because there was nothing religious about such reprehensible conduct, and plaintiffs’ claim of negligent hiring, retention and supervision of a priest was simply a negligence claim. Roman Catholic Diocese v. Morrison, 905 So. 2d 1213, 2005 Miss. LEXIS 295 (Miss. 2005).

The Mississippi Supreme Court does not recognize a privilege under the First Amendment to refuse to produce religiously oriented documents. Roman Catholic Diocese v. Morrison, 905 So. 2d 1213, 2005 Miss. LEXIS 295 (Miss. 2005).

A Texas school district’s policy permitting student-led, student-initiated prayer at football games violated the establishment clause of the First Amendment; that the prayer was not “private speech” was established by factors beyond the policy’s text, including the official setting in which the invocation was delivered, the policy’s sham secular purposes, and its history, which indicated that the school district intended to preserve its long-sanctioned practice of prayer before football games. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S. Ct. 2266, 147 L. Ed. 2d 295, 2000 U.S. LEXIS 4154 (U.S. 2000).

A court order in a divorce proceeding which required both parents to assume responsibility for attendance of their children in church each Sunday while in their respective custody did not violate the First Amendment establishment clause as the chancellor properly chose a reasonable and accessible support network to import stability into the lives of the children whose environment held the potential for producing a tumultuous existence; however, the order was modified to provide that, “both the mother and father should be vitally interested in seeing that their children get regular and systematic spiritual training. Whether it be by attending Sunday School each Sunday or Church or both is for the parents alone to decide.” McLemore v. McLemore, 762 So. 2d 316, 2000 Miss. LEXIS 166 (Miss. 2000).

Ohio’s denial of the Ku Klux Klan’s application to display an unattended cross on the statehouse square was not justified on the ground that issuance of the permit would violate the First Amendment’s establishment of religion clause since a statehouse square has the status of a public forum; under the circumstances, the state’s right to limit expressive activity protected under the First Amendment is sharply circumscribed. Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 115 S. Ct. 2440, 132 L. Ed. 2d 650, 1995 U.S. LEXIS 4465 (U.S. 1995).

A trial judge’s remarks pertaining to religion were not sufficient to constitute a violation of the First Amendment’s Establishment Clause where the judge told a venireperson during voir dire that the instructions on the law which would be given to the jury would not “conflict in any way with [H]is law at all,” and he requested a moment of silence in honor of the troops serving in the Persian Gulf prior to the beginning of proceedings one morning. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A local law authorizing a city to issue revenue bonds for the purpose of acquiring hospital facilities to be leased to a Methodist hospital did not violate the First Amendment where there was nothing in the Act or the resolution of the city’s governing body that could be construed as being in aid of, or directed toward, the establishment of religion; nor was there a violation of Mississippi Constitution, where the entire cost of the project was to be paid by the lessee and where the hospital facilities, which would be available to the public, did not involve a sectarian purpose or use. In re Validation of $15,000,000 Hospital Revenue Bonds etc., 361 So. 2d 44, 1978 Miss. LEXIS 2343 (Miss. 1978).

12. Freedom of speech and press–In general.

Attorney was suspended, partially due to prior similar conduct, for violating Miss. R. Prof. Conduct 3.5, 8.4, 8.2 where the evidence showed that the attorney made disparaging remarks to a judge relating to “paying for justice” and later told a newspaper reporter that the judge was a barbarian; the statements were not protected by the First Amendment because a reasonable person would not have acted in the same manner. Miss. Bar v. Lumumba, 912 So. 2d 871, 2005 Miss. LEXIS 175 (Miss.), cert. denied, 546 U.S. 825, 126 S. Ct. 363, 163 L. Ed. 2d 70, 2005 U.S. LEXIS 6085 (U.S. 2005).

Where defendant was convicted of simple assault, trespassing, and disturbing the peace in connection with an altercation with the victim, conditions of probation that restricted defendant from communicating with or about the victim, witnesses, and their families permissibly restricted defendant’s right of free speech. Griffith v. City of Bay St. Louis, 797 So. 2d 1037, 2001 Miss. App. LEXIS 302 (Miss. Ct. App. 2001).

Affidavit charging defendant with disturbing the peace sufficiently alleged criminal conduct, as the names defendant called the victim qualified as fighting words and were not protected speech. Griffith v. City of Bay St. Louis, 797 So. 2d 1037, 2001 Miss. App. LEXIS 302 (Miss. Ct. App. 2001).

A requirement that circulators of petitions for ballot initiatives must be residents imposed by way of an amendment to subsection (12) of this section is constitutional because it is narrowly tailored to the aim of preventing campaign fraud; however, a provision making such amendment retroactive to all initiative measures that had not been placed on the ballot at the time of the ratification of the proposed amendment was unconstitutional because it was aimed at one specific initiative and, therefore, amounted to content-based discrimination against a particular political viewpoint. Kean v. Clark, 56 F. Supp. 2d 719, 1999 U.S. Dist. LEXIS 10888 (S.D. Miss. 1999).

Initiative petition circulation constitutes core political speech, for purposes of First Amendment analysis, as it necessarily involves both expression of desire for political change and discussion of merits of proposed change. Term Limits Leadership Council v. Clark, 984 F. Supp. 470, 1997 U.S. Dist. LEXIS 19485 (S.D. Miss. 1997).

Mississippi statute which, as construed by the state courts, makes it a criminal offense to communicate to others views and opinions respecting governmental policies, and prophesies concerning the state of this and other nations, irrespective of whether the communication was with an evil or sinister purpose or advocated or incited subversive action against the nation or state, or threatened any clear and present danger to American institutions or government, denies the liberty guaranteed by the Fourteenth Amendment. Taylor v. Mississippi, 319 U.S. 583, 63 S. Ct. 1200, 87 L. Ed. 1600 (1943), reversing 194 Miss. 1, 11 So. 2d 663 (1943).

13. – Criminal trials, freedom of speech and press.

Even though First Amendment right to openness of courtroom and court files was qualified, public and press were entitled to prior notice of any attempt by court or party to close courtroom or seal court file in prosecution for conspiracy to commit murder. United States v. Nix, 976 F. Supp. 41 (1997).

Party seeking closure of courtroom or court file could overcome First Amendment presumption of openness to press and public of court file and defendants’ motions to dismiss indictment and to sever in prosecution for conspiracy, but only if party seeking closure would show, first, that there was substantial probability that defendants’ right to fair trial would be prejudiced by publicity that closure would prevent and, second, that reasonable alternatives to closure could not adequately protect defendants’ fair trial rights. United States v. Nix, 976 F. Supp. 41 (1997).

First Amendment right of public and press to openness of courtroom and court files in criminal prosecution is qualified rather than absolute. United States v. Nix, 976 F. Supp. 41 (1997).

For purposes of determining whether to unseal defendants’ previously-sealed motions to dismiss indictment and to sever and attached exhibits in prosecution for conspiracy to commit murder, in light of qualified First Amendment right of public and press to openness of courtroom and court files, defendants’ rights to fair trial would be impaired if motions and exhibits were unsealed prior to trial; unsealing of motion to dismiss indictment and motion’s exhibits, which contained names and addresses of potential prosecution witnesses, would compromise witnesses’ safety and well-being, partial redaction would not prevent ascertainment of names and addresses, allegations in motion to sever could prejudice jury and might constitute inadmissible evidence, and voir dire to determine possible juror bias would not be workable solution. United States v. Nix, 976 F. Supp. 41 (1997).

After issuing initial orders sealing certain defendants’ motions to dismiss indictment and to sever and their attached exhibits in prosecution for conspiracy to commit murder without giving prior notice to public and press, district court would not order any further closure of courtroom or sealing of court files unless supported by specific on-the-record findings after notice to press and public, in light of qualified First Amendment right of press and public to openness of courtroom and court files. United States v. Nix, 976 F. Supp. 41 (1997).

Four-step process applies in court’s determination of whether to close criminal court proceeding or to seal court file despite qualified First Amendment right of public and press to openness of courtroom and court files: party seeking to close proceeding or seal file must advance overriding interest that is likely to be prejudiced; closure must be no broader than necessary to protect interest of accused’s right to fair trial; court must consider reasonable alternatives to closing proceeding; and court must make findings adequate to support any closure or sealing. United States v. Nix, 976 F. Supp. 41 (1997).

District court would allow newspaper publisher access to transcript of any oral argument on murder conspiracy defendants’ motions to dismiss indictment and to sever, which might take place prior to trial, at time motions were unsealed, in light of qualified First Amendment right of public and press to openness of courtroom and court files. United States v. Nix, 976 F. Supp. 41 (1997).

An accused’s right to a fair trial and the press and public’s right of access to criminal proceedings must be balanced when determining whether access to legal proceedings should be restricted. The press and public are entitled to notice and a hearing before a closure order is entered, and any submission in a trial court for closure, either by a party Or by the court’s own motion, and be it a letter, written motion, or oral motion, either in chambers or open court, must be docketed, as notice to the press and public, in the court clerk’s office for at least 24 hours before any hearing on such submission, with the usual notice to all parties. The requirement should not be taken to mean that a greater notice period may not be afforded where feasible. Preferably, the submission should be a written motion if time and circumstances allow. A hearing must be held in which the press is allowed to intervene on behalf of the public and present argument, if any, against closure. The movant must be required to advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceedings, and it must make findings adequate to support the closure. In considering the less restrictive alternatives to closure, the court must articulate the alternatives considered and why they were rejected. The court must then make written findings of fact and conclusions of law specific enough that a reviewing court can determine whether the closure order was properly entered. A transcript of the closure hearing should be made public and if a petition for extraordinary relief concerning a closure order is filed in the Supreme Court, it should be accompanied by the transcript, the court’s findings of fact and conclusions of law, and the evidence adduced at the hearing upon which the judge based the findings and conclusions. These requirements cannot be avoided by an agreement between the defendant and the State that proceedings and files should be closed. Gannett River States Pub. Co. v. Hand, 571 So. 2d 941, 1990 Miss. LEXIS 710 (Miss. 1990).

Circuit Court’s closure order in capital murder case was reasonable regulation of time, place, and manner of newspaper’s enjoyment of its First Amendment right; desire of press to inform public about important criminal proceedings can result in publication of matter that can deprive defendant of his right to fair trial; access of press to trial and pretrial processes may be qualified, and record amply supported Circuit Court’s finding that unrestricted access to trial process would result in substantial likelihood of defendant being denied fair trial; additionally, newspaper was not being denied access to pre-trial proceeding in perpetuity, because closure order expired once jury was sequestered and trial began; once that point was reached, newspaper would be granted access to complete transcript of all closed, pre-trial proceedings. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

Closure order in criminal trial did not violate newspapers’ right of access to public records because that right is not of constitutional dimensions, instead being derived from common law and applicable statutes. Mississippi Publishers Corp. v. Coleman, 515 So. 2d 1163, 1987 Miss. LEXIS 2900 (Miss. 1987).

By instructing the jury that if the defendant was arrested for public protest against racial segregation he could not be found guilty, the instruction constituted recognition that Code 1942 § 2089.5 could not be applied to restrict defendant’s constitutional right so to protest, and that it could not be used to infringe upon the constitutional right of any person to speak freely within the framework of the law. McLaurin v. Greenville, 187 So. 2d 854, 1966 Miss. LEXIS 1361 (Miss. 1966), cert. denied, 385 U.S. 1011, 87 S. Ct. 704, 17 L. Ed. 2d 548, 1967 U.S. LEXIS 2662 (U.S. 1967).

14. – Correctional facilities, freedom of speech and press.

No First Amendment claim arose where the inmate failed to assert facts supporting a showing of arbitrariness in classification; therefore, no issue of any merit could arise. Hurns v. Miss. Dep't of Corr., 878 So. 2d 223, 2004 Miss. App. LEXIS 162 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 918 (Miss. 2004).

The opening and inspection, without reading, of in-coming inmate mail of a non-privileged character, in the absence of the inmate, was not violative of first amendment rights, and was necessary to the state’s substantial interests of security, discipline, and good order. Gates v. Collier, 390 F. Supp. 482, 1975 U.S. Dist. LEXIS 14056 (N.D. Miss. 1975), aff'd, 525 F.2d 965, 1976 U.S. App. LEXIS 13465 (5th Cir. 1976).

The district court’s findings that the censorship of all incoming and outgoing mail at the Mississippi State Penitentiary was unconstitutional, and the relief therein granted, were affirmed. Gates v. Collier, 501 F.2d 1291, 1974 U.S. App. LEXIS 6790 (5th Cir. Miss. 1974).

15. – Advertising, freedom of speech and press.

Chiropractor did not show statutes requiring the chiropractor to use only certain licensure designations in advertising did not violate the First Amendment because the evidence demonstrated that the chiropractor’s advertisements were actually misleading. Barlow v. Miss. State Bd. of Chiropractic Examiners, 233 So.3d 223, 2017 Miss. LEXIS 209 (Miss. 2017).

City sign regulations which barred the placement of an exterior sign on a “single office building” were content neutral and did not violate the First Amendment. American Federated Gen. Agency, Inc. v. City of Ridgeland, 72 F. Supp. 2d 695, 1999 U.S. Dist. LEXIS 17760 (S.D. Miss. 1999).

The free speech guarantee of the First Amendment was not violated by rules of the Florida state bar association, which prohibited attorneys from targeting direct-mail solicitations of business to accident and disaster victims (or to relatives of such victims) during a 30-day period after the accident or disaster, where (1) Florida had a substantial interest in protecting the privacy and tranquility of potential clients from commercial intrusion on their personal grief in times of trauma, and in preventing outrage and irritation with the state-licensed legal profession, (2) the rules targeted concrete, nonspeculative harm, and (3) the restriction was reasonably well-tailored to its stated objective. Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541, 1995 U.S. LEXIS 4250 (U.S. 1995).

Disciplining attorney for soliciting business through advertisements containing nondeceptive illustrations and legal advice violates attorney’s First Amendment rights. Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 105 S. Ct. 2265, 85 L. Ed. 2d 652, 1985 U.S. LEXIS 19 (U.S. 1985).

Commercial speech that lies within the First Amendment’s scope may be subjected to greater governmental regulation than other forms of speech such as political expression. Accordingly, liquor advertising in Mississippi was commercial speech protected by the First Amendment, where there was no claim that the liquor advertisements would propose an unlawful sale or purchase of liquor, despite the assertion that liquor must be “entirely lawful” everywhere in Mississippi, a local option state, before First Amendment protection attaches to its advertising. Furthermore, any potential to mislead that liquor advertising may possess did not warrant wholesale exclusion of liquor advertising from First Amendment protection. Lamar Outdoor Advertising, Inc. v. Mississippi State Tax Com., 701 F.2d 314, 1983 U.S. App. LEXIS 29732 (5th Cir. Miss. 1983).

Mississippi’s intrastate liquor advertising ban, Miss Code §97-31-1 et seq., [repealed] violated Mississippi Media Businesses’ First Amendment guaranty of freedom of speech, where the law did little to directly advance the government’s interest of promoting health and safety for Mississippi residents, in light of uncontradicted evidence that Mississippi residents were literally inundated with liquor advertisements from sources originating outside the state. Lamar Outdoor Advertising, Inc. v. Mississippi State Tax Com., 701 F.2d 314, 1983 U.S. App. LEXIS 29732 (5th Cir. Miss. 1983).

16. – Professional regulation, freedom of speech and press.

Judge’s remarks violated Miss. Code Jud. Conduct Canons 1, 2(A) & (B), 3(B)(5), constituting willful misconduct in the judicial office which brought the judicial office into disrepute, thus causing the judge’s conduct to be actionable pursuant to Miss. Const. Art. 6, § 177A; the judge’s comments were disparaging results and not matters of legitimate public concern and went beyond the realm of protected campaign speech. Miss. Comm'n on Judicial Performance v. Osborne, 2009 Miss. LEXIS 9 (Miss. Feb. 5, 2009), op. withdrawn, sub. op., 11 So.3d 107, 2009 Miss. LEXIS 278 (Miss. 2009).

Code 1972 §25-31-1, which requires district attorneys to be practicing lawyers admitted to practice in Mississippi for at least two years prior to taking office, does not violate the Voting Rights Act of 1965, does not deny the plaintiff equal protection of the law, and does not infringe upon his first amendment rights. Waide v. Waller, 402 F. Supp. 922, 1975 U.S. Dist. LEXIS 15781 (N.D. Miss. 1975).

17. – Employment and job security, freedom of speech and press.

Balancing test to determine whether the government’s interests as an employer outweighed an employee’s right as a citizen to speak out favored a state employee who was terminated after he brought abusive practices at a state hospital to the attention of his manager’s supervisor; no serious disruption resulted from the employee’s failure to follow the chain of command. E. Miss. State Hosp. v. Callens, 892 So. 2d 800, 2004 Miss. LEXIS 361 (Miss. 2004).

City sanitation workers were not disciplined in violation of the First Amendment where (1) after a meeting at which drivers and crew members were rotated among different trucks and routes, the plaintiffs complained to their supervisor that they did not want to switch trucks, (2) the supervisor told the plaintiffs that they would be disciplined if they were not out of the facility to work on time, (3) the plaintiffs did not begin to work on time, and (4) the supervisor told them to clock out and return the next day, assigned other crews to their routes, and disciplined them; the plaintiffs were not disciplined for requesting an audience with higher ranking public officials as they were not denied access to their elected officials, but were simply told to go to work and to attend to their grievances after their job duties for the day were completed, and as their complaints did not touch on matters of public concern. Tolliver v. City of Starkville, 2000 U.S. Dist. LEXIS 10816 (N.D. Miss. July 25, 2000).

Evidence did not support the contention that a civil service employee was terminated in violation of her First Amendment right of freedom of speech and freedom to petition her government; although the employee noted that, in a television interview, she expressed her opposition as a private citizen and property owner to the proposed annexation of certain areas by a city, the record did not reflect that her termination was the result of the televised interview. Walters v. Department of Economic & Community Dev., 768 So. 2d 893, 2000 Miss. LEXIS 199 (Miss. 2000).

Police department employees’ complaints in connection with their working conditions did not rise to level of public concern, thus were not protected by First Amendment such as to support their claim for wrongful discharge, by city, on basis of their speech; city’s motion for summary judgment was granted. Evans v. Indianola, 778 F. Supp. 333, 1991 U.S. Dist. LEXIS 17739 (N.D. Miss. 1991), aff'd, 981 F.2d 1255, 1992 U.S. App. LEXIS 34054 (5th Cir. Miss. 1992).

Employee speech is entitled to judicial protection only if it pertains to matters of public concern, and this protection does not extend to comments of personal interest. Even employee speech on matters of public interest must be balanced against the government’s interest in promoting efficiency, integrity and proper discipline in the discharge of public service. Thus, a police chief’s request that an officer maintain a “low profile” did not wrongfully suppress the officer’s constitutional right to free speech since the request was “well within the legitimate and necessary means inherent to the efficient operation of a police department which is deeply involved in combating narcotics activity in the community.” Bulloch v. Pascagoula, 574 So. 2d 637, 1990 Miss. LEXIS 798 (Miss. 1990).

Equitable remedy of backpay is required in context of adverse personnel actions which occur as retaliation for exercise of First Amendment freedoms; such backpay award is not rendered inappropriate by administrator’s voluntarily accepting lower salary by signing new contract, because administrator was under legal duty to minimize or mitigate damages. Reeves v. Claiborne County Bd. of Education, 828 F.2d 1096, 1987 U.S. App. LEXIS 13093 (5th Cir. Miss. 1987).

Reinstatement is integral part of remedy for constitutionally impermissible employment action and although not absolute and automatic, once plaintiff establishes discharge resulted from constitutionally impermissible motives, he is presumed to be entitled to reinstatement; neither hiring of successor during course of litigation nor finding that recommendation to transfer administrator was only partly motivated by constitutionally impermissible considerations is justification for denying reinstatement. Reeves v. Claiborne County Bd. of Education, 828 F.2d 1096, 1987 U.S. App. LEXIS 13093 (5th Cir. Miss. 1987).

Former university security coordinator was not terminated in violation of his First Amendment right to free speech when he publicly criticized administration’s decision to rate campus security as security force rather than police force, or because of his living arrangement with female faculty member, because reason for termination was his repeated refusals to comply with orders and recommendations of immediate supervisor. Robinson v. Boyer, 825 F.2d 64, 1987 U.S. App. LEXIS 11225 (5th Cir. Miss. 1987).

Where the decision not to reemploy an elementary school teacher was made, not because of her activities in speaking out against the school board and participating in teacher’s organizations, but, rather, because of her disregard of school policy in taking leave without permission, such reasons supported the proposition that the protected activities under the First Amendment were not a “substantial factor” in the non-reemployment decision. Board of Trustees v. Gates, 461 So. 2d 730, 1984 Miss. LEXIS 2053 (Miss. 1984).

18. – Colleges and universities, freedom of speech and press.

A state university’s prohibition on spectators bringing banners or flags larger than 12 by 14 inches into its football stadium was within the authority of the university and did not constitute deprivations of the plaintiff’s First Amendment rights. Barrett v. Khayat, 1999 U.S. Dist. LEXIS 17899 (N.D. Miss. Nov. 12, 1999).

The University of Virginia’s refusal to fund the printing of a newspaper published by a student organization because it had a Christian religious orientation violated the free speech guarantee of the First Amendment, and was not excused by the need to comply with the First Amendment’s establishment of religion clause, where the organization was not a religious institution in the usual sense of that term or as defined in the university’s own regulations, the organization sought funding as a student journal, no public funds would flow directly to the organization’s coffers, any benefit to religion would be incidental to the payment of printing costs from the student activities fund on a religion-neutral basis, and denial of payment risked fostering a pervasive bias or hostility to religion. Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700, 1995 U.S. LEXIS 4461 (U.S. 1995).

A college newspaper run by students and operated with student funds could properly refuse to print an advertisement proffered by a primarily off campus and homosexual group, particularly in light of the statute [§97-29-59] proscribing unnatural intercourse, such statute not being unconstitutional, and in light of the fact that university officials had nothing to do with the rejection of the advertisement. Mississippi Gay Alliance v. Goudelock, 536 F.2d 1073, 1976 U.S. App. LEXIS 7593 (5th Cir. Miss. 1976), cert. denied, 430 U.S. 982, 97 S. Ct. 1678, 52 L. Ed. 2d 377, 1977 U.S. LEXIS 1604 (U.S. 1977).

19. – Parades and demonstrations, freedom of speech and press.

The section of an ordinance enacted by the City of Tupelo authorizing the Chief of Police to deny a parade permit if he finds that “the conduct of the parade will probably cause injury to persons or property or provoke disorderly conduct or create a disturbance” is unconstitutional in that the term “disorderly conduct” is overbroad because it could be applied to deny permits to those seeking to engage in protected activity; the provision constitutes a prior restraint upon free speech because it is not narrowly drawn to relate to health, safety, and welfare interests, but instead sanctions the denial of a permit on the basis of the so-called “hecklers’ veto;” the provision is unconstitutionally vague as well since it contains no instructions directing the Chief of Police in the formulation of his opinion. The phrase “will probably cause injury” is constitutionally invalid since the term “probably” is simply too vague and indefinite and does not control adequately the discretion of the Chief in his determination of when to grant or deny a permit; the phrase “create a disturbance” is unconstitutional because it vests in the licensing authority the unbridled discretion to determine when, in his opinion, it is likely that criminal conduct will occur in the future. Limiting parade activity to the hours before 6:00 pm is invalid where it remains light in Tupelo well past that hour most of the year and the protection of citizens at night is not thereby jeopardized by a later time limit. The requirements of the ordinance that all paraders be unarmed, line up no more than four abreast, in the right-hand lane of the street, in units of 100 or fewer, with 15-foot intervals between units is unconstitutional in that it violates the Equal Protection Clause since such requirements do not apply to students or governmental agencies. The requirement that marchers act in an “orderly manner” is unconstitutionally overbroad; and the restriction on the use of “profanity” is void since profanity is protected speech unless it falls into such unprotected categories as obscenity or fighting words. Exemption of governmental agencies and students participating in educational activities from the licensing and regulatory requirements constitutes a violation of the Equal Protection Clause since such discrimination is based upon the content of the speech involved. That section of the ordinance which requires that the applicant for a permit demonstrate the noise level of sound equipment to be used is not facially unconstitutional since all it requires is a demonstration of the noise level; however, in the course of applying this statute, if the Chief of Police denies permits because of the demonstrated noise level of the equipment, the applicant will be able to make the argument offered herein that the section fails to give narrow and objective standards to be used in the determination. The blanket prohibition against sound equipment in areas zoned for residential purposes is overbroad because the ordinance presumes incompatibility based on an area’s merely being zoned residential and oftentimes areas zoned residential include structures other than homes, such as churches and schools, which are not incompatible with the use of sound equipment. The restriction of the operation of sound equipment at any location between the hours of 6:00 pm and 9:00 am is invalid where, although nighttime restrictions might be justifiable, the hour at which the restriction commences is not necessarily at night. Beckerman v. Tupelo, 664 F.2d 502, 1981 U.S. App. LEXIS 14949 (5th Cir. Miss. 1981).

20. – Entertainment, freedom of speech and press.

The court would reject the contention that a city ordinance which banned public nudity was facially overbroad because it infringed upon protected First Amendment conduct since the hypothetical examples raised by the appellant were not substantial. J & B Entertainment v. City of Jackson, 152 F.3d 362, 1998 U.S. App. LEXIS 20511 (5th Cir. Miss. 1998).

The court would vacate the district court’s grant of summary judgment in favor of the defendant city in an action challenging a city ordinance that banned public nudity since the record was too bare to support the conclusion that the city enacted the ordinance based on a desire to combat secondary effects linked to public nudity, as applied to nude dancing. J & B Entertainment v. City of Jackson, 152 F.3d 362, 1998 U.S. App. LEXIS 20511 (5th Cir. Miss. 1998).

City of Vicksburg Ordinance 93-37 § 1014(A)(1)(g), banning nude and semi-nude dancing in adult entertainment establishments, violated the First Amendment. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

City of Vicksburg Ordinance 93-37, prohibiting adult entertainment establishments from locating within 1000 feet of churches and certain other facilities, provided reasonable alternative avenues of communication for the purposes of determining whether it violated the First Amendment, where the city planning commissioner submitted evidence of 93 potential sites for such establishments, including at least 69 with road access. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

Pursuant to §67-3-65, a city was authorized to enact ordinances regulating light wine and beer on adult entertainment premises without showing any secondary effects or showing that such establishments were conducive to criminal behavior; accordingly, any artistic or communicative value that might attach to topless dancing was overridden by the city’s exercise of its broad powers arising under the Twenty-First Amendment, and the city’s prohibition of light wine and beer in a lounge featuring topless dancing was constitutionally permissible. Steverson v. City of Vicksburg, 900 F. Supp. 1, 1994 U.S. Dist. LEXIS 20777 (S.D. Miss. 1994).

City could not refuse to issue building permit for enlargement of premises which provided adult entertainment in form of topless dancing, despite fact that city claimed such entertainment would not be permitted in that area pursuant to zoning ordinance expected to be promulgated in future, where no such ordinance was currently in effect, and activities in question were protected by First Amendment. City of Jackson v. Lakeland Lounge, 800 F. Supp. 455, 1992 U.S. Dist. LEXIS 12245 (S.D. Miss.), rev'd, 973 F.2d 1255, 1992 U.S. App. LEXIS 24743 (5th Cir. 1992).

For purposes of showing irreparable harm in connection with request for injunction, violation of business’ First Amendment right to free speech was irreparable harm, even if it occurred for minimal period of time. City of Jackson v. Lakeland Lounge, 800 F. Supp. 455, 1992 U.S. Dist. LEXIS 12245 (S.D. Miss.), rev'd, 973 F.2d 1255, 1992 U.S. App. LEXIS 24743 (5th Cir. 1992).

For purposes of awarding injunction to adult entertainment business requiring city to issue building permit, balance of harms favored grant of injunctive relief, as prevention of business from making improvements to its facility violated its protected First Amendment rights, whereas granting injunction would not harm city. City of Jackson v. Lakeland Lounge, 800 F. Supp. 455, 1992 U.S. Dist. LEXIS 12245 (S.D. Miss.), rev'd, 973 F.2d 1255, 1992 U.S. App. LEXIS 24743 (5th Cir. 1992).

Injunction was warranted to prevent city from filing criminal affidavits asserting violation of building code in connection with occupancy against operators of adult entertainment business offering topless dancing, in light of evidence that city’s efforts in such regard were motivated in part by intent to deter exercise of First Amendment rights. City of Jackson v. Lakeland Lounge, 800 F. Supp. 455, 1992 U.S. Dist. LEXIS 12245 (S.D. Miss.), rev'd, 973 F.2d 1255, 1992 U.S. App. LEXIS 24743 (5th Cir. 1992).

Since a fair is a form of entertainment, a case involving a challenge to a zoning ordinance which severely limited the operation of fairs was one in which there was a protected interest under the First Amendment of the United States Constitution. Great South Fair v. Petal, 548 So. 2d 1289, 1989 Miss. LEXIS 395 (Miss. 1989).

21. – Defamation, freedom of speech and press.

First Amendment restrictions mandate that the plaintiff in a defamation action bear the burden of proving falsity. Burk v. Illinois C. G. R. Co., 529 So. 2d 515, 1988 La. App. LEXIS 1569 (La.App. 1 Cir.), cert. denied, 532 So. 2d 179, 1988 La. LEXIS 2528 (La. 1988).

Plaintiffs did not transform themselves into public figures for defamation purposes by merely pleading guilty to a misdemeanor charge of transporting cattle from one state to another without having them tested for brucellosis. Whitten v. Commercial Dispatch Pub. Co., 487 So. 2d 843, 1986 Miss. LEXIS 2452 (Miss. 1986).

In an editorial attacking three physicians operating an emergency room in a publicly funded hospital for demanding the ouster of the hospital administrator, the words “if I had such a good setup I wouldn’t want someone to come along and tear up my little playhouse either” constituted an opinion that the writer of the editorial had a right to express, and were not libelous. Ferguson v. Watkins, 448 So. 2d 271, 1984 Miss. LEXIS 1638 (Miss. 1984).

In an action against a newspaper for damages for malicious libel, plaintiffs failed to meet their burden of proving malice, reckless disregard for the truth, or knowledge of falsity of an article concerning a public official, where the evidence indicated that the reporter who wrote the article told his superior, immediately after informing plaintiffs that the article may have contained errors, that he thought he had “messed up,” showing a state of mind contrary to any supposition that when he submitted the article for publication he either knew or seriously doubted that it was false, and where the newspaper and reporter took every reasonable step to correct any error in the article, insofar as any implication against the plaintiffs was concerned. Gulf Pub. Co. v. Lee, 434 So. 2d 687, 1983 Miss. LEXIS 2673 (Miss. 1983).

In action against newspaper for invasion of privacy, failure to allege that publication was made with knowledge of its falsity, with reckless disregard for truth, or maliciously was not adequate to support demurrer since plaintiffs were not public figures and since jurisdiction recognized common law right to privacy, and the allegations, though possibly subject to technical criticism, sufficiently charged a tort to warrant a trial on the merits. Deaton v. Delta Democrat Publishing Co., 326 So. 2d 471, 1976 Miss. LEXIS 1746 (Miss. 1976).

Federal courts have pre-empted the field of libel and slander and have established that hatred, ill will, enmity, intent to harm or negligence are insufficient to establish malice toward those involved in discussions on public issues. Reaves v. Foster, 200 So. 2d 453, 1967 Miss. LEXIS 1321 (Miss. 1967).

A public school principal, plaintiff in an action for damages for libel, cannot recover unless he shows malice by proving that the defendant when he published the words in question either knew that they were false, or published them in reckless disregard of whether true or not. Reaves v. Foster, 200 So. 2d 453, 1967 Miss. LEXIS 1321 (Miss. 1967).

22. – Obscenity, freedom of speech and press.

Obscenity is not within the protection of the First Amendment to the United States Constitution under all of the authorities. McGrew v. Jackson, 307 F. Supp. 754, 1969 U.S. Dist. LEXIS 8711 (S.D. Miss. 1969), vacated, 401 U.S. 987, 91 S. Ct. 1221, 28 L. Ed. 2d 525, 1971 U.S. LEXIS 2572 (U.S. 1971).

23. Freedom of association – Generally.

The banishment of the defendant from a 100-mile radius of the place that he committed a burglary was not justified where the trial court did not make an on-the-record finding of the benefits of banishment. Weaver v. State, 764 So. 2d 479, 2000 Miss. App. LEXIS 351 (Miss. Ct. App. 2000).

The plaintiff failed to state a cause of action for a violation of her right of association where she alleged that family members and friends were harassed by the defendants with the specific purpose of interfering with her right to associate with such people, but failed to allege a protected intimate association. Walker v. Henderson, 1999 U.S. Dist. LEXIS 19638 (N.D. Miss. Dec. 9, 1999), aff'd, 239 F.3d 366, 2000 U.S. App. LEXIS 30118 (5th Cir. Miss. 2000).

A term of probation requiring defendant to remain at least 125 miles away from a particular county did not violate his First, Fifth, or Fourteenth Amendment rights, where the record indicated that the trial judge carefully and meticulously explained to defendant his rights, the trial court found that defendant voluntarily and knowingly pled guilty, the Department of Corrections conducted an investigation of defendant prior to sentencing, and defendant accepted the terms of probation, which were neither unreasonable nor arbitrary. Cobb v. State, 437 So. 2d 1218, 1983 Miss. LEXIS 2926 (Miss. 1983).

Right to peacefully picket grows out of right of freedom of speech and freedom of press. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

24. Elections and politics.

Order that the judge be suspended from office for a period of one year was appropriate because his commentary on Caucasian official and their African-American appointees in his jurisdiction was not worthy of being deemed a matter of legitimate political concern in his reelection campaign, but merely an expression of his personal animosity. The comments were not made within the content, form, or context of a matter of legitimate public concern. Miss. Comm'n on Judicial Performance v. Osborne, 11 So.3d 107, 2009 Miss. LEXIS 278 (Miss. 2009).

First Amendment protected advertisements profiling judicial candidates for state Supreme Court; communications created by producer independent of candidate, without explicit terms advocating specific electoral action, were not subject to mandatory disclosure requirements for campaign expenditures under Miss. Code Ann. §§23-15-809 and 801(j). Chamber of Commerce of the United States v. Moore, 288 F.3d 187, 2002 U.S. App. LEXIS 6227 (5th Cir. Miss.), cert. denied, 537 U.S. 1018, 123 S. Ct. 536, 154 L. Ed. 2d 425, 2002 U.S. LEXIS 8339 (U.S. 2002).

25. Constitutional vagueness.

Supreme court declined to address defendant’s First Amendment vagueness claim because defendant cited no legal authority and provided no argument in support of her assertion that the retaliation statute, Miss. Code Ann. §97-9-127, infringed upon the First Amendment. Wilcher v. State, 227 So.3d 890, 2017 Miss. LEXIS 108 (Miss. 2017).

Kidnapping statute, Miss. Code Ann. §97-3-53, is not unconstitutionally vague because the use of other descriptive words in §97-3-53, such as e.g. and inveigle, leave defendants well informed on the crimes of which they are accused. Perkins v. State, 863 So. 2d 47, 2003 Miss. LEXIS 657 (Miss. 2003).

Amendment II Right to bear arms

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

RESEARCH REFERENCES

Am. Jur.

16A Am Jur 2d, Constitutional Law §§ 415-418, 422.

79 Am Jur 2d, Weapons and Firearms § 4.

CJS.

C.J.S. Weapons §§ 3-8.

Amendment III Soldiers denied quarter in homes

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

RESEARCH REFERENCES

Am. Jur.

16A Am. Jur. 2d, Constitutional Law §§ 415-418, 422.

Law Reviews.

Recent Decision: Constitutional Law—Taxpayer Standing to Challenge Executive Spending—Discretionary Spending versus Spending Pursuant to Congressional Authority, 77 Miss. L.J. 695, Winter, 2007.

JUDICIAL DECISIONS

24. —- Admissibility of evidence, warrantless searches and seizures.

Anonymous tip, alone, did not possess sufficient indicia of reliability to provide Mississippi Bureau of Narcotic agents with reasonable suspicion to stop a group or its individual members because they were merely acting upon information provided through an anonymous tip; however, the agents personally observed “suspicious” behavior as soon as they arrived on the scene, thereby establishing an independent ground for reasonable suspicion. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Amendment IV Search and seizure

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

ATTORNEY GENERAL OPINIONS

The mere fact that an individual is openly carrying a weapon, absent anything more, does not give a law enforcement officer grounds to detain that individual or to require him to submit to questioning. Lance, June 13, 2013, 2013 Miss. AG LEXIS 111.

RESEARCH REFERENCES

ALR.

Search and seizure: “furtive” movement or gesture as justifying police search. 45 A.L.R.3d 581.

Admissibility of evidence discovered in search of adult defendant’s property or residence authorized by defendant’s minor child – state cases. 99 A.L.R.3d 598.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by domestic employee or servant. 99 A.L.R.3d 1232.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s spouse (resident or nonresident cases) – state cases. 1 A.L.R.4th 673; 65 A.L.R.5th 407.

Admissibility of evidence discovered in warrantless search of rental property authorized by lessor of such property – state cases. 2 A.L.R.4th 1173; 61 A.L.R.5th 1.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s adult relative other than spouse – state cases. 4 A.L.R.4th 196; 55 A.L.R.5th 125.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by one, other than relative, who is cotenant or common resident with defendant–state cases. 4 A.L.R.4th 1050.

Odor of narcotics as providing probable cause for warrantless search. 5 A.L.R.4th 681.

Use of electronic sensing device to detect shoplifting as unconstitutional search and seizure. 10 A.L.R.4th 376.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues. 12 A.L.R.4th 318.

Employment of photographic equipment to record presence and nature of items as constituting unreasonable search. 27 A.L.R.4th 532.

Searches and seizures: reasonable expectation of privacy in contents of garbage or trash receptacle. 28 A.L.R.4th 1219; 62 A.L.R.5th 1.

Searches and seizures: validity of searches conducted as condition of entering public premises – state cases. 28 A.L.R.4th 1250.

Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 32 A.L.R.4th 378.

Search and seizure: what constitutes abandonment of personal property within rule that search and seizure of abandoned property is not unreasonable – modern cases. 40 A.L.R.4th 381.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person’s body. 41 A.L.R.4th 60.

Officer’s ruse to gain entry as affecting admissibility of plain-view evidence – modern cases. 47 A.L.R.4th 425.

Search and seizure: necessity that police obtain warrant before taking possession of, examining, or testing evidence discovered in search by private person. 47 A.L.R.4th 501.

Eavesdropping on extension telephone as invasion of privacy. 49 A.L.R.4th 430.

Propriety of state or local government health officer’s warrantless search – post-Camara cases. 53 A.L.R.4th 1168.

Search and seizure of telephone company records pertaining to subscriber as violation of subscriber’s constitutional rights. 76 A.L.R.4th 536.

Observation through binoculars as constituting unreasonable search. 59 A.L.R.5th 615.

Search and seizure: reasonable expectation of privacy in driveways. 60 A.L.R.5th 1.

Belief that burglary is in progress or has recently been committed as exigent circumstances justifying warrantless search of premises. 64 A.L.R.5th 637.

Validity of anticipatory search warrants. 67 A.L.R.5th 361.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by one, other than relative, who is cotenant or common resident with defendant – state cases. 68 A.L.R.5th 343.

Civilian participation in execution of search warrant as affecting legality of search. 68 A.L.R.5th 549.

Effect of retroactive consent on legality of otherwise unlawful search and seizure. 76 A.L.R.5th 563.

Permissibility and sufficiency of warrantless use of thermal imager or Forward Looking Infra-Red Radar (F.L.I.R.). 78 A.L.R.5th 309.

Validity of police roadblocks or checkpoints for purpose of discovery of illegal narcotics violations. 82 A.L.R.5th 103.

Validity of Search or Seizure of Computer, Computer Disk, or Computer Peripheral Equipment. 84 A.L.R.5th 1.

What Constitutes Compliance With Knock-and-Announce Rule in Search of Private Premises – State Cases. 85 A.L.R.5th 1.

Federal and State Constitutions as Protecting Prison Visitor Against Unreasonable Searches and Seizures. 85 A.L.R.5th 261.

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving - cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence. 90 A.L.R.5th 225.

Constitutionality of secret video surveillance. 91 A.L.R.5th 585.

Expectation of privacy in internet communications. 92 A.L.R.5th 15.

Destruction of property as violation of Fourth Amendment. 98 A.L.R.5th 305.

Validity of requirement that, as condition of probation, defendant submit to warrantless searches. 99 A.L.R.5th 557.

Error, in either search warrant or application for warrant, as to address of place to be searched as rendering warrant invalid. 103 A.L.R.5th 463.

Admissibility, in civil proceeding, of evidence obtained through unlawful search and seizure. 105 A.L.R.5th 1.

Odor detectable by unaided person as furnishing probable cause for search warrant. 106 A.L.R.5th 397.

When are facts offered in support of search warrant for evidence of sale or possession of cocaine so untimely as to be stale – State cases. 109 A.L.R.5th 99.

When are facts offered in support of search warrant for evidence of sexual offense so untimely as to be stale – State cases. 111 A.L.R.5th 239.

When are facts relating to marijuana, provided by one other than police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of a controlled substance – State cases. 112 A.L.R.5th 429.

When are facts relating to drug other than cocaine or marijuana so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance – State cases. 113 A.L.R.5th 517.

Validity of warrantless search of motor vehicle based on odor of marijuana – State cases. 114 A.L.R.5th 173.

When are facts relating to marijuana, provided by police or other law enforcement officer, so untimely as to be stale when offered in support of search warrant for evidence of sale or possession of controlled substance – State cases. 114 A.L.R.5th 235.

Validity of warrantless search based in whole or in part on odor of narcotics other than marijuana, or chemical related to manufacture of such narcotics. 115 A.L.R.5th 477.

Validity of routine roadblocks by state or local police for purpose of discovery of driver’s license, registration, and safety violations. 116 A.L.R.5th 479.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of state constitutions. 117 A.L.R.5th 407.

Adequacy of defense counsel’s representation of criminal client regarding search and seizure issues – Motions and objections during trial and matters other than pretrial motions. 117 A.L.R.5th 513.

Validity of warrantless search of other than motor vehicle or occupant of vehicle based on odor of marijuana-State cases. 122 A.L.R.5th 439.

Validity of warrantless search of motor vehicle driver based on odor of marijuana-State cases. 123 A.L.R.5th 179.

Validity of search conducted pursuant to parole warrant. 123 A.L.R.5th 221.

Application in state narcotics cases of collective knowledge doctrine or fellow officers’ rule under Fourth Amendment – Drugs other than marijuana and cocaine and unidentified drugs. 12 A.L.R.6th 553.

Construction and application of rule permitting knock and talk visits under Fourth Amendment and state constitutions. 15 A.L.R.6th 515.

When Does Use of Taser Constitute Violation of Constitutional Rights. 45 A.L.R.6th 1.

Federal court determination of probable cause for search warrant: consideration of oral testimony which was, in addition to affidavit, before officer who issued warrant. 24 A.L.R. Fed. 107.

Use of trained dog to detect narcotics or drugs as unreasonable search in violation of Fourth Amendment. 31 A.L.R. Fed. 931; 150 A.L.R. Fed. 399.

Construction and application of “national security” exception to Fourth Amendment search warrant requirement. 39 A.L.R. Fed. 646.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s relative. 48 A.L.R. Fed. 131.

Admissibility of evidence discovered in warrantless search of property or premises authorized by one having ownership interest in property or premises other than relative. 49 A.L.R. Fed. 511.

Sufficiency of description of business records under Fourth Amendment requirement of particularity in federal warrant authorizing search and seizure. 53 A.L.R. Fed. 679.

Validity, under Federal Constitution, of search conducted as condition of entering public building. 53 A.L.R. Fed. 888.

Aerial observation or surveillance as violative of Fourth Amendment guaranty against unreasonable search and seizure. 56 A.L.R. Fed. 772.

Attachment or use of transponder (beeper) to monitor location of airplane or automobile as constituting “search” within Fourth Amendment. 57 A.L.R. Fed. 646.

Validity, under Fourth Amendment, of “mail cover”. 57 A.L.R. Fed. 742.

Propriety in federal prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 69 A.L.R. Fed. 522.

What constitutes “an opportunity for full and fair litigation” in state court precluding habeas corpus review under 28 USCS § 2254 in federal court of state prisoner’s Fourth Amendment claims. 75 A.L.R. Fed. 9.

Fourth Amendment as prohibiting strip searches of arrestees or pretrial detainees. 78 A.L.R. Fed. 201.

What circumstances fall within “inevitable discovery” exception to rule precluding admission, in criminal case, of evidence obtained in violation of Federal Constitution. 81 A.L.R. Fed. 331.

Supreme Court’s views on mandatory testing for drugs or alcohol. 145 A.L.R. Fed. 335.

When is consent voluntarily given so as to justify search conducted on basis of that consent—Supreme Court cases. 148 A.L.R. Fed. 271.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s spouse. 154 A.L.R. Fed. 579.

Admissibility of evidence discovered in search of defendant’s property or residence authorized by defendant’s adult relative other than spouse. 160 A.L.R. Fed. 165.

Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated; cases decided since Colonnade Catering Corp. v. U.S., 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970).182 A.L.R. Fed. 467.

When are facts offered in support of search warrant for evidence of federal nondrug offense so untimely as to be stale. 187 A.L.R. Fed. 415.

Validity of warrantless search of motor vehicle based on odor of marijuana – Federal cases. 188 A.L.R. Fed. 487.

Validity of warrantless search of other than motor vehicle or occupant of motor vehicle based on odor of marijuana – Federal cases. 191 A.L.R. Fed. 303.

Sufficiency of information provided by confidential informant, whose identity is known to police, to provide probable cause for federal search warrant where there was indication that informant provided reliable information to police in past-Cases decided after Ilinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).196 A.L.R. Fed. 1.

Am. Jur.

3A Am. Jur. 2d, Aliens and Citizens §§ 55, 59, 65, 66, 70, 72, 73, 75, 80, 82, 83, 85, 86, 89, 92, 94, 96, 104.

3B Am. Jur. 2d, Aliens and Citizens § 1848.

5 Am. Jur. 2d, Arrest §§ 2, 3, 14, 17, 30, 81, 93.

7A Am. Jur. 2d, Automobiles and Highway Traffic § 126.

9 Am. Jur. 2d, Bankruptcy § 11.

16 Am. Jur. 2d, Constitutional Law § 43.

16 Am. Jur. 2d, Constitutional Law § 336-355.

16A Am. Jur. 2d, Constitutional Law §§ 415-418, 422.

16B Am. Jur. 2d, Constitutional Law § 651.

21 Am. Jur. 2d, Criminal Law §§ 439, 516, 523.

29 Am. Jur. 2d, Evidence § 764.

29A Am. Jur. 2d, Evidence § 1217.

31A Am. Jur. 2d, Extradition § 62.

35 Am. Jur. 2d, Federal Tax Enforcement § 295.

42 Am. Jur. 2d, Injunctions § 79.

45 Am. Jur. 2d, Intoxicating Liquors § 380.

46 Am. Jur. 2d, Judges § 66.

47 Am. Jur. 2d, Jury § 74.

68 Am. Jur. 2d, Searches and Seizures § 1.

22 Am Jur Pl & Pr Forms (Rev), Searches and Seizures, Forms 1 et seq. (requisites of valid warrant); 41 et seq. (effect of illegal search and seizure in criminal proceeding); 101 et seq. (civil liability for wrongful search and seizure). 65 A.L.R.5th 407.

108 Am. Jur. Proof of Facts 3d, Proof of Public School District Liability for Injuries or Damages to Student Resulting from Harassment of Student by Teacher or Other District Staff Member, p. 1.

109 Am. Jur. Proof of Facts 3d, Password-Protected Electronic Evidence in Civil Actions, p. 1.

109 Am. Jur. Proof of Facts 3d, Establishing Personal Liability of Public School Teacher for Injuries or Damage to Student Resulting from Harassment or Bullying of Student by Teacher, p. 105.

116 Am. Jur. Proof of Facts 3d, Criminal Pretrial Involving Text Messaging Evidence, p. 345.

5 Am. Jur. Trials, Pretrial Procedures and Motions in Criminal Cases, p. 27.

5 Am. Jur. Trials, Excluding Illegally Obtained Evidence, p. 331.

64 Am. Jur. Trials, Asserting Claims of Unconstitutional Prison Conditions, p. 425.

92 Am. Jur. Trials, Criminal Defense: Assault and Battery Cases, p. 1.

106 Am. Jur. Trials, Admission of E-Mail Evidence in Criminal Actions, p. 351.

117 Am. Jur. Trials, Criminal Trials Involving Password-Protected Evidence, p. 193.

CJS.

C.J.S. Searches and Seizures §§ 2 to 58, 102, 128 to 132, 149.

Lawyers’ Edition.

Constitutionality of searching premises without search warrant as incident to valid arrest. 23 L. Ed. 2d 966.

Warrantless removal and test by federal agent of powder discovered in damaged package by employees of freight company held not violative of Fourth Amendment. 80 L. Ed. 2d 85.

Warrantless “murder scene” search of defendant’s home held unconstitutional. 80 L. Ed. 2d 246.

INS factory surveys held not to violate the Fourth Amendment. 80 L. Ed. 2d 247.

Warrantless automobile search held constitutional even though vehicle had been impounded and secured. 80 L. Ed. 2d 381.

Warrantless search of packages 3 days after their seizure from vehicle held permissible under Fourth Amendment. 80 L. Ed. 2d 890.

Installation of beeper in container of chemicals held not to constitute search or seizure but monitoring of beeper in private residence held to violate Fourth Amendment. 82 L. Ed. 2d 530.

Evidence obtained in reasonable reliance on defective search warrant held admissible. 82 L. Ed. 2d 677.

Twenty-minute investigative detention of suspected drug trafficker held not to violate Fourth Amendment. 84 L. Ed. 2d 605.

Compelled surgical procedure to remove bullet from suspect’s chest held to constitute unreasonable search under Fourth Amendment. 84 L. Ed. 2d 662.

Transporting suspect to police station for fingerprinting without probable cause, warrant, or consent held violative of Fourth Amendment. 84 L. Ed. 2d 705.

Detention and “seizure” of defendant at airport held justified by articulable suspicion. 93 L. Ed. 2d 165.

What constitutes “seizure” within meaning of Federal Constitution’s Fourth Amendment – Supreme Court cases. 100 L. Ed. 2d 981.

Admissibility, in criminal case, of evidence for purpose of impeachment of witness, as exception to exclusionary rule precluding admission of evidence obtained in violation of federal constitutional rights–Supreme Court cases. 107 L Ed 2d 1162.

Constitutionality of searching premises without warrant as incident to valid arrest–Supreme Court cases. 108 L Ed 2d 987.

Supreme Court’s views as to constitutionality of inventory searches. 109 L Ed 2d 776.

When is evidence which is obtained after unconstitutional search or seizure sufficiently remote from such search or seizure so as not to be tainted by, and not to be inadmissible as fruit of, such search or seizure–Supreme Court cases. 109 L Ed 2d 787.

Supreme Court’s views as to application or applicability of doctrine of qualified immunity in action under 42 USCS § 1983, or in Bivens action, seeking damages for alleged civil rights violations. 116 L Ed 2d 965.

When will Supreme Court restrict federal habeas corpus review, under rule of Stone v Powell (1976) 428 US 465, 49 L Ed 2d 1067, 96 S Ct 3037, and its successors, where state has afforded accused full and fair opportunity to litigate federal constitutional claim. 123 L Ed 2d 681.

Interest in property as basis for accused’s standing to raise question of constitutionality of search or seizure–Supreme Court cases. 123 L Ed 2d 733.

When will private right of action for damages (“Bivens” action) be implied from provision of Federal Constitution—Supreme Court cases. 127 L Ed 2d 715.

Supreme Court’s views as to admissibility in criminal case, under United States v Leon and its progeny, of evidence obtained in alleged violation of Federal Constitution’s Fourth Amendment by law enforcement officers relying on quashed or defective warrant. 131 L Ed 2d 1021. Taking of individual’s bodily fluid or material for analysis or comparison as violating individual’s rights under Federal Constitution–Supreme Court. 132 L Ed 2d 1021.

Requirement, under Federal Constitution’s Fourth Amendment guarantee against unreasonable searches and seizures, that warrants, when issued upon probable cause, must be supported “by Oath or affirmation”–Supreme Court cases. 139 L Ed 2d 971.

Applicability and application, to questions concerning what violates Federal Constitution’s Fourth Amendment guarantee against unreasonable searches and seizures, of “knock and announce” doctrine that law enforcement officers, before entering premises, must knock and announce some matters–Supreme Court cases. 140 L Ed 2d 1111.

Applicability and application, to questions concerning what violates Federal Constitution’s Fourth Amendment guarantee against unreasonable searches and seizures, of “knock and announce” doctrine that law enforcement officers, before entering premises, must knock and announce some matters–Supreme Court cases. 140 L Ed 2d 1111.

Power of Indian tribe, nation, or band to impose tax on non-Indians–Supreme Court cases. 149 L Ed 2d 1211.

Validity, under Federal Constitution’s Fourth Amendment, of investigative stop of motor vehicle by roving federal border patrol–Supreme Court cases. 151 L Ed 2d 1111.

Supreme Court’s views as to what constitutes probable cause sufficient, under Federal Constitution’s Fourth Amendment, for issuance of search warrant. 164 L Ed 2d 867.

Validity, under Federal Constitution’s Fourth Amendment, of search assertedly conducted pursuant to consent–Supreme Court cases. 164 L Ed 2d 905.

Validity, under Federal Constitution’s Fourth Amendment, of searches of parolees or probationers on asserted basis of their status–Supreme Court cases. 165 L Ed 2d 1055.

Supreme Court’s views as to extent of prosecutorial immunity from liability for damages for alleged violations of civil rights. 172 L Ed 2d 905.

DNA tests or evidence in, or related to, criminal prosecutions–Supreme Court cases. 174 L Ed 2d 655.

Validity, with respect to accused’s rights under Federal Constitution, of lineup, showup, or other identification procedures or circumstances involving alleged witness to crime–Supreme Court cases. 181 L Ed 2d 1055.

Obtaining evidence by use of mechanical or electronic eavesdropping device (“bugging”) as violation of Federal Constitution’s Fourth Amendment–Supreme Court cases. 181 L Ed 2d 1081.

Law Reviews.

Bufkin, Terry and Miranda: The Conflict Between the Fourth and Fifth Amendments of the United States Constitution.18 Miss. College L. R. 199, Fall 1997.

Call, The Constitutionality of Warrantless Doorway Arrests, 19 Miss C.L. Rev. 333 (Spring, 1999).

Symposium: Rube Goldberg Meets the Constitution: The Supreme Court, Technology and the Fourth Amendment, 72 Miss. L.J. 5, Fall, 2002.

Symposium: Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-First Century, 72 Miss. L.J. 51, Fall, 2002.

Symposium: Back to the Future: Kyllo, Katz, and Common Law, 72 Miss. L.J. 143, Fall, 2002.

Symposium: Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss. L.J. 213, Fall, 2002.

Symposium: Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 Miss. L.J. 317, Fall, 2002.

Symposium: A Fourth Amendment “Search” in the Age of Technology: Postmodern Perspectives, 72 Miss. L.J. 447, Fall, 2002.

Essay: Coping with Technological Change: Kyllo and the Proper Analytical Structure to Measure the Scope of Fourth Amendment Rights, 72 Miss. L.J. 447, Fall, 2002.

The End of Reasonableness in the Reasonableness Clause: Atwater v. City of Lago Vista, 22 Miss. C. L. Rev. 135, Fall, 2002.

Comment: A Constitutional Analysis of Random Vehicle Searches at Airports, 73 Miss. L.J. 263, Fall, 2003.

Foreword: Symposium: The Permissibility of Race or Ethnicity as a Factor in Assessing the Reasonableness of a Search or Seizure, 73 Miss. L.J. 365, Spring, 2003.

Quakers, Slaves and the Founders: Profiling to Save the Union, 73 Miss. L.J. 369, Spring, 2003.

Using Race or Ethnicity as a Factor in Addressing the Reasonableness of Fourth Amendment Activity: Description, Yes; Prediction, No, 73 Miss. L.J. 423, Spring, 2003.

“Voluntary” Interviews and Airport Searches of Middle Eastern Men: The Fourth Amendment in a Time of Terror, 73 Miss. L.J. 471, Spring, 2003.

Terrorism, Race and a New Approach to Consent Searches, 73 Miss. L.J. 525, Spring, 2003.

Note: Weighing Society’s Need for Effective Law Enforcement Against an Individual’s Right to Liberty: Swinney v. State and the Forty-Eight Hour Rule, 24 Miss. C. L. Rev. 73, Fall, 2004.

Symposium article: Overcoming Hiddenness: The Role of Intentions in Fourth Amendment Analysis, 74 Miss. L.J. 553, 2004.

Symposium article: Protecting the Citizen “Whilst He Is Quiet”: Suspicionless Searches, “Special Needs” and General Warrants, 74 Miss. L.J. 501, 2004.

Symposium; The Tools to Interpret the Fourth Amendment: Foreword, 74 Miss. L.J. 273, 2004.

Symposium article: Making the Right Gamble: The Odds on Probable Cause, 74 Miss. L.J. 279, 2004.

Symposium article: The Fourth Amendment and the Fallacy of Composition: Determinacy Versus Legitimacy in a Regime of Bright-Line Rules, 74 Miss. L.J. 341, 2004.

Symposium article: Terry v. Ohio at Thirty-Five: A Revisionist View, 74 Miss. L.J. 423, 2004.

Symposium article: “A Flame of Fire”: The Fourth Amendment in Perilous Times, 74 Miss. L.J. 631, 2004.

Symposium: The Search and Seizure of Computers and Electronic Evidence: The Fourth Amendment in an Era of Ubiquitous Technology, 75 Miss. L.J. 1, Fall, 2005.

Symposium: The Search and Seizure of Computers and Electronic Evidence: Search Warrants in an Era of Digital Evidence, 75 Miss. L.J. 85, Fall, 2005.

Symposium: The Search and Seizure of Computers and Electronic Evidence: Transaction Surveillance by the Government, 75 Miss. L.J. 139, Fall, 2005.

Symposium: The Search and Seizure of Computers and Electronic Evidence: The Fourth Amendment Aspects of Computer Searches and Seizures: A Perspective and a Primer, 75 Miss. L.J. 193, Fall, 2005.

Symposium: The Search and Seizure of Computers and Electronic Evidence: Computer Searches of Probationers — Diminished Privacies, “Special Needs” & “‘Whilst’ Quiet Pedophiles” — Plugging the Fourth Amendment into the “Virtual Home Visit”, 75 Miss. L.J. 273, Fall, 2005.

Reflections on Standing: Challenges to Searches and Seizures in a High Technology World, 75 Miss. L.J. 1099, Spring, 2006.

Symposium: Programmatic Purpose, Subjective Intent, and Objective Intent: What Is the Proper Role of “Purpose” Analysis to Measure the Reasonableness of a Search or Seizure?: The Reasonable Policeman: Police Intent in Criminal Procedure, 76 Miss. L.J. 339, 2006.

Symposium: Programmatic Purpose, Subjective Intent, and Objective Intent: What Is the Proper Role of “Purpose” Analysis to Measure the Reasonableness of a Search or Seizure?: Subjective “Intent” as a Component of Fourth Amendment Reasonableness, 76 Miss. L.J. 373, 2006.

Symposium: Programmatic Purpose, Subjective Intent, and Objective Intent: What Is the Proper Role of “Purpose” Analysis to Measure the Reasonableness of a Search or Seizure?: Expressive Fourth Amendment: Rethinking the Good Faith Exception to the Excsionary Rule, 76 Miss. L.J. 483, 2006.

The Detention of Material Witnesses and the Fourth Amendment, 76 Miss. L.J. 585, 2006.

Symposium: Independent State Ground: Should State Courts Depart from the Fourth Amendment in Construing Their Own Constitutions, and if so, on What Basis Beyond Simple Disagreement with the United States Supreme Court’s Result?; Foreword, 77 Miss. L.J. i, Fall, 2007.

Symposium article: State Constitutional Methodology in Search and Seizure Cases, 77 Miss. L.J. 225, Fall, 2007.

Symposium article: Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Standards and the Original Understanding of “Due Process of Law”, 77 Miss. L.J. 1, Fall, 2007.

Symposium article: Reactive and Incompletely Theorized State Constitutional Decision-Making, 77 Miss. L.J. 265, Fall, 2007.

Symposium article: Fourth Amendment and Independent State Grounds, 77 Miss. L.J. 401, Fall, 2007.

Rights Without Remedies: The Court that Cried “Wolf”, 77 Miss. L.J. 401, Fall, 2007.

Note: Recipe for Disaster: Analyzing the Interplay Between the Castle Doctrine and the Knock-and-Announce Rule After Hudson v. Michigan, 27 Miss. C. L. Rev. 435, 2007/2008.

Practice References.

Young, Trial Handbook for Mississippi Lawyers §§ 27:3 et seq.

JUDICIAL DECISIONS

1. In general.

2. Criminal proceedings.

3. Standing to challenge search.

4. Expectation of privacy.

5. Use of force.

6. Health inspections.

7. Private searches.

8. Governmental records.

9. School facilities.

10. Correctional facilities.

11. Game warden.

12. Surveillance.

13. Roadblocks.

14. Possession of stolen property.

15. Physical evidence.

16. Fingerprints.

17. Blood, bodily fluids, etc.

18. Handwriting exemplars.

19. Breathalyzer test.

20. Surgical procedure.

21. Medical treatment.

22. Search warrant – In general.

23. –Affidavit, search warrant.

24. – Probable cause, search warrant.

25. – Guilty plea in absence of search warrant.

26. –Totality of circumstances, search warrant.

27. – Curtilage, search warrant.

28. – Sufficiency of search warrant.

28.5. Invalid warrant, search warrant.

29. Execution of warrant.

30. –Return, search warrant.

31. Scope of search with warrant.

32. Search without warrant – In general.

33. – Consent, search without warrant.

34. – Emergency situations, search without warrant.

35. – Plain view, search without warrant.

36. –Informant, search without warrant.

37. –Open fields doctrine, search without warrant.

38. –Fruit of poisonous tree, search without warrant.

39. – Inevitable discovery, search without warrant.

40. –Motor vehicles, search without warrant.

41. –Luggage, search without warrant.

42. –Drugs, search without warrant.

43. –Observation by police officer, search without warrant.

44. – “Reasonable suspicion” under “Terry” rule.

45. – Probable cause, search without warrant.

46. –Abandonment of property, search without warrant.

47. – Admissibility of evidence, search without warrant.

48. Search incident to arrest.

49. Review.

50. Surveillance or use of informant’s tip.

51. Confrontation of witnesses – In general.

52. – Hearsay evidence, confrontation of witnesses.

53. Seizure – Temporary detention.

54. - Lawful detention under “Terry” rule, temporary detention.

55. — Stop versus arrest, seizure.

56. Flight; attempt to evade police.

1. In general.

Where defendant was charged with and found guilty of felony driving under the influence of alcohol, the trial court did not err in denying defense counsel’s motion to suppress evidence of defendant’s blood alcohol results; the warrant authorizing the blood alcohol test was valid and thus, defendant’s constitutional rights were not violated. Inter alia, the officer observed defendant’s slurred speech and staggered walk, and he noted that defendant’s breath smelled of alcohol and defendant actually admitted to having drunk four beers that morning and was unable to recite the alphabet. Dove v. State, 912 So. 2d 1091, 2005 Miss. App. LEXIS 738 (Miss. Ct. App. 2005).

In a possession of marijuana case, defendant was not denied his due process rights in the revocation of his postrelease supervision as there was evidence that defendant had waived his rights to a hearing and that he had admitted to violating his probation. Hughes v. State, 901 So. 2d 1274, 2004 Miss. App. LEXIS 932 (Miss. Ct. App. 2004).

The rule that failure to object at trial waives objection on appeal applies to Fourth Amendment claims. Simply put, if a defendant fails to object to the admission of illegally obtained evidence, the objection is waived. Brown v. State, 875 So. 2d 214, 2003 Miss. App. LEXIS 1192 (Miss. Ct. App. 2003), cert. denied, 876 So. 2d 376, 2004 Miss. LEXIS 697 (Miss. 2004).

Where a decedent had pointed a loaded gun at officers in violation of Miss. Code Ann. §97-3-7, had refused to lower the gun, had backed into his house, and had initiated fire at the officers, an officer reasonably believed that his life and the lives of other officers at the scene were in imminent danger; hence, there was no violation of the decedent’s Fourth Amendment rights when the officer followed the decedent into the latter’s home, where the officer returned fire and mortally injured the decedent. Elkins v. McKenzie, 865 So. 2d 1065, 2003 Miss. LEXIS 582 (Miss. 2003).

The protections offered by the Fourth Amendment do not apply if the plaintiff challenges only continued incarceration following a seizure pursuant to a facially valid warrant. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

A mere police pursuit in attempting to seize a person does not amount to a seizure within the Fourth Amendment. Topps v. City of Hollandale, 2000 U.S. Dist. LEXIS 9925 (N.D. Miss. June 30, 2000).

The Fourth Amendment to the Federal Constitution and Article 3, § 23 of the Mississippi Constitution apply to volunteer firefighters who conduct a warrantless search of fire-damaged premises. Rose v. State, 586 So. 2d 746, 1991 Miss. LEXIS 527 (Miss. 1991).

There is no discovery violation as to an officer’s notes, taken in the presence of witnesses and destroyed in good faith. Thus, the destruction of original handwritten notes of a defendant’s statement, which were transcribed into a typed statement, and admission of the typed statement into evidence, did not deprive the defendant of his rights to a fair and impartial trial and adequate defense as provided by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

Search, of person who makes sudden reaching motion toward pocket upon being informed that officers have warrant for person’s arrest, is reasonable. Dixon v. State, 465 So. 2d 1092, 1985 Miss. LEXIS 1994 (Miss. 1985).

Earlier it had been said that this guaranty is directed at the exercise of Federal authority, and not at the states and their agencies. Tucker v. State, 128 Miss. 211, 90 So. 845, 1922 Miss. LEXIS 108 (Miss. 1922); Nash v. State, 171 Miss. 279, 157 So. 365, 1934 Miss. LEXIS 232 (Miss. 1934).

2. Criminal proceedings.

On the inmate’s claim that his execution would be unconstitutional under the Eighth and Fourteenth Amendments because he was mentally retarded, he was entitled to and did not receive an Atkins hearing because the inmate met the requirements of Chase and its progeny; the inmate’s claim was not procedurally barred under Miss. Code Ann. §99-39-21(1) because he could not have raised the claim before the trial court, as the Atkins decision was decided 12 days after the inmate was sentenced to death. Thorson v. State, 994 So. 2d 707, 2007 Miss. LEXIS 497 (Miss. 2007).

Denial of the inmate’s motion for postconviction relief was proper where his Fourth Amendment argument was procedurally barred because a guilty plea waived the right to raise Fourth Amendment challenges on appeal. Jones v. State, 922 So. 2d 31, 2006 Miss. App. LEXIS 103 (Miss. Ct. App. 2006).

A defendant’s constitutional rights were not violated when the public was excluded from a hearing on a petition to revoke his suspended sentence and probation; the hearing was not a part of a criminal prosecution and thus the full panoply of rights due a defendant in a criminal prosecution under the requirements of the United States and Mississippi Constitutions did not apply. Williams v. State, 409 So. 2d 1331, 1982 Miss. LEXIS 1873 (Miss. 1982).

Defendant does not waive his objection to illegally obtained evidence by testifying in his own behalf, although he admits having the contraband in his possession. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

A defendant who was not present at the time and place where a search and seizure took place is without standing to attack its legality, and cannot object to the introduction in evidence of the fruits of the seizure. Robinson v. State, 219 So. 2d 916, 1969 Miss. LEXIS 1430 (Miss. 1969).

3. Standing to challenge search.

Defendant had standing to challenge the search and seizure of his computer files by the police after he had authorized a third party to work on his computer’s operating system where the illicit photographs were not obtained as a direct result of the third party’s private search but rather under the purported authority of an invalid search warrant. Chesney v. State, 165 So.3d 498, 2015 Miss. App. LEXIS 277 (Miss. Ct. App. 2015).

Defendant failed to establish that he had a reasonable expectation of privacy in a motel room where money from a bank robbery was found as the room was registered in the name of a third party; as defendant did not produce evidence that he had a reasonable expectation of privacy in the motel room, he lacked standing to contest the search and the admission of the evidence obtained as a result of the search. Lyons v. State, 942 So. 2d 247, 2006 Miss. App. LEXIS 501 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 269 (Miss. 2007).

The defendant did not have standing to assert a constitutional violation based on the warrantless search of a motor vehicle, which was located on property being searched pursuant to a warrant, that was actually owned by his wife. Jenkins v. State, 1999 Miss. App. LEXIS 301 (Miss. Ct. App. May 18, 1999), aff'd, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

4. Expectation of privacy.

Defendant had no standing to challenge under U.S. Const. amend. IV, or Miss. Const. Art. III, § 23, evidence seized from the vehicle that he stole after killing a victim because defendant had no expectation of privacy in the stolen vehicle. Walker v. State, 913 So. 2d 198, 2005 Miss. LEXIS 216 (Miss.), cert. denied, 546 U.S. 1038, 126 S. Ct. 743, 163 L. Ed. 2d 581, 2005 U.S. LEXIS 8688 (U.S. 2005).

Defendant did not have his Fourth Amendment rights infringed as he was a passenger, and did not have standing to challenge contraband found in car. McCollins v. State, 798 So. 2d 624, 2001 Miss. App. LEXIS 432 (Miss. Ct. App. 2001).

Defendant, as a mere passenger, could not challenge the search of the car or the seizure of the contents therein, even if the contents were found to be in defendant’s personal property. Maldonado v. State, 796 So. 2d 247, 2001 Miss. App. LEXIS 298 (Miss. Ct. App. 2001).

A defendant charged with capital murder had no reasonable expectation of privacy during a conversation with his wife in which he told her that he had committed the alleged crime because she would not come back to him, and that if she and the children had been in the house at the time of the crime, they would be lying next to the victims, where the statements were made while the two were seated near the open door of a room in the sheriff’s department, which led into an outer office occupied by five to seven people who were approximately two to three feet away, and continued while the two were entering into the outer office occupied by the third parties. Dycus v. State, 440 So. 2d 246, 1983 Miss. LEXIS 2790 (Miss. 1983).

The relevant inquiry under the Fourth Amendment is whether the police have infringed upon some legitimate expectation of privacy which the defendant had. Accordingly, a defendant had no standing under the Fourth Amendment to complain about a warrantless entry by police officers in another’s home nor the seizure of contraband therein. Moss v. State, 411 So. 2d 90, 1982 Miss. LEXIS 1889 (Miss. 1982).

Where the record revealed that all persons who wanted to do business with the defendant were impliedly invited to approach the house in which he was staying along a circular driveway to a point where the defendant met law enforcement officers to ascertain what he could do for them, and where the officers purchased and received from the defendant a bottle of intoxicating liquor but made no search of the person or premises of the defendant, the testimony of the officers was not inadmissible on the ground that the purchase was an illegal search or that their testimony was in effect a method of requiring the defendant to testify against himself. Lyons v. State, 195 So. 2d 91, 1967 Miss. LEXIS 1438 (Miss. 1967).

5. Use of force.

In a 42 U.S.C.S. § 1983 suit, an arrestee adequately pled claims for excessive use of force against a police officer because he had a clearly established Fourth Amendment right not to be bodily removed from his car after being stopped for careless driving and thrown to the ground; the officer’s actions were not shielded by the doctrine of qualified immunity or governmental immunity arising under Miss. Code Ann. §11-46-9(1). Stepney v. City of Columbia, 2009 U.S. Dist. LEXIS 16376 (S.D. Miss. Feb. 18, 2009).

The defendant police officer was not entitled to summary judgment in an action alleging that he used excessive force in arresting the plaintiff since the court could not say that a reasonable officer, facing the plaintiff, who was neither resisting arrest nor physically confrontational, and who was recovering from recent medical procedures, would have considered the defendant’s actions an objectively reasonable response to the situation at hand. Dallas v. City of Okolona, 1999 U.S. Dist. LEXIS 19547 (N.D. Miss. Dec. 7, 1999).

Suit alleging that school official grabbed arm of student did not show type of action calculated to cause serious injury, nor did not such act evince malice or intention to cause injury, and even if serious injuries may have resulted, nature of contact suggested that any injuries were unintended rather than calculated and that if force used was in fact excessive, it came from carelessness or excess of zeal rather than malice. Whether physical harm by state officer rises to level of constitutional deprivation depends on extent of injury inflicted, degree of force used in proportion to amount necessary under circumstances, and motives of official; bottom-line inquiry is whether official’s conduct amounted to abuse of official power that shocks conscience. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

6. Health inspections.

Guaranties against unreasonable searches and seizures do not apply to routine inspections by sanitary officers, nor does it apply to inspections made pursuant to advance information that the health laws have been, or are about to be, violated. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

When a person carries on a business for the dispensation and sale of food for human consumption and members of the public are invited to become patrons, the proprietor of the establishment thereby impliedly consents that the public, through its authorized departmental agents or officers, may from time to time make such reasonable inspections as will protect against unwholesomeness of the food and against any unwholesome conditions surrounding the preparation thereof, and against disease which might result therefrom, and so consenting the search and seizure provision of the state and Federal constitutions is not involved, so far as health officers are concerned. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

Search and seizure of diseased hog meat found in accused’s restaurant by city health officers without a search warrant, upon advance information that the health laws had been, or were about to be, violated, did not constitute a violation of the constitutional prohibition against unreasonable searches and seizures. Grillis v. State, 196 Miss. 576, 17 So. 2d 525, 1944 Miss. LEXIS 237 (Miss. 1944).

7. Private searches.

In a prosecution for burglary, the trial court properly entered into evidence a wristwatch which was recovered by the victim after he had received information that defendant had committed the burglary and was living in the same apartment complex, after which he went to the apartment and secured the tenant’s permission to search defendant’s belongings, found the stolen watch, and then called the police and conducted a second search in the presence of an officer; a search by a private individual for purely private reasons does not violate the Fourth Amendment. Lucas v. State, 381 So. 2d 140, 1980 Miss. LEXIS 1851 (Miss. 1980), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Where defendant’s neighbor, a private person, not connected with the police observed from his own premises marijuana growing on defendant’s adjoining land, and after conversation with an officer, he went back alone and at his own election, and plucked several of the plants which he later took to the police, and there was no participation by the police in any of these actions and nothing at all was done by them until after a search warrant had been issued, trial court did not err in denying a motion to suppress the evidence and quash the indictment on grounds that the neighbor committed a trespass upon defendant’s land in obtaining the marijuana plants. Wolf v. State, 281 So. 2d 445, 1973 Miss. LEXIS 1497 (Miss. 1973).

8. Governmental records.

Permanent injunction has been issued to prevent enforcement of §39-5-63 because this act and others relating to sealing of files of state sovereignty commission, which had a clandestine purpose of perpetuating racial inequality, unconstitutionally infringe on black citizens’ rights to free speech and association, personal privacy, and lawful search and seizure. ACLU v. Mabus, 719 F. Supp. 1345, 1989 U.S. Dist. LEXIS 9679 (S.D. Miss. 1989), vacated, 911 F.2d 1066, 1990 U.S. App. LEXIS 16085 (5th Cir. Miss. 1990).

9. School facilities.

The search of a student’s automobile by a school official while on school property did not violate the search and seizure clause of the Fourth Amendment where (1) the principal was informed by another student that the student in question had been drinking in the school parking lot and the story was corroborated by other students, and (2) the principal knew of no reason or motive that would cause the other students to lie about the actions of the student in question. Covington County v. G.W., 767 So. 2d 187, 2000 Miss. LEXIS 182 (Miss. 2000).

The warrantless search of a high school student’s locker by school officials was reasonable under the circumstances and offended no federal constitutional standards where another student had told the assistant principal that the first student had offered to sell him 2 handguns and had told him that he had the guns at school. S.C. v. State, 583 So. 2d 188, 1991 Miss. LEXIS 387 (Miss. 1991).

10. Correctional facilities.

Prison inmate does not have reasonable expectation of privacy in his prison cell entitling him to protection of Fourth Amendment against unreasonable searches and seizures. Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393, 1984 U.S. LEXIS 143 (U.S. 1984).

Appellant’s Fourth Amendment rights were no greater as an escapee than they were while he was within the confines of penitentiary, and he had no standing to object to a warrantless search of his motel room and his effects by police officers. Swearingen v. Culpepper, 312 So. 2d 15, 1975 Miss. LEXIS 1638 (Miss. 1975).

11. Game warden.

The stop and search of defendant’s pick-up truck at a roadblock set up by game wardens to conduct routine game checks in a wildlife management area did not constitute a condemned intrusion on defendant’s Fourth Amendment right against unreasonable search and seizure. Drane v. State, 493 So. 2d 294, 1986 Miss. LEXIS 2379 (Miss. 1986), cert. denied, 482 U.S. 916, 107 S. Ct. 3189, 96 L. Ed. 2d 677, 1987 U.S. LEXIS 2537 (U.S. 1987).

Where a warrant for a search of an accused’s land was based upon information acquired by a game warden who committed a trespass upon the land while “checking for violations”, the search by a sheriff under the warrant was illegal, since a legal search must be based on preceding steps which are themselves lawful in their entirety. Davidson v. State, 240 So. 2d 463, 1970 Miss. LEXIS 1302 (Miss. 1970).

12. Surveillance.

With regard to defendant’s contention that the State conducted illegal surveillance of his telephone calls by placing a digital tape recorder on his telephone, the court found that defendant was not entitled to relief because he had waived the right to challenge the State’s evidence by entering a valid guilty plea to the offense of conspiracy to manufacture methamphetamine. Sweat v. State, 910 So. 2d 12, 2004 Miss. App. LEXIS 1110 (Miss. Ct. App. 2004), aff'd in part and rev'd in part, 912 So. 2d 458, 2005 Miss. LEXIS 661 (Miss. 2005).

Testimony of police officers as to a conversation in defendant’s home between the defendant and a confidential informer, who was invited into the home, which was electronically transmitted to the officers by a transmitter concealed on the informer, was admissible in defendant’s trial for illegal sale and possession of a controlled substance, notwithstanding that no search warrant had been issued. Lee v. State, 489 So. 2d 1382, 1986 Miss. LEXIS 2465 (Miss. 1986).

Installation of beeper in container of chemicals with consent of original owner does not constitute search or seizure within meaning of Fourth Amendment when container is delivered to buyer having no knowledge of presence of beeper; however, warrantless monitoring of beeper in private residence, a location not open to visual surveillance, violates Fourth Amendment rights of those having justifiable interest in privacy of residence. United States v. Karo, 468 U.S. 705, 104 S. Ct. 3296, 82 L. Ed. 2d 530, 1984 U.S. LEXIS 148 (U.S. 1984).

Where, pursuant to an offer by the defendant to theft victim to obtain the return of his stolen property for a payment of $200, the defendant met the victim in a place where he was under the observation of a police detective, produced the stolen articles and received the $200 which the detective took from defendant’s hand when he placed him under arrest for receiving stolen property, there was no violation of defendant’s right of privacy or right of due process, and a search warrant was unnecessary for the stolen articles were seen in defendant’s possession prior to his arrest. Bennett v. State, 211 So. 2d 520, 1968 Miss. LEXIS 1268 (Miss. 1968), cert. denied, 393 U.S. 320, 89 S. Ct. 555, 21 L. Ed. 2d 515, 1969 U.S. LEXIS 2866 (U.S. 1969).

13. Roadblocks.

Checkpoint was set up in daylight, on a straight thoroughfare, and there was a definitive plan established by the officers for checking vehicles; appellant’s stop was conducted in a safe and reasonable manner. Thus, any minor deviation from the departmental policy was reasonable under the circumstances and did not violate appellant’s constitutional rights. Field v. State, 28 So.3d 697, 2010 Miss. App. LEXIS 101 (Miss. Ct. App. 2010).

Checkpoint for the purpose of valid license checking was constitutional; where defendant was stopped, arrested for driving with a suspended license, and had his car searched, his constitutional rights were not violated as defendant was not singled out and the search was conducted incidentally to a lawful arrest as the deputy had probable cause to believe defendant was driving without a proper license. Johnston v. State, 853 So. 2d 144, 2003 Miss. App. LEXIS 503 (Miss. Ct. App. 2003).

Seizure of defendant for driving under the influence following a stop at a routine police roadblock being conducted to check vehicles for compliance with traffic laws relating to registration and licensing requirements did not violate defendant’s rights under either Miss. Const. art 3, § 23 or the Fourth Amendment to the Constitution of the United States, and the trial court properly admitted a test result showing defendant’s blood alcohol content as .152. Dixon v. State, 828 So. 2d 844, 2002 Miss. App. LEXIS 549 (Miss. Ct. App. 2002).

A roadblock set up to check licenses and outstanding warrants was constitutional as the degree of intrusion into the defendant’s liberty caused by the roadblock was minimal where the defendant was treated the same way as any other driver who approached this roadblock and the roadblock did not involve drug dogs or mandatory searches of automobiles. Dale v. State, 785 So. 2d 1102, 2001 Miss. App. LEXIS 204 (Miss. Ct. App. 2001).

A roadblock intended principally to detect unlicensed drivers or improperly registered and uninspected vehicles is constitutionally permissible. Briggs v. State, 741 So. 2d 986, 1999 Miss. App. LEXIS 357 (Miss. Ct. App. 1999).

When a motorist appears to be attempting to evade a police roadblock, a police officer may stop that motorist to check for a valid license tag and inspection sticker. Boyd v. State, 751 So. 2d 1050, 1998 Miss. App. LEXIS 949 (Miss. Ct. App. 1998).

Police officers who set up a roadblock after receiving information that employees of two nearby factories were driving without licenses and who were checking all drivers did not violate defendant’s constitutional rights in stopping his automobile and detaining its occupants and, upon smelling the odor of burning marijuana emanating from defendant’s car, had probable cause to search it; the police officers were also authorized to seize the marijuana in defendant’s car where one of the officers observed a purse or bag in the lap of defendant’s wife with the corner of a plastic bag protruding therefrom in which he saw a green leafy substance that he suspected to be marijuana. Miller v. State, 373 So. 2d 1004, 1979 Miss. LEXIS 2345 (Miss. 1979).

14. Possession of stolen property.

Possession of stolen property is illegal per se, and the seizure of such is not within the constitutional guaranty. Williams v. State, 216 Miss. 158, 61 So. 2d 793, 1953 Miss. LEXIS 619 (Miss. 1953).

Where officers who were lawfully upon premises under a warrant based on probable cause to search for intoxicating liquors found and recognized some stolen property, this property was of contraband nature subject to seizure though it was not one of the designated objects of search, and the evidence of the stolen property obtained by such seizure was admissible in prosecution for theft of the property. Williams v. State, 216 Miss. 158, 61 So. 2d 793, 1953 Miss. LEXIS 619 (Miss. 1953).

15. Physical evidence.

Seizure of partially burned clothing that had belonged to decedent was reasonable where the items were found on property not shown to belong to the defendant and were in open view to the public. Brown v. Findley Seed Co., 330 So. 2d 597, 1976 Miss. LEXIS 1865 (Miss. 1976).

16. Fingerprints.

The taking of fingerprints is a search for purposes of the Fourth Amendment. Hooker v. State, 716 So. 2d 1104, 1998 Miss. LEXIS 324 (Miss. 1998).

17. Blood, bodily fluids, etc.

Defendant’s conviction for DUI maiming was proper because he consented to a blood sample, he never objected to the introduction of the blood-analysis evidence during the course of the testimony by a witness with the Mississippi Crime Laboratory, defendant did not object to the admission of testimony by a doctor regarding the amount of other substances found in the blood sample and the impairing effects of the other substances, defendant’s objection made at trial did not state with requisite specificity the basis for the objection to the admission of the testimony, and a deputy was permitted to testify as to what he personally observed concerning defendant’s written consent to the blood test. Irby v. State, 2010 Miss. LEXIS 423 (Miss. Aug. 12, 2010), sub. op., 49 So.3d 94, 2010 Miss. LEXIS 638 (Miss. 2010).

Although defendant claimed that taking his blood sample constituted an unlawful search and seizure in violation of his Fourth Amendment rights because the officer had no probable cause to take his blood, the court found that drawing blood evidence from a defendant at the hospital without a warrant following an accident was not a violation of the defendant’s Fourth Amendment rights because the law enforcement officer had probable cause given that the facts surrounding the accident evinced reasonable suspicion that evidence material to the criminal investigation, an illegal blood alcohol level, would be found. Deeds v. State, 27 So.3d 1135, 2009 Miss. LEXIS 588 (Miss. 2009), cert. denied, 562 U.S. 836, 131 S. Ct. 150, 178 L. Ed. 2d 37, 2010 U.S. LEXIS 5807 (U.S. 2010).

There was no constitutional violation where the state crime laboratory requested and obtained a second blood sample from the defendant in a murder prosecution after it found a discrepancy between the identification numbers of the vials of blood and the numbers listed on the submission form of the original sample. Morris v. State, 777 So. 2d 16, 2000 Miss. LEXIS 113 (Miss. 2000).

Section 63-11-8, which mandates that blood be taken from any driver involved in a fatal accident regardless of the existence of probable cause to believe that alcohol or drugs were involved, is unconstitutional because it requires search and seizure absent probable cause. McDuff v. State, 763 So. 2d 850, 2000 Miss. LEXIS 110 (Miss. 2000).

A capital murder defendant’s objection to the admission of a blood sample obtained without a warrant was barred by the waiver of §99-39-21(1) where the defendant did not raise the issue on direct appeal, since the basis of the Fourth Amendment objection to the admission of illegally obtained evidence is well known, and the defendant had practically no chance of escaping conviction even without the blood sample evidence. Woodward v. State, 635 So. 2d 805, 1993 Miss. LEXIS 442 (Miss. 1993).

An officer’s failure to inform the defendant that he had a right to refuse the officer’s request for a blood sample did not render the test results inadmissible in a manslaughter prosecution against the defendant where the officer had probable cause to obtain the blood sample in that the officer knew that the defendant was the driver of an automobile which had collided head on with another vehicle, the collision occurred on a straight and level highway when the road condition was dry, the officer knew that at least two people were dead in the vehicle which the defendant hit, the officer had observed a beer in the defendant’s vehicle, and the defendant had slurred speech and dilated pupils. For a search which would otherwise be illegal, absent consent, knowledgeable waiver of one’s constitutional right not to be searched is guaranteed by Article 3, § 23 of the Mississippi Constitution. However, blood searches which are based upon probable cause are not illegal, and, therefore, the question of the defendant’s knowledgeable waiver was not relevant. Longstreet v. State, 592 So. 2d 16, 1991 Miss. LEXIS 840 (Miss. 1991).

There was no constitutional violation in obtaining hair and blood samples from a defendant where he was under lawful arrest, the blood was removed in a reasonable manner by a physician at a hospital, the hair samples were taken by a registered nurse, and the officers “had good reason to examine” the defendant’s hair. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

In prosecution for vehicular manslaughter, blood sample from allegedly intoxicated defendant absent his arrest or consent was admissible evidence, where probable cause to make search existed at time of sample’s collection, given defendant’s display of symptoms of intoxication, such as slurred speech, immediately following his automobile’s striking rear of decedent’s truck, parked wholly off interstate highway. Gibson v. State, 503 So. 2d 230, 1987 Miss. LEXIS 2338 (Miss. 1987).

Admission into evidence of results of blood alcohol test at trial for manslaughter and aggravated assault arising out of a motor vehicle accident was reversible error, where deputy sheriff who investigated the accident had insufficient probable cause to request a blood alcohol test for defendant driver, in view of deputy’s statement that he smelled no odor of alcohol on defendant either at the accident scene or at the hospital, he observed no whiskey bottles or beer cans in defendant’s car, no aspect of defendant’s speech, appearance or behavior indicated that he was under the influence of alcohol, and deputy admitted that the real reason for requesting the blood alcohol test was because it was sheriff department policy to do so when someone was killed in an automobile accident. Cole v. State, 493 So. 2d 1333, 1986 Miss. LEXIS 2641 (Miss. 1986).

The Fourth Amendment prohibition against unreasonable search and seizure applies when an intrusion into the body–such as a blood test–is undertaken without a warrant, absent an emergency situation. Cole v. State, 493 So. 2d 1333, 1986 Miss. LEXIS 2641 (Miss. 1986).

In a criminal prosecution, where a police officer was justified in requiring a blood test to determine the alcoholic content in defendant’s blood, and such test had in fact been performed, although for diagnostic and not law enforcement purposes, the State was entitled to the benefit of the test results, and the result of the blood test administered at the direction of defendant’s physician was admissible. Ashley v. State, 423 So. 2d 1311, 1982 Miss. LEXIS 2266 (Miss. 1982).

The Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified or which are made in an improper manner. The drawing of blood from a rape suspect for a blood-semen test did not violate the suspect’s Fourth Amendment right to be secure in his person, where the warrant for the blood test was issued upon sufficient evidence of probable cause. Birchfield v. State, 412 So. 2d 1181, 1982 Miss. LEXIS 1929 (Miss. 1982).

18. Handwriting exemplars.

There is no Fourth Amendment privacy expectation in handwriting exemplars and, therefore, the use of trickery as a method for obtaining handwriting exemplars is at worst, bad practice. Burns v. State, 729 So. 2d 203, 1998 Miss. LEXIS 567 (Miss. 1998), cert. denied, 527 U.S. 1041, 119 S. Ct. 2406, 144 L. Ed. 2d 804, 1999 U.S. LEXIS 4526 (U.S. 1999).

19. Breathalyzer test.

Where defendant was in lawful custody, his right to be secure from an unreasonable search was not violated by police officers who administered a photoelectric intoximeter test, which tests the breath of a person without intrusion into the body. Jackson v. State, 310 So. 2d 898, 1975 Miss. LEXIS 1915 (Miss. 1975).

20. Surgical procedure.

Search warrants are required, absent an emergency, where intrusions into the human body are concerned and testing procedures plainly constitute searches of persons and depend antecedently upon seizures of persons within the meaning of the Fourth Amendment. Daniel v. State, 536 So. 2d 1319, 1988 Miss. LEXIS 611 (Miss. 1988).

Compelled surgical procedure to remove bullet from suspect’s chest constituted unreasonable search under Fourth Amendment. Winston v. Lee, 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662, 1985 U.S. LEXIS 76 (U.S. 1985).

21. Medical treatment.

A defendant’s constitutional right to privacy was not violated by the State’s taking the defendant to the health department for treatment of gonorrhea where the defendant was charged with capital rape of a child who was found to have gonorrhea, since the State’s interest in operating a prison and providing for the health of inmates outweighed the privacy interests of the defendant. Ormond v. State, 599 So. 2d 951, 1992 Miss. LEXIS 153 (Miss. 1992).

22. Search warrant – In general.

The court rejected the contention that a judge was not an impartial magistrate because he personally completed the affidavit for search warrant and the actual search warrant where the judge testified at the suppression hearing that the information contained in the affidavit was received from a police officer and the officer testified that he signed both forms indicating his assent to the accuracy of the information. Bryant v. State, 746 So. 2d 853, 1998 Miss. App. LEXIS 1027 (Miss. Ct. App. 1998).

The delay from the time of a defendant’s arrest until he was taken before a judicial officer did not violate Rule 1.04, Miss. Unif. Crim. R. Cir. Ct. Prac. and the 4th Amendment to the United States Constitution where his initial hearing was held within 48 hours of the time he was taken into custody for questioning, and there was no indication that the officers were purposely holding him in custody to gather sufficient evidence to justify his arrest; thus, his confession was not a product of any delay in taking him before a magistrate and was therefore admissible. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

A search warrant was not defective because it erroneously named the defendant as the owner of the property to be searched. The Fourth Amendment does not require that either the affidavit or the warrant give the name of the owner of the property to be searched; identifying the owner of the premises is relevant only to assist and aid in particularizing the place to be searched. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

A narcotics agent’s failure to hand the defendant a copy of the search warrant for her residence did not require reversal even though the defendant should have received a copy of the warrant pursuant to §41-29-157; failure to follow this ministerial provision does not void an otherwise valid search. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

There was no merit to a defendant’s claim that the judge who issued 2 search warrants was not neutral and detached on the basis that the judge who went to the scene of the crime and saw the body also issued the search warrants, where there was no showing as to how this, in and of itself, created any prejudice or bias towards the defendant. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

A judge who issues a search warrant is not required to confer on the searching officer the full range of authority allowed by law. The judge is within his prerogatives to limit the officer’s authority, either by use of a pre-printed form or by inter-lined language. Strange v. State, 530 So. 2d 1336, 1988 Miss. LEXIS 349 (Miss. 1988).

The Fourth Amendment was designed to protect against “general warrants” and other exploratory searches. The fact that contraband is believed to be on the premises cannot in and of itself justify a warrantless search. The discovery of evidence does not “create” an exigent circumstance such that a valid warrant is not required. Carney v. State, 525 So. 2d 776, 1988 Miss. LEXIS 175 (Miss. 1988).

Justice Court Judge who issued search warrant was neutral and detached magistrate where nothing in record indicated that judge acted in biased manner when he issued search warrant; central requirement for valid search warrant is that it must be issued by neutral and detached magistrate, and substantial involvement in search is forbidden; however, magistrate who goes to scene, issues warrant, and remains there for some time does not abdicate his proper position. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Fact that magistrate primarily relies on fact that sworn police officers are asking for search warrant rather than on anything in particular in affidavit of underlying facts and circumstances does not mean that magistrate is not acting in neutral and detached manner in issuing warrant where judge issues warrant only if judge feels that it is warranted. McCommon v. State, 467 So. 2d 940, 1985 Miss. LEXIS 2043 (Miss.), cert. denied, 474 U.S. 984, 106 S. Ct. 393, 88 L. Ed. 2d 345, 1985 U.S. LEXIS 4442 (U.S. 1985).

In a prosecution for the unlawful possession of intoxicating liquor, State’s evidence obtained in a search of the defendant’s premises pursuant to search warrant was inadmissible where the affidavit and search warrant were not produced on the trial, and the proof was insufficient to show their loss. Harvey v. State, 232 Miss. 294, 98 So. 2d 764, 1957 Miss. LEXIS 475 (Miss. 1957).

Search warrants are in the nature of criminal process and may be invoked only in furtherance of public prosecutions, and statutes providing for their issuance and execution are sustained, under constitutional provisions forbidding unreasonable search and seizure, only as a necessary means in suppression of crime and detection and punishment of criminals. Brooks v. Wynn, 209 Miss. 156, 46 So. 2d 97, 1950 Miss. LEXIS 374 (Miss. 1950).

Evidence obtained by coroner under illegal warrant for search and seizure of intoxicating liquor was inadmissible in prosecution for permitting games of chance to be played for money on defendant’s premises. Millwood v. State, 198 Miss. 485, 23 So. 2d 496, 1945 Miss. LEXIS 219 (Miss. 1945).

Warrant directing search for and seizure of intoxicating liquor, issued merely to any lawful officer of the county, constitutes a legal search warrant, but the coroner, unless the sheriff is disqualified under § 3906, cannot lawfully serve it. Millwood v. State, 198 Miss. 485, 23 So. 2d 496, 1945 Miss. LEXIS 219 (Miss. 1945).

Warrant issued by justice of the peace addressed and delivered to the coroner as such directing him to search for and seize intoxicating liquor although the sheriff suffered no disqualification within the purview of Code 1942 § 3906, and which was served as directed by the coroner while acting as such officer, was illegal and evidence obtained under authority of such search warrant was inadmissible, notwithstanding that the warrant was also addressed to any lawful officer of the county. Millwood v. State, 198 Miss. 485, 23 So. 2d 496, 1945 Miss. LEXIS 219 (Miss. 1945).

23. –Affidavit, search warrant.

Where defendant was taken to a hospital after a two-car collision, the search warrant for a blood draw was invalid because: (1) the officer who requested the search warrant falsely stated in his affidavit that defendant had (a) refused to submit to an “analysis of his breath” after having been offered an opportunity to submit, and (b) been placed under arrest for driving while under the influence, although at that time he had not yet been arrested; and (2) there were no exigent circumstances present at the hospital that would have justified a blood test since defendant was not fleeing, and the officer obviously had time to secure a warrant, albeit an invalid one. As to the admissibility of defendant’s statements about having consumed several beers, made to police at the scene of the accident, defendant did not claim that he was in custody at the time, and his statements clearly had probative value, thus the trial court did not abuse its discretion in allowing the statements to be admitted into evidence despite the defendant’s argument that he was disoriented, confused, and suffering from shock and retrograde amnesia when he made the statements and they were therefore not reliable. Shaw v. State, 938 So. 2d 853, 2005 Miss. App. LEXIS 987 (Miss. Ct. App. 2005), cert. denied, 937 So. 2d 450, 2006 Miss. LEXIS 602 (Miss. 2006).

Where defendant was convicted of felonious sexual intercourse with a child under the age of 14, felonious sexual penetration with a child less than 18, and possession of materials depicting children under the age of 18 engaging in sexually explicit conduct, the circuit court had not erred in not granting his pretrial motion to suppress evidence obtained by a search warrant based on the statements of the child victim because she specifically stated that defendant had showed her pictures of nude people on his computer screen doing things she described as “gross.” She used language to describe acts performed on her and by her in relation to defendant in such sexually explicit terms that veracity could easily be inferred. Foley v. State, 914 So. 2d 677, 2005 Miss. LEXIS 586 (Miss. 2005).

An affidavit offered by a police officer for the purpose of getting a warrant can be based on hearsay. Donerson v. State, 812 So. 2d 1081, 2001 Miss. App. LEXIS 118 (Miss. Ct. App. 2001).

When defendant asserts that information contained in affidavit supporting application for search warrant constitutes false swearing, then reviewing court must determine, with false material set aside, whether affidavit’s remaining content, together with sworn oral testimony presented to issuing magistrate, is sufficient to establish probable cause. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Even though underlying facts stated in affidavit for search warrant, considered alone, may not be sufficient to confer probable cause for issuance of warrant, oral testimony adduced before issuing magistrate, when taken together with affidavit, may sufficiently establish probable cause for issuance of search warrant under totality of circumstances test. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Affidavit supporting application for warrant to search defendant’s motel room, when excised of false information, was not by itself sufficient to establish probable cause for issuance of warrant, where affidavit provided merely that officer who was executing other warrant found defendant in possession of large quantity of currency and motel room key, and motel manager verified that motel room was registered to defendant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

An affidavit for a search warrant was not fatally defective merely because the attached page containing a description of the residence to be searched was not signed by the affiants, where other pages of the affidavit were signed, and the narcotics agent who was the author of the warrant and application swore that the description was not substituted. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

Detailed underlying facts supporting the affidavits for 2 search warrants furnished the judge with probable cause for issuing the search warrants, even though the criminal investigator who executed the affidavits erred in some of the statements set forth in the underlying facts, where the investigator was cross-examined at the suppression hearing at great length by the defendant’s attorney, there was no showing that the investigator intentionally misrepresented those facts or made them in reckless disregard for the truth, and the remaining underlying facts clearly constituted probable cause for the issuance of the search warrants. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

In a prosecution for possession of intoxicating liquor, the trial court erred in overruling defendant’s motion to suppress evidence seized during a search of his home, based on his contention that the warrant was defective, where the underlying facts and circumstances portion of the affidavit, stating that a deputy had called the affiant and said that after several observations of defendant over a period of time “he was apparently selling whiskey,” was insufficient as a matter of law. Washington v. State, 382 So. 2d 1086, 1980 Miss. LEXIS 1966 (Miss. 1980).

For an affidavit to be sufficient to meet Fourth Amendment standards, the informant or the affiant must have reasonable information or cause to believe that the items sought pursuant to the search warrant are located in the premises to be searched, and, if the information which the affiant uses as the basis of his probable cause for a search warrant was obtained from an informant, there must be underlying facts and circumstances alleged which would show the independent magistrate that the informant was reliable and that his information was reasonably trustworthy. Ratliff v. State, 310 So. 2d 905, 1975 Miss. LEXIS 1918 (Miss. 1975).

In order to justify the issuance of a valid search warrant the basic affidavit must include a statement by the affiant of the underlying facts and circumstances upon which he relies as constituting probable cause so that the magistrate may judge for himself the persuasiveness of the facts to show probable cause. Burnett v. State, 227 So. 2d 479, 1969 Miss. LEXIS 1363 (Miss. 1969).

The affidavit of a sheriff, the basis for the issuance of a warrant to search the premises of the defendant for unlawfully possessed intoxicating liquor, which stated that the affiant’s belief that defendant unlawfully possessed intoxicating liquor in her home was based on “information given me by a person who on other occasions has given me information found to be true and correct” was insufficient to support the issuance of the warrant. Burnett v. State, 227 So. 2d 479, 1969 Miss. LEXIS 1363 (Miss. 1969).

Where the affidavit for a search warrant fails to allege facts or circumstances from which the justice of the peace could judicially ascertain or determine probable cause, but sets forth nothing more than a mere conclusion, it does not meet the requirements of this amendment, and a search warrant issued upon such an affidavit is void. Walker v. State, 192 So. 2d 270, 1966 Miss. LEXIS 1240 (Miss. 1966).

A search warrant, issued in case involving possession of intoxicating liquors upon the statutory affidavit that the affiant “has reason to believe and does believe,” was not invalid as a violation of the Fourth Amendment to the Federal Constitution, since such amendment applies only to the exercise of Federal authority and has no application to state action. Armstrong v. State, 195 Miss. 300, 15 So. 2d 438, 1943 Miss. LEXIS 155 (Miss. 1943).

24. – Probable cause, search warrant.

Local ordinance’s inspection provisions were unconstitutional due to the lack of a valid warrant provision because, although the ordinance had a warrant procedure, the procedure was constitutionally deficient where it expressly allowed a warrant to issue without probable cause, which meant that the ordinance effectively contained no warrant requirement, and the ordinance unconstitutionally forced landlords to either consent to a warrantless search or forego a rental license. Crook v. City of Madison, 168 So.3d 930, 2015 Miss. LEXIS 352 (Miss. 2015).

Threshold requirements for probable cause to support the issuance of the original search warrant were not met, and therefore the trial court erred by denying defendant’s motion to suppress the evidence obtained as a result of the first and second search warrants, where the chief admitted that he had only spoken with the confidential informant a couple of times and he had never met, and there was nothing in the affidavit to establish that the information provided by the informant was credible or reliable or that the chief attempted to corroborate the informant’s statement through additional independent investigation. Chesney v. State, 165 So.3d 498, 2015 Miss. App. LEXIS 277 (Miss. Ct. App. 2015).

Substantial basis existed for a finding of probable cause to issue search warrants for defendant’s person and vehicle because the oral testimony of the officer who requested the search warrants raised a fair probability that evidence of the crime would be found on defendant’s person and in defendant’s vehicle. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

After an appellate court reversed defendant’s drug possession conviction by finding that the trial court should have granted defendant’s suppression motion because the magistrate who issued the search warrant lacked a substantial basis for concluding that probable cause existed and because the probable cause determination was based upon false and/or omitted information, the state supreme court held that there there was no showing that the investigator intentionally misrepresented facts or made them in reckless disregard for the truth; the investigator described the confidential informant (CI) who provided information about defendant’s activities as reliable in the past because he knew him to be a reliable CI used by the police department on occasion, and he was able to independently corroborate the CI’s reliability when a controlled buy resulted in defendant selling cocaine to the CI. The investigator’s omission of the fact that there was a controlled buy the day before did not constitute a reckless disregard for the truth, and the omission was adequately explained by the investigator, who testified that he was protecting the identity of the CI; as such, the warrant was supported by adequate probable cause. Roach v. State, 7 So.3d 911, 2009 Miss. LEXIS 199 (Miss.), cert. denied, 558 U.S. 949, 130 S. Ct. 399, 175 L. Ed. 2d 274, 2009 U.S. LEXIS 7474 (U.S. 2009).

Search warrant was supported by probable cause because an officer personally observed a drug transaction and subsequently took a statement that the buyer regularly purchased cocaine from the pool hall; that information supported the prior anonymous statements that defendant kept and sold cocaine at the pool hall. Phinizee v. State, 983 So. 2d 322, 2007 Miss. App. LEXIS 631 (Miss. Ct. App. 2007).

Although defendant’s motion to suppress items found in his house should have been granted because the issuing justice had not been presented with a basis of reliability for the informer’s statement on which the officers relied, the Miss. Code Ann. §41-29-313(1)(a)(i) conviction was not reversed because the evidence that ended in defendant’s conviction did not come from defendant’s house but from the search of other property on which a clandestine methamphetamine lab was found and the search of that property was not dependent on the search warrant issued for defendant’s house. Roebuck v. State, 2005 Miss. App. LEXIS 167 (Miss. Ct. App. Mar. 8, 2005), sub. op., op. withdrawn, 915 So. 2d 1132, 2005 Miss. App. LEXIS 1006 (Miss. Ct. App. 2005).

Search warrant affidavit was detailed, the confidential informant was an eyewitness to illegal acts and had a reliable track record, and the magistrate proceeded on more than mere suspicion in issuing the warrant; there was no merit to defendant’s argument that under the given facts the warrant was fatally defective because of inadequate probable cause, and the trial court did not err in admitting the evidence obtained from the search of defendant’s residence. Flake v. State, 948 So. 2d 493, 2007 Miss. App. LEXIS 47 (Miss. Ct. App. 2007).

Where an appellate court held that a motion to suppress should have been granted, it did not find fault due to the lack of the word “reliable” in the affidavit or underlying facts and circumstances but because nothing in the record suggested that the officers presented the justice with any basis for relying on the informer’s statement. Roebuck v. State, 2005 Miss. App. LEXIS 167 (Miss. Ct. App. Mar. 8, 2005), sub. op., op. withdrawn, 915 So. 2d 1132, 2005 Miss. App. LEXIS 1006 (Miss. Ct. App. 2005).

In a drug case, there was sufficient probable cause for the issuance of a search warrant under the “totality of the circumstances” test where the evidence showed that police had received tips about a methamphetamine laboratory hidden behind a tarp underneath a trailer; the informant was well-known to police, and the information presented to the magistrate contained specific details. Kerns v. State, 923 So. 2d 210, 2005 Miss. App. LEXIS 243 (Miss. Ct. App.), aff'd in part and rev'd in part, 923 So. 2d 196, 2005 Miss. LEXIS 799 (Miss. 2005).

Through Miss. Unif. Cir. & County Ct. Prac. R. 6.03, Mississippi has provided a procedure for a fair and reliable determination of probable cause by a judicial officer promptly after arrest. If the procedure of Rule 6.03 is followed, the U.S. Const. amend IV and Miss. Const. art. 3, § 23, rights of the accused are protected; however, the converse does not necessarily follow: failure to follow the exact procedure of Rule 6.03 does not necessarily result in a Fourth Amendment or Article 3 violation. Lawrence v. State, 869 So. 2d 353, 2003 Miss. LEXIS 296 (Miss. 2003), cert. denied, 540 U.S. 1164, 124 S. Ct. 1178, 157 L. Ed. 2d 1211, 2004 U.S. LEXIS 892 (U.S. 2004).

Probable cause for the issuance of a warrant to search the defendant’s residence was established where (1) the magistrate was informed by the police that an undercover drug operation had occurred that day and that the defendant had been arrested for the sale of $ 220 worth of cocaine, (2) an informant had set up the buy by calling the defendant at his residence, and the police suspected the origin of the cocaine was indeed his residence, and (3) the residence had been under surveillance as a drug distribution center due to complaints of anonymous neighbors. Donerson v. State, 812 So. 2d 1081, 2001 Miss. App. LEXIS 118 (Miss. Ct. App. 2001).

Probable cause existed for the issuance of a search warrant where information from a reliable source that had proven to be reliable in the past stated that within the “last forty-eight hours numerous drug transactions are occurring” at the defendant’s address. Buggs v. State, 738 So. 2d 1253, 1999 Miss. App. LEXIS 184 (Miss. Ct. App. 1999).

Probable cause existed for a warrant to issue for a search of the defendant’s residence for illicit drugs since the officer who obtained the warrant did not rely solely on unsubstantiated hearsay relayed to him by another officer but, instead, questioned the other officer’s informant, and then undertook to independently verify the accuracy of the informant’s representations by having him make what appeared to be an actual purchase of drugs at the defendant’s residence. Jones v. State, 724 So. 2d 1066, 1998 Miss. App. LEXIS 997 (Miss. Ct. App. 1998).

Probable cause supported the issuance of a search warrant for the defendant’s home where (1) in the course of the investigation of the arson of a vacant home, officers discovered a trail leading through the woods from the burned home to the defendant’s home and also discovered marijuana plants growing along the path, and (2) although the marijuana was on the property on which the burned home was located, that property was owned by an elderly woman, the burned home had been abandoned, and there was no evidence that the elderly woman frequented the trail. Jones v. State, 724 So. 2d 427, 1998 Miss. App. LEXIS 975 (Miss. Ct. App. 1998).

Probable cause did not exist for issuance of warrant to search defendant’s motel room based on information that defendant was present, with others, when drugs were purchased by confidential source, that defendant was present when police officers executed other warrant which yielded 4 grams of cocaine, and that officers found on defendant’s person large amount of money and motel room key. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

A warrant to search a murder suspect’s trailer was supported by sufficient probable cause, in spite of his argument that no facts were provided to the judge to support an inference that evidence of the crime would be in the trailer, where the crime involved the theft of cash, clothing, guns and other items likely to be kept at a suspect’s residence. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

Probable cause existed for the issuance of a search warrant for a defendant’s residence, in spite of the defendants’ argument that an informant’s personal observation of marijuana at the residence 2 weeks earlier was stale and too remote, where 2 narcotics agents saw a sale of marijuana, which came from one of the defendants and from the house in question on the day of the search. Williams v. State, 583 So. 2d 620, 1991 Miss. LEXIS 396 (Miss. 1991).

In determining whether probable cause existed for a particular search or search warrant, judges must scrupulously examine the facts in each case, make a careful evaluation, and make a determination in their own best judgment. Probable cause is not what some officer thought, and not some conduct that was simply unusual or that simply roused the suspicion that illegal activity could be afoot, when there was at the same time just as likely a possibility that nothing at all illegal was transpiring. Rather, it must be information reasonably leading an officer to believe that, then and there, contraband or evidence material to a criminal investigation would be found. Rooks v. State, 529 So. 2d 546, 1988 Miss. LEXIS 232 (Miss. 1988).

Where available information shows only that a crime has been committed and that a particular person has committed it, there is probable cause only for the issuance of an arrest warrant. The mere fact that a person committed a crime does not necessarily mean that there is probable cause to search that person’s dwelling for evidence of that crime. Carney v. State, 525 So. 2d 776, 1988 Miss. LEXIS 175 (Miss. 1988).

Affidavit and facts established substantial basis for judge’s determination that probable cause to issue warrant existed where judge testified that after swearing in officers, he based his probable cause determination on written affidavit and officers and investigator testified that they were sworn in by judge and provided him with oral statements in addition to written affidavit. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Probable cause did exist to obtain search warrant for defendant’s residence where officer who served as affiant for warrants testified that state had composite drawing of man who used victim’s credit cards, number of truck license tag registered to defendant was listed on credit card purchase receipt, authorities had observed truck in defendant’s yard whose tag number was used in purchase, and officer who identified defendant from composite prepared photographic lineup from which merchant identified defendant as man using victim’s credit card to make purchases day following victim’s murder. Lutes v. State, 517 So. 2d 541, 1987 Miss. LEXIS 2931 (Miss. 1987).

Defendant was not entitled to have evidence suppressed where the affidavit for the warrant under which the search was conducted supplied the issuing magistrate with a substantial basis to conclude that there was a fair probability that contraband could be found in the vehicle to be searched. Harper v. State, 485 So. 2d 1064, 1986 Miss. LEXIS 2777 (Miss. 1986).

Under the Fourth Amendment, a police dispatcher, working as a desk sergeant, was not sufficiently severed from the activities of law enforcement nor independent of the police and prosecution so as to be considered a neutral and detached magistrate; however, where the defendant was already the subject of a valid arrest warrant by Florida authorities on a completely separate charge, the invalidity of the arrest warrant was irrelevant. Lockett v. State, 459 So. 2d 246, 1984 Miss. LEXIS 1930 (Miss. 1984).

Although officers who executed the affidavit for a search warrant had not been previously acquainted, either personally or officially, with defendant’s neighbor who supplied the information as to marijuana plants growing on defendant’s property, and had no previous experience as to his reliability based on former tips, or otherwise, inasmuch as the informant was an eyewitness to the growing of the marijuana, which he had observed simply by looking across the imaginary line separating his property from defendant’s property, and inasmuch as his statements with respect to it were supported and borne out when he took several other plants to the police where it was identified by them as being marijuana, the information in the hands of the officers was ample, and was sufficiently set out in detail in the affidavit, to justify a finding of probable cause and the issuance of a warrant. Wolf v. State, 281 So. 2d 445, 1973 Miss. LEXIS 1497 (Miss. 1973).

In determining whether probable cause existed for the issuance of a search warrant the standards imposed by the US Supreme Court must be applied by state courts. O'Bean v. State, 184 So. 2d 635, 1966 Miss. LEXIS 1478 (Miss. 1966).

Under this amendment the officer who issues the search warrant must have before him the facts which justify a finding of probable cause, so that a search warrant issued upon reason to believe and belief would not be sufficient. Armstrong v. State, 195 Miss. 300, 15 So. 2d 438, 1943 Miss. LEXIS 155 (Miss. 1943).

25. – Guilty plea in absence of search warrant.

Where the inmate claimed in a postconviction appeal that the inmate’s arrest was illegal under U.S. Const. Amend. IV and Miss. Const. Art. III, § 23 for lack of a warrant or probable cause, the inmate waived the argument by entering a guilty plea. Battaya v. State, 861 So. 2d 364, 2003 Miss. App. LEXIS 1201 (Miss. Ct. App. 2003).

26. –Totality of circumstances, search warrant.

Given that a confidential informant (CI) provided reliable information on the same day that the search warrant was issued and that the CI had given reliable information in the past, the information supporting the search warrants was sufficiently reliable; under a totality-of-the-circumstances review, it was evident that there was a substantial basis for the magistrate’s determination that the search warrant’s language concerning ‘‘stolen items’’ was supported by sufficiently reliable information. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018).

Court rejected defendant’s claim that he was subjected to an illegal search and seizure, and that the confidential informant was not sufficiently reliable to establish probable cause for a search warrant as required under the Fourth Amendment, because the test for probable cause in Mississippi is the totality of the circumstances and defendant admitted to the undercover officer that he had drug paraphernalia in his home, which was sufficient to give the officer probable cause to believe that defendant had and was committing a crime and to place him under arrest. Also, the informant’s reliability was confirmed by a recording of the informant’s telephone conversations with defendant. Passman v. State, 937 So. 2d 17, 2006 Miss. App. LEXIS 89 (Miss. Ct. App.), cert. denied, 936 So. 2d 367, 2006 Miss. LEXIS 482 (Miss. 2006), cert. denied, 549 U.S. 1324, 127 S. Ct. 1914, 167 L. Ed. 2d 570, 2007 U.S. LEXIS 3842 (U.S. 2007).

Although defendant was not given an initial appearance until six days after his arrest, which violated Miss. Unif. Cir. & County Ct. Prac. R. 6.03, because defendant was not taken for his initial appearance within 48 hours of arrest, the failure to comply with Rule 6.03 did not violate defendant’s U.S. Const. amend IV or Miss. Const. Art. 3, § 23, rights because a probable cause determination was made well within the required 48-hour period, when defendant was served with an arrest warrant on the day after his arrest. Lawrence v. State, 869 So. 2d 353, 2003 Miss. LEXIS 296 (Miss. 2003), cert. denied, 540 U.S. 1164, 124 S. Ct. 1178, 157 L. Ed. 2d 1211, 2004 U.S. LEXIS 892 (U.S. 2004).

Under totality of circumstances test, written affidavit supplemented by oral testimony of police officers can, as combined, establish substantial basis for magistrate’s determination that probable cause existed for issuance of search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

In making its review of whether search warrant was issued upon probable cause, reviewing court looks both to facts and circumstances set forth in affidavit for search warrant and as well, sworn oral testimony presented to issuing magistrate. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Totality of circumstances was sufficient to establish probable cause to issue search warrant for automobile and home, although underlying facts stated in affidavit for search warrant considered alone may not have been sufficient, where oral testimony was adduced before magistrate which, taken together with affidavit, sufficiently established that probable cause existed. Hickson v. State, 512 So. 2d 1, 1987 Miss. LEXIS 2759 (Miss. 1987).

Under totality of circumstances test, affidavit in which affiant relates substance of interview with eyewitness who observed suspect shooting into occupied building, gave description which fit that of suspect and identified automobile in presence of affiant is sufficient to enable magistrate requested to issue warrant for search of suspect’s home to make practical decision that there is fair probability that evidence of crime will be found at suspect’s residence. Walker v. State, 473 So. 2d 435, 1985 Miss. LEXIS 2186 (Miss. 1985).

Under totality of circumstances analysis, affiant may establish probable cause for issuance of search warrant on basis of information obtained by affiant from confidential informant where affidavit establishes that confidential informant has demonstrated both personal knowledge of location of evidence and declaration against informant’s interest and where affiant swears that informant has given reliable information on activity being investigated in past. Breckenridge v. State, 472 So. 2d 373, 1985 Miss. LEXIS 2449 (Miss. 1985).

Under totality of circumstances test, there is probable cause for arrest of burglary suspect where arresting officer knows that burglary has been committed about one hour earlier, it is late at night and suspect is approximately 100 to 250 yards from burglary scene, suspect is wet and covered with seed particles, and explanation of drunkenness offered by suspect is inconsistent with that of person who has been recently drinking heavily. Riddles v. State, 471 So. 2d 1234, 1985 Miss. LEXIS 2122 (Miss. 1985).

27. – Curtilage, search warrant.

The wooded area behind a trailer was not part of the curtilage of the trailer and, therefore, the defendant had no standing to contest the search of the area where (1) in order to reach the area, it was necessary to walk down a sloping path, travel through a drainage ditch, and then enter the woods, (2) there was no evidence that the wooded area was within an enclosure, (3) the area behind the trailer resembled a garbage dump, and (4) there was no testimony at the suppression hearing concerning any steps made to protect the woods behind the trailer. Jordan v. State, 728 So. 2d 1088, 1998 Miss. LEXIS 566 (Miss. 1998), cert. denied, 527 U.S. 1026, 119 S. Ct. 2375, 144 L. Ed. 2d 778, 1999 U.S. LEXIS 4276 (U.S. 1999).

A storm shed was within the “curtilage” of a residence and, therefore, within the scope of a search warrant which permitted a search of the residence where the shed was approximately 150 to 175 feet from the house, the shed was the type of building used in connection with a residence, there were only a few trees separating the house and shed, and, most importantly, the house and shed were on the same side of the fence and not separated by it. Arnett v. State, 532 So. 2d 1003, 1988 Miss. LEXIS 457 (Miss. 1988).

28. – Sufficiency of search warrant.

Search warrant failed adequately to describe the property to be seized because the description of “stolen items” was inadequate to inform the officers executing the search as to which items in a house were to be seized; there was no means to distinguish stolen items from any items that rightfully belonged in the house, and the warrant should have included a more particularized description of at least some of the property to be seized, especially since it was clear from the record it could have. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018).

Search warrant was void and unenforceable on its face because the section of the warrant denoting the location for the search to be executed was completely blank. Moreover, the good faith exception was inapplicable to the facts of the case. State ex rel. Miss. Bureau of Narcotics v. Canada, 164 So.3d 1003, 2015 Miss. LEXIS 304 (Miss. 2015).

Defendant’s convictions for capital murder during the commission of a robbery were proper because the search warrant for the farm was based on probable cause, was sufficiently particular regarding the place to be searched, and was properly executed. At trial, through use of testimony and exhibits, the farm was described as a cluster of buildings, situated fairly close together, consisting of a metal shed, a wooden shed, an abandoned farmhouse, and an outhouse (or old chicken house); a search of any or all of these buildings was within the scope of the warrant, which authorized search of “a farm house” and “any out buildings normally associated with this residence.” Gillett v. State, 56 So.3d 469, 2010 Miss. LEXIS 337 (Miss. 2010), cert. denied, 565 U.S. 1095, 132 S. Ct. 844, 181 L. Ed. 2d 552, 2011 U.S. LEXIS 8944 (U.S. 2011).

Though the search warrant was not accompanied by the “underlying facts and circumstances” sheet, which was to contain facts supporting issuance of same, that fact alone did not render the search warrant fatally flawed where the officer’s sworn testimony was that the eyewitness (an arrested person), had given detailed information regarding the location of the residence where the drugs were being manufactured and had also stated that he had bought and supplied defendants with precursor elements; said information was furnished by an eyewitness as opposed to an informant, a credibility determination was not required, and there was probable cause to support issuance of the search warrant. Pittman v. State, 904 So. 2d 1185, 2004 Miss. App. LEXIS 1043 (Miss. Ct. App. 2004).

Where the defendant was suspected of operating a “chop shop” where stolen vehicles were brought in and either disassembled to be sold for their constituent parts or disguised so that they would not be readily identifiable, a search warrant was not overboard where it permitted the search and seizure of documents relating to the defendant’s vehicle repair and rebuilding activities conducted on his premises. Logan v. State, 773 So. 2d 338, 2000 Miss. LEXIS 267 (Miss. 2000).

In a prosecution for defrauding the Mississippi Department of Public Safety and the Mississippi Tax Commission and uttering forgery arising from the defendant’s operation of a business rebuilding salvaged trucks, the Court rejected the defendant’s argument that the scope of a warrant to search his shop was too broad to meet constitutional strictures where the warrant permitted the search and seizure of documents relating to the vehicle repair and rebuilding activities conducted on the defendant’s premises; it was not necessary for the officers to know, in advance, what records, invoices, or other documents the defendant would actually have on the premises in order to obtain a warrant to search for such evidence so long as they had a reasonable basis to conclude that some such documentary evidence might be discovered on the premises, and the officers’ inability to describe with more certainty the documents that would be sought was not fatal to the warrant. Logan v. State, 2000 Miss. LEXIS 128 (Miss. May 25, 2000), op. withdrawn, sub. op., 773 So. 2d 338, 2000 Miss. LEXIS 267 (Miss. 2000).

The terms “controlled substances,” “paraphernalia,” and “guns” were sufficiently definitive to indicate which items should have been included in a search. Bryant v. State, 746 So. 2d 853, 1998 Miss. App. LEXIS 1027 (Miss. Ct. App. 1998).

The search of a one-story building, pursuant to an affidavit and search warrant for a two-story dwelling, did not violate the defendant’s constitutional rights where the officer who made the affidavit for the search warrant had driven by the defendant’s property in a rural area and thought that there was only one building–the two-story building–on the property, the defendant owned all the property but resided in the one-story building, the officers went to the unoccupied two-story building when they arrived on the property but received no answer, the defendant came to the front door of the one-story building and the officers went there and served him with the warrant, and the officers searched the one-story building and found marijuana in that building. The affidavit and search warrant sufficiently directed the officers to the defendant’s premises where they found him in his residence, executed the warrant and discovered marijuana, and therefore the trial court was not in error when it denied the defendant’s motion to suppress the evidence found in the search. Hamilton v. State, 556 So. 2d 685, 1990 Miss. LEXIS 17 (Miss.), cert. denied, 497 U.S. 1024, 110 S. Ct. 3271, 111 L. Ed. 2d 781, 1990 U.S. LEXIS 3605 (U.S. 1990).

28.5. Invalid warrant, search warrant.

Exclusionary rule applied because the evidence seized pursuant to the invalid warrant could not be purged of the primary taint of the illegal search; the warrant was so facially deficient that the executing officers could not have presumed it to be valid since they did not have any way to distinguish stolen items from property that was not stolen. Sutton v. State, 238 So.3d 1150, 2018 Miss. LEXIS 128 (Miss. 2018).

29. Execution of warrant.

A gun retrieved from the defendant’s vehicle was not subject to suppression although obtained in a search that exceeded the bounds of a search warrant where (1) as officers neared the premises to be searched, they spotted the defendant driving away in his own vehicle, (2) these officers informed the defendant that a search of his residence was imminent, and, (3) to facilitate his return to his residence, one officer accompanied the defendant in his vehicle, and (4) prior to the officer entering the defendant’s vehicle, the officers inquired whether there was anything in the vehicle they needed to know about and the defendant informed them that there was a firearm in the glove box; the weapon in the vehicle was discovered as a result of constitutionally permissible efforts by the investigating officers to protect their physical safety while temporarily detaining the defendant in the course of carrying out a search of his residence. Dees v. State, 758 So. 2d 492, 2000 Miss. App. LEXIS 222 (Miss. Ct. App. 2000).

A “no-knock” warrant was both justified and reasonable where (1) the defendant was living in a virtual fortress, (2) any announcement made by the officers would only have given him more time to destroy evidence, and (3) the defendant was a convicted felon and a previous search of the residence had produced firearms. White v. State, 746 So. 2d 953, 1999 Miss. App. LEXIS 183 (Miss. Ct. App. 1999).

30. –Return, search warrant.

In a drug case, a trial court did not err in admitting items into evidence that were not on an original search warrant inventory, but were included on the return, because any error resulting from the ministerial act of the return did not invalidate the properly issued search warrant. Kerns v. State, 923 So. 2d 210, 2005 Miss. App. LEXIS 243 (Miss. Ct. App.), aff'd in part and rev'd in part, 923 So. 2d 196, 2005 Miss. LEXIS 799 (Miss. 2005).

Return on gun warrant clearly indicating warrant was served coupled with officers’ testimony refuted testimony that marijuana warrant instead of gun warrant was served prior to its execution. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

31. Scope of search with warrant.

A police officer can, via a search warrant, compel a person to submit to a gunpowder residue test and, because the chemicals sought to be found on a person’s hand can easily and quickly be destroyed, an officer is within his rights to swab a person’s hand even over his objections. Hubbert v. State, 759 So. 2d 504, 2000 Miss. App. LEXIS 196 (Miss. Ct. App. 2000).

A search conducted at 11:30 p.m. exceeded the officer’s authority under the search warrant where the warrant authorized searches only “in the daytime”; thus, the fruits of the search were inadmissible at trial. Strange v. State, 530 So. 2d 1336, 1988 Miss. LEXIS 349 (Miss. 1988).

Search warrant providing that searching officers were to search for guns used in murder authorized officers to take reasonable actions such as looking behind wall plaque and credit cards found there were therefore lawfully seized. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

In his trial for murder of a police officer, defendant’s contention that the homicide was justifiable because he was resisting an unlawful arrest and reasonably believed himself to be in imminent danger of great bodily harm was not supported by the evidence, where the law officers had sufficient grounds to believe that fugitives for whom they had arrest warrants were located in the house in which defendant was staying and fired gas into the house only after a reasonable time had elapsed following the announcements requesting the occupants to vacate the house; failure of the occupants to exit as requested demonstrated their refusal to cooperate with the arresting officers who had identified themselves and stated their purpose, and the officers were warranted in using reasonable force and means to execute the arrest warrants. Norman v. State, 302 So. 2d 254, 1974 Miss. LEXIS 1416 (Miss. 1974), cert. denied, 421 U.S. 966, 95 S. Ct. 1956, 44 L. Ed. 2d 453, 1975 U.S. LEXIS 1588 (U.S. 1975).

Where police officer who obtained a search warrant allowing a search of defendant’s apartment, saw defendant and 2 other people driving away in defendant’s car from the house, and police officer stopped the defendant to serve the warrant and ordered the occupants out of the car, and during a “patdown” of defendant, the police officer found 3 boxes containing marijuana and upon later search of automobile found 3 additional boxes of marijuana, the search of defendant was an illegal search and the contraband obtained as a result of the illegal search was inadmissible in evidence. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

Search of defendant’s parked automobile and seizure of quantity of whisky found therein were unlawful where such search and seizure took place after officers, armed with warrant to search defendant’s premises for stolen money and other chattels, failed to find anything, there being no evidence or information that the automobile was used for the transportation of liquor; and order of sale of such automobile pursuant to Code 1942 § 2618 constituted reversible error. Brooks v. Wynn, 209 Miss. 156, 46 So. 2d 97, 1950 Miss. LEXIS 374 (Miss. 1950).

32. Search without warrant – In general.

Officer constitutionally performed a Terry pat-down where the officer was pursuing an armed robbery suspect who was last seen brandishing a pistol, the officer felt an unknown bulge in defendant’s pocket, and when he asked defendant what was in it, defendant voluntarily emptied his pockets showing him money Gales v. State, 153 So.3d 632, 2014 Miss. LEXIS 501 (Miss. 2014).

It was error for a trial court to deny a defendant’s motion to suppress an investigatory stop of the vehicle defendant drove, when an informant told officers the subject of outstanding arrest warrants would be driving a similar vehicle, because the good-faith exception to the exclusionary rule did not apply as (1) an officer said the officer did not know the identity of the subject of the arrest warrants, so the officer could not reasonably execute the warrants without verifying the suspect’s identity, and (2) the officer’s misinterpretation of constitutional mandates, contradictions between the officer’s arrest report and testimony, and the officer’s failure to resolve the suspect’s identity made the exception inapplicable. Eaddy v. State, 63 So.3d 1209, 2011 Miss. LEXIS 315 (Miss. 2011).

Investigatory stop of defendant was not violative of defendant’s constitutional rights under the Fourth Amendment where a telephone call to the police officer gave the State a reasonable suspicion that justified the police in driving to defendant’s location; furthermore, the plea agreement was an independent justification for the State to detain and/or search defendant. Sweet v. State, 910 So. 2d 735, 2005 Miss. App. LEXIS 211 (Miss. Ct. App. 2005).

Court properly denied a motion to suppress where an officer testified that the bulge in defendant’s shorts was unusually large and given his erratic behavior, defensive posturing, and possession of a pocket knife, the officer believed that the bulge could be a weapon; therefore, at the time the officer proceeded to pat the bulge, the officer had not extended the search of defendant beyond what was necessary to determine whether he was armed and dangerous. In addition, the officer stated that when he touched the bulge, he could feel stems and seeds through the fabric of defendant’s shorts that he thought was marijuana, and it was immediately apparent to the officer that the bulge was marijuana. Tate v. State, 946 So. 2d 376, 2006 Miss. App. LEXIS 246 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 66 (Miss. 2007).

In a case of possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance, after a drug store clerk informed the police that two suspects had purchased large amounts of ephedrine/pseudoephedrine contained in over-the-counter cold medications and described their car, a be-on-the-lookout announcement was made and the officer’s investigatory stop of the driver’s car, in which defendant was a passenger, was entirely proper and the driver’s consent to search of the car relieved the officer of any need for a search warrant; thus, the admission of the evidence of the pills found was proper and did not violate defendant’s federal or state constitutional rights under U.S. Const. Amend. IV and Miss. Const. Art. 3, § 23. Burchfield v. State, 2003 Miss. App. LEXIS 660 (Miss. Ct. App. July 22, 2003), op. withdrawn, sub. op., 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App. 2004).

Where defendant was arrested for speeding and reckless driving, defendant was subject to a pat-down search at the time of the arrest, and also to a warrantless search at the place of detention, where cocaine was discovered in defendant’s shoe, as exceptions to the warrant requirement. Jackson v. State, 856 So. 2d 412, 2003 Miss. App. LEXIS 258 (Miss. Ct. App. 2003).

Mississippi Supreme Court adopts the U.S. Supreme Court’s Leon good faith exception to warrantless searches. White v. State, 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

Though a “telephonic search warrant” was not recognized in Mississippi, under the Leon good faith exception to warrantless searches, police officers’ good faith belief that a telephonic warrant was valid justified admission of drugs found in a search of a defendant’s apartment. White v. State, 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

Officers had probable cause to believe that defendant was dealing marijuana, they were attempting to prevent the destruction of evidence instead of effectuating arrest and seizure, and they reasonably believed in good faith they had a valid telephonic search warrant and were acting reasonably in the midst of exigent circumstances; thus, the trial court, even in the absence of a state statute allowing telephonic search warrants, properly upheld the search as a reasonable warrantless search. White v. State, 2002 Miss. LEXIS 311 (Miss. Oct. 24, 2002).

The warrantless search of a student’s pickup truck by school officials was not improper since there was reasonable suspicion to believe that the student had been in the parking lot drinking before class where a student reported the incident, several other students confirmed the report, and empty beer cans were found in the back of the student’s truck. Covington County v. G.W., 767 So. 2d 187, 2000 Miss. LEXIS 182 (Miss. 2000).

The inventory search of the defendant’s car after his arrest for violation of a city’s open container law was proper where (1) the defendant was found urinating next to a car with its headlights on outside an abandoned building, (2) the officers determined that the defendant was intoxicated and saw two containers of beer in the car, one of which was open, and (3) such a search was standard policy for the police department in order to decrease liability for items that could be stolen from an unattended automobile. Bolden v. State, 767 So. 2d 315, 2000 Miss. App. LEXIS 422 (Miss. Ct. App. 2000).

The testimony of the sheriff indicated that there was no valid consent on the part of the defendants since he did not advise them of their right to refuse consent, he never advised them of their Miranda rights, and he did not obtain a signed, written consent to search until the day after the search. Logan v. State, 1999 Miss. App. LEXIS 182 (Miss. Ct. App. Apr. 20, 1999), rev'd, 2000 Miss. LEXIS 128 (Miss. May 25, 2000).

A search pursuant to the defendant’s consent was proper, notwithstanding the defendant’s assertion that his arrest was without probable cause, where, prior to his arrest, the defendant stated that he did not care if a search was conducted; the subsequent arrest of the defendant, even if invalid, did not end the effectiveness of the consent. Carroll v. State, 755 So. 2d 483, 1999 Miss. App. LEXIS 111 (Miss. Ct. App. 1999).

The search of the defendant’s room in a shared mobile home could not be justified on the basis of any of the exceptions to the warrant requirement where the officers who conducted the search attempted to justify the search by the existence of a search warrant issued for the express purpose of searching for contraband possessed by the defendant’s roommate in his residence. Graves v. State, 708 So. 2d 858, 1997 Miss. LEXIS 743 (Miss. 1997).

Warrantless arrest of persons in motel room registered to person who matches description of person involved in theft of stolen vehicle parked outside room is reasonable, as is seizure of evidence found in plain view within room. Hanner v. State, 465 So. 2d 306, 1985 Miss. LEXIS 1940 (Miss. 1985).

Where marijuana plants that were seized were not actually situated upon defendant’s property, but instead were removed from neighboring land, the defendant was not in a position to complain of any irregularity or defect, if any, in the search warrant since the fruit of the search came from a search of property other than his own. Freeland v. State, 285 So. 2d 895, 1973 Miss. LEXIS 1310 (Miss. 1973).

Law enforcement officers have no authority to search the person of an individual because they may suspect that he is violating the law, or because they are desirous of physically searching the person of an individual to see if he has in his possession contraband so that he may be arrested and prosecuted. Keys v. State, 283 So. 2d 919, 1973 Miss. LEXIS 1235 (Miss. 1973).

Where the defendant, a guest at a dance at which police officers were chaperones, requested the officers to help him find his coat and authorized them to examine any coat they might find to determine whether or not it belonged to the defendant, marijuana found in the defendant’s coat when the officers searched the pockets for identifying marks or items, was not wrongfully admitted into evidence, since the officers had not been conducting a search for the purpose of discovering evidence to be used in a prosecution, but had been merely trying to help the defendant. Amos v. State, 234 So. 2d 630, 1970 Miss. LEXIS 1416 (Miss. 1970), cert. denied, 401 U.S. 942, 91 S. Ct. 945, 28 L. Ed. 2d 222, 1971 U.S. LEXIS 2985 (U.S. 1971).

Sheriff had no right to search trunk on premises, while investigating murder without a search warrant. Page v. State, 208 Miss. 347, 44 So. 2d 459, 1950 Miss. LEXIS 254 (Miss. 1950).

33. – Consent, search without warrant.

Marijuana found in defendant’s vehicle during a traffic stop was admissible because defendant consented to the search of the vehicle because when the police officer asked defendant, “Do you mind if I check it real quick before I let you go?” defendant replied, “It don’t matter.” Martin v. State, 240 So.3d 1047, 2017 Miss. LEXIS 424 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 2592, 201 L. Ed. 2d 307, 2018 U.S. LEXIS 3234 (U.S. 2018).

Trial court did not commit reversible error in admitting beer cans found in defendant’s car into evidence because even though the beer cans were found in the course of a warrantless search of the car, there was no Fourth Amendment violation, as the car was parked on defendant’s brother’s premises and defendant’s brother, as the renter of the premises, had sufficient authority to consent to a search of the premises; because defendant’s brother did consent to a search of his premises, the evidence collected pursuant to that consent was constitutionally acquired. Ross v. State, 954 So. 2d 968, 2007 Miss. LEXIS 235 (Miss. 2007).

Trial court did not err in denying defendant’s motion to exclude evidence taken from a car that he was driving; because defendant’s wife was the titled owner of the automobile, the police were reasonable in their belief that she possessed common authority, joint control, and mutual use over the car so as to give her the authority to consent to a search. Peters v. State, 920 So. 2d 1050, 2006 Miss. App. LEXIS 104 (Miss. Ct. App. 2006).

Defendant’s convictions for manufacture of a controlled substance and possession of a controlled substance were both proper where he validly consented to a search of his residence and premises; there was ample testimony from law enforcement officers to show that defendant had consented to the search and there was no evidence of threats or coercion by the officers in obtaining defendant’s consent to search. Clair v. State, 845 So. 2d 733, 2003 Miss. App. LEXIS 429 (Miss. Ct. App. 2003).

The fact that the defendant’s wife was not affirmatively informed by police officers of her right to decline to consent to the inspection of the defendant’s premises did not render her consent involuntary where, after she was requested to consent to an inspection of the premise, she declined to do so unless the officers agreed to remove a substantial number of the police cars parked at her residence, since the very act of attaching conditions to the consent to search and demanding compliance with the conditions before the search began was a strong indicator that she understood that she was not obligated to permit the officers to inspect the premises. Logan v. State, 2000 Miss. LEXIS 128 (Miss. May 25, 2000), op. withdrawn, sub. op., 773 So. 2d 338, 2000 Miss. LEXIS 267 (Miss. 2000).

The search and seizure of the defendant’s mobile home and the neighboring vacant house containing marijuana were valid since the defendant signed a consent to search form that contained a clause informing her of the right to refuse, and the defendant’s knowledge of the location of the marijuana and acceptance of responsibility for it demonstrated the voluntariness of the consent. Gilbreath v. State, 783 So. 2d 720, 2000 Miss. App. LEXIS 187 (Miss. Ct. App. 2000).

Consent is unnecessary when seizure follows search based on probable cause. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

A defendant did not have standing to object to a search of his sister’s residence and subsequent seizure of cocaine where the defendant resided elsewhere, did not possess a key to the house, did not have permission to “have the run of the place,” and, aside from the familial relationship, was “little more than a babysitter.” Hopson v. State, 625 So. 2d 395, 1993 Miss. LEXIS 422 (Miss. 1993).

A trial court did not err in overruling a capital murder defendant’s motion to exclude certain physical evidence seized from his automobile, even though the search was conducted pursuant to consent given by the defendant’s wife who may not have had mutual use of the car, since the police were reasonable in their belief that the wife had common authority, mutual use, and joint control over the car where the wife held title to the car, she told the police she owned the car and provided them with keys, and she never indicated that the car had been in the defendant’s sole possession. Mettetal v. State, 615 So. 2d 600, 1993 Miss. LEXIS 96 (Miss. 1993).

A defendant did not have standing to object to the search of his friend’s apartment, in which he was an occasional overnight guest, where he had no key to the apartment, exercised no control over it, and was there on occasion only by the friend’s permission. Thus, stolen items which were found during a search of the apartment were admissible in the defendant’s burglary trial. White v. State, 571 So. 2d 956, 1990 Miss. LEXIS 758 (Miss. 1990).

A search pursuant to a defendant’s consent was constitutionally valid, even though the defendant, who was deaf, was not afforded an interpreter in accordance with §13-1-303(3), where the testimony of the law enforcement officers clearly indicated that the defendant understood what he was doing when he agreed to the search, the defendant was asked questions to which he gave appropriate responses, he was specifically told that he did not have to consent to the search, both the request for and the granting of the consent were done in writing, and the defendant used communicative and cognitive faculties other than hearing when he consented to the search. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

A defendant’s mother had the right to consent to a search of her son’s bedroom where the mother paid the rent on the home and had access to the defendant’s room. Stokes v. State, 548 So. 2d 118, 1989 Miss. LEXIS 357 (Miss. 1989), cert. denied, 493 U.S. 1029, 110 S. Ct. 742, 107 L. Ed. 2d 759, 1990 U.S. LEXIS 86 (U.S. 1990).

A trial court did not err in admitting into evidence a powdery substance, which was later identified as a by-product resulting from the manufacture of methamphetamine, found on the property near a trailer, where the owner of the trailer gave a valid consent to search the trailer, the police were validly on the property on which the trailer was located, and the powdery substance was visible from the trailer itself, thus falling under the plain view doctrine. Waldrop v. State, 544 So. 2d 834, 1989 Miss. LEXIS 281 (Miss. 1989).

Even if the defendant was the owner of land on which a trailer was located, police officers did not illegally trespass on his land in order to search the trailer, where the owner of the trailer consented to the search since police officers are allowed the right of ingress and egress onto private property. Waldrop v. State, 544 So. 2d 834, 1989 Miss. LEXIS 281 (Miss. 1989).

A defendant did not have standing to object to the search of a trailer where the true owner of the trailer consented to the search and, when the defendant was arrested, he denied ownership of the trailer. Waldrop v. State, 544 So. 2d 834, 1989 Miss. LEXIS 281 (Miss. 1989).

A second search of a defendant’s truck for blue fountain pens, after the investigator had previously conducted a valid consent search, had seen the pens in the truck, and had subsequently learned that there was a similar pen at the crime scene, was reasonable even though, after the first consent search, the defendant had been allowed to take the truck and continue his daily work activities. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

Warrantless search of robbery suspect’s apartment is reasonable where consent to search is given by suspect’s girlfriend who has dominion and control over apartment, and who rents apartment in her name and pays all bills, particularly where at time consent is obtained, investigating officers are unaware that suspect is person living in apartment. Hudson v. State, 475 So. 2d 156, 1985 Miss. LEXIS 2216 (Miss. 1985).

The warrantless seizure of jewelry from a son’s room by police pursuant to his father’s consent to enter did not violate the son’s Fourth Amendment rights since the son did not have exclusive dominion and control over his room and since the father was authorized to enter it and to permit anyone else to so enter. Wilcher v. State, 455 So. 2d 727, 1984 Miss. LEXIS 1797 (Miss. 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1411, 84 L. Ed. 2d 794, 1985 U.S. LEXIS 1334 (U.S. 1985).

Warrantless search of the backyard of the house occupied by the defendant, his brother, his parents, and other family members was not unreasonable where consent to search was given by the defendant’s brother in the presence of their mother, who was, with their father, joint owner of the property. Loper v. State, 330 So. 2d 265, 1976 Miss. LEXIS 1842 (Miss. 1976).

One cannot object to the introduction into evidence against him of articles seized by a search made without a warrant, to which he consented. Pinnix v. Jones, 127 Miss. 764, 90 So. 481, 1921 Miss. LEXIS 279 (Miss. 1921).

34. – Emergency situations, search without warrant.

There was no basis to suppress evidence obtained from a second entry into defendant’s residence, as the initial search was legal as an emergency search under exigent circumstances, and the second entry into the residence was a reasonable continuation, whereupon evidence seen in plain view was seized. Crawford v. State, 192 So.3d 905, 2015 Miss. LEXIS 445 (Miss. 2015), cert. denied, — U.S. —, 136 S. Ct. 2527, 195 L. Ed. 2d 855, 2016 U.S. LEXIS 4084 (U.S. 2016).

The initial entry into the house by police officers was justified under the emergency circumstances exception to the warrant requirement where the officers had been informed that the victim was burned and lying on the bathroom floor of the house. Taylor v. State, 733 So. 2d 251, 1999 Miss. LEXIS 62 (Miss. 1999).

An emergency situation is a valid exception to the warrant requirement; the elements for the application of this exception are: (1) reasonable grounds to believe there is an emergency situation and there is an immediate need for their assistance in order to protect life and property; (2) the primary motivation for the search must not be an intent to arrest and seize the evidence; and (3) some reasonable basis, approximating probable cause, must associate the emergency with the area or place searched. Taylor v. State, 733 So. 2d 251, 1999 Miss. LEXIS 62 (Miss. 1999).

A second and third walk-through of a house were continuations of the original entry, which was justified based on information that the victim was burned and lying on the bathroom floor of the house, and, therefore, the seizure of evidence during those walk-throughs was proper where all of the evidence seized was in plain view during the first walk-through and would have seized then had not the officers been focused on their goal of locating the victim and attempting to assist her. Taylor v. State, 733 So. 2d 251, 1999 Miss. LEXIS 62 (Miss. 1999).

35. – Plain view, search without warrant.

Search was lawful under the plain view exception to the warrant requirement because the officer had the legal authority to stop defendant for running a stop sign and to approach the vehicle. In addition, the incriminating character of the black duffel bag and other items was readily apparent, as the officer was aware that those types of items were used in the recent restaurant armed robbery, and they were in plain view. Johnson v. State, 999 So. 2d 360, 2008 Miss. LEXIS 576 (Miss. 2008).

There was sufficient probable cause to search defendant’s vehicle after an accident and to seize beer in the vehicle because the smell of beer on defendant’s breath, coupled with his impaired coordination and his statement that he had consumed a good bit of alcohol earlier in the day, constituted probable cause to seize beer in plain view. Comby v. State, 901 So. 2d 1282, 2004 Miss. App. LEXIS 1153 (Miss. Ct. App. 2004), cert. denied, 901 So. 2d 1273, 2005 Miss. LEXIS 313 (Miss. 2005).

Though crack cocaine was often carried in plastic bags, and defendant’s having a plastic bag inside his pants was unusual, neither consideration creates probable cause to believe that there was cocaine in defendant’s pants. It took a look after pulling open defendant’s pants before probable cause existed. Thus, the bag and its contents were not in plain view and the searching of defendant’s pants was not justified. Anderson v. State, 864 So. 2d 948, 2003 Miss. App. LEXIS 634 (Miss. Ct. App. 2003).

Photographing a defendant’s injured hand, which was within the plain view of police officers and was incident to a lawful arrest, was not an improper search, as defendant had no more of a reasonable expectation of privacy with respect to his hand than he would have had with his handwriting. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Where an officer enters a residence under an emergency situation he may seize any evidence in plain view during the course of emergency activities. Taylor v. State, 733 So. 2d 251, 1999 Miss. LEXIS 62 (Miss. 1999).

The plain view doctrine does not parley a limited search warrant into a general search warrant. Godbold v. State, 731 So. 2d 1184, 1999 Miss. LEXIS 55 (Miss. 1999).

Both the automobile and plain view exceptions permitted agents to search the defendant’s vehicle without first obtaining a warrant where they had probable cause to stop and search the vehicle on the basis of information received from a confidential informant and where an agent looked through a window and saw a bag in the rear of the vehicle which appeared to contain several large bricks of marijuana. Harper v. State, 722 So. 2d 1267, 1998 Miss. App. LEXIS 812 (Miss. Ct. App. 1998).

In a prosecution for possession of crack cocaine, the search of an automobile was not valid under the plain view exception to the search warrant requirement where the police officer entered the car to retrieve the keys, he saw an ordinary matchbox on the passenger seat and opened it to find only matches, and he then noticed another matchbox between the 2 front seats and opened it to find that it contained 9 rocks of crack cocaine; no incriminating evidence was visible at the time the officer entered the car, since the mere presence of a matchbox on the front seat of a car ordinarily cannot be termed an incriminating object in plain view. Ferrell v. State, 649 So. 2d 831, 1995 Miss. LEXIS 31 (Miss. 1995).

No constitutional rights were implicated in an officer’s seizure of illegal drugs where the drugs were found on the front porch ledge of an abandoned apartment in which the defendant had no propriety or possessory interest. The officer had probable cause to arrest and search the defendant where the officer had observed suspicious behavior by the defendant and had seized drugs which he had seen the defendant handling. Young v. State, 562 So. 2d 90, 1990 Miss. LEXIS 230 (Miss. 1990).

Where entry upon premises is lawful, contraband open to observation thereon may be seized. Williams v. State, 216 Miss. 158, 61 So. 2d 793, 1953 Miss. LEXIS 619 (Miss. 1953).

36. –Informant, search without warrant.

Investigatory stop which led to defendant’s arrest violated defendant’s constitutional right to be free from unreasonable searches and seizures because the stop was based on a tip from an anonymous caller who reported a person driving erratically in a particular vehicle and flashing what appeared to be some type of badge at other drivers, but there was a lack of sufficient indicia of reliability in the case, coupled with the police officers’ failure to corroborate the criminal activity reported. Cook v. Rankin County, 2014 Miss. LEXIS 506 (Miss. Oct. 16, 2014).

A confidential informant’s tip to a sheriff’s deputy provided probable cause to justify a stop, and therefore a subsequent search and seizure of the suspect’s property did not violate his constitutional rights, where the officer knew the informant, information supplied by the informant had been successfully used by the officer in the past, and the informant accurately told the officer that the suspect would be traveling in a certain direction on a certain road which demonstrated a special familiarity with the suspect’s affairs. Neely v. State ex rel. Tate County, 628 So. 2d 1376, 1993 Miss. LEXIS 562 (Miss. 1993).

37. –Open fields doctrine, search without warrant.

Open fields doctrine permits police officer to enter and search marijuana fields without warrant, even where fields are secluded and contain no-trespassing signs. Oliver v. United States, 466 U.S. 170, 104 S. Ct. 1735, 80 L. Ed. 2d 214, 1984 U.S. LEXIS 55 (U.S. 1984).

38. –Fruit of poisonous tree, search without warrant.

Circuit court properly convicted defendant of selling more than two, but less than 10, grams of methamphetamine near a church because he forfeited his Fourth Amendment claim where the record neither showed the search was legal or illegal, and the mere failure to file a motion to suppress, in and of itself, could not support defendant’s claim his counsel was constitutionally ineffective. Shinstock v. State, 220 So.3d 967, 2017 Miss. LEXIS 267 (Miss. 2017).

Court erred in denying defendant’s motion to suppress evidence of steroids found in a search of his vehicle during a traffic stop because driving in the left-hand lane of a four-lane highway did not violate state law. Because the stop was not proper, the court erred in not suppressing all contraband that stemmed from the stop. Couldery v. State, 890 So. 2d 959, 2004 Miss. App. LEXIS 1155 (Miss. Ct. App. 2004).

Marijuana seized from a bundle of clothes which the defendant was carrying from her motel room constituted “fruit of the poisonous tree” and was therefore inadmissible, where an unlawful warrantless search of the motel room lead officers to set up a surveillance, during which the defendant exited the motel room with bundles of clothing from which the marijuana was seized. Marshall v. State, 584 So. 2d 437, 1991 Miss. LEXIS 507 (Miss. 1991).

In a prosecution for murder arising out of the deaths of two people during a fire in a house owned by the defendant’s brother-in-law, the conviction would be reversed and the case remanded for a new trial where the trial court erred in admitting into evidence a written inculpatory statement made by the defendant after he had been arrested by the police where there was no evidence to establish probable cause for the arrest and where no event or combination of events transpired to sever the connection or stream of closely related events between his illegal detention and the written statement which was given two hours after an oral statement which had been ruled inadmissible by the trial court. Dycus v. State, 396 So. 2d 23, 1981 Miss. LEXIS 1980 (Miss. 1981).

39. – Inevitable discovery, search without warrant.

The discovery of a pill bottle containing crack cocaine did not fall within the inevitable discovery doctrine where (1) an officer stopped to investigate two males in the vicinity of a pick-up truck improperly stopped in a lane of traffic in a public road, (2) the officer arrested the driver of the truck for a violation of the open container law and then discovered a handgun, the handle of which was in plain view, during a search of the truck, (3) the defendant passenger was then placed in handcuffs, and (4) the pill bottle was discovered during a second search of the truck; the inevitable discovery doctrine had no application as there was no valid underlying reason for the officer to return to the truck after the driver and passenger had been secured. White v. State, 735 So. 2d 221, 1999 Miss. LEXIS 120 (Miss. 1999).

40. –Motor vehicles, search without warrant.

Marijuana found in defendant’s vehicle was admissible because a police officer observed defendant’s vehicle cross the right lane fog line once, and then again approach or “bump” the fog line, and the video evidence from the officer’s car camera did not directly contradict the officer’s testimony, so that there was sufficient evidence that the officer had probable cause to believe that defendant had driven in a careless or imprudent manner and to stop defendant’s vehicle. The officer then searched the vehicle upon smelling the odor of marijuana. Martin v. State, 240 So.3d 1047, 2017 Miss. LEXIS 424 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 2592, 201 L. Ed. 2d 307, 2018 U.S. LEXIS 3234 (U.S. 2018).

Marijuana found in defendant’s vehicle was admissible because a police officer, upon observing defendant’s vehicle cross the right lane fog line once and then again approach or “bump” the fog line, had sufficient probable cause to stop defendant for careless driving. Furthermore, the officer had probable cause to search the vehicle as soon as the officer smelled marijuana so that the stop was not unconstitutionally extended. Martin v. State, 240 So.3d 1047, 2017 Miss. LEXIS 424 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 2592, 201 L. Ed. 2d 307, 2018 U.S. LEXIS 3234 (U.S. 2018).

Marijuana found in defendant’s vehicle during traffic stop was admissible because defendant consented to search of vehicle because when police officer asked defendant, “Do you mind if I check it real quick before I let you go?” defendant replied, “It don’t matter.” Martin v. State, 240 So.3d 1047, 2017 Miss. LEXIS 424 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 2592, 201 L. Ed. 2d 307, 2018 U.S. LEXIS 3234 (U.S. 2018).

Defendant’s vehicle was stopped lawfully and an officer had probable cause to conduct a walk-around inspection of the vehicle because police were “looking for a vehicle as a murder weapon,” witnesses identified the victim as being with defendant, police arrested defendant on an outstanding warrant, and an officer noticed something hanging from the vehicle that was later determined to be the victim’s skin. Galloway v. State, 122 So.3d 614, 2013 Miss. LEXIS 328 (Miss. 2013), cert. denied, 572 U.S. 1134, 134 S. Ct. 2661, 189 L. Ed. 2d 209, 2014 U.S. LEXIS 3685 (U.S. 2014).

Traffic stop was reasonable where an officer determined via his radar that defendant’s speed was 69 miles per hour in a 55 mile per hour zone, and testified that he estimated the speed by following defendant; even if the officer was operating his radar incorrectly, his testimony established a reasonable belief that speeding, a traffic violation, had occurred. Freeman v. State, 121 So.3d 888, 2013 Miss. LEXIS 312 (Miss. 2013).

Defendant’s convictions for possession of cocaine with the intent to distribute and possession of cocaine were appropriate because, notwithstanding that defendant consented to the search of his vehicle, the use of narcotics-detection dogs during a stop based on probable cause was not in violation of the Fourth Amendment. Jaramillo v. State, 950 So. 2d 1104, 2007 Miss. App. LEXIS 129 (Miss. Ct. App. 2007).

Search of a vehicle was a valid inventory search where defendant was legally arrested, there was no one available to remove defendant’s vehicle from the roadside, and under such circumstances, the standard procedure was to call a wrecker to impound the vehicle and conduct an inventory search. Garrison v. State, 918 So. 2d 846, 2005 Miss. App. LEXIS 696 (Miss. Ct. App. 2005).

During a traffic stop, defendant was arrested for driving without a license, no taillights, and possession of beer by a minor; his car was searched by police. The circuit court correctly admitted evidence of marijuana found in the vehicle, because the search fit squarely into the automobile exception. Jim v. State, 911 So. 2d 658, 2005 Miss. App. LEXIS 665 (Miss. Ct. App. 2005).

Search of defendant’s vehicle fell squarely within the Fourth Amendment’s automobile exception. The facts, including finding defendant in the same type of vehicle as had just been observed in conjunction with a burglary, justified issuance of a warrant to search the vehicle, the car was readily mobile, and probable cause existed to believe it contained contraband. Roche v. State, 913 So. 2d 306, 2005 Miss. LEXIS 257 (Miss. 2005).

Officer made a valid traffic stop, smelled alcohol on defendant’s breath, and saw an open container of alcohol in his truck in plain view; he properly seized this evidence without a warrant, and as he had probable cause to search the truck for alcohol, the cocaine he found in the process of conducting that legitimate search was properly seized. McKee v. State, 878 So. 2d 232, 2004 Miss. App. LEXIS 171 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 961 (Miss. 2004).

Roadblock set up by city police department was not conducted in violation of defendant’s rights arising under Miss. Const. Art. 3, § 23; in view of the striking similarities between the Fourth Amendment and Miss. Const. Art. 3, § 23, and the lack of a history of differentiation between the two by the Mississippi Supreme Court, there was no tenable basis to accept defendant’s contention that the roadblock was unconstitutional. Sasser v. City of Richland, 850 So. 2d 206, 2003 Miss. App. LEXIS 627 (Miss. Ct. App. 2003), overruled in part, Jones v. City of Ridgeland, 48 So.3d 530, 2010 Miss. LEXIS 604 (Miss. 2010).

In a case of possession of precursor drugs with knowledge that the drugs would be used to manufacture a controlled substance, after a drug store clerk informed the police that two suspects had purchased large amounts of ephedrine/pseudoephedrine contained in over-the-counter cold medications and described their car, a be-on-the-lookout announcement was made and the officer’s investigatory stop of the driver’s car, in which defendant was a passenger, was entirely proper and the driver’s consent to search of the car relieved the officer of any need for a search warrant; thus, the admission of the evidence of the pills found was proper and did not violate defendant’s federal or state constitutional rights under U.S. Const. Amend. IV and Miss. Const. Art. 3, § 23. Burchfield v. State, 2003 Miss. App. LEXIS 660 (Miss. Ct. App. July 22, 2003), op. withdrawn, sub. op., 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App. 2004).

The random selection of certain trucks for a walk-around inspection once they have already been stopped for weighing is constitutional. Edwards v. State, 795 So. 2d 554, 2001 Miss. App. LEXIS 241 (Miss. Ct. App. 2001).

A police officer’s practice of conducting a search whenever a driver leaves his or her vehicle during a routine traffic stop was in direct conflict with the constitutional requirement that automobile searches be conducted only when there are particular objective factors warranting the intrusion. United States v. Hunt, 253 F.3d 227, 2001 U.S. App. LEXIS 11367 (5th Cir. Miss. 2001).

Neither the initial stop of the defendant’s vehicle nor the scope of the search of the vehicle was improper where (1) two separate officers testified that the defendant was driving in excess of the posted speed limit and that they had observed him swerve off the side of the road, and (2) the officers conducted an inventory search of the vehicle after arresting the defendant on an outstanding warrant and impounding the vehicle because there was no one readily available to remove the vehicle from the roadside. Ray v. State, 798 So. 2d 579, 2001 Miss. App. LEXIS 196 (Miss. Ct. App. 2001).

The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549, 2001 U.S. LEXIS 3366 (U.S. 2001).

The prohibition of random stops of motorists does not apply to roadside truck weigh-stations and inspection checkpoints and, therefore, it was not improper for police officers to pull the defendant’s truck over at a weigh-station and ask him to come into the scale-operating office. Edwards v. State, 2001 Miss. App. LEXIS 72 (Miss. Ct. App. Feb. 20, 2001), sub. op., 795 So. 2d 554, 2001 Miss. App. LEXIS 241 (Miss. Ct. App. 2001).

The trial court did not err in not suppressing evidence seized from the defendant’s car without a warrant pursuant to the automobile exception where (1) the defendant arrived at a hospital emergency room with a coperpetrator, who had been shot, removed the coperpetrator from his car and attempted to leave, (2) the defendant’s car, however, stalled and an officer detained the defendant and transported him to the emergency room, (3) the officer returned to the defendant’s vehicle where he noticed that the trunk was partially open and in which he saw bloody money, (4) the officer then looked into the passenger compartment and observed the handle of a firearm protruding from under the driver’s seat, and (5) the officer then, without first obtaining a warrant, removed the gun from the car. Moore v. State, 2000 Miss. LEXIS 264 (Miss. Dec. 21, 2000), op. withdrawn, sub. op., 787 So. 2d 1282, 2001 Miss. LEXIS 164 (Miss. 2001).

After a traffic stop, a search of the trunk of the automobile driven by the defendant was proper, notwithstanding that the defendant refused to consent to such a search, where a police dog alerted to the trunk. Millsap v. State, 767 So. 2d 286, 2000 Miss. App. LEXIS 419 (Miss. Ct. App. 2000), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1471 (Miss. 2004).

A warrantless search of a vehicle driven by the defendant was reasonable where (1) the defendant was stopped for following a vehicle too closely and changing lanes without signaling, (2) the rental agreement for the vehicle showed that the defendant was not an authorized driver and that the vehicle was overdue for return, and (3) there was a strong, overpowering odor of unburned marijuana. Blissett v. State, 754 So. 2d 1242, 2000 Miss. LEXIS 10 (Miss. 2000).

Police officer who stopped the defendant lacked probable cause or even reasonable suspicion to do so; therefore, the trial court erred in denying the defendant’s motion to suppress all evidence found inside his vehicle where the officer testified that he knew that the defendant’s driver’s license had been suspended, but it was not clear how fresh such information was. Boyd v. State, 758 So. 2d 1032, 2000 Miss. App. LEXIS 71 (Miss. Ct. App. 2000).

Search of passenger compartment of defendant’s car and of bag found therein was valid as justified by search incident to arrest and probable cause; officer had pulled defendant over for running traffic light, defendant was placed under lawful arrest for three failures to appear for traffic violations and was seated in patrol car, defendant’s request for his money bag sent officer back to vehicle, officer then smelled marijuana, giving him probable cause to search further for source of smell, and search for money bag in passenger compartment, in which defendant had been only passenger, followed immediately after arrest. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

Both probable cause and exigency prong of automobile exception to warrant requirement were satisfied, despite defendant’s claim that narcotics agents should have gotten search warrant in the several hours that passed between informant’s giving defendant informant’s car and defendant’s arrest; in recorded conversations, defendant had agreed to go out-of-state and get cocaine for informant, who had allegedly made similar transactions with defendant in past, and at time vehicle was stopped, nearness of state line and ease with which defendant could have fled agents’ jurisdiction made getting search warrant impracticable. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

For purposes of exigency prong of automobile exception to warrant requirement, exceptional circumstances excusing issuance of warrant are: when vehicle searched is in motion; when officers have probable cause to believe vehicle contains contraband subject to search; and when it is impracticable to secure warrant because vehicle can and may be removed from jurisdiction. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

Pursuant to automobile exception to warrant requirement, evidence seized without warrant from automobile is admissible if there is probable cause and exigency. Sanders v. State, 678 So. 2d 663, 1996 Miss. LEXIS 300 (Miss. 1996).

A warrantless search of an automobile was proper, even though the vehicle had been immobilized, since the “automobile exception” to the warrant requirement “does not vanish once the car has been immobilized.” Additionally, the search was valid because the contraband had been observed in plain view inside the vehicle. The search was also lawful because it was made in connection with the inventory of an impounded vehicle, where the vehicle was in the lawful custody of the police, a police officer had information that the vehicle had been used in a shoplifting, and a search of the driver bore no fruit. Franklin v. State, 587 So. 2d 905, 1991 Miss. LEXIS 710 (Miss. 1991).

At trial of a defendant charged with possession, with intent to distribute, of more than one kilogram of marijuana, evidence obtained by a warrantless search of the trunk of an automobile which had been stopped for speeding did not require suppression where state troopers, upon approaching stopped automobile, had observed marijuana seeds and parts and had detected odor of marijuana emanating from, passenger compartment. Fleming v. State, 502 So. 2d 327, 1987 Miss. LEXIS 2336 (Miss. 1987).

Owner of automobile in which marijuana is found during warrantless search cannot argue that driver has no authority to consent to search where driver has lawful possession of car, having been given keys by owner, who requested that driver drive car and who has not asked that keys be returned. Shaw v. State, 476 So. 2d 22, 1985 Miss. LEXIS 2255 (Miss. 1985).

A passenger in an automobile had no standing to challenge the constitutionality of a search of the vehicle which uncovered a revolver found in a box in the rear compartment. Ware v. State, 410 So. 2d 1330, 1982 Miss. LEXIS 1890 (Miss. 1982).

In a prosecution for possession of marijuana with intent to deliver, the trial court erred in admitting, over defendant’s objection, evidence of the contents of a vacuum cleaner bag containing .2 of a gram of marijuana gleaned from a warrantless search of defendant’s automobile where the search was conducted while defendant was in jail and after the automobile had been seized by the officers and lodged in a public garage; since there was ample time to obtain a warrant and no probability that the automobile would be removed beyond the reach of police the rule permitting warrantless searches of vehicles was inapplicable. Fields v. State, 382 So. 2d 1098, 1980 Miss. LEXIS 1988 (Miss. 1980).

Where an automobile was itself an integral part of the evidence of a robbery committed and was seized in order to preserve it as evidence, search of the automobile without a warrant at Highway Patrol headquarters was reasonable, although not made at the scene of the arrest. Gordon v. State, 222 So. 2d 141, 1969 Miss. LEXIS 1522 (Miss. 1969).

41. –Luggage, search without warrant.

Defendant’s rights were not violated by search of luggage at airport, where he had made a trip to a marijuana “source city,” had purchased a one-way ticket, had made a long distance trip with short turn-around, had checked a suitcase that was not full, had been accompanied by persons who issued fictitious names, and had claimed luggage which a drug detecting dog had indicated contained narcotics. McCray v. State, 486 So. 2d 1247, 1986 Miss. LEXIS 2888 (Miss. 1986).

The search of defendant and his possessions at an airport violated both the Fourth Amendment to the US Constitution and Miss Const § 23, where there was no reasonable ground on which to arrest defendant, he was not under arrest at the time of the search, the federal agent conducting the search was not confronted with exigent circumstances, the defendant was not informed he had a right to refuse the search, and the search was the result of a detention and custodial interrogation of defendant in a police office during which he was not informed of his rights, and this violation tainted the search. Penick v. State, 440 So. 2d 547, 1983 Miss. LEXIS 2933 (Miss. 1983), limited, Bryant v. State, 748 So. 2d 780, 1999 Miss. App. LEXIS 232 (Miss. Ct. App. 1999).

42. –Drugs, search without warrant.

The use of an undercover narcotics agent to enter the premises and purchase cocaine without a search warrant did not violate the defendant’s Fourth Amendment rights. Bradley v. State, 562 So. 2d 1276, 1990 Miss. LEXIS 267 (Miss. 1990).

43. –Observation by police officer, search without warrant.

Court correctly concluded that defendant’s detention was legal and did not exceed what was necessary where an officer testified that although he initially stopped defendant for speeding, his observance of defendant led him to suspect that defendant had been driving under the influence of a drug. Prior to the pat down search, the officer had not completed his activities incident to the traffic stop nor allayed his reasonable suspicion that defendant had been driving under the influence of a drug. Tate v. State, 946 So. 2d 376, 2006 Miss. App. LEXIS 246 (Miss. Ct. App. 2006), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 66 (Miss. 2007).

A defendant’s arrest for driving while intoxicated was legal, and therefore the subsequent intoxilyzer test was not tainted, even though the arresting officer did not observe the defendant driving, where the defendant admitted to the arresting officer that he had been driving an automobile which was involved in an accident, and the defendant was publicly intoxicated in the presence of the officer and others in violation of §97-29-47. Goforth v. Ridgeland, 603 So. 2d 323, 1992 Miss. LEXIS 348 (Miss. 1992).

A police officer who observed a crime in progress had probable cause to arrest the defendant, and was therefore justified in searching the defendant incident to a lawful arrest, even though the defendant was not actually arrested until after the search was completed. Ellis v. State, 573 So. 2d 724, 1990 Miss. LEXIS 797 (Miss. 1990).

A police officer made a permissible Terry stop and pat-down search of a defendant where the defendant was seen by the officer running across a road at 1:30 a.m. in a commercial area which had been the scene of previous burglaries. Nathan v. State, 552 So. 2d 99, 1989 Miss. LEXIS 470 (Miss. 1989).

The trial court erred in refusing to suppress marijuana plants seized under a void search warrant, notwithstanding the fact that the arresting officers had previously observed what appeared to be growing marijuana plants from a tract of land adjacent to defendant’s land and could then have arrested defendants for committing a felony in their presence, where no such arrest occurred prior to execution of the void warrant; contraband in “plain view” may be seized without a warrant (1) incident to a lawful arrest, or (2) incident to “hot pursuit” of a fleeing suspect, or (3) incident to a search of a stopped vehicle on probable cause or because of the mobility of the vehicle, or (4) where officers have a valid search warrant to search a given area for specific objects and in the course of the search come across contraband; the “plain view” doctrine does not eliminate the requirement that seizure of contraband discovered while in “plain view” must comply with constitutional requirements and in the absence of “exigent circumstances” must be based on a valid warrant. Isaacks v. State, 350 So. 2d 1340, 1977 Miss. LEXIS 2246 (Miss. 1977).

Where officers had sufficient facts to justify their action in stopping an automobile for investigative purposes, the arrest of the driver after the officers observed a gun in the automobile was lawful, and the evidence discovered in the subsequent search of the automobile was admissible. Singletary v. State, 318 So. 2d 873, 1975 Miss. LEXIS 1458 (Miss. 1975).

It was neither a trespass nor an unlawful search, nor was it illegal for a deputy sheriff to look into a station wagon recently occupied by three persons subsequently charged with burglary, and through the windows of the vehicle to observe and consider marks and other indicia that tended to establish that the vehicle had been used for the transportation of property allegedly stolen. Wilson v. State, 186 So. 2d 208, 1966 Miss. LEXIS 1296 (Miss. 1966).

44. – “Reasonable suspicion” under “Terry” rule.

Anonymous tip, alone, did not possess sufficient indicia of reliability to provide Mississippi Bureau of Narcotic agents with reasonable suspicion to stop a group or its individual members because they were merely acting upon information provided through an anonymous tip; however, the agents personally observed ‘‘suspicious’’ behavior as soon as they arrived on the scene, thereby establishing an independent ground for reasonable suspicion. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Investigative stop of defendant’s vehicle violated the Fourth Amendment and Miss. Const. art. 3, § 23, where an anonymous caller reported a person driving erratically and flashing what appeared to be some type of badge at other drivers, but the officers took no action to corroborate the reported criminal activity prior to stopping defendant, and thus, the tip lacked the indicia of reliability necessary to justify an investigative stop. Cook v. State, 159 So.3d 534, 2015 Miss. LEXIS 130 (Miss. 2015).

Officer had reasonable suspicion to stop defendant where defendant was in the immediate vicinity of the crime scene soon after the robbery, he partially matched the description of one of the robbers, he appeared nervous, and he stopped when he saw the officer. Gales v. State, 153 So.3d 632, 2014 Miss. LEXIS 501 (Miss. 2014).

It was error for a trial court to deny a defendant’s motion to suppress an investigatory stop of the vehicle defendant drove because it was clear error to find that officers who stopped the vehicle were allowed to rely on arrest warrants for another person who, an informant told officers, would be driving a similar vehicle, as the officers’ observations and the informant’s information gave the officers no reasonable suspicion since the officers acted, without independent investigation, on the caller’s vague description of the car. Eaddy v. State, 63 So.3d 1209, 2011 Miss. LEXIS 315 (Miss. 2011).

It was error for a trial court to deny a defendant’s motion to suppress an investigatory stop of the vehicle defendant drove because it was clear error to find that officers who stopped the vehicle were allowed to rely on arrest warrants for another person who, an informant told officers, would be driving a similar vehicle, as (1) the subject of the warrants was not present, and (2) nothing showed the officers knew the description of the arrest warrants’ subject’s car, so, absent further independent investigation, the officers could only stop defendant to clarify defendant’s identity, but the stop exceeded this permissible scope. Eaddy v. State, 63 So.3d 1209, 2011 Miss. LEXIS 315 (Miss. 2011).

Motion to suppress evidence was properly denied in a drug case because a Terry stop did not violate U.S. Const. Amend. IV or Miss. Const. Art. III, § 23, where an officer had a reasonable suspicion that a vehicle had no tag in violation of Miss. Code Ann. §27-19-323 and Miss. Code Ann. §27-19-40, since the officer could not see a “special in-transit tag” on a tinted window. Gonzales v. State, 963 So. 2d 1138, 2007 Miss. LEXIS 496 (Miss. 2007).

Officers had reasonable suspicion to stop defendant’s vehicle because they received information from an informant that she had been purchasing marijuana from an individual she knew as “Trouble,” further investigation revealed that “Trouble” was defendant, the officers asked the informant to arrange to buy marijuana from defendant, and as defendant’s vehicle, which matched exactly the description of “Trouble’s” car given by the informant, approached the abandoned bridge, it was stopped by an officer who recognized defendant and knew that he was on probation for a prior conviction. Carlisle v. State, 936 So. 2d 415, 2006 Miss. App. LEXIS 481 (Miss. Ct. App. 2006).

Officer stopped defendant for failure to have a tag light, smelled alcohol, and then asked defendant to get in his squad car where he gave her a breath test, which she passed. Nevertheless, he kept her in his patrol car for 20 minutes until she consented to a search of her car, and the officer then conducted a pat-down search, sticking his hands in her pockets; the officer testified that defendant was nervous, that he was fearful, and that he had no cage for defendant in his patrol car, and the Mississippi Court of Appeals held the trial court erred in concluding the officer did not have a reasonable suspicion of criminal activity, or a reasonable fear for his safety, to have allowed for the pat-down search which revealed cocaine. State v. White, 918 So. 2d 763, 2005 Miss. App. LEXIS 336 (Miss. Ct. App. 2005).

Where city officer investigated defendant’s parked vehicle outside the city limits, no crime was committed in the officer’s presence or jurisdiction, and even if the officer had been authorized to do a pat-down search for weapons under Terry v. Ohio, the officer’s identification of a small “knot like nudge” was unreasonable. The continued exploration of defendant’s pockets after determining that no weapon was present amounted to the sort of evidentiary search that Terry expressly refused to authorize, and therefore, the trial court erred in failing to suppress the methamphetamine found as a result of the officer’s unlawful search. McFarlin v. State, 883 So. 2d 594, 2004 Miss. App. LEXIS 509 (Miss. Ct. App. 2004).

45. – Probable cause, search without warrant.

Because the pursuit, seizure, and ultimate arrest of defendant were legal, it necessarily followed that the additional marijuana found on his person was lawfully obtained; therefore, it was not fruit of the poisonous tree. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Officer had probable cause to arrest defendant because he appeared nervous, was wearing light clothing on a cold night, he voluntarily showed the officer wads of money, and he matched dispatch’s description of the armed robbery suspect. Gales v. State, 153 So.3d 632, 2014 Miss. LEXIS 501 (Miss. 2014).

Search of defendant’s automobile was not illegal as the car was lawfully stopped for speeding and once he smelled marijuana, the trooper had probable cause to search the vehicle; the trooper’s legal search of the vehicle yielded the money and the Carpet Fresh spray can. Cowan v. Miss. Bureau of Narcotics, 2 So.3d 759, 2009 Miss. App. LEXIS 61 (Miss. Ct. App. 2009).

Officer had probable cause to initiate a traffic stop of defendant’s vehicle because defendant was stopped after law enforcement officials received credible information that he had purchased some precursor chemicals to manufacture a controlled substance, methamphetamine, at two different stores within a short span of time. Watts v. State, 936 So. 2d 377, 2006 Miss. App. LEXIS 111 (Miss. Ct. App.), cert. denied, 936 So. 2d 367, 2006 Miss. LEXIS 452 (Miss. 2006).

Denial of defendant’s motion to suppress 864 unit dosages of ephedrine was affirmed; police had reasonable suspicion for stopping the car in which defendant was riding as the car matched the description given by store employees after two men bought large quantities of cold medicine containing ephedrine, and the driver of the car consented to a search of the car. Burchfield v. State, 892 So. 2d 248, 2004 Miss. App. LEXIS 538 (Miss. Ct. App.), aff'd, 892 So. 2d 191, 2004 Miss. LEXIS 1346 (Miss. 2004).

Officer’s decision to investigate defendant’s reason for being parked alongside a highway was reasonable because of numerous complaints that defendant sold drugs from a parked car; moreover, drugs found inside the car were admissible because they were located when the officer was looking for a weapon. Hill v. State, 865 So. 2d 371, 2003 Miss. App. LEXIS 983 (Miss. Ct. App. 2003).

Given the fact that the defendant had committed several traffic violations, including possibly driving under the influence of alcohol and without a driver’s license, a police officer had probable cause to arrest, therefore making the “Terry search” of the defendant not only reasonable, but common procedure. Ficklin v. State, 767 So. 2d 1035, 2000 Miss. App. LEXIS 434 (Miss. Ct. App. 2000).

A police officer lawfully stopped the defendant’s motor vehicle on the basis of a tip that it was being operated in a reckless manner, notwithstanding that reckless driving is a misdemeanor and that the officer did not personally observe the vehicle being driven in a reckless manner. Floyd v. City of Crystal Springs, 749 So. 2d 110, 1999 Miss. LEXIS 362 (Miss. 1999).

Probable cause existed for the search of the defendant and the seizure of a pistol from him where (1) the city parks and recreation director observed the defendant giving chase to his girlfriend and heard someone exclaim that the defendant had a gun, (2) the city parks and recreation director then relayed this information to an officer, who proceeded to investigate, and (3) the officer viewed the defendant standing over his girlfriend in an offensive, threatening position and making a stuffing motion into the front of his pants. Bradford v. State, 743 So. 2d 421, 1999 Miss. App. LEXIS 303 (Miss. Ct. App. 1999).

Probable cause existed to search the defendant and to seize cocaine found on his person where (1) an officer stopped to ask occupants of a van if they needed assistance and, as he approached the defendant/driver, he smelled a strong odor of alcohol, (2) the officer asked the defendant to step out of the vehicle, a patdown was conducted and no weapons were found, (3) the officer then walked up to the passenger side of the van and engaged the passenger in conversation, (4) while talking to the passenger, the officer noticed a syringe lying on the floor of the van directly in front of the passenger, (5) the officer questioned the passenger about the syringe, and the passenger denied any knowledge about the syringe, and (6) the officer then asked the defendant to empty his pockets, and cocaine was found; the defendant was effectively or constructively arrested at that point he was told to empty his pockets and, therefore, the cocaine was obtained from a lawful arrest based on probable cause. Chaney v. State, 749 So. 2d 1078, 1999 Miss. App. LEXIS 304 (Miss. Ct. App. 1999).

There was probable cause for the search of the defendant where the reason a deputy stopped the defendant’s car was the fact that the defendant and his car matched the description given over the radio of a man who had just stolen a purse in a store parking lot. Pickens v. State, 1998 Miss. App. LEXIS 919 (Miss. Ct. App. Oct. 27, 1998).

Police officers had sufficient probable cause to conduct a warrantless search of an abandoned red and white automobile where (1) the officers had just received information that such a car was believed to have been involved in a robbery and murder, and one officer had also received information that two black males in a red and white car “had picked up a young lady and was trying to mess with her,” (2) that officer, who had earlier stopped the defendant brothers, stated that they were acting suspiciously, (3) when one officer drove past the defendant, as they were walking away from the red and white car, they ran away, and (4) when that officer shined his flashlight in the car, he saw the sawed-off shotgun in plain view on the back floorboard. Smith v. State, 729 So. 2d 1191, 1998 Miss. LEXIS 590 (Miss. 1998), cert. denied, 527 U.S. 1043, 119 S. Ct. 2410, 144 L. Ed. 2d 808, 1999 U.S. LEXIS 4551 (U.S. 1999).

Police radio broadcast describing rape suspect, which led officer to look for defendant, established probable cause for arrest and reasonable suspicion justifying stop of defendant’s vehicle, and validating defendant’s subsequent consent to search of vehicle, rendering rifle and flashlight recovered during vehicle search admissible. Ellis v. State, 667 So. 2d 599, 1995 Miss. LEXIS 596 (Miss. 1995).

Task of court reviewing whether search warrant was issued upon probable cause is to insure that issuing magistrate had substantial basis for concluding that probable cause existed for issuance of search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Information necessary to establish probable cause must be information reasonably leading officer to believe that, then and there, contraband or evidence material to criminal investigation would be found. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

In determining question of probable cause for issuance of warrant, oral testimony is admissible before officer who is required to issue search warrant. Petti v. State, 666 So. 2d 754, 1995 Miss. LEXIS 587 (Miss. 1995).

Substantial evidence existed to support a finding that probable cause existed for a warrantless search of a defendant’s automobile where there was probable cause to obtain a warrant to search the defendant’s home, and evidence found in the home provided probable cause to believe that a murder may have been committed in the home and that the victim’s body may have been placed in the automobile for transportation. Spivey v. Mowdy, 617 So. 2d 999, 1992 Miss. LEXIS 688 (Miss. 1992).

Fourth Amendment rights of students who were arrested in nearby store were violated where firemen who detained them, after having been requested to do so by police who were responding to report of fight on or near school grounds, where firemen had not seen students leave scene and did not indicate who advised them that students had been seen at the fight; facts did not establish probable cause to pick up students. C-1 v. Horn Lake, 775 F. Supp. 940 (N.D. Miss. 1990).

Arrest without probable cause violates rights clearly established under Fourth Amendment and officer who makes such arrest is not entitled, solely as matter of law, to qualified immunity in suit brought under 42 USCS § 1983. White v. Taylor, 677 F. Supp. 882, 1988 U.S. Dist. LEXIS 808 (S.D. Miss. 1988), aff'd, 877 F.2d 971, 1989 U.S. App. LEXIS 8743 (5th Cir. Miss. 1989).

Probable cause existed for law enforcement officers to stop and search an automobile for contraband where 2 strange individuals drove to one particular area of a small town airport to which vehicles did not usually travel, an occupant got out of the automobile, walked directly to a place in the grass, picked up 2 garbage bags and put them into the trunk, the auto immediately sped off, and the individuals were observed by a reliable person with some experience in law enforcement who reported the entire activity to the sheriff. Rooks v. State, 529 So. 2d 546, 1988 Miss. LEXIS 232 (Miss. 1988).

Arrest of defendant at his home without arrest warrant was proper because it was supported by probable cause, where defendant was arrested for house burglary upon seizure from his room of 2 guns, serial numbers of which matched 2 weapons reported stolen from nearby homes, and officers had gone into his home pursuant to valid search warrant. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Showing that suspect departed bar with murder victim shortly prior to time of victim’s death and returned to bar shortly thereafter in disheveled condition and in hurry to get friends to leave is sufficient to establish probable cause for search of suspect’s home. Hester v. State, 463 So. 2d 1087, 1985 Miss. LEXIS 1896 (Miss. 1985).

Where police officers knew that two banks had been robbed by a group of three men and two women, that such a group was staying at a local motel, that two of the men at the motel fit the description of the bank robbers, and that the group at the motel was reported to be counting money, the officers were entitled to stop the automobile in which two members of the group at the motel were riding for investigative purposes, even though they did not have the level of information necessary for probable cause to arrest. Singletary v. State, 318 So. 2d 873, 1975 Miss. LEXIS 1458 (Miss. 1975).

Where defendant’s actions and demeanor in the presence of the arresting officer were indicative of drunkenness in a public place, a misdemeanor, probable cause existed for his arrest, and there was no constitutional impediment to the introduction of testimony relative to the arrest and subsequent events even though the officer’s ticket indicated the arrest was for driving under the influence. Ewing v. State, 300 So. 2d 916, 1974 Miss. LEXIS 1649 (Miss. 1974).

46. –Abandonment of property, search without warrant.

Defendant’s own acts disclosed the cigarette pack and its contents, so there was no seizure in the sense of the law when the officers examined the contents after it had been abandoned; defendant had not been seized or arrested when he threw the cigarette pack out of his driver’s side window, so there was no Fourth Amendment violation. Ray v. State, 238 So.3d 1118, 2018 Miss. LEXIS 22 (Miss. 2018).

Circuit court did not err in admitting into evidence a firearm and marijuana found in the street because defendant surrendered his Fourth Amendment protections as to those items when he abandoned them; defendant was not considered arrested under the Fourth Amendment until he was captured by the chasing Mississippi Bureau of Narcotic agents and placed into custody because he was in no way restrained during his flight, and thus, no arrest occurred within the confines of the Fourth Amendment. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Mississippi Bureau of Narcotic agents’ decision to conduct a Terry frisk of defendant’s person was justified, and thus, defendant’s subsequent, unprovoked flight from his lawful, temporary detention provided the agents with further reasonable suspicion to pursue him, and ultimately, the probable cause necessary to effectuate an arrest. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Because defendant voluntarily surrendered the cocaine, the circuit court did not err in ruling that it was admissible; when a suspect voluntarily discards contraband prior to arrest, the State may collect the contraband as evidence without offending the search and seizure protections of the Fourth Amendment. Sweet v. State, 910 So. 2d 735, 2005 Miss. App. LEXIS 211 (Miss. Ct. App. 2005).

Package of cocaine that a defendant threw away as he fled from a police officer who was conducting a pat-down search of defendant after stopping defendant for speeding was admissible at trial since the officer was entitled to conduct the pat-down search for his safety because of defendant’s behavior and defendant had abandoned the property. Bessent v. State, 808 So. 2d 979, 2001 Miss. App. LEXIS 358 (Miss. Ct. App. 2001), cert. denied, 537 U.S. 872, 123 S. Ct. 281, 154 L. Ed. 2d 121, 2002 U.S. LEXIS 5938 (U.S. 2002).

In a prosecution for possession of a controlled substance, cocaine which had been discarded by the defendant was not the fruit of an illegal search and seizure, and was therefore properly admitted into evidence, since the defendant was not “seized or arrested” when he discarded the drugs where the defendant did not stop when police officers ordered him to do so for the purpose of checking his identification, and he threw down the cocaine while he was walking away from the officers; the defendant was not restrained or stopped at the time he discarded the cocaine, and therefore the cocaine was abandoned and not the fruit of an unlawful seizure or arrest. Harper v. State, 635 So. 2d 864, 1994 Miss. LEXIS 201 (Miss. 1994), limited, Flowers v. State, 947 So. 2d 910, 2007 Miss. LEXIS 24 (Miss. 2007).

In a burglary prosecution, where a police officer testified that he observed the defendant throw or drop three bottles at his feet, even if the officer lacked probable cause at the time to arrest the defendant or to search him, once the bottles were abandoned by the defendant, their possession by the officers did not stem from a search, and the defendant was in no position to protest the possession on the basis of constitutional provisions as to searches. Branning v. State, 222 So. 2d 667, 1969 Miss. LEXIS 1539 (Miss. 1969).

47. – Admissibility of evidence, search without warrant.

In a case in which defendant appealed his conviction and sentence for felony driving under the influence (DUI) as a habitual offender pursuant to Miss. Code Ann. §99-19-81, he argued unsuccessfully that the trial court erred in failing to grant his pretrial motion to suppress evidence because: (1) the police chief had no authority to stop or arrest him, (2) he never committed any offense in the chief’s jurisdiction, (3) his arrest occurred when the pursuit to make the arrest began, and (4) he had not committed any felony at that time. When the police chief began his pursuit, it was not a pursuit for the purpose of making an arrest, rather, it was a pursuit to give a courtesy warning; at the time defendant was arrested at his home, he had committed the crime of felony DUI, as well as the crime of driving with a suspended license. Delker v. State, 50 So.3d 309, 2009 Miss. App. LEXIS 597 (Miss. Ct. App. 2009), aff'd, 50 So.3d 300, 2010 Miss. LEXIS 529 (Miss. 2010).

Police officer lawfully and properly stopped a vehicle with an expired tag; when defendant, the driver, consented to a search of his vehicle and where the police officer and defendant talked while waiting for another officer to appear so that the search could be conducted by two officers as required by state law, where defendant indicated that he had recently “lost” his girlfriend and his demeanor changed significantly, where the officer contacted dispatch to inquire whether the girlfriend had been injured and if authorities in southern Mississippi were searching for defendant, and where the officer learned that defendant was a person of interest in the girlfriend’s murder and placed defendant under arrest, the trial court did not err in denying defendant’s motion to suppress evidence obtained as a result of the stop because the stop was proper, the length of the detention was reasonable, and the consent to search was valid. Goff v. State, 14 So.3d 625, 2009 Miss. LEXIS 273 (Miss. 2009), cert. denied, 559 U.S. 944, 130 S. Ct. 1513, 176 L. Ed. 2d 122, 2010 U.S. LEXIS 1251 (U.S. 2010).

Though a “telephonic search warrant” was not recognized in Mississippi, under the Leon good faith exception to warrantless searches, police officers’ good faith belief that a telephonic warrant was valid justified admission of drugs found in a search of a defendant’s apartment. White v. State, 842 So. 2d 565, 2003 Miss. LEXIS 166 (Miss. 2003).

When police are properly authorized to enter a dwelling under the exigent circumstances doctrine, they are also authorized to return and take physical evidence that was in plain view during the initial search, which they could have seized at the time but for the emergency situation that allowed them to enter the dwelling in the first place.á Baker v. State, 802 So. 2d 77, 2001 Miss. LEXIS 318 (Miss. 2001).

Both out-of-court and in-court identification of defendant were properly admitted into evidence, despite defendant’s claim that but for his illegal arrest, neither identification would have occurred, where, after his illegal arrest on date of lineup, defendant had been served with, and arrested on, outstanding aggravated assault warrant, dated 2 months earlier. White v. State, 507 So. 2d 98, 1987 Miss. LEXIS 2501 (Miss. 1987).

Where hearsay evidence, received from a computer, that an automobile was stolen, was admitted without objection, the testimony was sufficient to prove that the car was stolen, rendering its search legal, and thus, defendant’s Fourth Amendment rights were not violated in a prosecution for possession of marijuana found in the stolen automobile. Burns v. State, 438 So. 2d 1347, 1983 Miss. LEXIS 2934 (Miss. 1983).

Although the stopping of a car, to “check out” the occupants and check the driver’s license, constitutes an illegal arrest in violation of the US Constitution Fourth Amendment, nevertheless the exclusionary rule does not bar evidence of a violent assault by a passenger in the car upon a police officer summoned to the aid of the arresting officer. Watkins v. State, 350 So. 2d 1384, 1977 Miss. LEXIS 2254 (Miss. 1977).

An arrest by sheriff without a warrant of a person who has committed no crime in his presence is illegal, and a search of the person is likewise illegal and the evidence obtained thereby is inadmissible. Lynch v. Lynch, 198 Miss. 479, 23 So. 2d 401, 23 So. 2d 569, 1945 Miss. LEXIS 218 (Miss. 1945).

Arrest of defendant and the search of her person by a sheriff without a warrant was illegal, and consequently evidence that he found on her person a key which fitted the lock of the door to a room in which whisky was found was inadmissible in prosecution for unlawful possession of whisky, notwithstanding that the room was in a house owned by the defendant and for which the sheriff had a proper search warrant, where the defendant lived elsewhere. Lynch v. Lynch, 198 Miss. 479, 23 So. 2d 401, 23 So. 2d 569, 1945 Miss. LEXIS 218 (Miss. 1945).

48. Search incident to arrest.

Officer’s search of defendant’s pockets and money was a proper search incident to arrest where the officer arrested defendant 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 the officer stopped defendant at 10:08. Officers were still investigating the robbery, as evidenced by their presence at the scene. Gales v. State, 153 So.3d 632, 2014 Miss. LEXIS 501 (Miss. 2014).

Defendant’s convictions for capital murder during the commission of a robbery were proper because the denial of his motion to suppress his warrantless arrest and the seizures incident thereto was not clearly erroneous nor contrary to the substantial evidence before it. The trial judge was not required to make on-the-record findings of historical fact before ruling on a motion to suppress evidence; the Federal Rules of Criminal Procedure were not applicable in the case; and Kan. Stat. Ann. § 22-2401 specifically allowed for arrests based on probable cause. Gillett v. State, 56 So.3d 469, 2010 Miss. LEXIS 337 (Miss. 2010), cert. denied, 565 U.S. 1095, 132 S. Ct. 844, 181 L. Ed. 2d 552, 2011 U.S. LEXIS 8944 (U.S. 2011).

Search incident to arrest exception to the warrant requirement applied because the officers testified to seeing the black duffel bag and money from a robbery at the traffic stop in plain view in the vehicle. The officers recovered money and receipts from defendant, and when the officer arrived, he saw that defendant was wearing a tan shirt and white tennis shoes; the store’s employees had described the armed robber as wearing a tan shirt and white shoes. Johnson v. State, 999 So. 2d 360, 2008 Miss. LEXIS 576 (Miss. 2008).

Search and seizure of defendant’s truck and the cocaine contained therein were proper as incident to a lawful custodial arrest because defendant was lawfully arrested based on probable cause and the cocaine found inside his vehicle was clearly within the permissible scope of the search, i.e. a container located in the passenger compartment of the vehicle. Phinizee v. State, 983 So. 2d 322, 2007 Miss. App. LEXIS 631 (Miss. Ct. App. 2007).

The seizure of blood-stained jeans worn by the defendant did not require a search warrant and was permissible as an inventory search following the arrest of the defendant. Mitchell v. State, 792 So. 2d 192, 2001 Miss. LEXIS 76 (Miss. 2001), cert. denied, 535 U.S. 933, 122 S. Ct. 1308, 152 L. Ed. 2d 218, 2002 U.S. LEXIS 1623 (U.S. 2002).

There was no improper search where (1) an officer conducted a pat-down search of the defendant after a traffic stop, felt something in the defendant’s pocket that did not appear to be a weapon, and asked the defendant what the object was, (2) the defendant voluntarily told the officer that it was a marijuana cigarette, and (3) the officer then conducted a full search of the defendant and discovered crack cocaine; the discovery of the crack cocaine was not improper as the officer had probable cause to arrest the defendant after he volunteered that he possessed marijuana. Williams v. State, 763 So. 2d 202, 2000 Miss. App. LEXIS 236 (Miss. Ct. App. 2000).

When officer is making valid stop, and has not exceeded its parameters in dealing with defendant, any search pursuant to probable cause is valid; in determining whether probable cause existed for search, it must be information reasonably leading officer to believe that then and there contraband or evidence material to criminal investigation would be found. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

Search may be made when circumstances surrounding search incident to arrest indicate probable cause, and items may be seized as a result of cursory viewing (or smelling) of area. Townsend v. State, 681 So. 2d 497, 1996 Miss. LEXIS 414 (Miss. 1996).

In a prosecution for possession of crack cocaine, the search of an automobile was not valid as a search incident to an arrest for driving with a suspended license where the police officer searched the car after the defendant had been frisked, handcuffed and placed in the back seat of the officer’s patrol car, and therefore the officer could have had no reasonable fear that the defendant might have had a weapon or could have been in a position to destroy incriminating evidence from the crime which led to his arrest. Ferrell v. State, 649 So. 2d 831, 1995 Miss. LEXIS 31 (Miss. 1995).

There are “degrees” of detainments which fall short of an arrest which requires probable cause; detainments which would become an arrest depending on the outcome of a pending investigation are permissible, though police officers do not have unlimited authority, and may not be clothed with the authority to detain where they are not diligently investigating in such a way which will resolve the matter. Haddox v. State, 636 So. 2d 1229, 1994 Miss. LEXIS 182 (Miss. 1994).

It was permissible for a police officer to stop an automobile and detain the occupants until a warrant to search the car was obtained where the officer had “staked out” the highway based on phone calls from a confidential informant who had given him reliable information in the past, the officer was familiar with the occupants of the car and the informant had given him their names, and the car make, license plate, and ownership of the car were confirmed by the officer before he pulled the car over. Haddox v. State, 636 So. 2d 1229, 1994 Miss. LEXIS 182 (Miss. 1994).

The search of a defendant’s person incident to his arrest for carrying a concealed weapon was reasonable within the confines of the Fourth Amendment, even though the search took place after the defendant was taken to the county jail rather than at the time and place of the arrest; thus, the defendant’s attorney was not deficient in failing to move to suppress the evidence obtained as a result of this search on the ground that the search was illegal. Rankin v. State, 636 So. 2d 652, 1994 Miss. LEXIS 133 (Miss. 1994).

The search of a defendant’s jacket incident to his arrest for carrying a concealed weapon was reasonable within the meaning of the Fourth Amendment where the arresting officers saw the defendant take the jacket off and place it on a guard rail beside him, since the jacket was in the area within the defendant’s immediate control at the time of his arrest; thus, the defendant’s attorney was not deficient in failing to move to suppress the evidence obtained as a result of this search on the ground that the search was illegal. Rankin v. State, 636 So. 2d 652, 1994 Miss. LEXIS 133 (Miss. 1994).

In a prosecution for the sale of cocaine to an undercover police officer, the trial court did not err in admitting into evidence currency seized from the defendant when he was stopped at a traffic light since the officers had probable cause to arrest the defendant without a warrant where one of the officers had videotaped the defendant earlier the same day in a drug sale transaction with other undercover officers, and the stop of the defendant for running a red light was lawful and a subsequent consensual search produced evidence justifying an arrest. Curry v. State, 631 So. 2d 806, 1994 Miss. LEXIS 81 (Miss. 1994).

The warrantless seizure of a defendant’s tennis shoes did not violate his constitutional rights where the shoes were removed at the sheriff department’s request pursuant to a valid arrest which was based on probable cause, since law enforcement officials may seize personal effects and clothing from one who has been arrested. Shell v. State, 554 So. 2d 887, 1989 Miss. LEXIS 492 (Miss. 1989), rev'd, in part, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1, 1990 U.S. LEXIS 5501 (U.S. 1990).

In prosecution for possession with intent to distribute marijuana, marijuana introduced in evidence was admissible as seized incident to lawful arrest of defendant, even though arrest was made without warrant, where information from confidential informant and from previous anonymous telephone callers, as well as observation of defendant, gave officer probable cause to make arrest. Alexander v. State, 503 So. 2d 235, 1987 Miss. LEXIS 2359 (Miss. 1987).

In a prosecution for burglary items from a recent burglary which were seized from defendant’s trunk were properly admitted, where such evidence was obtained pursuant to an inventory search of defendant’s borrowed automobile shortly after his arrest for public drunkenness, where the search of the vehicle took place while the vehicle was still located at the scene of the accident, and where such search was conducted pursuant to routine police procedure. Robinson v. State, 418 So. 2d 749, 1982 Miss. LEXIS 1863 (Miss. 1982).

In a prosecution for possession of marijuana and phencyclidine, the trial court properly admitted into evidence the drugs found by a police officer in the console located between the driver and the passenger seats in the defendant’s car where the defendant and his passenger had been lawfully arrested for illegal possession of beer and drug paraphernalia when the police officer had removed them from the vehicle and conducted a search of the passenger compartment without a warrant. Horton v. State, 408 So. 2d 1197, 1982 Miss. LEXIS 1850 (Miss. 1982).

The temporary detention of a defendant for fingerprinting in the course of an investigation without his being booked, charged, or incarcerated did not constitute an arrest, and evidence derived therefrom was not inadmissible at the defendant’s trial on charges of burglary and assault and battery with intent to kill. Reeves v. Reeves, 210 So. 2d 780, 1968 Miss. LEXIS 1521 (Miss. 1968).

49. Review.

A search and seizure question was preserved for review by the Supreme Court, even though the defendant did not use the term “Fourth Amendment” or “Section 23” at the initial suppression hearing, where there was no doubt that the defendant was seeking protection of his right to be free from unreasonable searches and seizures as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article 3, § 23 of the Mississippi Constitution. Longstreet v. State, 592 So. 2d 16, 1991 Miss. LEXIS 840 (Miss. 1991).

50. Surveillance or use of informant’s tip.

Where defendant was charged with possession of “precursors” used in the illegal manufacture of controlled substances, having purchased or having attempted to purchase quantities of the subject common cold medication, the anonymous tip information given to the officer who conducted the investigatory stop included the color of the van, the number and race of occupants, the license plate number and the direction of travel, including the name of the street. All of those details were verified by officer prior to the investigatory questioning, and under the totality of the evidence standard, the investigatory stop based on the anonymous tip was lawful. Williamson v. State, 876 So. 2d 353, 2004 Miss. LEXIS 799 (Miss. 2004).

51. Confrontation of witnesses – In general.

52. – Hearsay evidence, confrontation of witnesses.

Under Miss. R. Evid. 803(d)(2)(E), any statements made between coconspirators in the furtherance of a conspiracy had the necessary guarantee of trustworthiness the court required to address the right to confrontation. Bush v. State, 895 So. 2d 836, 2005 Miss. LEXIS 93 (Miss. 2005).

53. Seizure – Temporary detention.

Personal observation by agents of an individual within a group of interest acting suspiciously, plus, upon further investigation, the discovery of marijuana on at least three of the individuals within the group, verified information received in an anonymous tip and justified the temporary detention of the remaining individuals in the group for purposes of investigating possible criminal behavior. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

54. - Lawful detention under “Terry” rule, temporary detention.

Scope of investigatory stop was not exceeded by Mississippi Bureau of Narcotic agents’ conduct because the agents discovered a firearm, and thus, they were justified in their decision to conduct a Terry frisk of defendant person in order to determine whether he possessed a weapon that could be used to assault the agents. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Mississippi Bureau of Narcotic agents’ decision to conduct a Terry frisk of defendant’s person was justified, and thus, defendant’s subsequent, unprovoked flight from his lawful, temporary detention provided the agents with further reasonable suspicion to pursue him, and ultimately, the probable cause necessary to effectuate an arrest. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Because defendant had been lawfully detained on grounds of reasonable suspicion, his flight provided Mississippi Bureau of Narcotic agents with justification to pursue him; whether defendant had been frisked prior to his flight, he was up to that point lawfully detained under Terry and temporarily not free to leave, but his unprovoked flight was a consummate act of evasion, designed to prevent his further detention and carried out by his desire to avoid jail. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

55. — Stop versus arrest, seizure.

Mississippi Bureau of Narcotic agents’ investigatory stop was lawful under Terry, both at its inception and in its scope, because the agents were entitled to conduct a carefully limited search of the outer clothing of defendant in an attempt to discover weapons that could be used to assault them; defendant was not under arrest because he was not physically placed under arrest and did not personally submit to any show of authority. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

56. Flight; attempt to evade police.

Circuit court did not err in admitting into evidence a firearm and marijuana found in the street because defendant surrendered his Fourth Amendment protections as to those items when he abandoned them; defendant was not considered arrested under the Fourth Amendment until he was captured by the chasing Mississippi Bureau of Narcotic agents and placed into custody because he was in no way restrained during his flight, and thus, no arrest occurred within the confines of the Fourth Amendment. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Because the pursuit, seizure, and ultimate arrest of defendant were legal, it necessarily followed that the additional marijuana found on his person was lawfully obtained; therefore, it was not fruit of the poisonous tree. Cole v. State, 242 So.3d 31, 2018 Miss. LEXIS 54 (Miss. 2018).

Cited in

Busick v. State, 906 So. 2d 846, 2005 Miss. App. LEXIS 57 (Miss. Ct. App. 2005).

Amendment V Grand jury indictment for capital crimes; double jeopardy; self-incrimination; due process of law; just compensation for property

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Cross References —

Constitutional right to be informed of nature and cause of accusation, generally, see Amendment VI.

Deprivation of due process by state, see Amendment XIV, § 1.

ATTORNEY GENERAL OPINIONS

Revocation of probation or parole because a person has been charged with another crime, whether or not he is subsequently convicted of the charged offense, does not constitute double jeopardy. 2001 Miss. Op. Att'y Gen. 175.

RESEARCH REFERENCES

ALR.

Privilege against self-incrimination as applicable to testimony that one has been compelled to give in another jurisdiction. 154 A.L.R. 994.

Damage to private property caused by negligence of governmental agents as “taking,” “damage,” or “use” for public purposes, in constitutional sense. 2 A.L.R.2d 607.

Restrictive covenants, conditions, or agreements, in respect of real property discriminating against persons on account of race, color, or religion. 3 A.L.R.2d 466.

Due process of law; provision forbidding making membership in labor organization a condition to employment. 6 A.L.R.2d 492.

Validity of statutory classifications based on population–jury selection statutes. 97 A.L.R.3d 434.

Double jeopardy as bar to retrial after grant of defendant’s motion for mistrial. 98 A.L.R.3d 997.

Propriety of requiring criminal defendant to exhibit self, or perform physical act, or participate in demonstration, during trial and in presence of jury. 3 A.L.R.4th 374.

Applicability of double jeopardy to juvenile court proceedings. 5 A.L.R.4th 234.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts–modern view. 6 A.L.R.4th 802.

Mental subnormality of accused as affecting voluntariness or admissibility of confession. 8 A.L.R.4th 16.

Assemblage or plottage as factor affecting value in eminent domain proceedings. 8 A.L.R.4th 1202.

Concern for possible victim (rescue doctrine) as justifying violation of Miranda requirements. 9 A.L.R.4th 595.

Sex discrimination in treatment of jail or prison inmates. 12 A.L.R.4th 1219.

Retrial on greater offense following reversal of plea-based conviction of lesser offense. 14 A.L.R.4th 970.

Right of jailed or imprisoned parent to visit from minor child. 15 A.L.R.4th 1234.

Extent and determination of attorney’s right or privilege against self-incrimination in disbarment or other disciplinary proceedings–post-Spevack cases. 30 A.L.R.4th 243.

Eminent domain: measure and elements of damages or compensation for condemnation of public transportation system. 35 A.L.R.4th 1263.

Former jeopardy as bar to retrial of criminal defendant after original trial court’s sua sponte declaration of a mistrial–state cases. 40 A.L.R.4th 741.

Admissibility, in criminal case, of physical evidence obtained without consent by surgical removal from person’s body. 41 A.L.R.4th 60.

Propriety of use of multiple juries at joint trial of multiple defendants in state criminal prosecutions. 41 A.L.R.4th 1189.

Seizure of property as evidence in criminal prosecution or investigation as compensable taking. 44 A.L.R.4th 366.

Limitations on state prosecuting attorney’s discretion to initiate prosecution by indictment or by information. 44 A.L.R.4th 401.

Eminent domain: unity or contiguity of separate properties sufficient to allow damages for diminished value of parcel remaining after taking of other parcel. 59 A.L.R.4th 308.

Double jeopardy: various acts of weapons violations as separate or continuing offense. 80 A.L.R.4th 631.

Failure of state prosecutor to disclose exculpatory photographic evidence as violating due process. 93 A.L.R.5th 527.

Failure of state prosecutor to disclose fingerprint evidence as violating due process. 94 A.L.R.5th 393.

Failure of state prosecutor to disclose exculpatory ballistic evidence as violating due process. 95 A.L.R.5th 611.

Sufficiency of showing that voluntariness of confession or admission was affected by alcohol or other drugs – Drugs or narcotics administered as part of medical treatment and drugs or intoxicants administered by the police. 96 A.L.R.5th 523.

Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts – Modern view. 97 A.L.R.5th 201.

Failure of state prosecutor to disclose exculpatory medical reports and tests as violating due process. 101 A.L.R.5th 187.

Failure of state prosecutor to disclose pretrial statement made by crime victim as violating due process. 102 A.L.R.5th 327.

Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) to state death penalty proceedings. 110 A.L.R.5th 1.

Adoption and application of “tainted” approach or “dual motivation” analysis in determining whether existence of single discriminatory reason for peremptory strike results in automatic Batson violation when neutral reasons also have been articulated. 15 A.L.R.6th 319.

Acquittal or conviction in state court as bar to federal prosecution based on same act or transaction. 18 A.L.R. Fed. 393.

What law determines just compensation when licensee of Federal Power Commission exercises power of eminent domain in federal court under § 21 of Federal Power Act (16 USCS § 814). 51 A.L.R. Fed. 929.

Propriety of court’s failure or refusal to strike direct testimony of government witness who refuses, on grounds of self-incrimination, to answer questions on cross-examination. 55 A.L.R. Fed. 742.

Delay between seizure of personal property by Federal Government and institution of proceedings for forfeiture thereof as violative of Fifth Amendment due process requirements. 69 A.L.R. Fed. 373.

Display of physical appearance or characteristic of defendant for purpose of challenging prosecution evidence as “testimony” resulting in waiver of defendant’s privilege against self-incrimination. 81 A.L.R. Fed. 892.

Application, to drug or narcotic records maintained by druggist or physician, or “required records” exception to privilege against self-incrimination. 96 A.L.R. Fed. 868.

What circumstances fall within public safety exception to general requirement, pursuant to or as aid in enforcement of federal constitution’s Fifth Amendment privilege against self-incrimination, to give Miranda warnings before conducting custodial interrogation – post-Quarles cases. 142 A.L.R. Fed. 229.

Assertion of double jeopardy defense based on sanction sought or imposed during civil or administrative proceeding initiated by Securities and Exchange Commission or national securities organization or exchange. 147 A.L.R. Fed. 585.

What constitutes reverse or majority gender discrimination against males violative of Federal Constitution or statutes – public employment cases. 153 A.L.R. Fed. 609.

Double jeopardy considerations in federal criminal cases – Supreme Court cases. 162 A.L.R. Fed. 415.

Forcible administration of antipsychotic medication to pretrial detainees – Federal cases. 188 A.L.R. Fed. 285.

Am. Jur.

1 Am. Jur. 2d, Adjoining Landowners § 35.

3A Am. Jur. 2d, Aliens and Citizens § 67.

3B Am. Jur. 2d, Aliens and Citizens §§ 1611, 1613, 1702, 1717, 1756, 1848.

3C Am. Jur. 2d, Aliens and Citizens § 2590.

4 Am. Jur. 2d, Animals § 26.

4 Am. Jur. 2d, Appellate Review § 221.

5 Am. Jur. 2d, Appellate Review § 847.

9 Am. Jur. 2d, Bankruptcy §§ 11, 18.

9A Am. Jur. 2d, Bankruptcy §§ 960, 1524, 1571.

9C Am. Jur. 2d, Bankruptcy §§ 2465, 2621.

9D Am. Jur. 2d, Bankruptcy §§ 3520, 3523.

16 Am. Jur. 2d, Constitutional Law §§ 28, 43.

16A Am Jur 2d, Constitutional Law §§ 586, 588 et seq.

21 Am Jur 2d, Criminal Law §§ 183 et seq.

26 Am Jur 2d, Eminent Domain §§ 1 et seq.

41 Am Jur Trials 349, Habeas Corpus: Pretrial Motions.

41 Am Jur Trials 383, Habeas Corpus: Pretrial Motions (double jeopardy).

42 Am. Jur. 2d, Insolvency § 3.

47 Am. Jur. 2d, Judgments §§ 570, 650.

47 Am. Jur. 2d, Jury §§ 99, 215.

48 Am. Jur. 2d, Labor and Labor Relations § 143.

54 Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 286, 476-478.

54A Am. Jur. 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices §§ 799, 801.

61A Am. Jur. 2d, Pleading § 298. 62B Am. Jur. 2d, Process § 97.

63B Am. Jur. 2d, Product Liability § 1832.

69 Am. Jur. 2d, Securities Regulation–Federal §§ 277, 279.

70A Am. Jur. 2d, Social Security and Medicare § 2.

75 Am. Jur. 2d, Trial § 396.

2 Am. Jur. Trials, Locating and Interviewing Witnesses, p. 229.

5 Am. Jur. Trials, Pretrial Procedures in Criminal Cases, p. 27.

38 Am. Jur. Trials, Representing the Grand Jury Target Witness, p. 651.

64 Am. Jur. Trials, Asserting Claims of Unconstitutional Prison Conditions, p. 425.

89 Am. Jur. Trials, Arbitrating Securities Industry Disputes, p. 55.

92 Am. Jur. Trials, Criminal Defense: Assault and Battery Cases, p. 1.

108 Am. Jur. Trials, Arbitrating and Mediating Customer Securities Disputes at FINRA, p. 313.

56 Am. Jur. Proof of Facts 3d, Eminent Domain: Lessee’s Recovery of Compensation for Taking of Leasehold Interest, p. 419.

65 Am. Jur. Proof of Facts 3d, Governmental Liability for Injury to Landowner’s Property from Road Construction Activities on Neighboring Land, p. 311.

71 Am. Jur. Proof of Facts 3d, Eminent Domain: Proof of Lack of Reasonable Necessity for Taking of Property, p. 97.

88 Am. Jur. Proof of Facts 3d, Pleading and Proving Ineffective Assistance of Counsel in a Federal Habeas Corpus Proceeding; A Primer, p. 1.

CJS.

C.J.S. Criminal Law §§ 208-275, 877, 1464, 1523, 1575, 1576.

C.J.S. Domicile §§ 6 to 50.

C.J.S. Eminent Domain §§ 71-73, 178 to 184, 198n to 200.

C.J.S. Witnesses §§ 431-457.

Lawyers’ Edition.

Admissibility of pretrial confession in criminal case. 22 L. Ed. 2d 872.

Physical examination or exhibition of, or tests upon suspect or accused, as violating rights guaranteed by Federal Constitution. 22 L. Ed. 2d 909.

Validity, under Federal Constitution, of criminal statute or ordinance making one fact presumptive or prima facie evidence of another. 23 L. Ed. 2d 812.

Retrial de novo without any judicial determination of sufficiency of evidence at prior bench trial held not to violate double jeopardy clause. 80 L. Ed. 2d 311.

Public condemnee held entitled to no more than fair market value of condemned property under Fifth Amendment. 80 L. Ed. 2d 376.

Double jeopardy clause held to prohibit state from sentencing defendant to death after life sentence he had initially received was set aside on appeal. 81 L. Ed. 2d 164.

Prosecution on charges of murder and aggravated robbery after guilty pleas to two lesser charges had been accepted by court over state’s objection held not prohibited by double jeopardy clause. 81 L. Ed. 2d 425.

Double jeopardy clause held to bar state recovery conviction following prior state conviction for capital murder committed during robbery. 82 L. Ed. 2d 801.

Retrial of defendant held not barred by double jeopardy clause even through jury acquitted him of one count but was unable to agree as to other counts. 83 L. Ed. 2d 242.

Policy of passive enforcement of draft registration law held not to violate First or Fifth Amendments. 84 L. Ed. 2d 547.

Federal constitutional right to marry–Supreme Court cases. 96 L. Ed. 2d 716.

Supreme Court’s views as to what comments by prosecuting attorney violate accused’s privilege against self-incrimination under Federal Constitution’s Fifth Amendment.99 L. Ed. 2d 926.

Law Reviews.

1983 Mississippi Supreme Court Review: Double jeopardy. 54 Miss LJ 135, March, 1984.

1989 Mississippi Supreme Court Review: Fifth Amendment. 59 Miss L J 832, Winter, 1989.

Rubenfeld, Reading the Constitution as Spoken. 104 Yale LJ 1119 (1995).

Bufkin, Terry and Miranda: The Conflict Between the Fourth and Fifth Amendments of the United States Constitution.18 Miss. College L. R. 199, Fall, 1997.

Recent Decision: Constitutional Law–Fifth Amendment–Takings Clause–Mandatory IOLTA Program Constitutes Per Se Taking, 71 Miss. L.J. 1029, Spring, 2002.

Securing Liberty with Chains: Locking up the Fifth Amendment within the Confines of Miranda: Dickerson v. United States, 530 U.S. 428(2000), 21 Miss. C. L. Rev. 55, Fall, 2001.

Pietruszkiewicz. Of Summonses, Required Records and Artificial Entities: Liberating the IRS From Itself. 73 Miss LJ 921, Winter 2004.

Lesser Included Offenses in Mississippi, 74 Miss. L.J. 135, Fall, 2004.

JUDICIAL DECISIONS

1. Construction and application.

2. Court rules.

3. Indictment–In general.

4. –Waiver, indictment.

5. Double jeopardy – In general.

6. – Administrative proceedings, double jeopardy.

7. –Civil and criminal proceedings, double jeopardy.

8. –Juveniles, double jeopardy.

9. –Same elements, double jeopardy.

10. – Separate incidents, double jeopardy.

11. – Same episode, no double jeopardy.

12. –Lesser included offenses, double jeopardy.

13. – Conspiracy, double jeopardy.

14. –Nolle prosequi, double jeopardy.

15. –Mistrial, double jeopardy.

16. – Multiple punishments, double jeopardy.

17. –Capital sentencing, double jeopardy.

18. – Habitual offenders, double jeopardy.

19. –Reversal of conviction, double jeopardy.

20. – Resentencing, double jeopardy.

21. Self-incrimination – In general.

22. –Statutes and court rules, self-incrimination.

23. –Administrative proceedings, self-incrimination.

24. –Pro se defense of action, self-incrimination.

25. –Witnesses, self-incrimination.

26. –Transactional immunity, self-incrimination.

27. –Privilege, self-incrimination.

28. –Request for counsel, self-incrimination.

29. –Request for mental health or spiritual advisor, self-incrimination.

30. –Failure to testify generally, self-incrimination.

31. –Comment by counsel on failure to testify, self-incrimination.

32. –Comment by counsel on inconsistency of testimony, self-incrimination.

33. –Accomplices and codefendants, self-incrimination.

34. –Pre-arrest statements of defendant, self-incrimination.

35. –Statements regarding post-arrest silence, self-incrimination.

36. – Noncustodial interrogation, self-incrimination.

37. – Custodial interrogation, self-incrimination.

38. –Confessions generally, self-incrimination.

39. –Age of confessor, self-incrimination.

40. –Mental acuity of confessor, self-incrimination.

41. – Intoxication, self-incrimination.

42. –Admissions antecedent to Miranda warning, self-incrimination.

43. – Miranda warnings prior to confession, self-incrimination.

44. – Voluntariness of confession, self-incrimination.

45. –Induced confessions, self-incrimination.

46. – Coerced confession, self-incrimination.

47. –Delay in arraignment affecting voluntariness of confession, self-incrimination.

48. –Suppression of confession, self-incrimination.

49. –Guilty plea generally, self-incrimination.

50. – Voluntariness of guilty plea, self-incrimination.

51. –Videotapes, self-incrimination.

52. – Physical evidence, self-incrimination.

53. –Fingerprints, self-incrimination.

54. – Psychiatric examination, self-incrimination.

55. –Cross-examination, self-incrimination.

56. – Waiver of rights, self-incrimination.

57. Due process – In general.

58. –Statutes and court rules, due process.

59. –Local ordinances, due process.

60. –Administrative proceedings, due process.

61. –Property interests, due process.

62. –State action, due process.

63. –Juveniles, due process.

64. –Driver’s licenses, due process.

65. –Employment and job security, due process.

66. –Professional licensure, due process.

67. –Insurers, due process.

68. –Schools and school districts, due process.

69. – Zoning, due process.

70. – Taxation, due process.

71. – Governmental immunity, due process.

72. – Elections, due process.

73. – Parole and probation generally, due process.

74. –Revocation of parole and probation, due process.

75. –Treatment of incarcerated persons, due process.

76. –Jurisdiction, due process.

77. –Service of process, due process.

78. – Notice and hearing, due process.

79. –Discovery, due process.

80. –Compulsory process, due process.

81. – Rights of indigent defendant, due process.

82. – Right to counsel, due process.

83. –Judicial impartiality, due process.

84. –Jury selection, due process.

85. Trial conduct, due process.

86. Presence of accused at trial.

87. –Accomplices and co-defendants, due process.

88. –Informants, due process.

89. –Mental examination, due process.

90. –Identification of defendant, due process.

91. –Polygraph tests, due process.

92. –Habitual offenders, due process.

93. –Delay, due process.

94. –Burden of proof, due process.

95. –Instructions, due process.

96. –Review, due process.

97. Parole or probation proceedings.

98. Taking for public use.

99. Sentence and punishment – In general.

1. Construction and application.

Defendant’s conviction for burglary of a dwelling house was improper where defendant exercised his right to remain silent up until the time of the trial and the trial court committed reversible error by allowing the prosecutor to imply to the jury that defendant’s post-arrest silence was an indication that he was untruthful and, by implication, and indication that he committed the crime. Emery v. State, 869 So. 2d 405, 2004 Miss. LEXIS 322 (Miss. 2004).

In a divorce action, a former husband’s constitutional rights were not violated by a complaint alleging cruel and inhumane punishment because he was not charged with an infamous crime. Richardson v. Richardson, 856 So. 2d 426, 2003 Miss. App. LEXIS 259 (Miss. Ct. App. 2003), cert. denied, 2003 Miss. LEXIS 638 (Miss. Nov. 6, 2003).

The Fifth Amendment does not apply to a cause of action against a state or local official where the plaintiff does not allege that the official was acting under authority of the federal government. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

Defendant may generally waive his Sixth Amendment right to counsel when he waives his Fifth Amendment rights. Wilcher v. State, 697 So. 2d 1087, 1997 Miss. LEXIS 100 (Miss. 1997), cert. denied, 522 U.S. 1053, 118 S. Ct. 705, 139 L. Ed. 2d 647, 1998 U.S. LEXIS 149 (U.S. 1998).

Section 47-5-112 [repealed] did not violate any “right” enjoyed by a county under the Fifth Amendment to the United States Constitution or § 17 of the Mississippi Constitution, since political subdivisions of a state have no Fifth or Fourteenth Amendment protections against the state, and § 17 of the Mississippi Constitution applies only to “private” property. State v. Hinds County Bd. of Supervisors, 635 So. 2d 839, 1994 Miss. LEXIS 163 (Miss. 1994).

2. Court rules.

Rule providing that case could not be heard or re-heard en banc unless majority of all judges in regular active service, including any who may be recused in particular case, vote that case be heard or re-heard en banc does not deny equal protection and due process. United States v. Nixon, 827 F.2d 1019 (5th Cir. Miss. 1987), cert. denied, 484 U.S. 1026, 108 S. Ct. 749, 98 L. Ed. 2d 762, 1988 U.S. LEXIS 349 (U.S. 1988).

3. Indictment–In general.

Defendant’s purported conviction for robbery was plain error because he had been indicted for burglary, not the entirely distinct crime of robbery, which was not a lesser-included offense of burglary, and a court could not make, alter, or substantively amend a felony indictment; defendant’s conviction for robbery was a plain, clear, and obvious error that violated his fundamental rights and constituted a manifest miscarriage of justice. Pace v. State, 242 So.3d 107, 2018 Miss. LEXIS 199 (Miss. 2018).

Delay of approximately one year between defendant’s arrest and the indictment did not result in a violation of due process of law because (1) the pre-indictment delay reasonably could not have been characterized as having caused the destruction of video surveillance tapes, which routinely were destroyed a mere two weeks after they were made, or the inability of a witness to recall the date when the witness had encountered defendant; and (2) obtaining DNA testing was a large part of the reason for the lengthy delay. Roberts v. State, 234 So.3d 1251, 2017 Miss. LEXIS 383 (Miss. 2017).

Aggravating circumstances used as grounds for defendant’s death sentence did not have to be included in the indictment because Apprendi did not require the inclusion of aggravating circumstances in defendant’s indictment. Corrothers v. State, 148 So.3d 278, 2014 Miss. LEXIS 311 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 2835, 192 L. Ed. 2d 877, 2015 U.S. LEXIS 3926 (U.S. 2015).

Defendant’s death sentence after he was convicted of capital murder, rape, and four counts of sexual battery was appropriate because an indictment was sufficient without listing aggravating circumstances; any time an individual was charged with murder, he was put on notice that the death penalty might result. Loden v. State, 971 So. 2d 548, 2007 Miss. LEXIS 558 (Miss. 2007), cert. denied, 555 U.S. 831, 129 S. Ct. 45, 172 L. Ed. 2d 51, 2008 U.S. LEXIS 6568 (U.S. 2008).

Indictment charging a person with money laundering under Miss. Code Ann. §97-23-101(1)(b)(ii)(1) was required to specify the “unlawful activity” from which the illegal proceeds were alleged to have derived, and violation of this requirement may be cured only where the prosecution demonstrated that it otherwise provided timely notice to defendant of the alleged illegal activity, and that the notice clearly and sufficiently provided defendant a fair opportunity to prepare a defense to the charges; the omission of the “specified unlawful activity” in defendant’s indictment was harmless error which did not render the trial fundamentally unfair. Tran v. State, 962 So. 2d 1237, 2007 Miss. LEXIS 475 (Miss. 2007), cert. denied, 553 U.S. 1054, 128 S. Ct. 2472, 171 L. Ed. 2d 769, 2008 U.S. LEXIS 4212 (U.S. 2008).

Denial of an inmate’s motion for leave to proceed with a petition for postconviction relief in the trial court was proper, where his indictment was not unconstitutional for the failure to include and specify the aggravating factors used to sentence him to death, since the United States Supreme Court has not ruled that State capital defendants have a constitutional right to have all aggravating circumstances listed in their indictments. Simmons v. State, 869 So. 2d 995, 2004 Miss. LEXIS 49 (Miss.), cert. denied, 543 U.S. 960, 125 S. Ct. 436, 160 L. Ed. 2d 325, 2004 U.S. LEXIS 7185 (U.S. 2004).

Defendant was properly apprised by an indictment of the nature and cause of a homicide despite the fact that the manner and method of the crime were not disclosed; the jury instructions sufficiently informed the jury that the act committed by defendant involved asphyxiation. Starns v. State, 867 So. 2d 227, 2003 Miss. LEXIS 873 (Miss. 2003).

Absent waiver, only grand jury can charge person with felony such as burglary. State v. Berryhill, 703 So. 2d 250, 1997 Miss. LEXIS 532 (Miss. 1997).

An indictment charging the defendant with rape under §97-3-65 was proper, even though the indictment used the language “a female person under the age of 14,” while the statute states, in pertinent part, “a child under the age of 14.” The indictment’s language was wholly included within the statutory language, since a female person under the age of 14 is a child under the age of 14; the indictment need not use the precise words of the statute. Furthermore, the defendant was not prejudiced in the preparation of his defense or exposed to double jeopardy by the indictment’s language. Allman v. State, 571 So. 2d 244, 1990 Miss. LEXIS 705 (Miss. 1990).

The constitutional prohibition against double jeopardy was violated where the defendant was prosecuted for 2 counts of aggravated assault arising from an automobile accident, after the defendant had been charged with and pled guilty to the misdemeanor offense of driving an automobile on the wrong side of the highway, since the defendant’s conduct in driving on the wrong side of the highway was the same conduct which the state relied upon in the felony prosecution for the assault charges. Harrelson v. State, 569 So. 2d 295, 1990 Miss. LEXIS 635 (Miss. 1990), overruled in part, Powell v. State, 806 So. 2d 1069, 2001 Miss. LEXIS 271 (Miss. 2001).

4. –Waiver, indictment.

Defendant’s guilty plea to armed robbery as charged in a criminal information rather than an indictment was proper under U.S. Const. Amend. V and Miss. Const. Art. 3, § 27, because defendant waived the indictment requirement. The trial court was not required under Miss. Unif. Cir. & Cty. R. 8.04 to discuss with defendant whether he was entitled to early release. Berry v. State, 19 So.3d 137, 2009 Miss. App. LEXIS 392 (Miss. Ct. App. 2009).

A trial court’s failure to inform a defendant, who pled guilty to possession of cocaine with intent to distribute, that a $1,000.00 fine was the minimum penalty for the crime was harmless error where the record contained the defendant’s written waiver of indictment, his petition to enter a plea of guilty, and a 12-page transcript of the circuit judge’s interrogation of the defendant before accepting the plea. Eley v. State, 631 So. 2d 787, 1994 Miss. LEXIS 79 (Miss. 1994).

5. Double jeopardy – In general.

Jury instruction on the “great risk of death” aggravator was proper because the evidence showed that defendant entered a home intending to attack the victim, and in doing so, he shot the victim’s parents and held a gun on the victim’s brother. Corrothers v. State, 148 So.3d 278, 2014 Miss. LEXIS 311 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 2835, 192 L. Ed. 2d 877, 2015 U.S. LEXIS 3926 (U.S. 2015).

Petitioner’s argument that he was sentenced twice for the same offense and was subjected to double jeopardy lacked merit because the petitioner was not given a second sentence, but instead, after learning that federal authorities would not allow him to serve his state and federal sentences concurrently, the circuit court simply corrected its sentencing order, which it had authority to do because the sentencing order was amended before the end of the circuit court term. Toney v. State, 906 So. 2d 28, 2004 Miss. App. LEXIS 1030 (Miss. Ct. App. 2004).

Where defendant robbed the victim, a store clerk, at gunpoint, and pistol whipped the victim numerous times, the offenses of robbery with the use of a deadly weapon, and aggravated assault, clearly required different elements of proof, and double jeopardy did not apply. Houston v. State, 887 So. 2d 808, 2004 Miss. App. LEXIS 451 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1448 (Miss. 2004).

Because the offenses of possession under Miss. Code Ann. §41-29-313, and conspiracy, were considered separate criminal violations separately punishable, no double jeopardy principle was violated. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

While it may be true that the language of Miss. Code Ann. §41-29-313(1)(a)(i) regarding “any amount” of the prohibited substances was primarily intended to cover situations where lesser quantities of the suspect materials were discovered and, therefore, the showing of multiple items was required to strengthen the inference of wrongful intent, it is nevertheless true that “any amount” plainly means just that – any amount; therefore, the possession of 250 – or 250,000, for that matter – dosage units of pseudoephedrine simultaneously with the possession of any one of the other prohibited substances listed in the statute constitutes a consummated violation of §41-29-313(1)(a)(i), and, if a defendant is charged, convicted, and sentenced for that violation, it would plainly constitute a double jeopardy violation to attempt to punish defendant a second time for the possession of the exact same supply of pills, simply on the basis that the quantity happened to exceed the permissible level under a separate criminal statute. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

Quantity of pseudoephedrine described in count one, a violation of Miss. Code Ann. §41-29-313(1)(a)(ii), was the same quantity of the drug that was identified in count two, a violation of §41-29-313(3); this exposed defendant to multiple punishments for the same conduct, and under double jeopardy considerations, the court reversed defendant’s conviction under count two. Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13 (Miss. Ct. App. 2004).

Because the first indictment was nolle prosequi before defendant pled guilty, defendant was not subject to double jeopardy as there was no prejudice. McKenzie v. State, 856 So. 2d 344, 2003 Miss. App. LEXIS 132 (Miss. Ct. App. 2003), cert. denied, 864 So. 2d 282, 2004 Miss. LEXIS 7 (Miss. 2004), cert. denied, 947 So. 2d 960, 2007 Miss. LEXIS 57 (Miss. 2007).

There was no double jeopardy violation in a case where DUI defendant’s two prior DUI convictions were considered for the sole purpose of enhancing punishment. Horn v. State, 825 So. 2d 725, 2002 Miss. App. LEXIS 503 (Miss. Ct. App. 2002).

The defendant in a murder prosecution was not subjected to double jeopardy when his bond on an unrelated pending charge was revoked based on the fact that there was probable cause to believe that he committed the murder at issue. Johnson v. State, 768 So. 2d 934, 2000 Miss. App. LEXIS 184 (Miss. Ct. App. 2000), cert. denied, 532 U.S. 930, 121 S. Ct. 1378, 149 L. Ed. 2d 304, 2001 U.S. LEXIS 2341 (U.S. 2001).

In the retrial of the defendant for murder, the introduction of evidence connecting the defendant to items taken from the crime scene did not twice put him in jeopardy for capital murder or robbery; although he was previously acquitted of murder during the commission of a robbery, a capital offense, and thus could not be retried for capital murder, the jury’s acquittal on the capital crime did not imply that the jury did not believe that the defendant took items from the victim’s trailer; instead, it showed only that the jury did not believe that the murder occurred during the commission of a robbery. Odom v. State, 769 So. 2d 189, 2000 Miss. App. LEXIS 160 (Miss. Ct. App. 2000).

The constitutional guarantee against double jeopardy never attached where a nolle prosequi was granted after the court had questioned the veniremen and administered their oath before turning them over to the state for voir dire, but before a jury of 12 had been selected. Meek v. State, 2000 Miss. App. LEXIS 64 (Miss. Ct. App. Feb. 8, 2000), rev'd, 2001 Miss. LEXIS 80 (Miss. Apr. 5, 2001).

Double jeopardy was not implicated where the defendant was tried for capital murder and for the same burglary that was necessary to support the capital murder offense and he eventually pled guilty to the lesser included offense of murder and to burglary of an occupied dwelling. Pinkney v. State, 2000 Miss. LEXIS 95 (Miss. Apr. 20, 2000), op. withdrawn, sub. op., 757 So. 2d 297, 2000 Miss. LEXIS 173 (Miss. 2000).

Double jeopardy protection does not apply to a hearing to revoke a suspended sentence. Cooper v. State, 737 So. 2d 1042, 1999 Miss. App. LEXIS 444 (Miss. Ct. App. 1999).

The appellant’s double jeopardy rights were violated where (1) the Supreme Court previously affirmed the appellant’s capital murder conviction and reversed and remanded for resentencing, (2) the appellant was then reindicted, and the new indictment, unlike the original indictment, charged the appellant as an habitual offender, and (3) the appellant pled guilty to capital murder as an habitual offender, and agreed to a life sentence without parole. Willie v. State, 738 So. 2d 217, 1999 Miss. LEXIS 163 (Miss. 1999).

The dual sovereignty doctrine is not applicable where the defendant is not subjected to successive prosecutions. Brown v. State, 731 So. 2d 595, 1999 Miss. LEXIS 2 (Miss. 1999).

Where the state made a good faith mistake in ordering a nolle prosequi after the first indictment, the prohibition against double jeopardy would not bar a subsequent prosecution. State v. Shumpert, 723 So. 2d 1162, 1998 Miss. LEXIS 563 (Miss. 1998).

The criminal prosecution and conviction of the defendant for conspiracy did not violate the double jeopardy clauses of the Mississippi and United States Constitutions, notwithstanding that her vehicle was forfeited to the state prior to her criminal trial, since a civil forfeiture does not impose punishment. Smith v. State, 716 So. 2d 1076, 1998 Miss. LEXIS 285 (Miss. 1998).

Court of Appeals reviews defendant’s double jeopardy claim de novo. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

“Double jeopardy” consists of three separate constitutional protections; it protects against second prosecution for same offense after acquittal, it protects against second prosecution for same offense after conviction, and it protects against multiple punishments for same offense. White v. State, 702 So. 2d 107, 1997 Miss. LEXIS 605 (Miss. 1997).

The Supreme Court was authorized to treat a circuit court’s denial of a criminal defendant’s motion to dismiss the indictment against him on double jeopardy grounds as a “final judgment” in a civil action under §11-51-3, which authorizes an appeal from a final judgment, and §9-3-9, which gives the Supreme Court jurisdiction of an appeal from any final judgment in the circuit court, since the double jeopardy claim went beyond the defendant’s right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore denial of the claim was final and justified immediate determination. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A defendant’s double jeopardy right not to be re-prosecuted for the same offense accrues instantly upon the happening of some event in criminal proceedings against him or her, though the original jeopardy must have “terminated” in order for such a right to accrue; thereafter, lapse of time neither strengthens nor diminishes the right as no subsequent event affects an accrued double jeopardy right. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A nolle prosequi entered upon the motion of the district attorney did not terminate the defendant’s original jeopardy or accrue unto him the right not to be re-indicted and re-prosecuted for the same offense where the State had unsuccessfully sought the defendant’s conviction through 2 successive trials which both ended when the jury became deadlocked so that there was a “manifest necessity” to declare a mistrial in each case, there was nothing to suggest any prosecutorial misconduct or manipulation in moving for the nolle prosequi, and there was no objection by the defendant to the entry of the nolle prosequi. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

The Supreme Court was authorized to treat a criminal defendant’s appeal from a circuit court’s denial of his motion to dismiss the indictment against him on double jeopardy grounds as an appeal from a denial of a writ of habeas corpus under §11-43-53, or, alternatively, as an application to the Supreme Court for a writ of habeas corpus under §§11-43-7 and11-43-9, since the defendant’s double jeopardy claim went beyond his right not to be convicted in that it involved his constitutional right not to be prosecuted for the offense, and therefore the Supreme Court had jurisdiction of the defendant’s appeal under Art I § 9 of the United States Constitution and Art 3 § 21 of the Mississippi Constitution, which guarantee the right of habeas corpus. De La Beckwith v. State, 615 So. 2d 1134, 1992 Miss. LEXIS 807 (Miss. 1992), cert. denied, 510 U.S. 884, 114 S. Ct. 232, 126 L. Ed. 2d 187, 1993 U.S. LEXIS 5961 (U.S. 1993).

A trial court’s imposition of a sentence of 49 1/2 years imprisonment upon finding that the defendant had violated a plea agreement which provided that the charges against the defendant would be dismissed following restitution and 3 years of good behavior pursuant to §99-15-26, in spite of the defendant’s argument that the maximum sentence he should have received was 3 years since the plea bargain required him to “go straight” for only 3 years as a condition of dismissal, since the defendant had not been adjudged guilty or sentenced for the original charges until the date when the 49 1/2 year sentence was imposed, and therefore the 3-year period of conditional good behavior did not amount to a sentencing ceiling for double jeopardy purposes. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

In §99-15-26 proceedings, the trial court never accepts the guilty plea and never imposes a sentence if the defendant fulfills the court-imposed conditions; where a guilty plea is accepted and a suspended sentence is imposed, the court cannot later impose a period of incarceration exceeding the original suspended sentence where the defendant fails to maintain a standard of good behavior because to do so would expose the defendant to double jeopardy. Wallace v. State, 607 So. 2d 1184, 1992 Miss. LEXIS 586 (Miss. 1992).

Where a defendant was charged with misdemeanor driving under the influence of alcohol, forfeiture of his bond and entry of a sentence of guilty into the docket constituted a conviction such that a subsequent trial for felonious driving under the influence was barred by the principle of double jeopardy. Bennett v. State, 528 So. 2d 815, 1988 Miss. LEXIS 311 (Miss. 1988).

Trial judge’s actions were tantamount to acquittal on charge of armed robbery and thereby dismissed charge of armed robbery as to one victim where trial judge determined that state had failed to produce evidence to prove that defendant robbed alleged victim with deadly weapon, where State had attempted to establish armed robbery of alleged victim with testimony and had simply failed to prove armed robbery, rejecting claim that inability to produce alleged victim was result of manifest necessity due to his intervening illness, because state could have sought continuance but instead elected to proceed with proof until defense counsel made motion for directed verdict. Reed v. State, 506 So. 2d 277, 1987 Miss. LEXIS 2483 (Miss. 1987).

In prosecution for attempted burglary of business dwelling, double jeopardy clause of United States and Mississippi Constitutions was not violated by retrial of defendant following order quashing indictment due to its insufficiency and failure to charge crime, since defendant was neither acquitted nor convicted, having successfully persuaded trial court not to submit issue of guilt or innocence to jury empaneled to try him. City of Jackson v. Keane, 502 So. 2d 1185, 1987 Miss. LEXIS 2676 (Miss. 1987).

Use of burglary charge against defendant to revoke his mistaken probation resulting from an embezzlement conviction was not a trial on the merits for burglary, and defendant’s subsequent trial on burglary charge did not place him twice in jeopardy. Lightsey v. State, 493 So. 2d 375, 1986 Miss. LEXIS 2583 (Miss. 1986).

Double jeopardy clause does not bar successive prosecutions by two different states for the same act. Heath v. Alabama, 474 U.S. 82, 106 S. Ct. 433, 88 L. Ed. 2d 387, 1985 U.S. LEXIS 143 (U.S. 1985).

Judge may impose more severe sentence upon defendant following new trial and conviction for same charge for which defendant has successfully appealed original conviction but only if judge affirmatively states in record reasons for harsher sentence and only if reasons are based upon objective information concerning identifiable conduct on part of defendant occurring after time of original sentencing proceeding, or based upon objective information concerning events occurring after time of original sentencing proceeding that may throw new light upon defendant’s life, health, habits, conduct, or mental and moral propensities. Ross v. State, 480 So. 2d 1157, 1985 Miss. LEXIS 2430 (Miss. 1985).

An inmate was properly denied credit for time served upon her original sentence for time spent out of prison on parole prior to its revocation, even though credit is allowed for time spent on work release, which is functionally similar to parole; nor did denying her credit for time served while on parole deprive her of rights secured under the double jeopardy clause, deny her due process of law, or subject her to an ex post facto law. Segarra v. State, 430 So. 2d 408, 1983 Miss. LEXIS 2578 (Miss. 1983).

Defendant was not subject to double jeopardy, even though defendant was issued a citation for resisting arrest and was later convicted of simple assault on a law enforcement officer, where a clear reading of the statutes established that the two offenses contained an element that was lacking from the other. Pendleton Grain Growers v. Pedro, 271 Ore. 24, 530 P.2d 85, 16 U.C.C. Rep. Serv. (CBC) 315, 1975 Ore. LEXIS 478 (Or. 1975).

An order of the justice of peace court, dismissing the case against the accused for want of prosecution, showing that the accused was not prosecuted or put in jeopardy in that court, was insufficient to sustain the accused’s plea of former jeopardy in bar of judgment and sentence upon his being convicted in a circuit court of the charge of assault. Robinson v. State, 91 So. 2d 272 (Miss. 1956).

Although it is remarked in an early case (State v Moor, Walk 134) that the double jeopardy provision is binding in state as well as in Federal courts, it is now well settled that this amendment does not affect state action (Withers v Buckley, 20 How (US) 84, 15 L Ed 816) and is directed at the exercise of Federal authority, and not at the states and their agencies. Martin v. Dix, 52 Miss. 53, 1876 Miss. LEXIS 163 (Miss. 1876); Tucker v. State, 128 Miss. 211, 90 So. 845, 1922 Miss. LEXIS 108 (Miss. 1922).

6. – Administrative proceedings, double jeopardy.

Administrative proceedings did not invoke the double jeopardy clause, and as such defendant was not unconstitutionally subjected to double jeopardy where his removal from the intensive supervision program and reclassification into the general prison population, as well as the imposition of his original sentence, were administrative, not criminal proceedings; double jeopardy protections did not apply to suspension revocation hearings. Brown v. Miss. Dep't of Corr., 906 So. 2d 833, 2004 Miss. App. LEXIS 1157 (Miss. Ct. App. 2004).

Defendant did not suffer a double jeopardy violation where the trial court’s petition to revoke probation or to revoke suspension of a sentence was not a criminal case and not a trial on the merits of the case; there was no subsequent conviction and sentence, only an indictment, and defendant failed to show he had previously been convicted of the crime of possession of cocaine when the trial judge revoked his bond, and defendant did not show that jeopardy attached at probation and bail revocation hearings. Thomas v. State, 845 So. 2d 751, 2003 Miss. App. LEXIS 444 (Miss. Ct. App. 2003).

The transfer of a police investigator as a “punishment” was not the type of criminal punishment contemplated by the double jeopardy clause. Ladnier v. City of Biloxi, 749 So. 2d 139, 1999 Miss. App. LEXIS 94 (Miss. Ct. App. 1999).

An indictment which charged both burglary of a dwelling and grand larceny did not fail the same elements test where the burglary charge was based on the defendant’s entry into the victim’s home with the intent to commit grand larceny and the grand larceny charge was based on the defendant’s taking of a cultivator and mower from a shed on the victim’s property. Pool v. State, 1999 Miss. App. LEXIS 483 (Miss. Ct. App. July 27, 1999), aff'd in part and rev'd in part, 764 So. 2d 440, 2000 Miss. LEXIS 191 (Miss. 2000).

The defendant’s conviction for both attempted armed robbery and aggravated assault did not violate the double jeopardy provisions of the federal and state constitutions since each offense required different elements of proof. Greenwood v. State, 744 So. 2d 767, 1999 Miss. LEXIS 223 (Miss. 1999).

The defendant was properly charged with and convicted of capital murder/burglary and armed robbery, since each offense required proof of an element not necessary to the other. Bannister v. State, 731 So. 2d 583, 1999 Miss. LEXIS 26 (Miss. 1999).

Where the defendant was convicted and sentenced for rape and for simple assault on the rape victim’s eight-year-old daughter, he was convicted for distinctly different offenses and was not subjected to multiple prosecutions or multiple punishments. Brown v. State, 731 So. 2d 595, 1999 Miss. LEXIS 2 (Miss. 1999).

The double jeopardy clauses of the United States and Mississippi Constitutions do not preclude criminal prosecution for violation of §63-11-30 subsequent to administrative license suspension pursuant to §63-11-23(2). Keyes v. State, 708 So. 2d 540, 1998 Miss. LEXIS 33 (Miss. 1998).

An appeal by the Mississippi State Bar to enhance an attorney’s punishment for his violation of disciplinary rules did not violate the attorney’s constitutional right against double jeopardy. Mississippi State Bar v. Blackmon, 600 So. 2d 166, 1992 Miss. LEXIS 154 (Miss. 1992).

Double jeopardy rights were not violated in attorney disciplinary proceedings where earlier proceedings before Mississippi State Bar Committee on Complaints were dismissed and no investigatory hearing held in connection therewith, such dismissal being functional equivalent of grand jury’s refusal to indict or magistrate’s refusal to bind defendant over to await action of next grand jury. Mississippi State Bar v. Young, 509 So. 2d 210, 1987 Miss. LEXIS 2600 (Miss. 1987).

Since the revocation of good time was an administrative proceeding, defendant was not unconstitutionally subjected to double jeopardy under the Fifth Amendment by the combination of the revocation of his good time and prosecution for escape. Moore v. State, 461 So. 2d 768, 1984 Miss. LEXIS 2064 (Miss. 1984).

7. –Civil and criminal proceedings, double jeopardy.

Although defendant claimed that the court’s decision to set his pleas aside and bring him to trial constituted a breach of the plea agreement on the State’s behalf, an abuse of discretion, and double jeopardy, the circuit court did not abuse its discretion by disregarding the original plea agreement and putting the case on the trial docket because defendant’s guilty pleas were involuntary. There was no reason why defendant should not have been proceeded against as if no trial had previously taken place; therefore, defendant could not get his convictions set aside and then claim that he was protected from a new trial by the Double Jeopardy Clauses of the Mississippi and United States Constitutions, Miss. Const. art. 3, § 22 and U.S. Const. amend. V. Catchings v. State, 111 So.3d 1238, 2013 Miss. App. LEXIS 146 (Miss. Ct. App.), cert. dismissed, 121 So.3d 918, 2013 Miss. LEXIS 573 (Miss. 2013).

Jeopardy had not attached when the municipal court dismissed defendant’s driving under the influence (DUI) charge in the municipal court, where the municipal judge received no evidence and heard no witnesses before dismissing the DUI charge. Moreover, the judge’s comments on the order relative to the DUI charge did not contain any findings of the court, but rather, the court merely recorded the reasons that the prosecutor gave for not proceeding to trial on the DUI charge; such notations in the order did not constitute either an acquittal or an adjudication, such that the subsequent indictment or trial of defendant would be barred by the Double Jeopardy Clause, U.S. Const. amend. V, Miss. Const. art. 3, § 22. Deeds v. State, 27 So.3d 1135, 2009 Miss. LEXIS 588 (Miss. 2009), cert. denied, 562 U.S. 836, 131 S. Ct. 150, 178 L. Ed. 2d 37, 2010 U.S. LEXIS 5807 (U.S. 2010).

During defendant’s trial for second-offense DUI, the trial court did not commit reversible error by allowing the State to reopen its case-in-chief to offer proof of the first DUI conviction where it appeared that the omission of the essential element was due to the trial judge’s misunderstanding of the law; defendant was not “twice placed in jeopardy” when the trial court granted the brief recess. Lyle v. State, 987 So. 2d 948, 2008 Miss. LEXIS 255 (Miss. 2008).

Defendant’s convictions for murder and for shooting into an occupied dwelling did not violate the double jeopardy clause of the Fifth Amendment. In order to convict defendant for shooting into an occupied dwelling, the State was required to prove that defendant shot into a dwelling house, but no such showing was required to convict defendant under the felony-murder statute. Boyd v. State, 977 So. 2d 329, 2008 Miss. LEXIS 144 (Miss. 2008).

Dismissal of the inmate’s motion for post-conviction relief was proper in part because the inmate had pled guilty to manslaughter and was never prosecuted for murder; thus, he was not twice put in jeopardy of life or limb in violation of the Fifth Amendment. Truitt v. State, 958 So. 2d 299, 2007 Miss. App. LEXIS 413 (Miss. Ct. App. 2007).

Under the Fifth Amendment and Miss. Const. Art. 3, § 21, a trial court’s imposition of defendant’s original ten-year term after his second parole violation was not an unlawful extension or increase of his sentence in violation of his right against double jeopardy because, although the written sentencing order did not reflect the court’s imposition of the ten-year sentence but merely that all but 18 months of that sentence were suspended, on two occasions defendant was clearly informed in open court that his sentence was for ten years. Harvey v. State, 919 So. 2d 282, 2005 Miss. App. LEXIS 377 (Miss. Ct. App. 2005).

By being subject to both a criminal prosecution and civil fines for tax evasion, defendant was not exposed to double criminal prosecutions in violation of the Double Jeopardy Clause. Also, the indictment was not multiplicitous. King v. State, 897 So. 2d 981, 2004 Miss. App. LEXIS 689 (Miss. Ct. App. 2004), cert. denied, 896 So. 2d 373, 2005 Miss. LEXIS 224 (Miss. 2005).

Trial court ’s resentencing of defendant to subsequent sentences that were more severe than the original sentence imposed upon defendant’s guilty plea to transfer of a controlled substance violated double jeopardy principles despite the fact that the first resentencing had been on the motion of the defendant; as the right to a legal sentence is a fundamental right, defendant could raise the claim that the re-sentencings were illegal in an out-of-time motion for post-conviction relief. Ethridge v. State, 800 So. 2d 1221, 2001 Miss. App. LEXIS 479 (Miss. Ct. App. 2001).

Defendant’s acquittal on criminal charges involving firearms does not preclude subsequent in rem forfeiture proceeding against same firearms because neither collateral estoppel or double jeopardy bars civil, remedial forfeiture proceeding initiated following acquittal on related criminal charges. United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 79 L. Ed. 2d 361, 1984 U.S. LEXIS 31 (U.S. 1984), but see Cooper v. Greenwood, 904 F.2d 302, 1990 U.S. App. LEXIS 10827 (5th Cir. Miss. 1990).

8. –Juveniles, double jeopardy.

Defendant’s claim of double jeopardy, pursuant to the Fifth Amendment, was without merit where application of the Blockburger test revealed that elements of each of the crimes of shooting into a vehicle, Miss. Code Ann. §97-25-47, and aggravated assault, Miss. Code Ann. §97-3-7(2) were not contained in the other. Graves v. State, 969 So. 2d 845, 2007 Miss. LEXIS 676 (Miss. 2007).

Juvenile who has been adjudicated delinquent in youth court may not subsequently be tried as adult on same charges. In Interest of W.R.A., 481 So. 2d 280, 1985 Miss. LEXIS 2422 (Miss. 1985).

9. –Same elements, double jeopardy.

Defendant’s right to protection against double jeopardy was not violated because he was subject to multiple punishments for possession with intent to distribute five separate controlled substances, because to obtain a verdict on each count, the State was required to prove beyond a reasonable doubt that each of the substances found in defendant’s house was in fact a controlled substance under Miss. Code Ann. §41-29-139 (Rev. 2009), and that defendant possessed and intended to sell each drug. Watkins v. State, 101 So.3d 628, 2012 Miss. LEXIS 401 (Miss. 2012).

Court properly denied defendant’s motion for a directed verdict because the crime of statutory rape did not encompass the crime of gratification of lust. The crime of gratification of lust did not require any proof of sexual intercourse or proof of a laceration/tearing of the child’s genitalia, and as such, statutory rape required proof of an additional element not required by gratification of lust, and there was no double jeopardy. Branch v. State, 998 So. 2d 411, 2008 Miss. LEXIS 545 (Miss. 2008).

Defendant’s prosecutions for both shooting into a vehicle under Miss. Code Ann. §97-25-47 and murder under Miss. Code Ann. §97-3-19(1)(a), did not subject him to double jeopardy since the crimes charged required additional facts separate from each other; murder, unlike shooting into a vehicle, required the deliberate killing of an individual and did not require defendant to have shot into a vehicle, while shooting into a vehicle required only that defendant willfully shot into or at a vehicle. Further, the facts were such that it was not clear whether defendant shot into the vehicle when he killed the victim, as there was testimony to the effect that the victim may have had all or part of his head outside the vehicle when he was shot; in essence, the facts were such that defendant could have been found guilty of murder and of shooting into a vehicle without any risk of exposure to double jeopardy. Peacock v. State, 970 So. 2d 197, 2007 Miss. App. LEXIS 763 (Miss. Ct. App. 2007).

Offenses of kidnapping under Miss. Code Ann. §97-3-53 and armed robbery under Miss. Code Ann. §97-3-79 were clearly separate and distinct, with each requiring proof of additional facts the other did not; kidnapping, for example, required proof of intent to cause such person to be secretly confined or imprisoned against their will, whereas armed robbery did not, and armed robbery required the taking of personal property of another, but kidnapping did not. Thus, the crimes were separate and distinct regardless of their temporal overlap or their arising from a common nucleus of operative facts, and defendant’s double jeopardy rights were not violated through being convicted of both kidnapping and armed robbery. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

Where the defendant was tried on a multicount indictment and convicted of both aiding and abetting another in the sale of cocaine and selling cocaine in concert with the other person, since there was only one transaction, the conviction for aiding and abetting was barred by double jeopardy. Wilson v. State, 775 So. 2d 735, 2000 Miss. App. LEXIS 216 (Miss. Ct. App. 2000).

A prior conviction for reckless driving does not present a bar to a prosecution for felony murder, arising out of the same nucleus of facts, based on the underlying felony of driving while intoxicated as a third offender because proof of reckless driving is not necessary to prove felony driving while intoxicated or felony murder. Lee v. State, 759 So. 2d 390, 2000 Miss. LEXIS 94 (Miss. 2000).

Convictions for both participating in drug conspiracy and engaging in continuing criminal enterprise (CCE) violated double jeopardy, where alleged CCE was same enterprise as the conspiracy. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

Vacation of defendant’s drug conspiracy conviction on appeal, based on determination that convictions for both participating in drug conspiracy and engaging in continuing criminal enterprise (CCE) violated double jeopardy, did not require remand for resentencing, where drug conspiracy conviction did not lead the district court to impose a harsher sentence on defendant for engaging in a CCE than it would have in the absence of the drug conspiracy conviction. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

Treble civil penalty of $84,460.60 for Medicaid fraud, and imposition of prison sentence after defendant failed to pay penalty, did not constitute double jeopardy when considered with other punishment received when defendant pleaded guilty, such as a fine for actual amount of fraud and two-year probation; all punishment was imposed in a single proceeding, and punishment was within statutory authority. Jennings v. State, 700 So. 2d 1326, 1997 Miss. LEXIS 459 (Miss. 1997), overruled in part, Rowland v. State, 42 So.3d 503, 2010 Miss. LEXIS 386 (Miss. 2010).

Blockburger or “same-elements test” of whether double jeopardy bar applies in context of multiple punishment or multiple prosecution inquires whether each offense contains an element not contained in the other; if not, they are same offense for double jeopardy purposes. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

Convictions for both murder during course of armed robbery and grand larceny violated double jeopardy prohibition against multiple punishments for same offense, where robbery charge, which was used to elevate case to capital murder, encompassed elements of grand larcency. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Although state may freely define crimes and assign punishments, it is not allowed to punish defendant for crime containing elements which are completely enveloped by offense for which defendant was previously convicted. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

A defendant’s convictions for both murder-for-hire capital murder under §97-3-19(2)(d) and conspiracy to commit capital murder under §97-1-1 violated the constitutional protection against double jeopardy, since the definition of murder-for-hire in §97-3-19(2)(d) completely encompasses the agreement or conspiracy to commit capital murder. Colosimo v. Senatobia Motor Inn, 662 So. 2d 552, 1995 Miss. LEXIS 479 (Miss. 1995).

Since conspiracy and burglary are separate and distinct crimes requiring proof of different elements, a defendant did not have a double jeopardy claim based on the prosecution of these 2 crimes arising from the same incident, despite the fact that the prosecution chose to prosecute the defendant for these crimes at separate trials. House v. State, 645 So. 2d 931, 1994 Miss. LEXIS 537 (Miss. 1994).

A defendant’s right to be free from double jeopardy was not violated, even though the defendant was tried, convicted and sentenced for 2 distinct offenses–simple assault and simple assault upon a law enforcement officer–arising from the same incident, because the defendant engaged in conduct which was severable into 2 separate offenses where he intervened in an ongoing assault to aid another perpetrator by preventing a third party from assisting the victim, and he subsequently committed an assault against the same victim by pointing his pistol at him. Moore v. State, 617 So. 2d 272, 1993 Miss. LEXIS 128 (Miss. 1993).

The offenses of aggravated assault under §97-3-7 and shooting into a dwelling house under §97-37-29 did not constitute the “same offense” for double jeopardy purposes where at least 18 shots were fired into the house and the victim was not struck with all 18 shots; the 2 statutes require proof of different facts in that shooting into a dwelling house is not required to establish an aggravated assault, and neither injury nor attempt to injure is required to prove the offense of shooting into a dwelling house. Shook v. State, 552 So. 2d 841, 1989 Miss. LEXIS 449 (Miss. 1989).

A defendant’s conviction and sentence on a charge of rape did not subject him to double jeopardy even though he had also been convicted and sentenced on a burglary charge which arose out of the same facts and circumstances as the rape charge. Norman v. State, 543 So. 2d 1163, 1989 Miss. LEXIS 264 (Miss. 1989).

The prosecution of a defendant for robbery with a deadly weapon after a prior conviction for kidnapping arising from the same incident was not barred by double jeopardy since the crimes of armed robbery and kidnapping required different elements of proof. Brock v. State, 530 So. 2d 146, 1988 Miss. LEXIS 361 (Miss. 1988).

Defendant’s constitutional double jeopardy right was violated where he had previously been acquitted of the crime of murder while in commission of rape, which was based on same series of acts upon which subsequent conviction of kidnapping was based. Dixon v. State, 513 So. 2d 951, 1987 Miss. LEXIS 2836 (Miss. 1987).

Defendant’s prior conviction for rape did not preclude, on double jeopardy grounds, his prosecution for burglary, even though both arose out of the same general set of facts and testimony in both trials was essentially the same, since the essential statutory elements of the two charges are entirely different. Smith v. State, 429 So. 2d 252, 1983 Miss. LEXIS 2480 (Miss. 1983).

Defendant’s motion to dismiss, on double jeopardy grounds, an indictment charging him with armed burglary of an inhabited dwelling at nighttime was improperly denied, where there was a common nucleus of operative facts from which arose the prosecution for burglary and an earlier prosecution for rape, where defendant had earlier been acquitted of the rape, where the not guilty verdict in the rape trial was well within the evidence, where defendant’s only defense at the rape trial was that another person committed the crime, where the jury could not rationally have acquitted him on any other basis, and where the state offered substantial evidence during the rape trial to show that he broke and entered the rape victim’s home. Sanders v. State, 429 So. 2d 245, 1983 Miss. LEXIS 2499 (Miss. 1983).

In a prosecution for aggravated assault arising out of an automobile accident, the trial court properly quashed the indictment on the grounds of double jeopardy and collateral estoppel where defendant had previously been acquitted of manslaughter in the death of another victim of the accident and where the pivotal issue of whether defendant had grabbed the steering wheel of the truck in which he was riding, thereby causing the collision, was the same in both cases and had previously been resolved in defendant’s favor in the manslaughter prosecution. State v. Clements, 383 So. 2d 818, 1980 Miss. LEXIS 1993 (Miss. 1980).

10. – Separate incidents, double jeopardy.

Death sentence of a petitioner for postconviction relief was not barred by the double jeopardy clause because the evidence presented by the State in a trial for the murder of a fourth victim was sufficiently different from the proof presented in a second trial for the murders of the other three victims to prove each element of the murders. Simon v. State, 857 So. 2d 668, 2003 Miss. LEXIS 447 (Miss. 2003), cert. denied, 541 U.S. 977, 124 S. Ct. 1885, 158 L. Ed. 2d 475, 2004 U.S. LEXIS 2641 (U.S. 2004).

The defendant was not subjected to double jeopardy where he was tried and convicted for armed robbery after a prior conviction for simple assault because the two convictions arose out of separate encounters with the victim, despite the fact that both encounters occurred in the same vehicle and only several minutes apart. Brooks v. State, 769 So. 2d 218, 2000 Miss. App. LEXIS 363 (Miss. Ct. App. 2000).

The defendant was not subjected to double jeopardy where he was tried and convicted for kidnapping after a prior conviction for simple assault which arose from the defendant’s hitting the victim after a failed attempt to kidnap him. Brooks v. State, 769 So. 2d 218, 2000 Miss. App. LEXIS 363 (Miss. Ct. App. 2000).

The defendant was not previously convicted on the same forgery charge in one county for which he was subsequently convicted in another county; therefore, there was no double jeopardy violation because he never pleaded guilty to any of the charges in the first county and only paid restitution on two checks for which he was indicted in the first county, which charges were not the same as the charges in the second county. Rush v. State, 749 So. 2d 1024, 1999 Miss. LEXIS 355 (Miss. 1999).

Conviction of defendant for individual operation of chop shop violated double jeopardy under Pockburger test, as defendant was convicted of operating the same chop shop on different days, and was convicted of joint operation of chop shop; operation of chop shop is continuing offense when based on same evidence, and offenses of individual and joint operation of chop shop arose from single transaction, same evidence, and same proof. White v. State, 702 So. 2d 107, 1997 Miss. LEXIS 605 (Miss. 1997).

Separate prosecutions for sales of illegal controlled substances, arising from incidents occurring one week apart from each other, do not violate double jeopardy even where same undercover agent has induced sales at same general location using same modus operandi. Barnette v. State, 478 So. 2d 800, 1985 Miss. LEXIS 2282 (Miss. 1985).

Prosecution for aggravated assault on police officer is not barred by prior prosecution for aggravated assault on another police officer arising out of same incident. Lee v. State, 469 So. 2d 1225, 1985 Miss. LEXIS 1900 (Miss. 1985).

Where the body of the victim was severely burned by a fire, which also consumed his house, and where the defendant was acquitted of the murder, the double jeopardy clause of the Fifth Amendment did not bar the subsequent prosecution of the defendant for the arson of the victim’s home. Harden v. State, 460 So. 2d 1194, 1984 Miss. LEXIS 1963 (Miss. 1984).

A defendant’s Fifth Amendment right against double jeopardy was not violated where he had been convicted in a first trial for robbing one of the victims and kidnapping both of them and was being prosecuted for these underlying felonies in his subsequent trial for the murder of the second victim, in that the defendant was not being retried for a crime which grew out of the same transaction, the murder of the first victim was distinct from the murder of the second victim, and the underlying felonies constituted only a portion of the two distinct crimes. Wilcher v. State, 455 So. 2d 727, 1984 Miss. LEXIS 1797 (Miss. 1984), cert. denied, 470 U.S. 1034, 105 S. Ct. 1411, 84 L. Ed. 2d 794, 1985 U.S. LEXIS 1334 (U.S. 1985).

A defendant previously convicted of kidnapping was not subjected to double jeopardy at his subsequent trial for rape of his kidnap victim since he had committed two separate offenses when he had raped his kidnap victim. The trial court properly admitted evidence and exhibits of the crime of rape at the kidnapping trial since evidence of other crimes is admissible to prove motive and a connection between the act proposed to be proved and the crime charged. Hughes v. State, 401 So. 2d 1100, 1981 Miss. LEXIS 1956 (Miss. 1981).

11. – Same episode, no double jeopardy.

Defendant’s double jeopardy rights were not violated by her convictions for three counts of driving under the influence and negligently causing death because the State was not required to specifically list the substance or substances that defendant allegedly was driving under the influence of at the time of the accident. Defendant was only convicted of one count of driving under the influence of hydrocodone and negligently causing the death or injury of another for each death or injury so caused. Teston v. State, 44 So.3d 977, 2008 Miss. App. LEXIS 681 (Miss. Ct. App. 2008), cert. dismissed, 44 So.3d 969, 2010 Miss. LEXIS 520 (Miss. 2010).

Defendant’s motion for post-conviction relief was properly denied where defendant’s convictions for conspiracy to commit capital murder, accessory before the fact of grand larceny, and accessory before the fact of burglary of a dwelling with intent to commit assault did not subject defendant to double jeopardy; defendant’s crimes were completely different and required proving different sets of elements. Byrom v. State, 978 So. 2d 689, 2008 Miss. App. LEXIS 188 (Miss. Ct. App. 2008).

Trial court properly dismissed defendant’s motion for post-conviction relief where he was not subjected to double jeopardy by being convicted of three criminal offenses arising out of a single incident; a criminal defendant could be convicted of more than one offense that arose out of a single event where each offense required proof of a different element. Ward v. State, 944 So. 2d 908, 2006 Miss. App. LEXIS 860 (Miss. Ct. App. 2006).

Protection guaranteed by the Double Jeopardy Clauses of the Fifth Amendment and Miss. Const. Art. 3, § 22, and the doctrine of collateral estoppel, did not preclude the State from charging defendant with a cocaine offense that was the basis for an unsuccessful petition to revoke his probation, because there were different issues and burdens of proof involved in a revocation hearing and a trial on the indictment. A revocation hearing is conducted to enforce the court’s order imposing conditions on a defendant under a suspended sentence, and the issue to be determined at trial on the indictment is whether the State has proven beyond a reasonable doubt the elements of the charge; therefore, collateral estoppel does not apply. Oliver v. State, 922 So. 2d 36, 2006 Miss. App. LEXIS 112 (Miss. Ct. App. 2006).

Inmate’s convictions for aggravated assault and aggravated robbery did not violate his Fifth Amendment right to be free from double jeopardy because even though the charges arose from the same set of facts, the two charges had different elements that the State needed to prove and one was not a lesser-included offense of the other. Thomas v. State, 930 So. 2d 1264, 2005 Miss. App. LEXIS 993 (Miss. Ct. App. 2005).

Convictions for armed carjacking and armed robbery occurring during the same episode did not constitute double jeopardy where the carjacking charge was based on the taking of a delivery truck and the robbery charge was based on the theft of money from one of the occupants of the truck. McCline v. State, 856 So. 2d 556, 2003 Miss. App. LEXIS 460 (Miss. Ct. App.), cert. denied, 860 So. 2d 315, 2003 Miss. LEXIS 722 (Miss. 2003).

Defendant was not subjected to double jeopardy where the crimes of aggravated assault and armed robbery. although they arose from the same incident, were separate. Johnson v. State, 848 So. 2d 906, 2003 Miss. App. LEXIS 588 (Miss. Ct. App. 2003).

Petitioner was indicted on two methamphetamine precursor counts, and though both counts may have concerned the same ephedrine, one count was retired, and petitioner was not prosecuted, tried or convicted on both the counts; accordingly, petitioner’s right not to be submitted to double jeopardy was not violated. McDonald v. State, 847 So. 2d 281, 2003 Miss. App. LEXIS 490 (Miss. Ct. App. 2003).

12. –Lesser included offenses, double jeopardy.

In context of double jeopardy, underlying felony in felony-murder is, by definition, included in greater offense and may not be punished separately. Ballenger v. State, 667 So. 2d 1242, 1995 Miss. LEXIS 451 (Miss. 1995), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4177 (U.S. 1996).

A trial court erred in allowing a defendant to plead guilty to both capital murder and the underlying felony of burglary which elevated the murder to capital murder; sentencing the defendant separately for both felony murder and the underlying felony violated his right against double jeopardy. Fuselier v. State, 654 So. 2d 519, 1995 Miss. LEXIS 222 (Miss. 1995).

Section63-11-30 proscribes the act of drunk driving rather than the act of negligent killing; thus, an indictment charging the defendant with 2 counts of violating §63-11-30 based on only one act of drunk driving subjected the defendant to double jeopardy and required reversal of the conviction on the second count. Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

A defendant’s right to be shielded from double jeopardy was violated where the defendant was convicted and punished for both kidnapping under §97-3-53 and capital murder while engaged in the crime of kidnapping under §97-3-19(2)(e); since the defendant was indicted, tried and found guilty of capital murder under §97-3-19(2)(e) with the kidnapping as the underlying felony, and thereafter exposed to trial for his life, the State was precluded from punishing him further for the §97-3-53 kidnapping. Meeks v. State, 604 So. 2d 748, 1992 Miss. LEXIS 400 (Miss. 1992).

Double jeopardy clauses of federal and state constitutions were not violated where defendant was originally indicted for capital murder of rape victim, which was subsequently reduced to murder as result of plea bargain, and later charged with rape; in capital murder indictment, defendant was charged with underlying felony of burglary, and nothing in that indictment suggested defendant committed rape. McFee v. State, 511 So. 2d 130, 1987 Miss. LEXIS 2630 (Miss. 1987).

13. – Conspiracy, double jeopardy.

Defendant’s sentences for conspiracy to commit false pretenses and conspiracy to commit timber theft punished him twice for the same illegal agreement, violating the constitutional prohibition against double jeopardy, because here were not two separate conspiracies but rather one conspiracy with two illegal objects, to steal the victim’s timber and to obtain money from an unwitting timber company through false pretenses. Terrell v. State, 237 So.3d 717, 2018 Miss. LEXIS 1 (Miss. 2018).

Issue was never framed for the jury to determine appellant’s guilt or lack thereof as to the charge of conspiracy. Appellant’s contention that the crime of conspiracy to commit armed robbery was presented to the jury and subsequently dismissed by the jury in his first trial such that double jeopardy and collateral estoppel would attach was unfounded. Newell v. State, 180 So.3d 701, 2015 Miss. App. LEXIS 236 (Miss. Ct. App. 2015).

Appellate court affirmed the denial of the inmate’s motion for postconviction relief because the inmate was not subjected to double jeopardy for the separate convictions of conspiracy to commit capital murder and attempted capital murder as they are two separate crimes. Lee v. State, 918 So. 2d 87, 2006 Miss. App. LEXIS 23 (Miss. Ct. App. 2006).

The decision of the manifest necessity for declaring a mistrial because of juror problems is a matter vested in the sound discretion of the trial court; the standard for determining whether a mistrial was a manifest necessity is not so absolute as the phrase would seem to imply. Jenkins v. State, 1999 Miss. App. LEXIS 301 (Miss. Ct. App. May 18, 1999), aff'd, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

The defendant’s retrial was not barred by double jeopardy where the defendant’s first trial ended in a mistrial declared by the trial court, on its own motion, when it was discovered that one juror had failed to take his seat in the jury box and that, instead, another member of the venire not selected as a juror had taken that seat, notwithstanding that the court denied the defendant’s motion for a mistrial made when the problem was first discovered, but later declared the mistrial on its own motion without seeking the views of the state or the defense. Jenkins v. State, 1999 Miss. App. LEXIS 301 (Miss. Ct. App. May 18, 1999), aff'd, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

Because conspiracy and transfer of a controlled substance have been shown to be separate crimes, the defendant did not have a valid double jeopardy claim as the crime of conspiracy was complete when the defendant agreed with others to unlawfully possess and transfer a controlled substance. Thomas v. State, 711 So. 2d 867, 1998 Miss. LEXIS 185 (Miss. 1998).

Test for determining when separate conspiracy exists, for purpose of determining whether subsequent prosecution is barred by double jeopardy, requires government to prove, by preponderance of the evidence, a separate conspiracy focusing upon elements of time, persons acting as coconspirators, statutory offenses charged in indictments, overt acts charged by government or any other description of offense charged which indicates nature and scope of activity which government sought to punish in each case, and place where events alleged as part of conspiracy took place. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

Subsequent prosecution of defendants, who had been acquitted of conspiracy to commit forgery and/or defraud corporation out of money for forged soybean weight certificates, on charge of conspiracy to defraud Farmer’s Home Administration was barred by double jeopardy clause, even though second prosecution accused defendants of trying to defraud different victim, as corporation was named in both indictments and, in addition, same time frame was involved, persons named as coconspirators were substantially the same, offenses charged in both indictments were conspiracy to defraud and to cheat, overt acts by defendants amounted to same course of conduct of transferring forged soybean certificates to company which issued checks in defendants’ names representing payment for soybeans purportedly delivered to corporation, and conduct occurred in same counties. Cook v. State, 671 So. 2d 1327, 1996 Miss. LEXIS 130 (Miss. 1996).

Although a substantive offense and a conspiracy to commit are 2 separate offenses, where there is a common nucleus of operative facts existing in both indictments, and where the ultimate fact has been determined in a prior acquittal of the substantive offense by a final judgment, a conspiracy trial is barred thereafter under the constitutional double jeopardy provision. Griffin v. State, 545 So. 2d 729, 1989 Miss. LEXIS 289 (Miss. 1989), limited, State v. Thomas, 645 So. 2d 931, 1994 Miss. LEXIS 554 (Miss. 1994).

14. –Nolle prosequi, double jeopardy.

In a case in which defendant appealed the dismissal of his motion for post-conviction relief, he argued unsuccessfully that he was subjected to double jeopardy because he was charged with armed robbery on three occasions: (1) in Count II of his indictment, (2) in Count IV of his indictment, and (3) when he pled guilty to the charge of armed robbery. The State filed an Order of Nolle Prosequi on Counts I, II, III, and V; therefore, the burglary charge in Count II was passed to the file, and defendant was no longer charged with nor convicted of Count II. Ewing v. State, 34 So.3d 612, 2009 Miss. App. LEXIS 661 (Miss. Ct. App. 2009), cert. denied, 34 So.3d 1176, 2010 Miss. LEXIS 245 (Miss. 2010).

Defendant’s voluntary refusal to testify against his co-defendant constituted a material breach of his plea bargain agreement with the State, and, as a result of his breach, the parties were returned to the status quo ante; thus, defendant had no double jeopardy defense available concerning re-indictment and conviction on the charges. Also, the transcript of defendant’s guilty plea hearing clearly showed that he was aware that the State would seek to invalidate his plea and reinstate the charges if he failed to testify truthfully against his co-defendant; additionally, as to the reinstatement of a kidnapping charge, it was fully within the State’s authority to re-indict defendant for the same offense after an order of nolle prosequi had been entered. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

The defendant’s entry of a guilty plea did not violate double jeopardy where (1) the defendant was initially indicted for grand larceny, but subsequently agreed to enter a pre-trial intervention program and agreed with the district attorney to nolle prosse the charge, (2) the defendant thereafter failed to comply with the terms of the pre-trial intervention program, (3) the district attorney then filed a motion to remove the defendant from the program and filed an information charging him with grand larceny, (4) the circuit court judge entered an order for the defendant’s removal from the pre-trial intervention program, and (5) the defendant waived his right to be re-indicted for grand larceny, pled guilty, and was sentenced. Martin v. State, 766 So. 2d 812, 2000 Miss. App. LEXIS 415 (Miss. Ct. App. 2000).

15. –Mistrial, double jeopardy.

Defendant’s second trial did not violate double jeopardy because under the circumstances, which included a witness’s unexpected family emergency, the importance of his testimony, and the uncertainty that a continuance would suffice, manifest necessity existed to declare a mistrial; defendant’s valued right to have the trial concluded by the first tribunal was subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Montgomery v. State, 253 So.3d 305, 2018 Miss. LEXIS 382 (Miss. 2018).

Trial court did not err in failing to dismiss an indictment on the basis of double jeopardy because the prosecution had not deliberately provoked a mistrial by failing to disclose to defendant prior to trial that an officer would testify that defendant had surrendered defendant’s driver’s license prior to running from officers. Daniels v. State, 9 So.3d 1194, 2009 Miss. App. LEXIS 252 (Miss. Ct. App. 2009).

Where the State moved for a mistrial, no double jeopardy emanated from the first trial because a manifest necessity arose, when the State, during direct examination, discovered that its first witness (defendant’s companion, charged as an accessory) was unrepresented by counsel. That witness had made incriminating statements and it was his rights, not defendant’s, that the State believed were violated; and there was no showing of harm to defendant, bad faith or prosecutorial misconduct. Knox v. State, 912 So. 2d 1004, 2005 Miss. App. LEXIS 207 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 686 (Miss. 2005).

Trial court did not err in declaring a mistrial in an armed robbery case because, by the time a Batson challenge was raised, other jurors in the case had already been dismissed; jeopardy did not attach because the record indicated that the jury had not been sworn, despite a trial court’s order that stated otherwise. Gaskin v. State, 873 So. 2d 965, 2004 Miss. LEXIS 288 (Miss. 2004).

Where defendant’s first trial resulted in a mistrial, based on a Batson challenge, because the jury had not been sworn, the rules prohibiting double jeopardy were not violated; as such double jeopardy protection did not attach to defendant’s first proceeding so as to preclude a second trial. Gaskin v. State, 856 So. 2d 363, 2003 Miss. App. LEXIS 164 (Miss. Ct. App. 2003).

A trial court cannot declare a mistrial on its own motion after a trial has begun, without seeking the view of the state or defense and where a qualified alternate juror is available and seated; thus, a mistrial declared in such a way is not based on manifest necessity for purposes of double jeopardy. Jenkins v. State, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

There was no double jeopardy violation where the defendant did not want to be tried by a jury duly constituted to hear the state’s charges against him and moved repeatedly for a mistrial, and where his motion was ultimately granted because the trial court had made an unintended error. Jenkins v. State, 759 So. 2d 1229, 2000 Miss. LEXIS 123 (Miss. 2000).

Defendant who moves for mistrial generally is barred from later complaining of double jeopardy violation; to overcome bar, defendant must show that error occurred and that it was committed by the prosecution purposefully to force defendant to move for mistrial. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Double jeopardy does not arise from grant of mistrial on defendant’s motion without proof of judicial error prejudicing defendant or bad faith prosecutorial misconduct. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

Alleged error committed by the prosecution in requesting and receiving information on jury panel members from circuit clerk, resulting in mistrial on defendant’s request, was insufficient to trigger double jeopardy so as to bar second trial where defendant failed to prove prosecutor’s intent to force defendant to request mistrial. Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 1996 Miss. LEXIS 146 (Miss. 1996).

In a defendant’s second trial conducted approximately one week after the declaration of a mistrial during his first trial did not violate the constitutional prohibition against double jeopardy where the first trial ended in a mistrial declared by the court on its own motion when the prosecutor brought to his attention that a juror had failed to divulge that she was related to a law enforcement officer. Box v. State, 610 So. 2d 1148, 1992 Miss. LEXIS 748 (Miss. 1992).

A reindictment and retrial after the first trial, resulted in a mistrial due to a hung jury, did not violate the prohibition against double jeopardy, in spite of the defendant’s argument that there was no manifest necessity for dismissing the first indictment and that the reindictment and retrial was for the purpose of allowing the prosecution to strengthen its case, where there was no variance between the indictments, the proof offered and the defense asserted, and the second indictment did not charge the defendant with a different or additional offense. Wilson v. State, 574 So. 2d 1324, 1990 Miss. LEXIS 845 (Miss. 1990).

If the trial judge’s declaration of a mistrial was a manifest necessity, and there was no abuse of discretion, then a criminal defendant may be tried again on the same charge. If there was not a manifest necessity for the mistrial, then a retrial is barred. Whether the standard has been met depends on the facts and circumstances of each case. Spann v. State, 557 So. 2d 530, 1990 Miss. LEXIS 49 (Miss. 1990).

A retrial of a defendant for rape, after the trial judge declared a mistrial sua sponte during a previous trial for the same offense, would not violate the double jeopardy provisions of the Mississippi and United States Constitutions, in spite of the defendant’s argument that the mistrial was the fault of prosecution witnesses whose behavior could be imputed to the State, where the State did not elicit or provoke the witnesses’ questionable behavior, the problem occurred on cross-examination, there was no evidence of bad faith on the part of the State, and it was the defendant’s wife’s outbursts from the gallery which finally triggered a mistrial. Spann v. State, 557 So. 2d 530, 1990 Miss. LEXIS 49 (Miss. 1990).

The grant of a mistrial in a homicide case upon defendant’s motion and on the ground that the jurors had failed to follow the trial judge’s instruction to avoid media coverage of the trial did not form the basis of a double jeopardy claim in absence of showing of bad faith on the part of anyone connected with state having to do with the release of information to a news reporter, although a police officer had talked by phone with the reporter. Watts v. State, 492 So. 2d 1281, 1986 Miss. LEXIS 2525 (Miss. 1986).

In a prosecution for aggravated assault in which the defendant was convicted after a second trial, a mistrial having been declared by the trial judge in the first trial at the request of the prosecution when it was learned that the defendant’s tape-recorded confession commenced with his demand that he see an attorney, the second trial of the defendant violated the prohibition against double jeopardy where jeopardy had already attached in the first trial with the swearing in of the jury and where the prosecution’s complaint that it could not proceed with the first trial because the jury had heard the defendant’s request for an attorney at the time of his alleged confession did not constitute such manifest necessity as to permit the granting of a mistrial; the failure of the defendant’s attorney to object to the granting of the mistrial did not permit retrial where there was no question but that the court intended to grant the prosecution’s request. Jones v. State, 398 So. 2d 1312, 1981 Miss. LEXIS 2014 (Miss. 1981).

A retrial did not place defendant in double jeopardy where reversal of his manslaughter conviction was due to the error of the lower court in compelling defendant’s wife to testify for the state and was not based on insufficiency of the evidence; however, it was error to retry defendant for murder instead of manslaughter where he had been charged with but not convicted of murder in the first trial. Tapp v. State, 373 So. 2d 1029, 1979 Miss. LEXIS 2311 (Miss. 1979).

16. – Multiple punishments, double jeopardy.

Trial court sentenced defendant to criminal contempt for refusal to testify in co-defendant’s trial; because his failure to testify constituted a material breach of the plea agreement, the State reinstated the kidnapping charge, for which defendant was subsequently convicted and sentenced to 25 years’ imprisonment. Defendant contended that the kidnapping conviction and sentence constituted a second punishment for his refusal to testify, thus subjecting him to double jeopardy; however, defendant was punished once for his refusal to testify against his co-defendant and once for the separate and distinct crime of kidnapping the victims, and, thus, his right double jeopardy rights were not violated as he was not punished multiple times for the same crime. Moore v. State, 938 So. 2d 1254, 2006 Miss. App. LEXIS 86 (Miss. Ct. App. 2006), cert. denied, 2006 Miss. LEXIS 750 (Miss. Oct. 5, 2006), cert. denied, 939 So. 2d 805, 2006 Miss. LEXIS 749 (Miss. 2006).

17. –Capital sentencing, double jeopardy.

Harsher sentence imposed on defendant was proper where, in his second sentencing hearing, the judge heard new evidence concerning the events of the crimes and that evidence led him to believe that the crime was more heinous than the judge originally believed. There was no indication of vindictiveness and neither the double jeopardy provision nor the Equal Protection Clause imposed an absolute bar to the more severe sentence upon reconviction. Fowler v. State, 919 So. 2d 1129, 2005 Miss. App. LEXIS 581 (Miss. Ct. App. 2005), cert. denied, 921 So. 2d 1279, 2006 Miss. LEXIS 56 (Miss. 2006).

Jury was not improperly required to weigh same facts twice against mitigating evidence, in violation of double jeopardy clause, when sentencing court allowed defendant’s conviction for capital murder of second victim to be considered as an aggravating circumstance; court was not faced with one action for which defendant could be prosecuted on either underlying crime or capital murder, but rather, there were actually two murder victims–the product of two separate criminal actions by defendant. Wilcher v. State, 697 So. 2d 1123, 1997 Miss. LEXIS 101 (Miss. 1997).

Aggravating circumstances used to determine whether to impose the death penalty do not themselves carry any penalty, as their only purpose is to narrow class of individuals most worthy of receiving the death penalty and to furnish guidance to the jury, so that use of aggravating circumstance, such as sexual battery, which has also been the basis for conviction for an offense does not violate double jeopardy. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Submission to a capital sentencing jury of the mitigating factor that the defendant had no “significant” history of criminal activity was not improper, in spite of the defendant’s argument that the factor was unconstitutionally applied in his particular case because it implied that he had at least some criminal history when in fact he had none, where the mitigating factor was taken verbatim from the list provided by the legislature to be considered in imposing sentence, and the defendant had the opportunity during closing argument to dispel any notion the jury might have had that he had a history of criminal activity. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

Since Mississippi’s capital sentencing procedure requires the jury to determine whether the State has proved its case for the death penalty, the double jeopardy clause will protect a defendant from any subsequent attempt to subject him or her to the death penalty after a jury has impliedly acquitted him or her of the death penalty by determining that only a life sentence was warranted. Lanier v. State, 635 So. 2d 813, 1994 Miss. LEXIS 165 (Miss. 1994), overruled in part, Twillie v. State, 892 So. 2d 187, 2004 Miss. LEXIS 1322 (Miss. 2004).

The double jeopardy clause did not afford a capital murder defendant protection against further capital sentencing procedures where he was originally sentenced to death by a jury, the death sentence was subsequently reversed due to a confrontation clause problem but there was no finding that the State had failed to prove its case for the death penalty, and the defendant and the State then entered into a sentencing agreement which was found to be void; since there was no acquittal of the death penalty, the double jeopardy clause would not prohibit the State from seeking the death penalty at a subsequent sentencing hearing. Lanier v. State, 635 So. 2d 813, 1994 Miss. LEXIS 165 (Miss. 1994), overruled in part, Twillie v. State, 892 So. 2d 187, 2004 Miss. LEXIS 1322 (Miss. 2004).

The holding of a hearing on the issue of habitual offender status, which resulted in a sentence of life without parole, following a bifurcated guilt and sentencing trial on a charge of capital murder, which resulted in a jury verdict of a life sentence, meaning life with parole, rather than death, did not violate the defendant’s right against double jeopardy. At the capital murder sentencing hearing on the matter of whether the defendant should be sentenced to death, the defendant was not put in jeopardy on the issue of sentence enhancement based on recidivism. Hoover v. State, 552 So. 2d 834, 1989 Miss. LEXIS 439 (Miss. 1989).

The constitutional principles of double jeopardy are not violated by the “double use” of the pecuniary gain factor in elevating a murder to the status of capital murder because it was perpetrated by one who had been given something of value for the killing pursuant to §97-3-19(2)(d) and in imposing the death penalty for committing murder by pecuniary gain pursuant to §99-19-101(5)(f). Nixon v. State, 533 So. 2d 1078, 1987 Miss. LEXIS 2917 (Miss. 1987), cert. denied, 490 U.S. 1102, 109 S. Ct. 2458, 104 L. Ed. 2d 1012, 1989 U.S. LEXIS 2745 (U.S. 1989), overruled, Wharton v. State, 734 So. 2d 985, 1998 Miss. LEXIS 576 (Miss. 1998).

Where there is a conviction for both capital murder and the underlying felony, at the most the double jeopardy clause is violated only if the charges for the felony murder and the underlying felony are tried separately. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

A continuance in a bench trial is not sufficiently like a mistrial in all situations so as to invoke an analysis for determining whether the resumed hearing is barred by double jeopardy. King v. State, 527 So. 2d 641, 1988 Miss. LEXIS 240 (Miss. 1988).

Submission of aggravating circumstance of pecuniary gain did not constitute double jeopardy and fail meaningfully to narrow class of persons eligible for death sentence. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Instructions at penalty phase of trial did not deprive defendant of his constitutional rights by failing adequately to inform jury of their option to recommend life sentence, where court clearly instructed jury that it should weigh mitigating circumstances against aggravating circumstances and if former outweighed latter, then it should return sentence of life imprisonment. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

Although the jury in a capital murder trial had already determined beyond a reasonable doubt that defendant had murdered while committing the crimes of robbery and kidnapping, consideration of those aggravating circumstances again in the sentencing phase of the same trial did not constitute double jeopardy as contemplated in the Fifth Amendment of the US Constitution. Wilcher v. State, 448 So. 2d 927, 1984 Miss. LEXIS 1618 (Miss.), cert. denied, 469 U.S. 873, 105 S. Ct. 231, 83 L. Ed. 2d 160, 1984 U.S. LEXIS 369 (U.S. 1984).

A defendant who in 1960 entered a plea of guilty to an indictment for murder and received a life sentence which he was currently serving, following the decision in 1968 of the United States Supreme Court in United States v Jackson, 390 US 570, 20 L Ed 2d 138, 88 5 Ct 1209, filed a petition for a writ of habeas corpus alleging that the death penalty provision of Code 1942 § 2217 of the Mississippi code violated the Fifth and Sixth Amendments of the United States Constitution and § 14 of the Mississippi Constitution. In affirming the denial of the writ, the court held that the Jackson rule was inapplicable to the Mississippi general statute on murder for the reason that an accused entering a plea of guilt to a charge of murder under Code 1942 § 2217 is not assured of not receiving the death penalty: for the trial court cannot be required to accept a guilty plea in a capital case and pronounce a sentence of less than death, but may require a jury trial in which the imposition of the death sentence is within the sole province of the jury. King v. Cook, 211 So. 2d 517, 1968 Miss. LEXIS 1267 (Miss. 1968).

The 1968 decision of the United States Supreme Court in United States v Jackson, 390 US 570, 20 L Ed 2d 138, 88 S Ct 1209,is not retroactive and was not applicable to a guilty plea entered in 1960 by a defendant charged with murder who, at the time of the decision of Jackson, was serving a life sentence in the penitentiary as a consequence. King v. Cook, 211 So. 2d 517, 1968 Miss. LEXIS 1267 (Miss. 1968).

18. – Habitual offenders, double jeopardy.

The use of the defendant’s prior convictions for driving under the influence of alcohol (DUI) to obtain a conviction for felony DUI did not violate the double jeopardy clause. Smith v. State, 736 So. 2d 381, 1999 Miss. App. LEXIS 43 (Miss. Ct. App. 1999).

Post-arrest statements made by a defendant which are inconsistent with his trial testimony may be used by the state against him during cross-examination; to hold otherwise would not only afford the defendant the right not to incriminate himself by remaining silent but would also afford him the right not to incriminate himself by making voluntary statements which are inconsistent with his testimony at trial, which would ultimately grant a defendant who chooses to be a witness in his own defense more protection than that granted to any other witness. Puckett v. State, 737 So. 2d 322, 1999 Miss. LEXIS 122 (Miss. 1999).

Mississippi law does not require law enforcement personnel to cease with a lawful interview and re-advise the defendant that he has the right to a lawyer or inform him that there is a lawyer outside where the defendant himself has not requested or otherwise indicated that he wished to speak with an attorney before further questioning. McGilberry v. State, 741 So. 2d 894, 1999 Miss. LEXIS 196 (Miss. 1999), cert. denied, 529 U.S. 1006, 120 S. Ct. 1273, 146 L. Ed. 2d 222, 2000 U.S. LEXIS 1788 (U.S. 2000).

The defendant’s privilege against self-incrimination was not violated when the prosecutor argued that the defendant “pled not guilty. And he doesn’t have to do a thing. He sits there. We have to prove the case,” since (1) such argument was made in response to the defendant’s argument that the state prolonged the trial by putting forth unnecessary or redundant evidence and attempted to place the blame for his crimes on those who failed to obtain proper treatment for him, and (2) the jury was given several instructions which clarified any confusion resulting from the arguments. McGilberry v. State, 741 So. 2d 894, 1999 Miss. LEXIS 196 (Miss. 1999), cert. denied, 529 U.S. 1006, 120 S. Ct. 1273, 146 L. Ed. 2d 222, 2000 U.S. LEXIS 1788 (U.S. 2000).

The prohibition against double jeopardy did not preclude the State at resentencing from enhancing a defendant’s life sentence for murder with the habitual offender statute where the defendant was initially sentenced to death and therefore his status as an habitual offender was not determined until after the sentencing trial on remand; since the defendant’s status as an habitual offender had not previously been determined, the finding of habitual offender status on resentencing was not barred by double jeopardy. Gray v. State, 605 So. 2d 791, 1992 Miss. LEXIS 481 (Miss. 1992).

A habitual offender’s sentencing hearing, as a trial on the sentence, constitutes jeopardy for the purpose of the constitutional right against double jeopardy. Ellis v. State, 520 So. 2d 495, 1988 Miss. LEXIS 153 (Miss. 1988).

Remanding case for resentencing under habitual offender statute would offend double jeopardy clause because habitual offender sentencing is itself trial on eligibility for harsher sentence and therefore constitutes jeopardy. Young v. State, 507 So. 2d 48, 1987 Miss. LEXIS 2442 (Miss. 1987).

Indictment charging sale of drugs did not violate prohibition against double jeopardy by including the information that the defendant had been previously convicted on a separate charge since, in order for punishment to be enhanced for a second conviction (as provided for in §41-29-147), an indictment authorizing enhanced punishment must include both the principal charge and a charge of the previous convictions. Ellis v. State, 326 So. 2d 466, 1976 Miss. LEXIS 1739 (Miss. 1976).

19. –Reversal of conviction, double jeopardy.

Capital murder defendant’s multiple trials did not violate the Double Jeopardy Clause. Because defendant had not been acquitted, his convictions had not been upheld on appeal, and he had not received multiple punishments, the Double Jeopardy Clause had not been implicated. Flowers v. State, 240 So.3d 1082, 2017 Miss. LEXIS 431 (Miss. 2017).

Defendant’s six trials for the four murders did not violate his rights under the Double Jeopardy Clause because he had not been acquitted, his convictions had not been upheld on appeal, and he had not received multiple punishments, as his first,second, and third trials resulted in convictions that were overturned, and in his fourth and fifth trials the jury was unable to reach a unanimous decision. Because his double jeopardy protections had not been violated, defendant could not assert a due process claim on the same grounds. Flowers v. State, 158 So.3d 1009, 2014 Miss. LEXIS 569 (Miss. 2014), vacated, — U.S. —, 136 S. Ct. 2157, 195 L. Ed. 2d 817, 2016 U.S. LEXIS 3930 (U.S. 2016).

The double jeopardy clause did not bar reprosecution of a defendant for murder following the Supreme Court’s reversal of his conviction where the conviction was reversed on procedural grounds and the defendant was allowed to plead guilty to lesser offenses pursuant to the bargain, but the defendant subsequently refused to plead guilty to the lesser offenses. The defendant could be prosecuted for the murder under the original indictment since the reversal of his murder conviction on procedural grounds did not constitute a rendering of the case nor a discharge of the defendant, and the defendant’s refusal to plead guilty to the lesser offenses was a breach of the bargain. State v. Danley, 573 So. 2d 691, 1990 Miss. LEXIS 834 (Miss. 1990).

There was no violation of the double jeopardy clause in the retrial of a defendant after reversal of his manslaughter conviction where the reversal was based upon trial error in having forced the defendant’s wife to testify against him and not upon the insufficiency of the evidence; however, retrial for murder was improper and the conviction for murder was properly modified by the Mississippi Supreme Court to a conviction for manslaughter where the defendant had been acquitted of murder at the first trial. Tapp v. Lucas, 658 F.2d 383, 1981 U.S. App. LEXIS 17054 (5th Cir. Miss. 1981), cert. denied, 456 U.S. 972, 102 S. Ct. 2233, 72 L. Ed. 2d 845, 1982 U.S. LEXIS 2077 (U.S. 1982).

20. – Resentencing, double jeopardy.

Reinstatement of defendant’s suspended sentence did not constitute double jeopardy because the trial court did not attempt to impose a greater sentence than that already levied on defendant. Leech v. State, 994 So. 2d 850, 2008 Miss. App. LEXIS 422 (Miss. Ct. App. 2008), cert. dismissed, 999 So. 2d 852, 2009 Miss. LEXIS 50 (Miss. 2009).

Federal district court correctly denied state death row inmate’s habeas corpus petition; the venue chosen for petitioner’s resentencing hearing was proper, even though it was in the county in which the crimes occurred, and even though the trial venue had been changed to a different county due to excessive pretrial publicity, because years had passed since petitioner had been found guilty, and although two selected resentencing jurors had some knowledge of the case, petitioner failed to prove that the resentencing jury was tainted. Holland v. Anderson, 439 F. Supp. 2d 644, 2006 U.S. Dist. LEXIS 46788 (S.D. Miss. 2006).

Defendant did not receive a greater sentence than the one originally imposed and the trial judge could amend a sentence provided that a punishment already partly suffered not be increased; the record did not reflect that defendant was given two sentences for committing one offense, but rather, the result of the first hearing was the supplementation of the terms of post-release supervision, such that the initial modification of defendant’s post-release supervision did not constitute a separate sentence for purposes of double jeopardy. Lambert v. State, 904 So. 2d 1150, 2004 Miss. App. LEXIS 1000 (Miss. Ct. App. 2004).

Constitutional considerations of double jeopardy prevent the assessment of a harsher punishment at resentencing than that already adjudicated as to each count under the Double Jeopardy Clause of the Constitution of the United States. Davidson v. State, 850 So. 2d 158, 2003 Miss. App. LEXIS 493 (Miss. Ct. App. 2003).

It was a violation of the prohibition against double jeopardy for the court to resentence the defendant to a term of 30 years where (1) the defendant was originally sentenced to a term of 20 years, with five years suspended, on condition that he would later give testimony against “any unindicted person in the case,” and (2) the defendant failed to fulfill the condition of his sentence. Johnson v. State, 753 So. 2d 449, 1999 Miss. App. LEXIS 658 (Miss. Ct. App. 1999).

21. Self-incrimination – In general.

There was no evidence that defendant was forced against his will by his attorney to testify. Rowsey v. State, 188 So.3d 486, 2015 Miss. LEXIS 573 (Miss. 2015).

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, it does not violate due process of law for a State to permit cross-examination as to post-arrest silence when a defendant chooses to take the stand; a State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post-arrest silence may be deemed to impeach a criminal defendant’s own testimony. Hurt v. State, 34 So.3d 1191, 2009 Miss. App. LEXIS 605 (Miss. Ct. App. 2009).

Although defendant challenged his convictions for fondling a child under Miss. Code Ann. §97-5-23(1) and for sexual battery of a child between the ages of 14 and 16 under Miss. Code Ann. §97-3-95(1)(c) on the ground that the trial court had erred in admitting a statement he made to police that the girls’ acts had been consensual, but defendant conceded that he had not objected to the statement at trial. Defendant’s claim of error did not rise to the level of plain error where the evidence did not support his claim that his sole reason for testifying was to explain the statement; defendant had been given his Miranda warnings two days earlier and was not being questioned at the time he gave the statement; since consent was not an issue in sex crime cases involving children, thus there was no violation of defendant’s self-incrimination privilege or his Miranda rights. Smith v. State, 907 So. 2d 389, 2005 Miss. App. LEXIS 113 (Miss. Ct. App. – 2005), writ of certiorari denied by 910 So. 2d 574, 2005 Miss. LEXIS 452 (Miss. 2005).

Defendant’s capital murder conviction was proper because his Fifth Amendment and Sixth Amendment rights were not violated by the prosecutor’s comments during closing arguments. Wide latitude was given to attorneys in making closing arguments and, given the evidence presented, the court could not say that the verdict was occasioned by unjust prejudice. Davis v. State, 914 So. 2d 200, 2005 Miss. App. LEXIS 269 (Miss. Ct. App.), cert. denied, 921 So. 2d 344, 2005 Miss. LEXIS 746 (Miss. 2005), cert. denied, 549 U.S. 856, 127 S. Ct. 133, 166 L. Ed. 2d 98, 2006 U.S. LEXIS 6743 (U.S. 2006).

Trial court’s refusal to allow defendant’s testimony from former murder prosecution to be read into evidence at current trial for same murder did not constitute error, despite defendant’s contention that he was over 73 years old, had several serious physical problems, was on numerous medications that affected his mental abilities, and had testified at his speedy trial hearing to the effect of his memory loss; defendant declined court’s offer to present testimony recorded at previous trial if his memory failed him, and instead invoked his Fifth Amendment right to not testify. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Social worker’s interview of defendant to investigate allegations of sexual battery was not “custodial interrogation”; social worker was not law enforcement official, and defendant voluntarily went to his office, could have left at any time, and was thus not in “custody.” Hennington v. State, 702 So. 2d 403, 1997 Miss. LEXIS 637 (Miss. 1997).

Mere investigation by social worker in noncustodial setting does not require alleged abuser to be advised of Miranda rights. Hennington v. State, 702 So. 2d 403, 1997 Miss. LEXIS 637 (Miss. 1997).

A trial judge does not have a duty to inform a witness of the privilege against self-incrimination. Moore v. Moore, 558 So. 2d 834, 1990 Miss. LEXIS 59 (Miss. 1990).

In a prosecution for aggravated assault on a law enforcement officer, the trial court properly admitted into evidence an incriminating oral statement made by the defendant to his cellmate, a prison trusty, although the defendant had not been advised of his Fifth Amendment rights at the time, where there was no evidence to support the argument that the cellmate had interrogated the defendant when the incriminating statements were made or that he had acted as an agent of law enforcement officials or that he had been planted in the cell for the purpose of hearing incriminating statements. Mansell v. State, 403 So. 2d 871, 1981 Miss. LEXIS 2187 (Miss. 1981).

Where the record revealed that all persons who wanted to do business with the defendant were impliedly invited to approach the house in which he was staying along a circular driveway to a point where the defendant met law enforcement officers to ascertain what he could do for them, and where the officers purchased and received from the defendant a bottle of intoxicating liquor but made no search of the person or premises of the defendant, the testimony of the officers was not inadmissible on the ground that the purchase was an illegal search or that their testimony was in effect a method of requiring the defendant to testify against himself. Lyons v. State, 195 So. 2d 91, 1967 Miss. LEXIS 1438 (Miss. 1967).

Where accused, after having been arrested but before being formally charged with murder, voluntarily testified before a coroner’s jury that he had accidentally killed his wife while shooting in self-defense at his father-in-law, and none of this testimony was admitted in the trial on the merits, accused’s constitutional privilege not to incriminate himself was not violated. Dykes v. State, 232 Miss. 379, 99 So. 2d 602, 1957 Miss. LEXIS 484 (Miss. 1957).

22. –Statutes and court rules, self-incrimination.

Although Rule 3.03(3)(B), Miss. Unif. Crim. R. Cir. Ct. Prac. only requires a judge to inquire and determine whether the defendant understands the maximum and minimum penalties when he or she wishes to plead guilty to the offense charged, trial judges should inform criminal defendants on the record of the minimum and maximum penalties for the charged offense in order to insure that no question ever be raised. Banana v. State, 635 So. 2d 851, 1994 Miss. LEXIS 181 (Miss. 1994).

In a prosecution for driving a motor vehicle while under the influence of intoxicating liquor, the admission into evidence under §63-11-41 of the defendant’s refusal to take a breathalyzer test did not violate the Fifth Amendment to the United States Constitution and Article 3, § 26 of the Mississippi Constitution, even though the defendant was not specifically warned that his refusal could be admitted into evidence against him; the penalty of introducing a refusal serves an important state interest in encouraging defendants to submit to a chemical test, and as the refusal is physical instead of testimonial, its introduction into evidence violates neither the Fifth Amendment nor § 26. Ricks v. State, 611 So. 2d 212, 1992 Miss. LEXIS 819 (Miss. 1992).

Rule requiring each attorney in a criminal case to number his jury instructions and file them with the clerk, and to submit to opposing counsel a numbered copy of the instructions so filed at least 24 hours prior to the time that the case is set for trial, was not an unconstitutional invasion of the defendant’s right against self-incrimination. Vaughn v. Creely, 310 So. 2d 703, 1975 Miss. LEXIS 1908 (Miss. 1975).

23. –Administrative proceedings, self-incrimination.

Defendant’s motion to suppress his confession, contending that his rights under Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, Miss. Const. Art. 3, §§ 14, 26 and 28, and Miss. Unif. Crim. R. Cir. Ct. Prac. 6.03 were violated was properly denied where a psychiatrist testified that defendant was not so impaired by mental disease or defect as to make him clearly incompetent to make a confession. Further, in defendant’s original direct appeal, he challenged the admission of his confession on five separate grounds and that adverse decision constituted the law of the case. Thorson v. State, 895 So. 2d 85, 2004 Miss. LEXIS 1350 (Miss. 2004), cert. denied, 546 U.S. 831, 126 S. Ct. 53, 163 L. Ed. 2d 83, 2005 U.S. LEXIS 6177 (U.S. 2005).

Privilege against self-incrimination exists in bar disciplinary proceedings, even though no criminal charges are pending against attorney being charged at time, although questions concerning personal history, unrelated to charges in formal complaint, should be answered. Mississippi State Bar v. Attorney L., 511 So. 2d 119, 1987 Miss. LEXIS 2615 (Miss. 1987).

An attorney who takes the witness stand in a disciplinary proceeding against him may, on a question-by-question basis, make valid assertion of the Fifth Amendment privilege as to those questions which would tend to incriminate him of a state or federal criminal offense. Mississippi State Bar v. Attorney-Respondent in Disciplinary Proceedings, 367 So. 2d 179, 1979 Miss. LEXIS 2210 (Miss. 1979).

24. –Pro se defense of action, self-incrimination.

While it was error to not make a determination on whether a father was entitled to appointed counsel before allowing him to proceed pro se, the error was harmless because he was given a fair and adequate hearing, and the presence of an attorney would not have made a difference; the evidence focused on the father’s inability to maintain a relationship with his children while serving a life sentence, and counsel was not necessary to assist him in protecting his right against self-incrimination. Blakeney v. McRee, 188 So.3d 1154, 2016 Miss. LEXIS 87 (Miss. 2016).

A defendant has the constitutional right to make an opening statement pro se without being put under oath and subject to cross examination, and action of trial court preventing him from doing so is reversible error. Trunell v. State, 487 So. 2d 820, 1986 Miss. LEXIS 2444 (Miss. 1986).

The law does not require a defendant to make a choice between proceeding pro se and exercising his right against self-incrimination. He may conduct his entire defense without ever being sworn in as a witness or being subject to cross examination. Trunell v. State, 487 So. 2d 820, 1986 Miss. LEXIS 2444 (Miss. 1986).

A defendant who chooses to argue his case to a jury and at the same time invokes the Fifth Amendment must confine his remarks to the evidence in the record. Thus, in a prosecution for capital murder, a defendant who argued pro se to the jury and clearly went beyond the evidence in the record had to accept as a consequence the prosecution’s comment on his failure to swear to the testimony, since defendant’s remarks constituted a waiver of both the constitutional privilege against self-incrimination and the prohibition against the prosecution from commenting on his failure to testify. Rigdon v. Russell Anaconda Aluminum Co., 381 So. 2d 983, 1980 Miss. LEXIS 2065 (Miss.), cert. denied, 449 U.S. 864, 101 S. Ct. 170, 66 L. Ed. 2d 81, 1980 U.S. LEXIS 3144 (U.S. 1980).

25. –Witnesses, self-incrimination.

Although cross-examination of the victim of an armed robbery regarding his indictment on an aggravated assault charge might have caused the jury to disbelieve the victim’s testimony against defendant, the trial court properly excluded the evidence because the victim had invoked his Fifth Amendment right against self-incrimination and defendant’s Sixth Amendment rights had to yield to the victim’s Fifth Amendment rights. Renfro v. State, 118 So.3d 560, 2013 Miss. LEXIS 150 (Miss. 2013).

Regardless of the availability of defendant’s sister as a witness, where if called she would invoke her Fifth Amendment privilege in that she was also charged with capital murder along with defendant, it was improper to exclude testimony of her father as inadmissible hearsay under Miss. R. Evid. 804 because the statements were admissible as statements against interest in that they were sufficiently against the sister’s penal interest by indicating her intention to murder her husband, they were sufficiently trustworthy, and they were corroborated by other evidence. Edmonds v. State, 955 So. 2d 787, 2007 Miss. LEXIS 349 (Miss.), cert. denied, 552 U.S. 1064, 128 S. Ct. 708, 169 L. Ed. 2d 557, 2007 U.S. LEXIS 12868 (U.S. 2007).

Trial judge did not err in prohibiting the owners from impeaching the witness with his own deposition as the trial judge had previously ruled that the deposition was inadmissible for all purposes and once a witness invoked his Fifth Amendment self-incrimination privilege, his silence did not constitute grounds for impeachment. Gibson v. Wright, 870 So. 2d 1250, 2004 Miss. App. LEXIS 323 (Miss. Ct. App. 2004).

In a case related to defendant’s conviction for gratification of lust, a voluntary statement defendant gave to two police officers was properly admitted because there were no requirements regarding the form in which the statement had to be memorialized. Jordan v. State, 868 So. 2d 1065, 2004 Miss. App. LEXIS 222 (Miss. Ct. App. 2004).

Defendant’s due process rights were not violated by a prosecutor’s question regarding the invocation of the right to remain silent because defense counsel referred to the issue during direct examination; moreover, defendant failed to invoke the right during questioning after an arrest for sexual battery. McCoy v. State, 878 So. 2d 167, 2004 Miss. App. LEXIS 53 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 910 (Miss. 2004).

Because defense counsel, at the very least, had notice of the fact that the mental competency examination would take place, since he signed off on the examination order, the trial court did not err in failing to suppress the inmate’s confessions. Crawford v. State, 867 So. 2d 196, 2003 Miss. LEXIS 755 (Miss. 2003), cert. denied, 543 U.S. 866, 125 S. Ct. 205, 160 L. Ed. 2d 110, 2004 U.S. LEXIS 6519 (U.S. 2004).

Petitioner’s Fifth and Sixth Amendment rights were not violated when doctors, outside the presence of counsel, performed a psychiatric evaluation to determine his ability to stand trial; the doctors advised the petitioner that anything he said could be used against him during the sentencing phase of trial, and they offered to allow the petitioner to call his attorneys. Wilcher v. State, 863 So. 2d 719, 2003 Miss. LEXIS 526 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Where a police chief testified that defendant “stopped talking” after admitting being in the city where a murder occurred, defendant was not entitled to a mistrial based on the alleged inappropriate comment on his right to remain silent under the Fifth Amendment or Miss. Const. Art. 3, § 26; merely stating that defendant stopped talking did not give grounds for mistrial. Shelton v. State, 853 So. 2d 1171, 2003 Miss. LEXIS 349 (Miss. 2003).

Where a police chief testified that defendant “stopped talking” after admitting being in the city where a murder occurred, defendant was not entitled to a mistrial based on the alleged inappropriate comment on his right to remain silent under the Fifth Amendment or Miss. Const. Art. 3, § 26; merely stating that defendant stopped talking did not give grounds for mistrial. Shelton v. State, 853 So. 2d 1171, 2003 Miss. LEXIS 349 (Miss. 2003).

It was not error for the court not to allow the defendant to continue to question a witness after the witness took the stand and read a statement informing the court that he would not answer any questions from the defense or the state. Woodham v. State, 779 So. 2d 158, 2001 Miss. LEXIS 3 (Miss. 2001).

Criminal defendant must be allowed to call witnesses to stand even though defendant is aware that witness, if called, will invoke Fifth Amendment to every question. Butler v. State, 702 So. 2d 125, 1997 Miss. LEXIS 620 (Miss. 1997).

Witness had Fifth Amendment privilege to refuse to testify in murder trial; witness refused to answer any further questions after merely acknowledging that he knew defendant and another witness who had pled guilty to involvement in crime, it was plausible that witness’ presence at scene of crime could have resulted in charges being brought against him, and witness was subject to prosecution for other crimes that might have been revealed in his testimony. Butler v. State, 702 So. 2d 125, 1997 Miss. LEXIS 620 (Miss. 1997).

Invoking Fifth Amendment privilege against self-incrimination makes the witness unavailable and any hearsay statements from another witness about what the unavailable witness said fall within hearsay exception. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

When witness invokes his Fifth Amendment right, his response is not the proper subject for impeachment. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A police detective’s testimony concerning the fact that the defendant fainted after he was informed of his Miranda rights was not a violation of the defendant’s constitutional rights since the defendant did not give a statement and the detective did not comment on his silence; the detective’s stating that the defendant fainted was not the same as stating that the defendant refused to testify. Stogner v. State, 627 So. 2d 815, 1993 Miss. LEXIS 531 (Miss. 1993).

Where a defense witness invoked the Fifth Amendment, so that his testimony on direct-examination yielded nothing, the trial court erred in permitting the prosecutor to cross-examine the witness concerning a prior statement made by him; when the prosecutor, through the use of leading questions, parades before the jury the “testimony” of a silent witness, this violates the confrontation clause since the prosecutor cannot take the stand to be cross-examined by the defendant about the silent witness’ “testimony”. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A defense witness who invoked the Fifth Amendment could not be impeached by the State with respect to a prior statement made by him since the silence of a witness who invokes the Fifth Amendment does not constitute a denial which may be impeached. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

At a hearing on a former wife’s petition to hold her former husband in contempt for failure to pay child support, the wife could not invoke her right against self-incrimination to shield herself from questions on cross-examination as to whether she maintained that the husband had an account at a particular bank, where the wife had voluntarily taken the stand on direct examination and unequivocally identified the signature on the bank account as the husband’s. A party may not testify as to material facts in proceedings which he or she initiated, and later invoke the privilege against self-incrimination on those same matters. Thus, when the wife voluntarily took the stand and testified to material matters on direct examination, she also waived her right against self-incrimination. Wallace v. Jones, 572 So. 2d 371, 1990 Miss. LEXIS 565 (Miss. 1990).

An individual may not be compelled to testify against himself or herself or to offer testimony which might render him or her liable to a criminal prosecution, whether he or she is a witness in a civil, criminal, or quasi-criminal proceeding. Moore v. Moore, 558 So. 2d 834, 1990 Miss. LEXIS 59 (Miss. 1990).

A witness was properly allowed to invoke his Fifth Amendment rights against self-incrimination at a retrial on the ground that his testimony might result in perjury charges brought against him flowing from his testimony at the first trial. Stringer v. State, 548 So. 2d 125, 1989 Miss. LEXIS 354 (Miss. 1989).

A defendant’s right to the testimony of a witness extends only to the limit of the witness’ right against self-incrimination. Smith v. State, 527 So. 2d 660, 1988 Miss. LEXIS 295 (Miss. 1988).

Mere calling of witness by State who invoked Fifth Amendment privilege against self-incrimination would not be sufficient grounds for reversal of capital murder conviction; however, where state was allowed to call other witnesses to testify regarding alleged confession given by that witness, wherein he had detailed events of murder and implicated defendant as party to murder, defendant’s right to confront and cross-examine witnesses presented against her was violated. Witness invoking Fifth Amendment privilege against self-incrimination and refusing to answer any questions regarding confession effectively prevented defendant from conducting meaningful cross-examination in violation of her constitutionally protected rights; fact that defendant was allowed to cross-examine both witnesses concerning circumstances under which confession was given could not substitute for meaningful cross-examination of declarant himself; state’s contention that this evidence was properly admitted to impeach testimony given by witness was rejected, where state was allegedly attempting to impeach witness concerning statement that was accurate and truthful, which was that jury had previously decided whether he had killed decedent; court stated that it knew of no authority where truthful statements were held to be impeachable; instruction to jury that testimony was to be viewed only for impeachment purposes did nothing to diminish importance of this testimony and certainly did not cure constitutional error. Williamson v. State, 512 So. 2d 868, 1987 Miss. LEXIS 2683 (Miss. 1987), Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

Witness in capital murder case was improperly compelled to testify in violation of Fifth Amendment privilege against self-incrimination where witness was under indictment for conspiracy to commit arson at time he was called to stand, and charge of arson was so intertwined with murder case being tried that any testimony given by witness concerning murder could have been used in subsequent trial on arson charges. Williamson v. State, 512 So. 2d 868, 1987 Miss. LEXIS 2683 (Miss. 1987), Walton v. State, 678 So. 2d 645, 1996 Miss. LEXIS 192 (Miss. 1996).

The Fifth Amendment privilege is intended to protect the witness and has no proper application when the witness is not in danger of prosecution or conviction. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

Requiring witness, who had already pled guilty to the murder, to answer questions concerning that murder did not expose witness to prosecution for the murder and did not infringe upon his Fifth Amendment rights, where the witness’ petition for writ of habeas corpus or, in the alternative, petition to withdraw his guilty plea, came months after the term of court expired wherein he had pled and sentence had been entered. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

In a robbery prosecution, the state properly elicited from defendant that his purpose in buying marijuana from the victim was to sell it at a later time, where defendant testified in his own defense that he had purchased the marijuana from the victim, notwithstanding his contention that his Fifth Amendment rights were violated thereby. Davis v. State, 431 So. 2d 468, 1983 Miss. LEXIS 2597 (Miss. 1983).

There was no error in refusing to quash the indictment of a defendant who, when summoned before the grand jury, answered in response to the first question propounded to him that he claimed his rights under the Fifth Amendment and was thereupon immediately excused; for in his appearance before the grand jury he had not testified to a single fact. Byrd v. State, 228 So. 2d 874, 1969 Miss. LEXIS 1408 (Miss. 1969).

In a creditor’s suit seeking disclosure of certain assets, the chancellor did not commit error in holding that the judgment debtor was entitled to assert his privilege against self-incrimination, under statutes making it a crime to remove property subject to liens out of the state or out of the county without consent or with intent to defraud. Ferguson v. Johnson Implement Co., 222 So. 2d 820, 1969 Miss. LEXIS 1560 (Miss. 1969).

An individual who in applying to a surety for a performance and payment bond, obligated himself to furnish financial statements to the surety, and who was adjudged liable to the surety on the bond, was estopped from claiming a privilege against self-incrimination in the surety’s creditor’s suit against the individual, respecting the location of the individual’s assets. Ferguson v. Johnson Implement Co., 222 So. 2d 820, 1969 Miss. LEXIS 1560 (Miss. 1969).

26. –Transactional immunity, self-incrimination.

The constitutional right against self-incrimination requires a transactional immunity grant when a witness is granted immunity from prosecution in exchange for the witness’ agreement to testify before the grand jury. In order to place an individual in a position where he or she has no right to refuse to testify and may be held in contempt if he or she refuses to testify, the prosecution is required to grant immunity from prosecution for the witness’ involvement in the transaction which is the subject of the grand jury investigation and for or on account of any transaction, matter or thing concerning which the witness may testify or produce evidence. Moreover, no testimony or evidence produced by the witness, nor any information directly or indirectly derived from such testimony or evidence, may be used against the witness in any criminal prosecution, except perjury. Only such broad immunity will make the individual as secure as if he or she had remained silent. Wright v. McAdory, 536 So. 2d 897, 1988 Miss. LEXIS 589 (Miss. 1988).

27. –Privilege, self-incrimination.

Where defendant confessed to participating in the wife’s plan to murder her husband, the victim’s wife invoked the Fifth Amendment and therefore was an unavailable witness at trial; it was error for the circuit court to accept her blanket invocation of her privilege against self-incrimination without making a searching inquiry into what her testimony might be. Edmonds v. State, 2007 Miss. LEXIS 7 (Miss. Jan. 4, 2007), op. withdrawn, sub. op., 955 So. 2d 787, 2007 Miss. LEXIS 349 (Miss. 2007).

A father in a child support proceeding would be required to assert his claim of privilege against self-incrimination on a question by question basis with respect to questions regarding his tax returns, and would be required to tender sufficient information to allow the court to make an informed decision concerning the claim of privilege. Harrell v. Duncan, 593 So. 2d 1, 1991 Miss. LEXIS 979 (Miss. 1991).

In a prosecution for capital murder in which, when pressured to admit that he had acted alone and without an accomplice, defendant twice replied “I prefer not to speak on that,” defendant effectively invoked his privilege against further self-incrimination under the Fifth Amendment, and, because his request was not scrupulously honored, his subsequent incriminating statements were, as a matter of law, unconstitutionally obtained and should not have been received in evidence against him at trial. Jones v. State, 461 So. 2d 686, 1984 Miss. LEXIS 2009 (Miss. 1984).

28. –Request for counsel, self-incrimination.

Defendant’s statement to police officers during an interrogation should have been suppressed because the State of Mississippi failed to adequately prove that defendant initiated a conversation with the police officers after defendant invoked defendant’s right to have counsel present, and, even if defendant did initiate the conversation, the State failed to prove beyond reasonable doubt that defendant’s statement was knowing and intelligent. Collins v. State, 172 So.3d 724, 2015 Miss. LEXIS 435 (Miss. 2015).

In connection with the right to counsel during questioning, the standard in providing counsel does not depend on the expediency with which a law enforcement officer may secure counsel for the accused; any subsequent conversation cannot exceed the bounds of clarifying the accused person’s request. Downey v. State, 144 So.3d 146, 2014 Miss. LEXIS 389 (Miss. 2014).

When defendant stated that she had an attorney and “could use him,” all interrogation was required to cease except questioning for the purpose of clarifying the request for counsel, but the officer overstepped the limits of proper clarification by emphasizing the amount of time and difficulty that would be involved in obtaining counsel for defendant, and the officer’s persistence infringed on defendant’s right to cease the interrogation; because defendant invoked her right to counsel and the officer improperly continued questioning her, her rights to an attorney and against self-incrimination were violated. Downey v. State, 144 So.3d 146, 2014 Miss. LEXIS 389 (Miss. 2014).

Trial court manifestly erred in failing to suppress defendant’s statement to the police because the police subjected defendant to interrogation after he had invoked his right to counsel, and the State failed to prove that defendant’s waiver of rights was knowing, intelligent, and voluntary. Benjamin v. State, 116 So.3d 115, 2013 Miss. LEXIS 322 (Miss. 2013).

In a case in which defendant argued that the trial court should have suppressed her statements because they were taken in violation of her constitutional right to counsel. The record supported a finding that defendant received the Miranda warning, that she knowingly and intelligently waived the rights, and that she freely and voluntarily made the statements, and, pursuant to the Davis decision, she failed to make an unambiguous, unequivocal request for an attorney. Barnes v. State, 30 So.3d 313, 2010 Miss. LEXIS 104 (Miss. 2010).

Confronting a suspect with the incriminating evidence compiled against him after he has invoked his right to counsel, and without any initiation on the part of the suspect, is precisely the kind of psychological ploy that definition of interrogation in Innis was designed to prohibit. Pannell v. State, 7 So.3d 277, 2008 Miss. App. LEXIS 550 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 154 (Miss. 2009).

Defendant’s right to counsel was violated by police-initiated interrogation after he asserted his right to counsel because an officer showed defendant the evidence file in an attempt to have him reconsider his request for counsel; a tactic that proved successful as defendant was not prompted to speak until he reviewed the evidence. Because the actions of the officer constituted police-initiated custodial interrogation, a valid waiver could not be established simply by showing that defendant responded to the interrogation. Pannell v. State, 7 So.3d 277, 2008 Miss. App. LEXIS 550 (Miss. Ct. App. 2008), cert. denied, 11 So.3d 1250, 2009 Miss. LEXIS 154 (Miss. 2009).

Defendant’s capital murder convictions were proper where his Fifth, Sixth, and Fourteenth Amendment rights to counsel and to remain silent were not violated. He made no objection at trial; there was no testimony concerning defendant’s use of counsel or his right to remain silent; and the State’s questioning was designed solely to elicit a chronological version of the events involved in the investigation of the murders not the fact that the defendant requested an attorney during the State’s investigation. Rubenstein v. State, 2005 Miss. LEXIS 789 (Miss. Dec. 1, 2005), op. withdrawn, 2006 Miss. LEXIS 424 (Miss. Aug. 10, 2006), sub. op., 941 So. 2d 735, 2006 Miss. LEXIS 411 (Miss. 2006).

Defendant’s conviction for capital murder was proper where he was not denied his right to counsel because, at the time of his confession, he was merely a suspect who had been brought to the sheriff’s department for questioning and thus, his U.S. Const. amend. VI right to counsel had not yet attached. Further, as his confession occurred during a custodial interrogation, he had a U.S. Const. amends. V and XIV right to have counsel present, but the lower court found the testimony of the officers that defendant had not invoked his right to counsel more credible than defendant’s assertion that he had done so. Brink v. State, 888 So. 2d 437, 2004 Miss. App. LEXIS 559 (Miss. Ct. App.), cert. denied, 888 So. 2d 1177, 2004 Miss. LEXIS 1475 (Miss. 2004), cert. denied, 544 U.S. 986, 125 S. Ct. 1858, 161 L. Ed. 2d 744, 2005 U.S. LEXIS 3129 (U.S. 2005).

When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney; if the accused indicates in any manner that he wishes access to counsel, interrogation without counsel is allowed only if the accused himself initiates it; waiver of Fifth Amendment protections after counsel has been requested is not foreclosed, provided the accused has initiated the conversation or discussions with the authorities; defendant’s voluntary statement after requesting counsel, that he had dug a deep hole for himself, was admissible. Randolph v. State, 852 So. 2d 547, 2002 Miss. LEXIS 2 (Miss. 2002).

Requesting assistance of counsel at an initial appearance or bail hearing to defend a pending charge is not the same type of invocation of counsel contemplated by the Fifth Amendment Miranda-Edwards interest against compulsory self-incrimination, which is associated with police-initiated custodial interrogations; in order to invoke the Fifth Amendment right against compulsory self-incrimination, some “expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police” is required. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

An accused invoked her Fifth Amendment right to counsel at the time of her arrest when she asked for an attorney and stated that she was not going to sign any papers or answer any questions without having a lawyer present; the accused invoked her Sixth Amendment right to counsel and the state counterpart right secured by Article 3, § 26 of the Mississippi Constitution at her initial appearance when she indicated a desire for representation and an interest in contacting her family to ascertain their progress in hiring a lawyer for her. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

A trial court erred in admitting a defendant’s confession evidence since the confession was tainted by the constitutional violation of the defendant’s Sixth Amendment right to counsel and rights secured by Article 3, § 26 of the Mississippi Constitution, where the defendant “waived her rights” and made the confession after a sheriff department investigator and deputy initiated contact with her within less than 4 hours after she invoked the right to counsel at her initial appearance; the confession was also tainted by violation of the defendant’s Fifth and Fourteenth Amendment rights since the defendant had also requested a lawyer and declined to waive any rights at the time of her arrest. Balfour v. State, 598 So. 2d 731, 1992 Miss. LEXIS 131 (Miss. 1992).

When an accused makes an equivocal statement suggesting a request for counsel, the interrogation may only continue “on the narrow road” to ascertain the meaning of the equivocal statement. The interrogating officer has an affirmative duty to attempt to clarify the request before proceeding with the substance of the interrogation; the officer’s subsequent finding will determine whether or not interrogation may continue. Kuykendall v. State, 585 So. 2d 773, 1991 Miss. LEXIS 647 (Miss. 1991).

Once an accused has requested an attorney, it is improper for either the same or another law enforcement officer to question the accused about his or her criminal conduct. If the accused indicates in any manner at any time prior to or during questioning that he or she wishes to remain silent or to have access to counsel, the officers must cease interrogation. When the accused asks for counsel, the officers may not resume interrogation until counsel has been provided, except where the accused voluntarily reinitiates the discussion of the charges. If the accused requests access to counsel, all officers of the prosecution force are bound thereby, including those who have no actual knowledge of the request. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

A defendant’s confession should not have been admitted into evidence where the confession was obtained by law enforcement officers after the defendant made a request for an attorney to the justice court judge who was considering binding him over to await the action of the grand jury, and one of the officers heard the defendant’s request. Although the defendant may only have meant that he wanted a lawyer for court proceedings and did not want a lawyer to advise him before being questioned about the crime, the officers did not seek to make such a determination, but simply proceeded to question the defendant, knowing that he was a cocaine addict and to some extent, because of such addiction, judgment-impaired at the time. No intelligent, knowing waiver of the right to counsel, which the defendant had expressed to the justice court judge, could be found from an officer testifying that he simply orally gave the defendant the Miranda warning. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

Admission of written statement into evidence violated defendant’s constitutional rights where, after Miranda rights were read, father of defendant informed police that attorney was desired and that no statement would be made until one was present. After this right had been invoked, officer continued questioning at which point defendant gave oral statement, which was reduced to writing following day. Prosecution could not show that defendant understood and waived his rights where officer stated that Miranda rights were read to him and defendant was asked if he understood it, to which he replied “yes”, but rights were not discussed with defendant. Impermissible questioning which occurred in police station after defendant had invoked right to counsel bears on admissibility of written statement which was obtained following morning. Reuben v. State, 517 So. 2d 1383, 1987 Miss. LEXIS 2935 (Miss. 1987).

Statement made by defendant to deputy sheriff, in response to questioning, after defendant had requested a lawyer but before he had arrived, was not admissible by the state on its case in chief against defendant for murder; but, since the statement was not a product of coercion or promises, it was admissible to impeach defendant’s credibility as a witness. Murphy v. State, 336 So. 2d 213, 1976 Miss. LEXIS 1507 (Miss. 1976), cert. denied, 429 U.S. 1076, 97 S. Ct. 819, 50 L. Ed. 2d 795, 1977 U.S. LEXIS 559 (U.S. 1977).

29. –Request for mental health or spiritual advisor, self-incrimination.

A defendant’s Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel were not violated by the admission of his confession into evidence, even though the confession was obtained after the defendant initially refused to sign a waiver of rights form and had stated that he would not sign anything until he talked to his mental health counselor. The defendant’s refusal to sign the waiver of rights form was not a per se invocation of his Fifth Amendment rights. Additionally, the defendant’s request for a mental health counselor was not a per se invocation of his Fifth Amendment rights; a request for someone other than an attorney does not invoke a defendant’s Fifth Amendment rights, and a mental health counselor is not qualified to protect a defendant’s Fifth Amendment rights. Similarly, neither the defendant’s request to speak to his mental health counselor nor his temporary refusal to sign the waiver form constituted a request for counsel so as to invoke his Sixth Amendment right. Mohr v. State, 584 So. 2d 426, 1991 Miss. LEXIS 481 (Miss. 1991).

30. –Failure to testify generally, self-incrimination.

Alleged improper comment on a defendant’s right to remain silent under the Fifth Amendment is reviewed for harmless error. Smith v. State, 848 So. 2d 195, 2003 Miss. App. LEXIS 350 (Miss. Ct. App. 2003).

Prosecution is prohibited from making direct comment, or reference by innuendo or insinuation, to defendant’s failure to testify on his or her own behalf. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

31. –Comment by counsel on failure to testify, self-incrimination.

Defendant’s capital murder conviction was appropriate because the trial court did not err in not declaring a mistrial after a witness’s comment regarding defendant’s exercise of his right to remain silent. The trial court’s instruction, to which the defense did not object, cured the error of the testimony of the investigator; therefore, the investigator’s comment on defendant’s exercise of his right to remain silent did not constitute abuse of discretion by the trial court, nor reversible error. Birkhead v. State, 2009 Miss. LEXIS 73 (Miss. Feb. 19, 2009).

Prosecutor’s statement “she can’t come here with a straight face and tell you I lied for whatever kind, sweet reason counsel opposite might have you believe” was not a comment on defendant’s failure to testify. The prosecutor simply responded to the comments that defense counsel made during closing argument. Teston v. State, 44 So.3d 977, 2008 Miss. App. LEXIS 681 (Miss. Ct. App. 2008), cert. dismissed, 44 So.3d 969, 2010 Miss. LEXIS 520 (Miss. 2010).

Prosecutor’s statement was a permissible comment on the absence of evidence to support defendant’s defense as the prosecutor’s statement neither referred to defendant’s failure to testify, nor by masked implication suggested defendant’s silence was evidence of guilt; therefore, the circuit court did not abuse its discretion in overruling defendant’s motion for a mistrial. Dora v. State, 986 So. 2d 917, 2008 Miss. LEXIS 308 (Miss. 2008), cert. denied, 555 U.S. 1142, 129 S. Ct. 1009, 173 L. Ed. 2d 302, 2009 U.S. LEXIS 780 (U.S. 2009).

Where the prosecutor in no way, either directly or inferentially, put a negative spin on the fact that the defendant exercised his constitutional right not to testify, but merely addressed defendant’s failure to present any case at all, the prosecutor did not violate Miss. Const. Art. 3, § 26 and the Fifth Amendment in her closing arguments, and no error was committed by the trial court in denying defendant’s motion for a mistrial. Wright v. State, 958 So. 2d 158, 2007 Miss. LEXIS 202 (Miss.), cert. dismissed, 964 So. 2d 508, 2007 Miss. LEXIS 501 (Miss. 2007).

Denial of the inmate’s petition for postconviction relief pursuant to Miss. Code Ann. §§99-39-1 et seq., was appropriate in part because his Fifth Amendment right against self-incrimination was not violated since the prosecutor’s comment was a fair response to the defense’s claim that the state failed to call some witnesses who could have been helpful to the jury; the argument at issue did not specifically mention the inmate or refer to his failure to testify. Turner v. State, 953 So. 2d 1063, 2007 Miss. LEXIS 2 (Miss. 2007).

Statements by the prosecutor during cross-examination of a witness and during his closing statements did not warrant a mistrial because the remark had not created negative inferences based upon defendant’s choice to exercise his right not to testify. It was clear from the context of the sentences that the prosecutor was referring to the attorneys and not defendant. Foley v. State, 914 So. 2d 677, 2005 Miss. LEXIS 586 (Miss. 2005).

Court rejected husband’s claim that the State’s closing remark that neither parent had offered an adequate explanation of how the child was injured violated his Fifth Amendment right not to testify in his own defense because the statements did not penalize the husband for asserting his constitutional privilege but rather were comments on the husband and wife’s lack of a defense. Not every comment on the absence of a defense or on the defense presented is equivalent to a comment on the defendant’s failure to testify. Scarbough v. State, 893 So. 2d 265, 2004 Miss. App. LEXIS 1119 (Miss. Ct. App. 2004), cert. denied, 893 So. 2d 1061, 2005 Miss. LEXIS 103 (Miss. 2005).

In the mother and stepfather’s appeal of their convictions for felonious child abuse, the State’s comments during closing argument did not violate the stepfather’s right under the Fifth Amendment and Miss. Const. Art. 3, § 26 not to be compelled to be a witness against oneself, which included the right not to have the prosecution make any comment upon a defendant’s exercise of that right, because the comments were comments on the defense presented, or lack thereof, and not comments on the failure to testify. Not every comment regarding the lack of any defense or upon the defense presented is equivalent to a comment on the defendant’s failure to testify; the State is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to a defendant’s failure to testify by innuendo and insinuation. Scarbough v. State, 2004 Miss. App. LEXIS 910 (Miss. Ct. App. Sept. 14, 2004), op. withdrawn, sub. op., 893 So. 2d 265, 2004 Miss. App. LEXIS 1119 (Miss. Ct. App. 2004).

In a drug case, a prosecutor’s comment to the jury regarding its duty to weigh the testimony of several police officers did not violate defendant’s right not to testify because it was merely directed to a lack of a defense. Stubbs v. State, 878 So. 2d 130, 2004 Miss. App. LEXIS 31 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 936 (Miss. 2004).

State’s comments on defendant’s failure to explain the fact that his shotgun had killed the victim were not improper comments on defendant’s failure to testify, but merely comments on defendant’s failure to put on a successful defense. Cox v. State, 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

Where the prosecution asked a question that elicited a response commenting on defendant’s exercise of defendant’s right to remain silent, this infringement upon defendant’s Fifth Amendment right to remain silent was harmless error, because defendant had been identified as the perpetrator by the codefendant, who testified against defendant at trial, and the facts of the crime were largely beyond dispute. Smith v. State, 848 So. 2d 195, 2003 Miss. App. LEXIS 350 (Miss. Ct. App. 2003).

Defendant’s exercise of his Fifth Amendment right not to testify had not been violated by the State’s closing argument; the prosecutor did not comment on defendant’s failure to testify but on his failure to put on a successful defense. Cox v. State, 2003 Miss. LEXIS 103 (Miss. Mar. 13, 2003), op. withdrawn, sub. op., 849 So. 2d 1257, 2003 Miss. LEXIS 337 (Miss. 2003).

Prosecutor did not make any remarks in his closing arguments that violated defendant’s Fifth Amendment right to silence when the prosecutor stated that “defendant is the only one that knows why they let him [the victim] off with just $ 21 dollars.” Hughes v. State, 807 So. 2d 426, 2001 Miss. LEXIS 309 (Miss. 2001).

The defendant’s right against self-incrimination was not compromised by the prosecutor’s reference, in his closing argument, to voluntary statements made by the defendant, notwithstanding the defendant’s contention that a reasonable juror could have viewed these comments as a reference to the fact that he had not testified in his own defense, since the state did not call the jury’s attention to the defendant’s failure to testify at trial. Hill v. State, 774 So. 2d 441, 2000 Miss. LEXIS 277 (Miss. 2000).

In a prosecution for sale of marijuana to an undercover agent in which the defendant implied that the state mistakenly identified him as the person who sold the marijuana, the prosecutor’s comment during closing arguments was a comment on the defendant’s failure to successfully back up the claim of mistaken identity he raised in closing arguments, rather than a comment on his failure to take the stand in his own defense. Heatherly v. State, 757 So. 2d 357, 2000 Miss. App. LEXIS 173 (Miss. Ct. App. 2000).

Government’s exploitation of silence, after government has helped induce that silence by informing defendant of his right to remain silent, violates due process. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Alternative tests for determining whether prosecutor’s or witness’s remarks constitute comment on a defendant’s silence are whether “manifest intent” was to comment on defendant’s silence or, alternatively, whether character of remark was such that jury would “naturally and necessarily” construe it as comment on defendant’s silence, determining both intent of prosecutor and character of remarks in relevant context. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Where defendant’s testimony at trial does not deal with same subject matter as his pretrial statement, prosecutor’s remarks on omissions in pretrial statement is considered plea for jury to infer guilt or other negative inferences from defendant’s exercise of his Miranda rights. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Witness’ invocation of his Fifth Amendment privilege to refuse to testify was not relevant evidence, and thus defense counsel could not refer to such refusal in counsel’s closing argument. Butler v. State, 702 So. 2d 125, 1997 Miss. LEXIS 620 (Miss. 1997).

Even if prosecutor’s statement during closing argument that referred to witness’ testimony, in which witness told defense counsel to ask defendant if he had told witness about committing crime, was improper reference to defendant’s refusal to testify, statement did not require reversal; defense counsel did not object when witness made comment, prosecutor’s remarks could be characterized as summary of witness’ testimony rather than remark on defendant’s failure to testify, evidence supported conviction beyond reasonable doubt without prosecutor’s statement, and comment had almost no persuasive force. Taylor v. State, 672 So. 2d 1246, 1996 Miss. LEXIS 193 (Miss.), cert. denied, 519 U.S. 994, 117 S. Ct. 486, 136 L. Ed. 2d 379, 1996 U.S. LEXIS 7020 (U.S. 1996).

Right not to give compelled testimony is violated by direct statement regarding defendant’s decision not to testify, or comment which could reasonably be construed by jury to be comment about defendant’s failure to testify. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Prosecutor did not improperly comment on defendant’s failure to testify during sentencing phase of capital murder trial when he made comments concerning defendant’s credibility, where defendant had testified during guilt phase and stipulated to use of guilt phase testimony during sentencing phase. Holly v. State, 671 So. 2d 32, 1996 Miss. LEXIS 15 (Miss.), cert. denied, 518 U.S. 1025, 116 S. Ct. 2565, 135 L. Ed. 2d 1082, 1996 U.S. LEXIS 4179 (U.S. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating that sole issue, in prosecution against defendant for arson, was whether defendant recruited arsonist to burn building on the day in question. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by pointing out that not one defense witness testified that prosecution witness was lying. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating that no evidence was presented, in prosecution against defendant for arson, that arsonist, allegedly recruited by defendant to burn building on the day in question, was a professional criminal; rather, comment merely referred to paucity of evidence supporting defense theory that arsonist burned building to get revenge on defendant. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating, during closing argument in prosecution against defendant for arson, that it was not likely that government witness fabricated his testimony, in that if he had, he would have fabricated a better story; rather, comment merely referred to paucity of evidence supporting defense theory witness was publicity seeker who would fabricate testimony. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating, during closing argument in prosecution against defendant for arson, that there was no testimony supporting defense theory that defendant could not have committed the crime inasmuch as he was doctor who derived sense of closeness from the community because he was “their” doctor; rather, comment merely referred to paucity of evidence supporting that defense theory. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecutor did not comment on defendant’s failure to testify by stating, during closing argument in prosecution against defendant for arson, that there was no testimony supporting defense theory that arsonist was blackmailing defendant; rather, comment merely referred to fact that blackmail theory was put forth by defense attorneys rather than by defense witnesses. Dowbak v. State, 666 So. 2d 1377, 1996 Miss. LEXIS 6 (Miss. 1996).

Prosecution did not improperly comment on capital murder defendant’s failure to testify, when he stated that accomplice’s testimony regarding a ripped shirt was the “only testimony” and the “only reliable information” made available; reading of full remarks made it plain that prosecutor was simply summarizing account of night’s events as told by accomplice and rebutting defense efforts to show that accomplice was lying. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Prosecutor did not impermissibly comment upon failure of capital murder defendant to testify when he told jury, following defendant’s speech to jury, that “for 11 months [defendant] had wanted to say something” and “if all he had to say was what he said in those less than 2 minutes he stood here before you, I can see why he hasn’t bothered until now”; prosecutor’s remarks were in direct response to defendant’s attempt to show some degree of remorse. Walker v. State, 671 So. 2d 581, 1995 Miss. LEXIS 494 (Miss. 1995), cert. denied, 519 U.S. 1011, 117 S. Ct. 518, 136 L. Ed. 2d 406, 1996 U.S. LEXIS 7236 (U.S. 1996).

Prosecutor did not impermissibly comment on defendant’s failure to take the stand during resentencing hearing in capital murder case when he attempted to question witness about defendant’s confession given during his guilt phase testimony; trial court refused to allow prosecution to question witness as to defendant’s earlier testimony, and at time, defendant had not informed trial court he would not testify during sentencing phase. Russell v. State, 670 So. 2d 816, 1995 Miss. LEXIS 617 (Miss. 1995), cert. denied, 519 U.S. 982, 117 S. Ct. 436, 136 L. Ed. 2d 333, 1996 U.S. LEXIS 6884 (U.S. 1996), cert. dismissed, 520 U.S. 1249, 117 S. Ct. 2406, 137 L. Ed. 2d 1064, 1997 U.S. LEXIS 3537 (U.S. 1997).

Prosecutor is prohibited from commenting on defendant’s failure to testify, whether by direct comment or by innuendo and insinuation. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutorial comment on defendant’s failure to testify is incurable, and defendant is entitled to mistrial; instruction to jury to disregard prosecutor’s comments is insufficient to correct impropriety. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Defendant’s constitutional interest in privilege against compelled self-incrimination is balanced on case-by-case basis against rule allowing attorneys wide latitude in making closing arguments, except where attorney makes direct reference to defendant’s failure to testify. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutor may comment on lack of any defense, and such comment is not construed as reference to defendant’s failure to testify through innuendo and insinuation. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Whether prosecutorial comment is improper comment on defendant’s failure to testify is determined on facts and circumstances of each case; question is whether comment can reasonably be construed as comment upon failure of defendant to take stand. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

Prosecutor did not make improper comments on defendant’s failure to testify, and defendant was thus not entitled to mistrial, when prosecutor commented about what defendant might or might not have said to arresting officer, objected to defense counsel’s statement that defendant was a family man who should be sent home to his family, and noted that jury had not heard any proof about where defendant was going if jury did not convict him. Jones v. State, 669 So. 2d 1383, 1995 Miss. LEXIS 586 (Miss. 1995).

A prosecutor’s remarks during the penalty phase of a capital murder prosecution did not constitute an improper comment on the defendant’s failure to testify where the prosecutor stated that the defendant “showed no compassion, but would send a lawyer up here and ask you for compassion,” since the argument pointed out the lack of a mitigation defense presented by the defendant, and that he was reduced to sending his lawyer in to plead for his life after all else had failed. Davis v. State, 660 So. 2d 1228, 1995 Miss. LEXIS 287 (Miss. 1995), cert. denied, 517 U.S. 1192, 116 S. Ct. 1684, 134 L. Ed. 2d 785, 1996 U.S. LEXIS 3101 (U.S. 1996).

The prosecutor’s closing argument in the guilt phase of a capital murder prosecution did not constitute an improper comment on the defendant’s right to remain silent following arrest where the prosecutor, while discussing a county jail inmate’s testimony as to statements made by the defendant while he was in the jail, referred to the relationship between the defendant and the witness, and described the circumstances under which the statements were made. Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

A prosecutor’s closing argument in a capital murder case did not constitute a comment on the defendant’s failure to testify at trial, in spite of the defendant’s argument that the prosecutor’s comments highlighted the fact that the only people alive who could have testified as to the events surrounding the murders were the defendant and his accomplice, where the prosecutor merely stated that the defendant and his accomplice saw to it that there were no eyewitnesses, and that “people who kill their victims and kill their eyewitnesses cannot be set free.” Carr v. State, 655 So. 2d 824, 1995 Miss. LEXIS 56 (Miss. 1995), cert. denied, 516 U.S. 1077, 116 S. Ct. 783, 133 L. Ed. 2d 734, 1996 U.S. LEXIS 547 (U.S. 1996).

In the sentencing phase of a capital murder prosecution, the State’s closing argument did not constitute a comment on the defendant’s failure to take the witness stand in his own defense where the State made the following argument: “Do you think she was suffering? Do you think that’s cruel and atrocious, and what’s even more than that, what do you think was running through [defendant’s] head as he sat through watching her gag on her own blood? What do you think he was thinking?” Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

A prosecutor’s remarks during closing argument did not constitute improper comment on the defendant’s decision not to testify where the prosecutor did not comment on the defendant’s failure to take the stand, but merely attempted to turn the jury’s attention to the defendant’s confession to the police which had been admitted into evidence. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A prosecutor’s comments on the defendant’s failure to testify reached a constitutional dimension so egregious that failure on the part of the defense counsel to make a proper objection either at trial or in his motion for a new trial did not waive the error where the prosecutor made 4 separate statements telling the jury that the State’s witness’ testimony was “unopposed,” “unimpeached,” “unrebutted,” and that there was “no evidence whatsoever toward their unreliability.” Whigham v. State, 611 So. 2d 988, 1992 Miss. LEXIS 821 (Miss. 1992).

A prosecutor did not improperly comment during closing argument on the defendant’s right to remain silent where the prosecutor remarked that the victim could not talk because she was dead and stated that only the defendant and God knew what happened, but he did not observe the defendant’s silence during trial; the prosecutor’s comments would be a reference to the defendant’s failure to testify only if innuendo and insinuation were employed. Alexander v. State, 610 So. 2d 320, 1992 Miss. LEXIS 580 (Miss. 1992).

A prosecutor improperly commented during closing argument on a capital murder defendant’s failure to testify where the prosecutor stated that the defendant “hasn’t told you the whole truth yet,” that “you still don’t know the whole story,” and that the defendant was the only person alive who could give the whole story. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

A prosecutor did not improperly comment on the defendant’s failure to testify when he stated during closing argument: “That’s what you have got before you, and that’s all you have got before you. All the evidence in this case points to one thing and one thing only”; the prosecutor’s comment related to the evidence presented in the trial by both the State and defense as a whole, rather than the failure of the defendant to take the stand. Rogers v. State, 599 So. 2d 930, 1992 Miss. LEXIS 123 (Miss.), overruled in part, Mayfield v. State, 612 So. 2d 1120, 1992 Miss. LEXIS 861 (Miss. 1992).

In a capital murder prosecution in which the defense counsel had argued that “there is only one person who can tell you if a reasonable doubt exists insofar as this case, and that’s each and every one of you,” the prosecutor’s rebuttal constituted an improper comment on the defendant’s failure to testify where it included a statement that “they tell you, there’s one man alive today who can tell you what happened, and I agree with that. There is one person who could tell you what happened and we have... a statement from him. We have a confession, an oral confession, we have a written confession....” Such remarks directed the jury’s attention to the failure of the defendant to take the stand and admit or deny the contents of the confession. Griffin v. State, 557 So. 2d 542, 1990 Miss. LEXIS 50 (Miss. 1990).

A prosecutor’s statement in closing argument that “they” hadn’t bothered to tell the jury what the defendant was doing at a certain location was not an impermissible comment on the defendant’s failure to testify since it was proper for the prosecutor to question the defense’s inability to successfully explain the defendant’s presence in the area where the crime took place, and the prosecutor’s use of the word “they” appeared to be a reference to the defendant’s 2 attorneys rather than the defendant himself. Jimpson v. State, 532 So. 2d 985, 1988 Miss. LEXIS 428 (Miss. 1988).

An assignment of error based on the prosecutor’s comment on the defendant’s failure to testify was not procedurally barred for failure to make a contemporaneous objection because the right not to take the witness stand is a fundamental constitutional right. Livingston v. State, 525 So. 2d 1300, 1988 Miss. LEXIS 223 (Miss. 1988).

Argument that comment by prosecutor, who stated he had observed defendant and saw no remorse in him whatsoever, was made on defendant’s Fifth Amendment privilege against self-incrimination did not constitute reversible error when viewed in light of all evidence. Livingston v. State, 525 So. 2d 1300, 1988 Miss. LEXIS 223 (Miss. 1988).

No breach of constitutional right not to testify occurred where comment by counsel allegedly related to failure of accused to testify was in fact statement which court found had not been intended as reference to defendant’s silence, but was instead merely mention of other parties who had testified. Russell v. State, 506 So. 2d 974, 1987 Miss. LEXIS 2321 (Miss. 1987).

An accused who had failed to testify or to put on proof at his capital murder trial was not entitled to a mistrial because of remarks by prosecutor in closing argument asking jury to recall defense’s assertion in opening statement as to witnesses to be called. West v. State, 485 So. 2d 681, 1985 Miss. LEXIS 2445 (Miss. 1985), cert. denied, 479 U.S. 983, 107 S. Ct. 570, 93 L. Ed. 2d 574, 1986 U.S. LEXIS 4897 (U.S. 1986).

An accused sentenced to death on a capital murder charge was denied a fair trial by prosecutor’s comments in closing argument as to accused’s failure to testify, and by defense counsel’s attempted “explanation” in closing argument as to the reason his client had failed to testify. West v. State, 485 So. 2d 681, 1985 Miss. LEXIS 2445 (Miss. 1985), cert. denied, 479 U.S. 983, 107 S. Ct. 570, 93 L. Ed. 2d 574, 1986 U.S. LEXIS 4897 (U.S. 1986).

If capital murder defendant gives exculpatory testimony during sentencing phase of trial, prosecutor may comment on defendant’s exercise of right not to testify during prior trials and during penalty phase. Jordan v. State, 464 So. 2d 475, 1985 Miss. LEXIS 1880 (Miss. 1985), vacated, 476 U.S. 1101, 106 S. Ct. 1942, 90 L. Ed. 2d 352, 1986 U.S. LEXIS 2914 (U.S. 1986).

Neither §13-1-9 [repealed] nor defendant’s Fifth Amendment rights were violated by the prosecutor’s comment on the defense’s failure to dispute the state’s evidence, where the defense failed to introduce any evidence at all in a prosecution for drug related crimes, even though they could have presented the testimony of a witness who was present at the time a search of their home was made. Lee v. State, 435 So. 2d 674, 1983 Miss. LEXIS 2704 (Miss. 1983).

In a prosecution for rape, statements made by the prosecutor concerning defendant’s failure to deny guilt when arrested were improper but did not mandate reversal of the conviction where the defense attorney neither asked the trial court to instruct the jury to disregard the statements, nor moved for a mistrial, thereby failing to properly preserve the issue for appeal, and where such error was harmless in view of the overwhelming evidence of defendant’s guilt beyond a reasonable doubt. Austin v. State, 384 So. 2d 600, 1980 Miss. LEXIS 2006 (Miss. 1980).

32. –Comment by counsel on inconsistency of testimony, self-incrimination.

Defendant’s post-arrest statement, that victim “come out on me with a gun,” was sufficiently inconsistent with his trial testimony, that third-party shook defendant’s rifle and shooting was accidental, to establish that prosecutor’s comments on statement were designed and had effect of highlighting arguable inconsistency, rather than commenting improperly on defendant’s exercise of his right to remain silent. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Where defendant’s postarrest statement addresses same subject matter as his trial testimony and is arguably inconsistent with that testimony, prosecutor’s questions and comments designed to highlight inconsistency do not violate due process. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

Prosecutorial statements that are either intended to or have necessary effect of raising negative inference simply because of defendant’s exercise of his right to remain silent are prohibited, but where prosecutor’s questions and comments are aimed at eliciting explanation for arguably prior inconsistent statement, no due process violation occurs. Pitts v. Anderson, 122 F.3d 275, 1997 U.S. App. LEXIS 25289 (5th Cir. Miss. 1997).

A defendant’s out of court signed statement was properly used to impeach his testimony, though the statement was inadmissible in the State’s case-in-chief because the defendant signed the statement without being informed of his Miranda rights, since the statement was voluntarily given where the defendant was not threatened or mistreated when he made the statement, no one made any promises to him, he was not intoxicated or under the influence of any drugs, and the defendant admitted that he could have stopped talking at any time and could have left the room. Bowen v. State, 607 So. 2d 1159, 1992 Miss. LEXIS 561 (Miss. 1992).

A prosecutor’s question on cross-examination of the defendant, asking if “today is the first time you have told any official the version you’ve given today?”, did not constitute an improper comment on the defendant’s right to remain silent where the defendant, on direct examination, had testified to a version of the events in question that had never before been given to the sheriff’s office and the defendant had given the sheriff four other versions of the story. Once the defendant related this new sequence of events on direct examination, the prosecution was well within its rights on cross-examination to inquire further about the novelty of the story. Shell v. State, 554 So. 2d 887, 1989 Miss. LEXIS 492 (Miss. 1989), rev'd, in part, 498 U.S. 1, 111 S. Ct. 313, 112 L. Ed. 2d 1, 1990 U.S. LEXIS 5501 (U.S. 1990).

33. –Accomplices and codefendants, self-incrimination.

While codefendants’ Fifth Amendment rights would not have been violated by having handwriting exemplars examined by an expert to authenticate a statement allegedly written by the codefendant because the evidence would not have been used as testimonial evidence at trial, there was not a substantial need for expert assistance shown in that nothing in the record indicated that defendant ever attempted to have these statements authenticated by locating someone familiar with the handwriting of the codefendants under Miss. R. Evid. 901(b)(2). Therefore, the trial court did not err in denying defendant’s motion to compel handwriting exemplars. Flora v. State, 925 So. 2d 797, 2006 Miss. LEXIS 49 (Miss.), cert. denied, 549 U.S. 912, 127 S. Ct. 253, 166 L. Ed. 2d 197, 2006 U.S. LEXIS 6127 (U.S. 2006).

Letters written by defendant to accomplice after he had asserted his constitutional rights to silence and to counsel were properly admitted into evidence in capital murder prosecution; accomplice did not produce letters in attempt to get favorable treatment from state given that state was not aware of their existence until after accomplice had pled guilty, there was no evidence that accomplice was acting as agent of state when letters were received, and there was no evidence that accomplice deliberately attempted to elicit incriminating statements from defendant. Brown v. State, 682 So. 2d 340, 1996 Miss. LEXIS 427 (Miss. 1996), cert. denied, 520 U.S. 1127, 117 S. Ct. 1271, 137 L. Ed. 2d 348, 1997 U.S. LEXIS 1821 (U.S. 1997).

Statements made by a defendant’s sister in the defendant’s presence that she intended to get an attorney were not sufficient to trigger the defendant’s right to counsel during police questioning and to preclude any subsequent waiver on his part where the record was devoid of any evidence that the defendant attempted to adopt, or even understood, the statements made by his sister. Lee v. State, 631 So. 2d 824, 1994 Miss. LEXIS 80 (Miss. 1994).

Cross-examination of accomplice was legitimate attempt by prosecutor to impeach his testimony and was not calculated to raise defendant’s silence in jurors’ minds, where comments were directed principally toward accomplice, and not toward defendant’s failure to testify. Monroe v. State, 515 So. 2d 860, 1987 Miss. LEXIS 2764 (Miss. 1987).

Trial court committed reversible error by preventing armed robbery defendant, who contended another had committed the crime, from asking questions, in jury’s presence, concerning such other person’s description and characteristics, of a witness, an accused accessory, who, out of jury’s presence, had refused, on self-incrimination grounds, to answer questions concerning the robbery, but had answered questions concerning the description of the other person. Hall v. State, 490 So. 2d 858, 1986 Miss. LEXIS 2488 (Miss. 1986).

Refusal of the trial court to permit a defendant to continue to ask his codefendant questions with reference to the ownership of articles seized by officers during a search, after the witness had refused to answer questions on the ground that her answers might tend to incriminate her, was proper, contrary to the defendant’s assertion that he had a right to ask her in detail about each article exhibited and obtained in the search. Boring v. State, 253 So. 2d 251, 1971 Miss. LEXIS 1214 (Miss. 1971), cert. denied, 405 U.S. 1040, 92 S. Ct. 1310, 31 L. Ed. 2d 581, 1972 U.S. LEXIS 3074 (U.S. 1972).

34. –Pre-arrest statements of defendant, self-incrimination.

Incriminating statements made by a murder defendant were properly admitted into evidence where the defendant was not under arrest at the time of the questioning, the law enforcement officers were merely seeking information about a missing person, the defendant voluntarily went with the officers to the sheriff’s office, he was free to leave, and he was taken home by an officer when the questioning was over. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

A defendant was under arrest and was therefore entitled to Miranda warnings where he was taken into custody by a deputy sheriff, he was told to go with the officer and was told that it was a very serious matter, he was not allowed to drive his own truck, and he was never released even though he told the officers no more about his whereabouts at the time of the crime then they had already been told. Although the questioning officer may have assumed that the defendant was not under arrest when he questioned him, that is not the test; if the officer had any intention of questioning the defendant without first giving him the Miranda warnings, it was incumbent upon him to have ascertained clearly from the officer who brought the defendant in that the defendant had not been taken into custody and that there was no reason for the defendant to believe that he was in custody. Bevill v. State, 556 So. 2d 699, 1990 Miss. LEXIS 27 (Miss. 1990).

35. –Statements regarding post-arrest silence, self-incrimination.

Defendant’s right to remain silent was not violated when a police chief testified that defendant declined to interview upon his request because it was not plain, clear, or obvious that the testimony actually referenced post-Miranda silence; the State did not intentionally elicit the chief’s comment, it was the sole reference over the course of defendant’s trial regarding his choice to remain silent, and the State did not suggest to the jury that he was guilty because he declined to interview. Swinney v. State, 241 So.3d 599, 2018 Miss. LEXIS 8 (Miss. 2018).

During defendant’s trial for sexual battery of a child, the State did not impermissibly comment on his initial post-Miranda refusal to speak with investigators prior to his later statement about fondling the victim because the prosecutor’s statement and an officer’s testimony about his prior refusal to speak were simply a recitation of the facts concerning a preceding interview. Beasley v. State, 74 So.3d 357, 2010 Miss. App. LEXIS 681 (Miss. Ct. App. 2010).

Complained of comments and testimony, even if improper, could not be said to amount to plain error in light of the significant circuit split as to whether the use of a defendant’s post-arrest, pre-Miranda silence as substantive evidence of the defendant’s guilt offended the Fifth Amendment; the references to appellant’s post-arrest, pre-Miranda silence did not meet all the elements of the plain-error test in that those references could not be said to be plain, clear, or obvious under the law in Mississippi. Hurt v. State, 34 So.3d 1191, 2009 Miss. App. LEXIS 605 (Miss. Ct. App. 2009).

In an aggravated assault case, defendants’ rights to remain silent under U.S. Const. Amend. V were not violated as the deputy’s statement regarding defendants’ post arrest silence was harmless error in that their silence was not being used against them, and only one reference was made to their intentions to remain silent. Byrd v. State, 977 So. 2d 405, 2008 Miss. App. LEXIS 168 (Miss. Ct. App. 2008).

36. – Noncustodial interrogation, self-incrimination.

Defendant’s convictions for felonious child abuse were appropriate because her statements to a family protection specialist were admissible since defendant was not subjected to custodial interrogation. Defendant was questioned by the specialist, and not the law enforcement officers who accompanied her; during the questioning, defendant was not under arrest, she was in her own home and free to terminate the interview; and nothing in the testimony of defendant or the specialist indicated that defendant believed that she was going to jail rather than temporarily being detained. Clark v. State, 40 So.3d 531, 2010 Miss. LEXIS 410 (Miss. 2010).

Defendant was not under interrogation when he told the detective he had committed the offenses; therefore, his statement was voluntary and not the subject of any interrogation by the detective; therefore, no Miranda warnings were needed, and his Fifth Amendment right to counsel and his right not to incriminate himself were not violated. Alexander v. State, 910 So. 2d 704, 2005 Miss. App. LEXIS 190 (Miss. Ct. App. 2005).

Investigator was not required to inform defendant of the Fifth Amendment rights during two secretly recorded interviews regarding the death of defendant’s stepdaughter because defendant was not in custody; it was irrelevant that defendant was the primary target of a police investigation. Starns v. State, 867 So. 2d 227, 2003 Miss. LEXIS 873 (Miss. 2003).

There was no custodial interrogation where (1) the first contact between the parties was made by the defendant, not the police officer; (2) the officer advised the defendant that he needed to talk with him in person; (3) the defendant was questioned by the officer in his office, not in an interrogation room; (4) officer was in his office with other sheriff’s office employees during regular office hours; (5) the officer, one other sheriff’s office employee, and the defendant were the only people present at the meeting; (6) no force or physical restraint was used to get the defendant to the meeting as he came voluntarily; and (7) the allegations against the defendant, kidnapping and aggravated assault, were discussed, as was his ownership of a .45 caliber pistol which was allegedly involved in those alleged crimes. Godbold v. State, 731 So. 2d 1184, 1999 Miss. LEXIS 55 (Miss. 1999).

A minor has no constitutional right to have his parents present during his interrogation for a capital crime; and a minor’s parents can not assert his constitutional right against self-incrimination on his behalf. Hill v. State, 749 So. 2d 1143, 1999 Miss. App. LEXIS 505 (Miss. Ct. App. 1999).

Defendant’s confession was not rendered involuntary by his IQ where (1) the police officer who advised the defendant of his rights and took his statement testified that he understood his rights and voluntarily waived them, (2) no threats, promises of leniency, or coercion were used, (3) the defendant’s father was present when his son was advised of his rights and, in fact, signed the waiver along with his son, and (4) the judge found that the defendant was capable of understanding the warnings and that his statement was voluntarily, knowingly, and intelligently given. Biggs v. State, 741 So. 2d 318, 1999 Miss. App. LEXIS 238 (Miss. Ct. App. 1999).

The defendant’s statement that he had shot his mother was not made in response to a custodial interrogation or any police action designed to elicit an incriminating response where, after a traffic accident, the defendant was handcuffed and placed in the back of a police car and an officer asked him where he was staying and where his parents were. Greenlee v. State, 725 So. 2d 816, 1998 Miss. LEXIS 300 (Miss. 1998).

Probationer’s discussion with probation officer, after probationer’s release from jail, regarding how probationer came to be arrested on possession charges is not custodial interrogation to which Miranda rights would be applicable. Jones v. State, 481 So. 2d 798, 1985 Miss. LEXIS 2435 (Miss. 1985).

Where homicide victim’s wife saw defendant working on courthouse lawn and stopped to inquire of him whether her husband had lived very long after he was shot, and defendant voluntarily told her he thought victim was dead before he left, and he took the gun and billfold and ran because he was scared, this statement was free and voluntary and admissible in evidence and it was not the result of custodial interrogation as contemplated by Miranda. Glass v. State, 278 So. 2d 384, 1973 Miss. LEXIS 1424 (Miss. 1973).

37. – Custodial interrogation, self-incrimination.

Davis v. State (512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994)) does not require Mississippi to follow the minimum standard that the federal government has set for itself, and the court is empowered by the state constitution to exceed federal minimum standards of constitutionality and more strictly enforce the right to counsel during custodial interrogations. Downey v. State, 144 So.3d 146, 2014 Miss. LEXIS 389 (Miss. 2014).

When the police encourage a parent to pressure a 14-year-old suspect to talk, and the police foster the suspect’s mistaken belief that talking would allow him to avoid a night in jail, the police should know their conduct is reasonably likely to elicit an incriminating response; the tactics used by police that encouraged defendant’s belief that, by talking to the police, he could avoid a night in jail, and that allowed his mother to speak with defendant after instructing her on how he could reinitiate questioning constituted the functional equivalent of interrogation because they were reasonably likely to elicit an incriminating response from the 14-year-old defendant. Benjamin v. State, 116 So.3d 115, 2013 Miss. LEXIS 322 (Miss. 2013).

Where the police used tactics that constituted the functional equivalent of interrogation, because they were reasonably likely to elicit an incriminating response from defendant, defendant was subjected to interrogation after invoking his right to counsel. Benjamin v. State, 116 So.3d 115, 2013 Miss. LEXIS 322 (Miss. 2013).

Defendant was subjected to a custodial interrogation and, therefore, Miranda was required because (1) defendant was handcuffed and questioned under his carport soon after law enforcement officers had executed a search warrant; (2) while various law enforcement officers were going in and out of the house, at least four officers were in the vicinity where defendant was being questioned; and (3) an officer placed a copy of the search warrant in a chair next to defendant so that he could read it and be aware of the situation. Armstead v. State, 978 So. 2d 642, 2008 Miss. LEXIS 169 (Miss. 2008).

38. –Confessions generally, self-incrimination.

By the time defendant arrived to the sheriff ’s department, he had enough time to consider whether to invoke his right to remain silent or ask for counsel. Because defendant’s confessions were not fruit of the poisonous tree, arising from a warrantless arrest, the trial court did not errin admitting defendant’s confessions into evidence. Watts v. State, 223 So.3d 829, 2017 Miss. App. LEXIS 377 (Miss. Ct. App. 2017).

Trial court did not err in not suppressing defendant’s statement to the police that defendant shot a victim in self defense because although defendant’s initial denial of shooting the victim, followed by defendant’s recantation of the denial in the face of a witness’s accusation, which the jury subsequently saw and heard the witness testify to, was prejudicial, defendant would have been convicted beyond a reasonable doubt even without the tainted statement. Walton v. State, 998 So. 2d 1011, 2007 Miss. App. LEXIS 757 (Miss. Ct. App. 2007), aff'd, 998 So. 2d 971, 2008 Miss. LEXIS 572 (Miss. 2008).

Defendant’s convictions for murder, sexual battery, and first degree arson were appropriate because, although the circuit court erred when it admitted his confession into evidence in violation of his Fifth Amendment right because defendant had already requested counsel, the admission was actually harmless in light of the other evidence connecting defendant to the crime, which included his DNA and finger prints that were found at the crime scene. Haynes v. State, 934 So. 2d 983, 2006 Miss. LEXIS 304 (Miss. 2006), cert. denied, 549 U.S. 1306, 127 S. Ct. 1874, 167 L. Ed. 2d 365, 2007 U.S. LEXIS 3602 (U.S. 2007).

Defendant was not denied his various constitutional rights where the court did not impermissibly consider the truthfulness of defendant’s confession in deciding it admissible at a suppression hearing because much of the inquiry into truthfulness occurred as a result of impeaching defendant and attempting to ascertain his credibility. Carter v. State, 956 So. 2d 951, 2006 Miss. App. LEXIS 622 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 302 (Miss. 2007).

In a murder and aggravated assault case, incriminating statements made to police as defendant was being led to a patrol car were not suppressed because they were not the product of an interrogation; defendant made the statements as police were trying to read him his rights, and he was not questioned until after these warnings were given. Wilson v. State, 936 So. 2d 357, 2006 Miss. LEXIS 435 (Miss. 2006).

Defendant’s right against self-incrimination was not violated where the trial court admitted his confession to armed robbery into evidence because four full days had elapsed between the time that defendant took crack cocaine and Lorcet and the time that he confessed; his confession could not be said to be the result of intoxication. Thomas v. State, 936 So. 2d 964, 2006 Miss. App. LEXIS 610 (Miss. Ct. App. 2006).

Refusal of trial judge to hold a pre-trial hearing on the admissibility of certain statements in no way prevented defendant from objecting to the admission of the statements when offered; the ruling simply decided that the trial proceedings would not be halted for a separate pre-trial hearing; nevertheless, had a timely objection been interposed, the appellate court would still find no error, as the record showed no basis for a finding that the confessions had been obtained illegally: law enforcement officials who took the statements from defendant testified that (1) defendant freely and voluntarily made the statements after being advised of Miranda rights and after voluntarily executing a waiver-of-rights form; and (2) they did not use promises or threats to extract the statements from defendant. Conner v. State, 875 So. 2d 253, 2004 Miss. App. LEXIS 403 (Miss. Ct. App. 2004).

Where defendant was charged with capital murder, defendant testified at trial that defendant was not promised, threatened or coerced to give the videotaped statement, and also testified to giving the statement of defendant’s own free will, even though defendant’s father told defendant not to speak to anyone until a lawyer arrived. Based on the totality of the circumstances, defendant’s constitutional rights were not violated because defendant’s statement was given freely without coercion, and the fact that defendant was 18 years old at the time of the arrest had no bearing on defendant’s ability to comprehend the questions and waive defendant’s rights. Jacobs v. State, 870 So. 2d 1202, 2004 Miss. LEXIS 410 (Miss. 2004).

Suppression of defendant’s statement to police – “As soon as I get out I’m going to do it again. Y’all can’t stop me” – was not required, as it was voluntarily and spontaneously given without coercion or interrogation. Murphy v. State, 2003 Miss. App. LEXIS 683 (Miss. Ct. App. Aug. 5, 2003), op. withdrawn, sub. op., 868 So. 2d 1030, 2003 Miss. App. LEXIS 1161 (Miss. Ct. App. 2003).

Generally, for confession to be admissible, it must have been given voluntarily and not given as result of promises, threats, or inducements. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A murder defendant’s confession was not the product of an illegal arrest, since conflicting statements regarding the events surrounding the killing related by the defendant to law enforcement officers provided probable cause for his arrest; moreover, the defendant’s confession was not the product of the arrest, since he gave his confession only after incriminating physical evidence was found by the officers, and the discovery of the physical evidence was the result of separate questioning of another witness and was therefore unconnected with the arrest. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

Statements made by sheriffs to a defendant that “it was always best to tell the truth” and that “it would be better for him to tell the truth” were mere exhortations to tell the truth and not an inducement to confess, where the defendant was a 22-year-old adult who had several prior convictions and was therefore familiar with the criminal justice system, the defendant’s first statement after the sheriff’s alleged inducements was a denial rather than a confession, and the defendant testified at his suppression hearing that the sheriffs did not make any specific promises. Willie v. State, 585 So. 2d 660, 1991 Miss. LEXIS 454 (Miss. 1991).

It is not necessary that statements made during a custodial interrogation be tape-recorded in order to be admissible at trial. Williams v. State, 522 So. 2d 201, 1988 Miss. LEXIS 125 (Miss. 1988).

In order for a confession to be valid, it must be an acknowledgment in express terms of the crime charged but, generally, all voluntary statements or confessions of the defendant are admissible when offered by the state for what weight they may have in the case. Dedeaux v. State, 519 So. 2d 886, 1988 Miss. LEXIS 48 (Miss. 1988).

When state is unable to introduce confession into evidence in case in chief, not because serious factual issue has been raised that confession is involuntary but because there has been something less than 100 percent compliance with court imposed rule, defendant who, on direct testimony, makes statements conflicting with confession may be impeached with it. Powell v. State, 483 So. 2d 363, 1986 Miss. LEXIS 2401 (Miss. 1986).

Incriminating statement elicited from capital murder defendant by deputy sheriff in violation of Fifth and Sixth Amendment rights to counsel is inadmissible in sentencing phase of prosecution. Mhoon v. State, 464 So. 2d 77, 1985 Miss. LEXIS 1904 (Miss. 1985), limited, Dotson v. Mississippi (Miss. Ct. App. 1996).

39. –Age of confessor, self-incrimination.

Statement of a thirteen-year-old defendant was properly admitted at his murder trial where he and his mother both signed a Miranda statement, there was no requirement that his mother be present during questioning, and the court was bound to apply the same standards for the voluntariness of defendant’s confession as it would for any other confession. Edmonds v. State, 2006 Miss. App. LEXIS 88 (Miss. Ct. App. Jan. 31, 2006), op. withdrawn, sub. op., 955 So. 2d 864, 2006 Miss. App. LEXIS 311 (Miss. Ct. App. 2006).

Two confessions made by the 16-year-old defendant were properly admitted into evidence notwithstanding the defendant’s contention that he was too young to comprehend his rights or to waive his rights, where the defendant was very articulate and poised for a boy of his age and was read his Miranda rights three times. Woodham v. State, 779 So. 2d 158, 2001 Miss. LEXIS 3 (Miss. 2001).

Defendant’s age, 17 years, did not have any bearing on whether he had the ability to voluntarily waive his Miranda rights. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

A trial court did not err in allowing a defendant’s statement to the police into evidence, in spite of the defendant’s argument that his statement was not voluntary because of his age, education, and intelligence, where the defendant was 17 years old at the time of his arrest and interrogation, he had an 8th grade education, his parents were uneducated, he had suffered head injuries as a young child which allegedly sometimes caused impairment of his mental faculties, and the arresting officers testified that the defendant was read his Miranda rights at least twice before any interrogation, he stated that he understood those rights and the waiver of those rights, and he stated that he did not have any trouble reading or writing. Foster v. State, 639 So. 2d 1263, 1994 Miss. LEXIS 670 (Miss. 1994), cert. denied, 514 U.S. 1019, 115 S. Ct. 1365, 131 L. Ed. 2d 221, 1995 U.S. LEXIS 2061 (U.S. 1995).

A defendant’s statement of his birth date elicited by the police after his arrest was obtained during routine “booking”-type questioning, so that the questioning by the police did not amount to impermissible interrogation. Testimony concerning the defendant’s admission of age was, therefore, admissible in his prosecution for rape of a female child under the age of 12, regardless of whether Miranda warnings were given. Wesley v. State, 521 So. 2d 1283, 1988 Miss. LEXIS 6 (Miss. 1988).

Confessions were held to be voluntary, despite defendants’ assertions to the contrary, where defendants’ alleged involuntariness was based on: their youth, one being 17, the other 22; their lack of education, one went through tenth grade and other graduated from high school; holding of both defendants incommunicado for 3 days after their initial incarceration, allowing no visits by friends or family until a statement was given; and, one defendant was confined for that period in “drunk tank” with no bed, shower, or change of clothes; both defendants had signed waiver of rights forms prior to giving statements. Johnson v. State, 512 So. 2d 1246, 1987 Miss. LEXIS 2703 (Miss.), cert. denied, 484 U.S. 968, 108 S. Ct. 462, 98 L. Ed. 2d 402, 1987 U.S. LEXIS 4990 (U.S. 1987), overruled in part, Smith v. State, 986 So. 2d 290, 2008 Miss. LEXIS 339 (Miss. 2008).

Under totality of circumstances, confession by juvenile is freely and voluntarily given, and is free of taint of prior improper confession, where juvenile has been warned of rights under Miranda, juvenile has verbally waived rights and agreed to talk, juvenile’s mother has been called to police station before interrogation begins, has been advised of nature of charges, is given opportunity to consult with juvenile prior to questioning, and thereafter gives permission to interrogation, and juvenile then signs acknowledgment of right and waiver. In Interest of W.R.A., 481 So. 2d 280, 1985 Miss. LEXIS 2422 (Miss. 1985).

40. –Mental acuity of confessor, self-incrimination.

Defendant’s statements to police were voluntary and admissible against him where he understood the content and substance of his Miranda warnings and there was no coercion and, even though defendant had an IQ of 67, expert was of the opinion that he would understand the terms of the waiver if it was explained to him. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

There is no per se rule that mental retardation renders confession involuntary and inadmissible. Blue v. State, 674 So. 2d 1184, 1996 Miss. LEXIS 304 (Miss.), cert. denied, 519 U.S. 1030, 117 S. Ct. 588, 136 L. Ed. 2d 517, 1996 U.S. LEXIS 7523 (U.S. 1996).

Confession is not rendered involuntary simply because person making it is mentally weak. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Doctrines of res judicata and waiver barred capital murder defendant’s postconviction claims that his alleged mental retardation prevented him from giving free and voluntary confession and from understanding his Miranda rights, where only issue raised on direct appeal concerning defendant’s confession was whether he was effectively prevented from making jury arguments about confession’s credibility, and it was clear that defendant’s low intelligence level was considered during suppression hearing in determining voluntariness of his confession. Cole v. State, 666 So. 2d 767, 1995 Miss. LEXIS 595 (Miss. 1995).

Although there is no constitutional requirement to examine the mental capacity of the defendant in making a determination as to whether a confession was voluntary, it remains true as a matter of evidence that before any confession is admissible, it must have been given by a person with enough intelligence to be a competent witness. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

There is no constitutional requirement to examine the mental capacity of the defendant in making a determination as to whether a confession is free and voluntary; the focus is directed entirely to the conduct on the part of the State. Butler v. State, 608 So. 2d 314, 1992 Miss. LEXIS 588 (Miss. 1992).

A defendant’s confession was not the product of mental deficiency, and therefore the defendant “knowingly” confessed, even though there was evidence that the defendant was mildly mentally retarded, where the defendant graduated from high school though he flunked 3 grades in school, there was no evidence that he was ever placed in special education classes, he admitted that he could read and write and that he understood the charges against him, and all who witnessed the interrogation said they saw no evidence that the defendant suffered mental abnormalities such that he could not understand the interrogation process or its consequences. Veal v. State, 585 So. 2d 693, 1991 Miss. LEXIS 479 (Miss. 1991).

The trial court in a capital murder prosecution properly concluded at the end of a lengthy suppression hearing that defendant’s confession was admissible as having been freely and voluntarily given, notwithstanding the fact that defendant was mentally retarded, where there was no evidence of any threats, promises, or any form of physical abuse of coercion, where defendant never requested the assistance of counsel, where there was no evidence that on any occasion during the questioning defendant had been under the influence of drugs or liquor, where the record was replete with the inference that the detective who interrogated defendant had been courteous, considerate, patient and persistent, and where that detective testified that the confession had been given at a time when defendant had understood and appreciated the gravity of the charges against him, and that it had been given at a time when defendant was fully aware of his constitutional privilege against self-incrimination and his right to counsel. Neal v. State, 451 So. 2d 743, 1984 Miss. LEXIS 1760 (Miss.), cert. denied, 469 U.S. 1098, 105 S. Ct. 607, 83 L. Ed. 2d 716, 1984 U.S. LEXIS 470 (U.S. 1984).

41. – Intoxication, self-incrimination.

During defendant’s trial for felony DUI, third offense, the admittance of defendant’s refusal to submit to a breath test was not a violation of his right against self-incrimination under either Miss. Const. Art. 3, § 26 or U.S. Const. Amend. 5; thus, defendant’s challenge to the constitutionality of Miss. Code Ann. §63-11-41 failed. Starkey v. State, 941 So. 2d 899, 2006 Miss. App. LEXIS 827 (Miss. Ct. App. 2006).

Defendant’s self-incrimination rights were not violated because all law enforcement personnel who testified stated that defendant did not appear to have been under the influence of drugs and there was no corroboration to defendant’s assertions to the contrary; additionally, defendant’s actions on the day of the murders indicated a mind capable of perceiving the world around him and taking control of his own actions. Scott v. State, 947 So. 2d 341, 2006 Miss. App. LEXIS 648 (Miss. Ct. App. 2006), cert. denied, 956 So. 2d 228, 2007 Miss. LEXIS 262 (Miss. 2007).

Despite defendant’s claims that he had taken LSD and heroin and smoked marihuana before his interrogation, his confession was voluntary, as the interrogating officer, a former narcotics officer, testified that defendant did not appear to be under the influence of substances during questioning. Bryant v. State, 853 So. 2d 814, 2003 Miss. App. LEXIS 491 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 880 (Miss. Ct. App. 2003).

While the admission of a drug-induced confession would violate a defendant’s right against self-incrimination, a voluntary statement does not trigger Miranda rights; thus the fact that a defendant was under the influence of drugs while making voluntary self-incriminating statements is not of consequence. Wright v. State, 730 So. 2d 1106, 1998 Miss. LEXIS 622 (Miss. 1998).

Where the defendant was in an acute, rampant state of intoxication equivalent to mania he could not have rationally, voluntarily, and intentionally waived his constitutional rights guaranteed by the Fifth Amendment to the U.S. Constitution and by Article 3, § 26 of the Mississippi Constitution, and his confession made while in that condition that he had committed armed robbery and murder in 1947 was properly excluded at his trial. State v. Williams, 208 So. 2d 172, 1968 Miss. LEXIS 1398 (Miss. 1968).

42. –Admissions antecedent to Miranda warning, self-incrimination.

There was no physical evidence linking defendant to a burglary but the jury was provided with physical evidence connecting his accomplice to the crime. Then, the jury was told that defendant was able to identify his accomplice close to the crime scene when this identification had already been suppressed due to the violation of defendant’s Fifth and Sixth Amendment rights at the time of his arrest (Miranda violation); thus, the identification testimony by the officer was unquestionably prejudicial, the prosecutor’s closing argument further compounded the problem by linking the physical evidence connecting the accomplice to the crime to defendant, and the trial court committed reversible error in denying defendant’s motions for a mistrial and for a new trial. Carpenter v. State, 910 So. 2d 528, 2005 Miss. LEXIS 110 (Miss. 2005).

In a murder prosecution, police officers’ questions about the defendant’s injured hand, after he had invoked his right to counsel, did not violate Miranda since they were asked in order to determine if medical assistance was necessary. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Miranda did not prohibit an officer from photographing a defendant’s injured hand after he had invoked his right to silence. Jones v. State, 841 So. 2d 115, 2003 Miss. LEXIS 134 (Miss. 2003).

Answer to question of “why” defendant had shot victim was admissible under Miranda exception for on-scene investigation where question had followed defendant approaching officer at scene of shooting and saying “I shot my best friend.” Luster v. State, 515 So. 2d 1177, 1987 Miss. LEXIS 2912 (Miss. 1987).

Statement of defendant that “I shot her” was admissible into evidence, falling within exclusion to Miranda which recognizes that where interrogation is part of “general on-the-scene investigation” Miranda warnings are not prerequisite to admissibility of statements. Tolbert v. State, 511 So. 2d 1368, 1987 Miss. LEXIS 2681 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672, 1988 U.S. LEXIS 259 (U.S. 1988).

A volunteered statement, voiced without prompting or interrogation, is admissible in evidence if made prior to Miranda warning and of course if it were voluntarily and spontaneously made subsequent thereto, it would remain admissible in evidence. Burge v. State, 282 So. 2d 223, 1973 Miss. LEXIS 1215 (Miss. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1580, 39 L. Ed. 2d 882, 1974 U.S. LEXIS 960 (U.S. 1974).

Voluntary statements made by the defendant as he was walking toward the officer who placed him under arrest, which statements constituted an admission or confession that he had committed the theft for which he was subsequently convicted, do not violate this amendment and constituted a recognized exception to the Miranda Rule. Nevels v. State, 216 So. 2d 529, 1968 Miss. LEXIS 1236 (Miss. 1968).

43. – Miranda warnings prior to confession, self-incrimination.

There was no Miranda violation when officer approached hospitalized defendant third time for confession, because officer gave adequate warning and because defendant voluntarily and knowingly waived his rights before giving statement. Keller v. State, 138 So.3d 817, 2014 Miss. LEXIS 89 (Miss. 2014), cert. denied, — U.S. —, 135 S. Ct. 1397, 191 L. Ed. 2d 371, 2015 U.S. LEXIS 1353 (U.S. 2015).

Court properly denied a motion to suppress under the Fifth Amendment because defendant was adequately advised of his Miranda rights; an officer read defendant his Miranda rights prior to the first interrogation, defendant signed a Miranda form, and the second interrogation commenced just eight minutes after the first interrogation ended. Additionally, the waiver was voluntary; defendant had no difficulty reading the rights, he appeared to understand and recall everything very well, and when the officer asked defendant whether he understood his rights, defendant responded affirmatively. Ruffin v. State, 992 So. 2d 1165, 2008 Miss. LEXIS 518 (Miss. 2008).

There was substantial evidence to support a trial court’s finding that defendant was adequately advised of his constitutional rights under Miranda because only a short time transpired between the time that an agent with the Mississippi Bureau of Narcotics read defendant his Miranda rights and a police officer’s questioning. Armstead v. State, 978 So. 2d 642, 2008 Miss. LEXIS 169 (Miss. 2008).

Although a voluntary statement made by defendant was in violation of the Fifth and Sixth Amendments because defendant had asked for an attorney, it was properly used for impeachment purposes during a murder trial; moreover, the failure to provide a limiting instruction on such was not error since defendant did not make such a request, and therefore a motion for a mistrial was properly denied. Sipp v. State, 936 So. 2d 326, 2006 Miss. LEXIS 336 (Miss. 2006).

Defendant voluntarily went to the police station, was told about the 15-year-old victim’s accusations that defendant had fondled him, and agreed to give a statement to police, he was not placed under arrest before questioning, and the officers emphasized that he was free to end his questioning at any time; thus, defendant was not in custody and therefore was not entitled to the Miranda protections, but out of caution the officers did read defendant his Miranda warnings, and he signed a waiver indicating that he fully understood those rights, and therefore his statement to the police before his arrest was admissible. Mingo v. State, 944 So. 2d 18, 2006 Miss. LEXIS 679 (Miss. 2006).

Trial court did not err in admitting defendant’s confession to the police that he was walking by the victim’s business and decided to take some things as defendant blurted out the statement after he was read his Miranda rights. Wess v. State, 926 So. 2d 930, 2005 Miss. App. LEXIS 708 (Miss. Ct. App. 2005), cert. denied, 927 So. 2d 750, 2006 Miss. LEXIS 218 (Miss. 2006).

The fact that Miranda warnings were not given to the defendant was irrelevant where the defendant did not make any inculpatory statements and the state did not seek to introduce any statements. Hodnett v. State, 787 So. 2d 670, 2001 Miss. App. LEXIS 211 (Miss. Ct. App. 2001).

The defendant was properly advised of her rights prior to making her confession because (1) the five to 10 minutes that elapsed between one interview and another interview by a different officer constituted only a brief pause in questioning that did not require a renewal of Miranda warnings, and (2) the defendant had been advised of her Miranda rights three times in a period of less than 24 hours. Taylor v. State, 789 So. 2d 787, 2001 Miss. LEXIS 104 (Miss. 2001).

Security guards working for a private security company employed by a public housing authority are not under the same constitutional constraints as police officers and are not required to give Miranda warnings. DeLoach v. State, 722 So. 2d 512, 1998 Miss. LEXIS 510 (Miss. 1998).

Finding that defendant understood his right to remain silent was supported by defendant’s testimony that he understood that he had right to stop answering questions and by videotape of confession showing that detective explained to defendant that he could stop answering questions at any time and have attorney appointed, which defendant indicated he understood. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A trial court erred by admitting testimony concerning a defendant’s confession where the defendant testified that he could not recall being read his Miranda rights and that he thought he would be incarcerated that same day if he did not confess, the prosecution did not produce all officers who were present when the defendant was questioned and his confession given, and no adequate reason for the officers’ absence was given. Lettelier v. State, 598 So. 2d 757, 1992 Miss. LEXIS 127 (Miss. 1992).

An accused person who has been given the Miranda warnings is not obliged to answer any questions or to make any explanation. The accused need not invoke the presence of counsel in order to obtain the benefits of these rights. It is improper and, ordinarily, reversible error to comment on the accused’s post-Miranda silence. The accused’s right to be silent then is equally as strong as the right not to testify and it is error to comment on either. It is therefore improper to inquire of a testifying defendant as to whether he or she made any protest or explanation to the arresting officers. Quick v. State, 569 So. 2d 1197, 1990 Miss. LEXIS 662 (Miss. 1990).

A warning advising a suspect “that anything he said might be used against him in a court of law” is constitutionally adequate; an officer is not required to advise a suspect of all specific possible criminal consequences. One of the virtues of Miranda is its clarity; the warnings are the same in every case. Adding the requirement that the officer inform the suspect of specific criminal consequences would add a component variable from case to case and undermine the simplicity and bright-line character of the rule as it stands. Fowler v. State, 566 So. 2d 1194, 1990 Miss. LEXIS 439 (Miss. 1990).

Court did not err in admitting into evidence statement made by defendant, after getting in patrol car, telling officers where gun was and that he “didn’t mean to do it, that it was only an accident,” where officers gave defendant Miranda warnings prior to statement. Tolbert v. State, 511 So. 2d 1368, 1987 Miss. LEXIS 2681 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672, 1988 U.S. LEXIS 259 (U.S. 1988).

Argument that Miranda warning given defendant which concluded with the words “we have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court”, was insufficient and ineffective since it left the impression with defendant that he was entitled to an attorney only during trial, but not during interrogation, was persuasive in isolation, but when considered in context with the remainder of the related warning, a part of which advised of the right to an attorney before responding to question, the plausibility disappeared; however peace officers would be well advised to delete the words “if and when you go to court” from future warnings. Burge v. State, 282 So. 2d 223, 1973 Miss. LEXIS 1215 (Miss. 1973), cert. denied, 415 U.S. 985, 94 S. Ct. 1580, 39 L. Ed. 2d 882, 1974 U.S. LEXIS 960 (U.S. 1974).

44. – Voluntariness of confession, self-incrimination.

Defendant’s confession, which was made during a police interrogation, was freely and voluntarily given, and defendant’s rights waiver was knowingly, intelligently, and voluntarily made, because, although defendant declined to sign the rights waiver form, defendant voluntarily informed the interrogating officer of defendant’s alibi and responded to further questioning, despite being advised several times that defendant could stop the interview at any point, until defendant confessed to the rape of the victim. Roberts v. State, 234 So.3d 1251, 2017 Miss. LEXIS 383 (Miss. 2017).

Trial court erred in admitting defendant’s confession without first holding a hearing without the jury present where the voluntariness issue had appeared before the trial court, the trial court allowed the State to elicit testimony from the officer who had advised defendant of his Miranda rights and recorded his confession, and by not holding that hearing, the trial court had precluded defendant from putting on evidence refuting the officer’s testimony. Williams v. State, 177 So.3d 836, 2015 Miss. App. LEXIS 200 (Miss. Ct. App. 2015).

Defendant’s pre-trial statements were admissible because the trial court did not manifestly err in finding that defendant’s affirmative nod to an officer and signing of a rights waiver form constituted an effective waiver of defendant’s Miranda rights. Batiste v. State, 121 So.3d 808, 2013 Miss. LEXIS 295 (Miss. 2013), cert. denied, 572 U.S. 1117, 134 S. Ct. 2287, 189 L. Ed. 2d 178, 2014 U.S. LEXIS 3424 (U.S. 2014).

Trial court’s ruling that defendant made a knowing, intelligent, and voluntary waiver of his Miranda rights was supported by substantial evidence because a police officer’s threat to arrest defendant’s wife if defendant did not confess that drugs belonged to him was insufficient to render defendant’s statement involuntary because probable cause existed to arrest defendant’s wife because cocaine was found in the kitchen, a common area of the home, and defendant’s wife had been living in the home and was listed on the lease. Armstead v. State, 978 So. 2d 642, 2008 Miss. LEXIS 169 (Miss. 2008).

In a capital murder case, a motion to suppress defendant’s confession was properly denied because the statement was voluntarily given, despite cultural differences; defendant, who completed 10 years of education, waived Miranda rights and entered a partial confession before police mentioned religious beliefs. Le v. State, 913 So. 2d 913, 2005 Miss. LEXIS 151 (Miss.), cert. denied, 546 U.S. 1004, 126 S. Ct. 622, 163 L. Ed. 2d 508, 2005 U.S. LEXIS 8254 (U.S. 2005).

Trial court did not err in finding that a statement made by defendant during the booking process for the crime of driving while impaired was admissible because the statement was freely and voluntarily given; the admission of the spontaneous statement was not barred by the Fifth Amendment. Watson v. State, 835 So. 2d 112, 2003 Miss. App. LEXIS 6 (Miss. Ct. App. 2003).

The defendant’s confession was voluntarily given because (1) he had been read his Miranda warnings, (2) the arresting officers did not interrogate the defendant about his involvement in the crime at issue, and (3) the defendant spoke freely without prompting by the officers; a contrary determination was not required by the fact that the defendant had an apparent friendship with one of the officers because the friendship did not create a compelling influence on the defendant. Stallworth v. State, 797 So. 2d 905, 2001 Miss. LEXIS 60 (Miss. 2001).

The defendant’s confession was voluntary, notwithstanding that he was in the emergency room with two self-inflicted stab wounds, neither of which turned out to be life threatening, and the assertion that he was involuntarily intoxicated, where (1) law enforcement officers testified that the defendant was alert, aware of his surroundings, and answered all their questions rationally, and that he voluntarily waived his Miranda rights, and (2) the emergency room physician and the attending nurse corroborated the officers’ view that the defendant understood everything they asked, answered all their questions, was alert, stable, oriented and not in shock. Kircher v. State, 753 So. 2d 1017, 1999 Miss. LEXIS 323 (Miss. 1999).

A statement made by the defendant was volunteered information, unprompted by the equivalent of interrogation, where, while he was being booked for stealing a truck, the defendant asked how the officer could charge him with such an act, the officer explained the facts that led to the charge, and the defendant responded that he thought he should only be charged with unauthorized use of a motor vehicle. Bryant v. State, 748 So. 2d 780, 1999 Miss. App. LEXIS 232 (Miss. Ct. App. 1999).

Confessions made by a 14 year old defendant in a murder prosecution were not voluntary where the strategy of the interrogating officers to procure a confession was to convince the defendant that he might receive religious salvation for his sins and see his murdered parents again if he told them the truth; the defendant’s will was overborne and his confession was induced by the investigating officers’ invocation of the deity, references to heaven and hell, and promises of leniency and religious salvation which, according to the officers’ testimony at the suppression hearing, could only be attained by a confession. Carley v. State, 739 So. 2d 1046, 1999 Miss. App. LEXIS 188 (Miss. Ct. App. 1999).

The trial judge did not err in finding that the defendant’s statements were made voluntarily where the interrogating officers testified (1) that the defendant never refused to speak to them, but initially denied any involvement in the crime at issue, (2) that the defendant understood his rights, including his right to remain silent, voluntarily spoke with them, and never requested an attorney, (3) that no one promised anything to the defendant or threatened him in any way, and (4) that the defendant stated that he understood his rights before voluntarily signing a rights waiver form. Underwood v. State, 708 So. 2d 18, 1998 Miss. LEXIS 45 (Miss. 1998).

Prosecution shoulders burden of proving beyond reasonable doubt that defendant’s confession was voluntary. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Prosecution’s burden of showing that confession was voluntary is met and prima facie case made out by testimony of officer, or other persons having knowledge of facts, that confession was voluntarily made without threats, coercion, or offer of reward. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Determination that defendant was not threatened into making confession was supported by testimony of all detectives present at time of alleged threat, in which detectives all denied that threat was made. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

Delay of approximately 24 hours between time of arrest and initial appearance before magistrate did not warrant suppression of confession given by defendant prior to initial appearance; defendant was arrested by warrant while he was already in jail, defendant was informed of his right to remain silent, his right to attorney, and his right to stop answering questions at any time and to ask for attorney, and defendant did not ask for appointment of counsel on charge for which he was arrested. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A defendant’s confession was freely and voluntarily given, and was therefore admissible into evidence in his murder trial, where law enforcement officers testified that he was given all the Miranda warnings prior to giving his confession and that he did not ask for an attorney at any time, he was familiar with his constitutional rights as evidenced by his refusal to sign a waiver form and the fact that he had previously been convicted of a felony, and his video-taped confession did not suggest any coercion. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

The principle enunciated in Agee v State (1966, Miss) 185 So 2d 671 with respect to proving the voluntariness of a confession remains sound, but its importance to an accused has receded in view of the strong affirmative mandates of Miranda; only those persons who are claimed to have induced a confession through some means of coercion are required to be offered by the State as a witness under Agee. Thorson v. State, 653 So. 2d 876, 1994 Miss. LEXIS 600 (Miss. 1994).

Where the State has laid the “proper predicate” for admission of a defendant’s confession, the onus is then on the defendant to provide other evidence or testimony on the issue of voluntariness to rebut the State’s assertion. Haymer v. State, 613 So. 2d 837, 1993 Miss. LEXIS 32 (Miss. 1993).

In a prosecution for driving a motor vehicle while under the influence of intoxicating liquor, the defendant’s statement to a police officer that the breathalyzer machine would “probably show I’m in a coma” was essentially a confession that the defendant was drunk, and was therefore admissible into evidence as a voluntary statement where it was made spontaneously after the defendant had been given the Miranda warnings. Ricks v. State, 611 So. 2d 212, 1992 Miss. LEXIS 819 (Miss. 1992).

A trial court followed the correct legal standards to determine the admissibility of the content of a defendant’s confession and there was substantial evidence to support a finding of voluntariness, where no pre-trial motion to suppress was filed, the trial court conducted a hearing in chambers during the trial after the defendant’s in-court objection to the voluntariness of his confession, the trial court found that the State had established a “proper predicate” on the testimony of a fire marshal who was present at the time of the confession, and the defendant did not rebut the State’s predicate during arguments on the motion, so that the State was not required to produce all of the witnesses to the confession to establish voluntariness. Cox v. State, 586 So. 2d 761, 1991 Miss. LEXIS 588 (Miss. 1991).

Trial court did not commit error in determining that statements were voluntarily given after knowing and intelligent waiver where defendant contended statements were made when he was misled as to their import, arguing that he was arrested on one charge but questioned concerning a more serious charge. Testimony at suppression hearing supported trial court’s determination that waiver was voluntary despite questioning related to crime not charged, where defendant was presented warrants for his arrest on charges of forgery and credit card misuse, but before statement was taken was informed that sheriff was present in regard to investigation into death of man who owned credit cards he was accused of illegally using. Transcript of defendant’s recorded statement made clear that he was informed that officers wanted to talk with him about murder investigation. Lutes v. State, 517 So. 2d 541, 1987 Miss. LEXIS 2931 (Miss. 1987).

Determination of whether confession is voluntary and freely given, and not product of coercion, is finding of fact which will not be reversed on appeal unless manifestly in error, or contrary to overwhelming weight of evidence; factual determination that confession was voluntarily and freely given was not clearly erroneous where interrogating officer testified that no mental or physical pressure was placed on defendant, no promises of freedom or leniency were offered in exchange for confession, and police officer called attorney for defendant; rejected was defendant’s argument that confession was involuntary because it was result of threats, pressure, and coercion, defendant had only 6-grade education, and at time of confession was wearing colostomy bag, which impaired ability of defendant to freely and voluntarily waive his rights against self-incrimination. Sims v. State, 512 So. 2d 1256, 1987 Miss. LEXIS 2701 (Miss. 1987).

Admission of defendant’s confession into evidence is proper where there is voluntary and knowing waiver of Miranda rights and confessions are free and voluntary as evidenced by testimony of officers involved in obtaining the confessions, defendant initiated statement about previous rape, police officer who took defendant to station testified that defendant was not intoxicated and was in control of himself, jailer testified that he never noticed defendant experiencing severe withdrawal symptoms, and nurse assigned to jail did not recall defendant asking to see doctor and observing that defendant appeared to know what was going on and to understand questions and make appropriate responses. Coulter v. State, 506 So. 2d 282, 1987 Miss. LEXIS 2476 (Miss. 1987).

45. –Induced confessions, self-incrimination.

A confession by the defendant was not the product of threats or promises made by police, notwithstanding statements by the police that defendant should tell the truth so she would feel better about herself, that she and her boyfriend were “going down” if she did not tell the truth, and that she would be better off if she told the truth and should explain what occurred so she could have peace of mind. Taylor v. State, 789 So. 2d 787, 2001 Miss. LEXIS 104 (Miss. 2001).

Defendant’s confession was not unlawfully induced by detective’s comment that defendant should tell truth and that “the truth shall set you free”; defendant had history of legal problems and had opportunity to become familiar with criminal justice system, there was nothing to indicate that defendant placed trust or confidence in detective, and defendant testified that he was not offered any promises or inducements to make written or videotaped confessions. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

A defendant’s statement to police was admissible and not the product of improper inducement, even though a police officer had told the defendant that “it’d be best for him to tell us to help himself,” where the defendant received Miranda warnings twice, he understood his constitutional rights, his statement was a denial rather than a confession, no specific promise was made to him by a law enforcement officer, and he maintained that he would have told the truth regardless of the officer’s comments to him. Chase v. State, 645 So. 2d 829, 1994 Miss. LEXIS 116 (Miss. 1994), cert. denied, 515 U.S. 1123, 115 S. Ct. 2279, 132 L. Ed. 2d 282, 1995 U.S. LEXIS 3828 (U.S. 1995).

The trial court in a capital murder prosecution erred in refusing to suppress the defendant’s confession as involuntary where a former teacher and retired minister was called in by the sheriff to meet privately with the defendant, the minister communicated to the defendant, at the sheriff’s direction, the notion that there might be a chance for mercy if he volunteered to cooperate, the minister and the defendant discussed the death penalty and the religious ramifications of the defendant’s action, a sheriff’s deputy told the defendant that he thought it would look better if the defendant confessed, and an investigator who conducted the interrogation with the sheriff admitted that the defendant may have been given the impression by the investigator and the sheriff that cooperation could be of some benefit. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

Trial court was well within evidence in determining treatment of wife of defendant not to be indicative of impropriety undermining defendant’s waiver of rights concerning self-incrimination where defendant was advised that his wife was under arrest for possession of marijuana found growing on premises, defendant inquired if charges could be dropped but was told that officers had no authority to do so, and officer who was present during defendant’s questioning specifically denied that defendant was told “you don’t want us to have to take her to jail.” Lutes v. State, 517 So. 2d 541, 1987 Miss. LEXIS 2931 (Miss. 1987).

46. – Coerced confession, self-incrimination.

Inmate’s voluntary act of pleading guilty to the crime of manslaughter foreclosed an appellate court from considering issues relating to the voluntariness of a confession or the right to a speedy trial in a motion seeking postconviction relief. Young v. State, 877 So. 2d 552, 2004 Miss. App. LEXIS 669 (Miss. Ct. App. 2004).

The trial court did not err in finding that a waiver of rights form signed by the defendant prior to his later contrary statement was in accordance with the law and that the defendant had waived his rights knowingly in a statement where he made an admission of guilt, where (1) no physician was produced, either during the suppression hearing or at trial, to attest to the fact that the defendant suffered from anxiety or that he had been taking medications for that condition, and (2) there was no testimony from the defendant or anyone else that his medication had been withheld by an officer until he confessed. Sistrunk v. State, 773 So. 2d 419, 2000 Miss. App. LEXIS 578 (Miss. Ct. App. 2000).

The evidence did not establish that the defendant was coerced into making a confession where the videotape of the confession did not show any coercion and the presence of the defendant’s girlfriend was at his own request. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

Although the court should have suppressed a statement made by the defendant in response to an officer’s question about why a man his age was selling drugs, as the defendant had already invoked his right to counsel, the error was harmless in light of the overwhelming evidence of guilt. Handford v. State, 736 So. 2d 1069, 1999 Miss. App. LEXIS 66 (Miss. Ct. App. 1999).

By alleging that his confession was coerced, defendant secured due process entitlement to reliable determination that his confession was not given as a result of coercion, inducement, or promises. Morgan v. State, 681 So. 2d 82, 1996 Miss. LEXIS 429 (Miss. 1996).

In order to establish the admissibility of a murder defendant’s confession, the State was not required to offer as witnesses law enforcement officers who allegedly yelled at the defendant and were abusive when he was initially questioned, since the alleged statements made by the officers had no bearing on the defendant’s confession which was made 2 days later after he was given the Miranda warnings. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

The evidence was sufficient to support a finding that the defendant knowingingly, intelligently, and voluntarily waived his Miranda rights, even though the defendant had been drinking prior to his arrest, he had not slept for nearly 24 hours prior to waiving his rights, and he had periodic bouts of crying, where the defendant repeatedly acknowledged that he understood his Miranda rights and expressed this acknowledgment both orally and in writing, he was 49 years old, had a high school and vocational education, and considered himself to be a “very intelligent person,” his criminal past provided him with some experience and knowledge about a suspect’s Miranda rights, 5 witnesses testified that he did not appear to be impaired by alcohol and did not slur his speech, the defendant testified that he had been a chronic drinker, the defendant was for the most part calm and cooperative throughout the investigation and particularly at the moment he waived his rights, the defendant had meticulously schemed to “cover his tracks” to avoid arrest which reflected a coherent, unimpaired state of mind, and the defendant’s taped confession contained the admission that no one had “threatened,” “intimidated,” or “promised him anything.” Holland v. State, 587 So. 2d 848, 1991 Miss. LEXIS 648 (Miss. 1991).

Trial judge’s finding that capital murder defendant’s confession was voluntary was neither manifestly wrong nor against the overwhelming weight of the evidence where, at the hearing outside the presence of the jury, the defendant stated that he had signed confession to help his brother and father, who were implicated in the crime, and testified as to threats made by police officer, but the threats were denied by the officer alleged to have made them. Cabello v. State, 490 So. 2d 852, 1986 Miss. LEXIS 2479 (Miss. 1986).

47. –Delay in arraignment affecting voluntariness of confession, self-incrimination.

The delay from the time of a defendant’s arrest until he was taken before a judicial officer did not violate Rule 1.04, Miss. Unif. Crim. R. Cir. Ct. Prac. and the 4th Amendment to the United States Constitution where his initial hearing was held within 48 hours of the time he was taken into custody for questioning, and there was no indication that the officers were purposely holding him in custody to gather sufficient evidence to justify his arrest; thus, his confession was not a product of any delay in taking him before a magistrate and was therefore admissible. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

48. –Suppression of confession, self-incrimination.

Trial court did not err in denying defendant’s motion to suppress his pre-trial confession to police because the State presented sufficient evidence to show that defendant’s statements were voluntarily made without threats, coercion, or an offer of reward. The State introduced a police officer’s testimony that stated that no threats were made and a videotape of the confession; also defendant signed a Miranda warning form and four forms waiving his rights to counsel and to remain silent. Manix v. State, 895 So. 2d 167, 2005 Miss. LEXIS 112 (Miss. 2005).

Defendant was not entitled to reopening of suppression hearing concerning tape-recorded confession at resentencing following affirmance of capital murder conviction, where basis for attempting to reopen suppression hearing was defendant’s lack of experience with Miranda rights at time of confession; lack of knowledge concerning Miranda rights could have been asserted in original hearings. (Per Smith, J., with three Justices concurring, and Chief Justice and two Justices concurring in result.) Holland v. State, 705 So. 2d 307, 1997 Miss. LEXIS 388 (Miss. 1997), cert. denied, 525 U.S. 829, 119 S. Ct. 80, 142 L. Ed. 2d 63, 1998 U.S. LEXIS 5017 (U.S. 1998).

A defendant’s statements should have been suppressed where he invoked his right to remain silent and to have an attorney present after he was taken into custody and Mirandized by Tennessee authorities, and he was subsequently Mirandized by Mississippi officers without his having initiated the conversation. Duplantis v. State, 644 So. 2d 1235, 1994 Miss. LEXIS 529 (Miss. 1994), cert. denied, 514 U.S. 1123, 115 S. Ct. 1990, 131 L. Ed. 2d 876, 1995 U.S. LEXIS 3453 (U.S. 1995).

Where a defendant objects to the prosecution’s use of a confession at trial as evidence against him or her, the prosecution bears the burden of proving beyond a reasonable doubt each fact which is prerequisite to admissibility. Kirkland v. State, 559 So. 2d 1046, 1990 Miss. LEXIS 200 (Miss. 1990).

Trial court’s decision to admit defendant’s confession was supported by substantial evidence and therefore proper where, at hearing on motion to suppress all oral and written confessions, officers testified that statements of defendant were voluntary and not result of coercion or pressure, defendant testified that officers did not pressure him, and only testimony offered by defendant that could be inferred as evidence of coercion was that he was high on day of his arrest when he made statements. Further, defendant signed waiver of rights before making confession and statements were made over course of several days, with each statement occurring after valid, written waiver. Lockett v. State, 517 So. 2d 1317, 1987 Miss. LEXIS 2854 (Miss. 1987).

In the absence of a clear showing that the warnings required in Miranda v Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602, 10 ALR3d 394, were given, the testimony of a sheriff as to certain admissions alleged to have been made to him by the defendant which was disputed by the defendant’s evidence, should not have been admitted. Williams v. State, 220 So. 2d 325, 1969 Miss. LEXIS 1455 (Miss. 1969).

49. –Guilty plea generally, self-incrimination.

In defendant’s “petition to enter plea of guilty,” he swore that his lawyer had advised him of the elements of the charge to which defendant was pleading and that he had not been forced, intimidated or coerced in any manner to plead guilty. The colloquy also showed that he was advised that by pleading guilty, he was waiving his right to a trial by jury, the right to protection against self-incrimination, and the right to confront witnesses; thus, the trial court did not err in finding that his plea was freely, voluntarily, understandingly, and knowingly made. Willcutt v. State, 910 So. 2d 1189, 2005 Miss. App. LEXIS 608 (Miss. Ct. App. 2005).

A trial court’s failure to inform a defendant of the mandatory minimum sentence for the crime charged did not render the defendant’s guilty plea involuntary where no misrepresentation as to the mandatory minimum sentence was made to the defendant, he did not expect to receive the mandatory minimum sentence, he did not claim that there was a misrepresentation of the sentence which he was to receive, he was fully apprised and understood the consequences of the sentence the State intended to recommend, and he did not allege that the failure to be informed of the minimum sentence induced him to enter his guilty plea. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial, and the right that the prosecution prove each element of the offense beyond a reasonable doubt. Jefferson v. State, 556 So. 2d 1016, 1989 Miss. LEXIS 485 (Miss. 1989).

Admission of guilt is not a constitutional requisite of an enforceable plea. Reynolds v. State, 521 So. 2d 914, 1988 Miss. LEXIS 106 (Miss. 1988).

A plea of guilty constitutes a waiver of some of the most basic rights of free Americans, those secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Miss. Const, Art 3, §§ 14 and 26. Sanders v. State, 440 So. 2d 278, 1983 Miss. LEXIS 2905 (Miss. 1983).

50. – Voluntariness of guilty plea, self-incrimination.

In defendant’s manslaughter case, his confession was voluntary because defendant conceded that he gave the statement voluntarily, and he was given Miranda warnings and understood his rights; an officer testified that he was outside of the interrogation room, another officer and defendant came out of the room, and the officer told him that defendant had said “he just lost it and shot her and he would show us where the body was.” McBride v. State, 934 So. 2d 1033, 2006 Miss. App. LEXIS 539 (Miss. Ct. App. 2006).

Valid guilty plea operated as a waiver of all nonjurisdictional rights or defects that were incidental to trial; defendant was fully advised of his rights and the maximum sentences he faced if he chose to go to trial, and he was provided a detailed admonishment prior to accepting his guilty plea, such that defendant’s plea was made knowingly, intelligently, and voluntarily and he waived any rights regarding the allegedly coerced confession. Swindoll v. State, 859 So. 2d 1063, 2003 Miss. App. LEXIS 1071 (Miss. Ct. App. 2003).

Where a defendant claimed his confessions were involuntary because he was on pain medication and in physical pain when he made them, unrebutted police testimony that he was read his rights, was not coerced, appeared coherent, and voluntarily confessed, supported the trial court’s decision to admit the confessions. Wimberly v. State, 839 So. 2d 553, 2002 Miss. App. LEXIS 867 (Miss. Ct. App. 2002).

The constitutional standard for voluntariness of a guilty plea does not mention knowledge of the mandatory minimum sentence as an essential element; instead, it merely states that the accused should understand the effects of a guilty plea. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A defendant’s claim that he blindly entered a plea of guilty because his attorney told him that his mother advised him to do so was not sufficient to render his plea involuntary. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A plea is voluntary if not induced by fear, violence, deception or improper inducements. Smith v. State, 636 So. 2d 1220, 1994 Miss. LEXIS 54 (Miss. 1994).

A defendant’s plea of guilty to 2 counts of forgery was not involuntarily entered, even though the trial court did not personally advise the defendant of the minimum and maximum penalties provided by law for the crimes of forgery, where the defendant’s attorney explained to him the maximum and minimum penalties for the charges, the defendant made no claim about the sentence he expected to receive or his belief as to the minimum sentence for the offense charged, and he did not claim that his alleged ignorance was the basis for his guilty plea. Banana v. State, 635 So. 2d 851, 1994 Miss. LEXIS 181 (Miss. 1994).

A defendant was entitled to an evidentiary hearing pursuant to §§99-39-13 through99-39-23 on the issue of whether his guilty plea was entered voluntarily and intelligently where the transcript of the defendant’s plea hearing did not reflect that he was advised concerning the rights of which he alleged he was ignorant; the State would be entitled to prove at the evidentiary hearing that the defendant learned of the rights in question, either from the trial judge or from some other source, prior to pleading guilty. Alexander v. State, 605 So. 2d 1170, 1992 Miss. LEXIS 573 (Miss. 1992).

A defendant who pleaded guilty without an affirmative expression by the trial court informing him that by pleading guilty he waived his constitutional right against self-incrimination, was entitled to an evidentiary hearing on the issue of whether his guilty plea was involuntarily and unintelligently made. Although the defendant’s petition to the court to accept his plea of guilty recited that there was “no constitutional right or reason why this court should not accept this plea and enter sentence thereon,” this was not sufficient to show that he was advised or informed of his constitutional right against self-incrimination. Horton v. State, 584 So. 2d 764, 1991 Miss. LEXIS 459 (Miss. 1991).

Defendant was entitled to a hearing on his petition for leave to withdraw his guilty plea, on the asserted basis that he had received incorrect advice from counsel regarding the length of his sentence and the terms of his plea bargain. Tiller v. State, 440 So. 2d 1001, 1983 Miss. LEXIS 2981 (Miss. 1983).

51. –Videotapes, self-incrimination.

Admission of a redacted video of defendant’s second interrogation constituted harmless error beyond a reasonable doubt. All of these statements were cumulative of statements defendant gave in the properly admitted first interrogation that took place 30 minutes prior to the commencement of the second interrogation. Hutto v. State, 227 So.3d 963, 2017 Miss. LEXIS 180 (Miss. 2017), cert. denied, — U.S. —, 138 S. Ct. 983, 200 L. Ed. 2d 262, 2018 U.S. LEXIS 1361 (U.S. 2018).

Admission of videotape of drug transaction did not force defendant to testify against himself. Crenshaw v. State, 513 So. 2d 898, 1987 Miss. LEXIS 2753 (Miss. 1987).

52. – Physical evidence, self-incrimination.

Because defendant’s Fifth Amendment right against self-incrimination was not violated when defendant gave her statements to the officers that evidence of the murders could be found at the county dump, the trial court did not err in denying her motion to suppress that evidence as fruit of the poisonous tree. Chamberlin v. State, 989 So. 2d 320, 2008 Miss. LEXIS 352 (Miss. 2008), cert. denied, 555 U.S. 1106, 129 S. Ct. 908, 173 L. Ed. 2d 122, 2009 U.S. LEXIS 495 (U.S. 2009).

Miranda warnings protected defendant’s Fifth Amendment right to be free of compulsory self-incrimination, but did not extend to nontestimonial evidence, such as the vials of crack cocaine defendant took from his pockets on police orders after he was lawfully arrested; therefore, that he had not been advised of his Miranda rights did not affect the admissibility of the cocaine. McKee v. State, 878 So. 2d 232, 2004 Miss. App. LEXIS 171 (Miss. Ct. App.), cert. denied, 878 So. 2d 67, 2004 Miss. LEXIS 961 (Miss. 2004).

Although rape defendant’s consent to procurement of pubic hairs was improperly obtained in violation of the constitutional right against self-incrimination after defendant had invoked the right to counsel, the error was harmless, as the evidence was of a scientific nature, and not of a communicative nature, and the evidence was not protected by the right against self-incrimination; additionally, the evidence obtained was subject to a search warrant, for which probable cause clearly existed. Forrest v. State, 2003 Miss. App. LEXIS 706 (Miss. Ct. App. Aug. 12, 2003), op. withdrawn, sub. op., 863 So. 2d 1056, 2003 Miss. App. LEXIS 1255 (Miss. Ct. App. 2003), op. withdrawn, 2004 Miss. App. LEXIS 112 (Miss. Ct. App. Jan. 20, 2004).

Section 63-11-8, which mandates that blood be taken from any driver involved in a fatal accident regardless of the existence of probable cause to believe that alcohol or drugs were involved, does not violate the privilege against self-incrimination contained in the Fifth Amendment to the United States Constitution and Article 3, § 26 of the Mississippi Constitution. McDuff v. State, 763 So. 2d 850, 2000 Miss. LEXIS 110 (Miss. 2000).

There was no violation of the defendant’s right not to incriminate himself when the state presented evidence at trial of the defendant’s refusal to submit to the gunpowder residue test. Hubbert v. State, 759 So. 2d 504, 2000 Miss. App. LEXIS 196 (Miss. Ct. App. 2000).

The taking of a handwriting exemplar does not violate the Fifth Amendment privilege against self-incrimination. Burns v. State, 729 So. 2d 203, 1998 Miss. LEXIS 567 (Miss. 1998), cert. denied, 527 U.S. 1041, 119 S. Ct. 2406, 144 L. Ed. 2d 804, 1999 U.S. LEXIS 4526 (U.S. 1999).

The obtaining of samples of the defendant’s blood, hair and saliva did not violate his constitutional right against self-incrimination. Wesley v. State, 521 So. 2d 1283, 1988 Miss. LEXIS 6 (Miss. 1988).

Requiring a defendant to exhibit his scarred hands to a witness for identification purposes was not a violation of the defendant’s constitutional right against self-incrimination. Porter v. State, 519 So. 2d 1230, 1988 Miss. LEXIS 154 (Miss. 1988).

Defendant was not denied constitutional right to fair trial where he alleged that small particle of skin from abrasion on his right index finger was material, exculpatory evidence that had been intentionally destroyed or lost by state, where there was nothing in testimony suggesting prosecutorial bad faith and where record contained little suggesting that skin particle would have played significant role at trial. Tolbert v. State, 511 So. 2d 1368, 1987 Miss. LEXIS 2681 (Miss. 1987), cert. denied, 484 U.S. 1016, 108 S. Ct. 723, 98 L. Ed. 2d 672, 1988 U.S. LEXIS 259 (U.S. 1988).

The taking of a blood sample from a defendant’s body following his arrest did not amount to forced self-incrimination in violation of his Fifth Amendment rights. Williams v. State, 434 So. 2d 1340, 1983 Miss. LEXIS 2727 (Miss. 1983), but see Fisher v. Eupora, 587 So. 2d 878, 1991 Miss. LEXIS 669 (Miss. 1991).

To require a prisoner to exhibit himself for the purpose of identification or to submit to the taking of photographs and fingerprints does not violate the prisoner’s constitutional rights against self-incrimination. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

Admission of testimony of chief of police that he required defendant to put on overcoat found in his room for purposes of identification was not error as requiring defendant to give evidence against himself. Richardson v. State, 168 Miss. 788, 151 So. 910, 1934 Miss. LEXIS 356 (Miss. 1934).

53. –Fingerprints, self-incrimination.

While defendant clearly has right not to testify, he may not invoke that right and avoid cross-examination while claiming right to have his former testimony put before jury. De La Beckwith v. State, 707 So. 2d 547, 1997 Miss. LEXIS 749 (Miss. 1997), cert. denied, 525 U.S. 880, 119 S. Ct. 187, 142 L. Ed. 2d 153, 1998 U.S. LEXIS 5751 (U.S. 1998).

Obtaining fingerprint evidence violates the Fourth and Fourteenth Amendments to the federal constitution, so as to make such evidence inadmissible in a state criminal trial, where (1) the fingerprints were obtained while the accused was detained at police headquarters without probable cause for his arrest, (2) the detention at police headquarters of the accused was not authorized by a judicial officer, (3) the accused was unnecessarily required to undergo two fingerprinting sessions, and (4) the accused was not merely fingerprinted during the first of the two sessions, but was also subjected to interrogation. Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676, 1969 U.S. LEXIS 1869 (U.S. 1969).

54. – Psychiatric examination, self-incrimination.

Because the inmate presented mental-health related defenses in both the guilt and sentencing phases of his trial, he waived his right to refuse to participate in an evaluation by the State’s experts to develop evidence to rebut the defenses and obviated the need for Estelle warnings. Crawford v. State, 218 So.3d 1142, 2016 Miss. LEXIS 305 (Miss. 2016).

In a capital murder case, the inmate’s counsel were not ineffective for failing to protect the inmate’s Fifth Amendment right against self-incrimination and Sixth Amendment rights to counsel and due process when his attorneys allowed him to be interviewed by the State’s psychological and psychiatric experts because the inmate answered the doctors’ questions with full knowledge of his rights. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

There was no violation of the defendant’s privilege against self-incrimination where the defendant requested appointment of a psychiatrist to explore possible mental health issues as mitigating factors in his defense and the trial court, over defense objection, ordered that a copy of the report be provided to the prosecution, notwithstanding the defendant’s claim that he had no intention of offering the expert testimony of the psychiatrist. Jordan v. State, 786 So. 2d 987, 2001 Miss. LEXIS 109 (Miss. 2001), cert. denied, 534 U.S. 1085, 122 S. Ct. 823, 151 L. Ed. 2d 705, 2002 U.S. LEXIS 318 (U.S. 2002).

The Fifth Amendment was not implicated by the testimony of a court-appointed physician where (1) the defendant refused to speak to the physician whose testimony was based solely on his observation of the defendant’s appearance, demeanor, and participation in his competency hearing, and (2) the physician’s testimony was presented only for rebuttal during the sentencing proceeding. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

The Fifth Amendment privilege against self-incrimination is not violated by a court order compelling a defendant to submit to a psychiatric examination, even though the defendant may plan to use no expert testimony at trial to support his insanity defense. Porter v. State, 492 So. 2d 970, 1986 Miss. LEXIS 2534 (Miss. 1986).

55. –Cross-examination, self-incrimination.

When criminal defendant, with no prompting by state, on own volition chooses to mislead jury into thinking that no person has even asked him about crimes for which he is charged, state is entitled to challenge statement by cross-examining defendant about defendant’s pretrial silence when questioned by authorities. Brock v. State, 483 So. 2d 358, 1986 Miss. LEXIS 2402 (Miss. 1986), but see McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

Where defendant voluntarily took the stand as a witness in his own defense, he became subject to cross-examination as to the reason why the victim was shot and cut, and why he had the victim’s car; by voluntarily assuming the stand, defendant waived his right to invoke the Fifth Amendment privilege against self-incrimination. Brewer v. State, 459 So. 2d 293, 1984 Miss. LEXIS 1987 (Miss. 1984).

In a prosecution of a pastor of a church for allegedly assaulting with intent to kill a former treasurer of the church, it was error for the trial court to preclude defense counsel from asking, on cross-examination, whether former treasurer had had shortage in his account while treasurer, especially where former treasurer had not claimed for himself the constitutional protection against self-incrimination. Ridgeway v. State, 245 Miss. 506, 148 So. 2d 513, 1963 Miss. LEXIS 531 (Miss. 1963).

56. – Waiver of rights, self-incrimination.

State did not satisfy its burden of proving beyond a reasonable doubt that defendant had waived her Miranda rights; defendant requested counsel by stating she had an attorney and could use him, but the officer crossed the line in clarifying this, and defendant did not initiate further conversation with the officer, and thus the trial court abused its discretion in denying defendant’s motion to suppress. Downey v. State, 144 So.3d 146, 2014 Miss. LEXIS 389 (Miss. 2014).

Defendant called the State witness on her cell phone immediately after the shooting and made incriminating admissions, and approximately a month after the shooting, law enforcement provided defendant with Miranda warnings, and upon being so advised, he chose not to exercise his right to remain silent. Instead, he made oral statements to law enforcement disclaiming his connection to the shooting, which was admissible under Miss. R. Evid. 801(d)(2); therefore, the case presented no violation of post-Miranda silence. Robinson v. State, 40 So.3d 570, 2009 Miss. App. LEXIS 720 (Miss. Ct. App. 2009).

Pursuant to the Fifth Amendment, defendant’s statements were properly obtained in accordance with her Miranda rights because the police stopped questioning her when she stated that she did not want to answer questions, she waived her right to remain silent, she did not explicitly request that she be provided counsel, and she initiated one interview with the police. Chamberlin v. State, 989 So. 2d 320, 2008 Miss. LEXIS 352 (Miss. 2008), cert. denied, 555 U.S. 1106, 129 S. Ct. 908, 173 L. Ed. 2d 122, 2009 U.S. LEXIS 495 (U.S. 2009).

There was substantial evidence that defendant understood English and validly waived his Miranda rights because (1) he had completed nine years of formal education, which included two years of English classes; (2) all conversations between defendant and the arresting officers were in English; (3) the arresting officers testified that defendant never asked the police officers to explain any English words to him; (4) all of the officers testified that defendant understood and spoke the English language without an interpreter; (5) defendant was given a chance to read the Miranda waiver form before signing it; (6) he gave his statement in English; (7) defendant was not threatened or intimidated, nor was he offered any promises, hopes, or rewards for his confession; and (8) defendant’s estranged wife testified that she and defendant communicated in English during their marriage. Chim v. State, 972 So. 2d 601, 2008 Miss. LEXIS 40 (Miss. 2008).

Because an officer’s informing defendant that his requested counsel would not represent him was not interrogation, defendant’s subsequent statement that he wanted to talk was on his own initiative, and since he then executed an express waiver of rights, his confession was voluntary. Bryant v. State, 853 So. 2d 814, 2003 Miss. App. LEXIS 491 (Miss. Ct. App.), cert. denied, 852 So. 2d 577, 2003 Miss. App. LEXIS 880 (Miss. Ct. App. 2003).

Defendant’s right against self-incrimination was not violated when he gave statements implicating himself in a murder as defendant waived his right against self-incrimination by agreeing to talk to police and telling them how the murder occurred. Grayson v. State, 806 So. 2d 241, 2001 Miss. LEXIS 303 (Miss. 2001), cert. denied, 537 U.S. 973, 123 S. Ct. 466, 154 L. Ed. 2d 329, 2002 U.S. LEXIS 7800 (U.S. 2002).

Evidence was sufficient to establish that the defendant waived his privilege against self-incrimination, notwithstanding that the Miranda warning procedure did not include delivering a written listing of his rights to the defendant and that the officers did not obtain a written statement from him of his understanding and knowing waiver of those rights, where the defendant did not testify in support of his suppression motion and did not present any other witnesses to contradict an officer’s testimony that the defendant was informed, understood, and waived his right against self-incrimination. Dees v. State, 758 So. 2d 492, 2000 Miss. App. LEXIS 222 (Miss. Ct. App. 2000).

Under a totality of the circumstances analysis, the defendant knowingly, understandingly, freely and voluntarily waived her Miranda rights, and her statements were admissible; while it certainly would have been permissible, and perhaps desirable, for law enforcement officials to inform the defendant that her parents were in the process of hiring an attorney for her and that an attorney had called to speak with her, they were not under a legal obligation to do so. Wilhite v. State, 791 So. 2d 231, 2000 Miss. App. LEXIS 302 (Miss. Ct. App. 2000).

The defendant waived any right against self-incrimination with regard to the introduction into evidence of oral statements made by the defendant to an inmate where (1) the other inmate was not in any way involved or implicated in the crimes charged against the defendant, and (2) the other inmate approached the state with the information and was not solicited by the state to act as an informant against the defendant. Humphrey v. State, 759 So. 2d 368, 2000 Miss. LEXIS 101 (Miss. 2000).

The refusal of the defendant to sign a waiver of rights form did not constitute an invocation of his Fifth Amendment rights; thus, where the officer who had started the questioning of the defendant honored his wishes and stopped questioning him, thereby giving him the opportunity to exercise his rights to remain silent and to obtain an attorney, the defendant’s subsequent volunteering of information reasonably led to the conclusion that he did not, in fact, wish to invoke his right to remain silent. Pool v. State, 1999 Miss. App. LEXIS 483 (Miss. Ct. App. July 27, 1999), aff'd in part and rev'd in part, 764 So. 2d 440, 2000 Miss. LEXIS 191 (Miss. 2000).

A criminal defendant does not waive his Fifth Amendment right against self-incrimination by demonstrating the fit of shoes introduced by the state. Lewis v. State, 725 So. 2d 183, 1998 Miss. LEXIS 609 (Miss. 1998).

The court rejected the defendant’s contention that he did not make a knowing and intelligent waiver of his right to remain silent where (1) he drafted and signed a waiver form which allowed the use of his statement by federal, but not state, authorities, (2) it appeared that the form was intended to protect the defendant’s attorney from future claims if ineffective assistance of counsel, and (3) the form was not discussed with law enforcement officers and they were not aware of the limiting language inserted by the defendant. Evans v. State, 725 So. 2d 613, 1997 Miss. LEXIS 389 (Miss. 1997), cert. denied, 525 U.S. 1133, 119 S. Ct. 1097, 143 L. Ed. 2d 34, 1999 U.S. LEXIS 1510 (U.S. 1999).

A murder defendant’s initial refusal to sign a waiver of rights form did not constitute a demand for an attorney where he was not questioned again until more than 32 hours had lapsed when he was presented with incriminating physical evidence connecting him to the crime, and he was again advised of his rights before further questioning; thus, admission of his confession into evidence did not violate his constitutional right against compulsory self-incrimination or right to an attorney. Thorson v. State, 653 So. 2d 876 (Miss. 1994), reh’g denied (Miss. Apr. 20, 1995).

A defendant’s waiver of his right to counsel and his right to remain silent when he executed a written waiver prior to confessing could not be found to be voluntary where his confession given immediately thereafter was involuntary due to improper collusion by law enforcement interrogators, since the defendant’s waiver of his right and his confession were inextricably bound and were the product of prolonged coercive police interrogation. Abram v. State, 606 So. 2d 1015, 1992 Miss. LEXIS 448 (Miss. 1992), overruled in part, Foster v. State, 961 So. 2d 670, 2007 Miss. LEXIS 315 (Miss. 2007), overruled in part, Holly v. Mississippi, 2011 U.S. App. LEXIS 24853 (5th Cir. Miss. Dec. 13, 2011).

A former husband waived his privilege against self-incrimination when he took the witness stand and testified on the merits of the case in a contempt action brought by his former wife who alleged that he failed to abide by their judgment of divorce; an objection made at the close of trial was much too late to object to testimony which was incriminating. Since the contempt hearing was a quasi-criminal proceeding, the former husband had no right to forbid questioning altogether, but once he was asked anything outside of the innocuous arena–the introductory questions–he should have invoked his privilege on a question by question basis. Moore v. Moore, 558 So. 2d 834, 1990 Miss. LEXIS 59 (Miss. 1990).

There are practical and institutional limitations upon the Supreme Court’s ability to find facts; consequently, much deference is placed upon the trial judge’s full discharge of his or her responsibility to make findings of fact as to the question of whether Miranda rights have been intelligently, knowingly and voluntarily waived. However, when the trial judge fails to make specific findings and only makes general findings thereby allowing admissibility of evidence, the Supreme Court’s scope of review is considerably broader particularly when the trial judge’s findings on the precise points at issue on appeal are not clearly inferable from the findings made. McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

In determining whether a confession was freely and voluntarily given, the circuit court sits as the factfinder. The trial judge first must determine whether the accused has been adequately warned and, under the totality of circumstances, the court then must determine if the accused voluntarily and intelligently waived his or her privilege against self-incrimination. McCarty v. State, 554 So. 2d 909, 1989 Miss. LEXIS 499 (Miss. 1989).

The fact of a waiver of the privilege against self-incrimination in one proceeding is limited to a waiver for that proceeding and that proceeding only. In re Knapp, 536 So. 2d 1330, 1988 Miss. LEXIS 606 (Miss. 1988).

A criminal defendant’s deposition in a civil action arising out of the same transaction as the criminal action was admissible in the later criminal trial in which the defendant elected not to testify. The defendant waived his right against self-incrimination by answering the deposition questions even though he was not aware that any criminal prosecution was likely at the time he was deposed, was not represented by an attorney at the deposition, and was not advised by anyone that his answers could be termed voluntary and used against him in a criminal proceeding. Reed v. State, 523 So. 2d 62, 1988 Miss. LEXIS 66 (Miss. 1988).

When witness voluntarily took the stand in a perjury trial and testified on behalf of the defendant therein as to the truthfulness of witness’ brother’s statements concerning a murder, to which witness had pled guilty and had been sentenced, witness waived his Fifth Amendment right and was subject to cross-examination on all relevant and material matters. Hentz v. State, 496 So. 2d 668, 1986 Miss. LEXIS 2712 (Miss. 1986).

If the right to counsel or the privilege against self-incrimination is waived at an initial trial which is later reversed, on appellate review, on retrial defendant can reinvoke rights previously waived. State v. Caldwell, 492 So. 2d 575, 1986 Miss. LEXIS 2531 (Miss. 1986).

Under totality of circumstances test, waiver of Miranda rights is not rendered involuntary merely because suspect is in hospital when confession is taken, and is experiencing some pain and discomfort, where suspect is not under sedative or medication that would impair memory or ability to voluntarily waive rights. Gavin v. State, 473 So. 2d 952, 1985 Miss. LEXIS 2163 (Miss. 1985).

Where the police read the defendant her Miranda rights and she responded “I understand, but I don’t understand if I should have a lawyer or not,” her waiver of her rights, as guaranteed under the Fifth Amendment, was knowing and intelligent in that, although she may not have been able to decide whether she wanted an attorney, the record was clear that she understood that she had the right to one; it is not the responsibility of police officers to decide for an accused whether the accused should retain an attorney, it is sufficient that the accused understand that the retention of counsel is a viable option. Lockett v. State, 459 So. 2d 246, 1984 Miss. LEXIS 1930 (Miss. 1984).

A defendant in a capital murder prosecution knowingly and voluntarily waived his right to remain silent and, accordingly, the questioning to which he was submitted was not constitutionally prohibited, where, although he was not pleased with the “waiver of rights” language in the written waiver form that he signed, he nevertheless discussed the homicide in question with officers and gave a video-taped statement after having been warned of his constitutional prerogatives, after he had executed a formal waiver of those rights, and after he had visited with his mother who was present when the statement was given, where there was no inducement or coercion to obtain the statement from defendant by way of promise of hope or reward, and where there was no evidence of physical or mental coercion for the statement through delay or any violation of defendant’s Miranda rights. Lanier v. State, 450 So. 2d 69, 1984 Miss. LEXIS 1695 (Miss. 1984).

Where a judgment debtor by written agreement bound himself by all the provisions of an application for a surety bond, wherein he promised the surety access to all books and records, and agreed to furnish financial statements and pledged all of his assets to indemnify the surety in the event of loss, and thereby induced the surety to right a performance and payment bond in excess of $2,000,000, the judgment debtor waived his privilege against self-incrimination and was estopped from claiming the privilege as a ground for refusing to furnish a financial statement, where there was some question whether he had concealed or removed from the state assets subject to a judgment lien, and the debtor’s refusal to furnish the statement in compliance with a Mississippi chancery court decree justified an adjudication of civil contempt. Morgan v. Thomas, 321 F. Supp. 565, 1970 U.S. Dist. LEXIS 9645 (S.D. Miss. 1970), rev'd, 448 F.2d 1356, 1971 U.S. App. LEXIS 8009 (5th Cir. Miss. 1971).

It is not necessary for an officer to warn every person he talks to about a crime of his constitutional rights nor is it necessary that a person being questioned sign a waiver waiving the presence of counsel, until such time as it becomes apparent that the person being interrogated is likely to be charged with a crime; after such time the officer must promptly warn the person of his rights so that such person will not be required to give information that may incriminate him. Smith v. State, 229 So. 2d 551, 1969 Miss. LEXIS 1246 (Miss. 1969).

An accused may waive his constitutional immunity from giving testimony against himself, and does so when he takes the stand and testifies on the merits of the case. Autry v. State, 230 Miss. 421, 92 So. 2d 856, 1957 Miss. LEXIS 385 (Miss. 1957).

57. Due process – In general.

To the extent that a police chief’s testimony that defendant declined to interview upon his request referenced pre-Miranda silence, the evidence did not constitute plain error because the trial court did not deviate from a legal rule, and the error was not plain, clear, or obvious in light of the split of authority on the issue. Swinney v. State, 241 So.3d 599, 2018 Miss. LEXIS 8 (Miss. 2018).

Petitioner was allowed to proceed with a motion for access to his experts for the purpose of evaluation, testing, and any other purpose reasonably believed by counsel to be necessary for the full litigation of his post-conviction claims. As a matter of due process, prisoners sentenced to death should be granted access to their experts so long as the access complied with corrections rules and regulations and so long as those rules and regulations did not violate their due process rights. Grayson v. State, 118 So.3d 118, 2013 Miss. LEXIS 163 (Miss. 2013).

Police officer’s testimony referencing the store manager’s comments that defendant was shoplifting was not hearsay and was properly admitted where defendant was not charged with shoplifting and the testimony complained of was not used to prove the truth of whether or not defendant shoplifted; defendant was charged with feloniously eluding a law enforcement in a motor vehicle and the purpose of the testimony was to show why the officer followed defendant into the parking lot where she fled from him. Watson v. State, 8 So.3d 901, 2008 Miss. App. LEXIS 637 (Miss. Ct. App. 2008), cert. denied, 12 So.3d 531, 2009 Miss. LEXIS 217 (Miss. 2009).

Identification of defendant was not impermissibly suggestive because the men in the photographs were all African-American males, had the same build, and possessed the same facial features in accordance with the store clerk’s description of the armed robber. The fact that defendant was the only individual wearing a coat was a minor difference and did not rise to the level of impermissible suggestion. Jones v. State, 993 So. 2d 386, 2008 Miss. App. LEXIS 232 (Miss. Ct. App.), cert. denied, 997 So. 2d 924, 2008 Miss. LEXIS 503 (Miss. 2008).

Defendant’s convictions for three counts of manslaughter for his actions in 1964 were appropriate in part because his due process rights were not violated; he claimed that he suffered actual prejudice due to deceased witnesses and deteriorated memories but he failed to show how he was prejudiced because all six of his witnesses testified live at his 2005 trial and he did not suggest any witness he was unable to call on his behalf as a result of the 41-year delay. Killen v. State, 958 So. 2d 172, 2007 Miss. LEXIS 207 (Miss. 2007).

State Supreme Court rejected defendant’s claim that he was deprived of his right to a fair trial because some jurors saw him shackled, as the issue was not raised by defendant on his direct appeal. Doss v. State, 882 So. 2d 176, 2004 Miss. LEXIS 847 (Miss. 2004), cert. denied, 544 U.S. 1062, 125 S. Ct. 2513, 161 L. Ed. 2d 1113, 2005 U.S. LEXIS 4399 (U.S. 2005).

Although the court was not without the authority to decide the merits of an inmate’s application pursuant to Miss. Code Ann. §99-39-27(7), the court found that due process required the court to allow the inmate’s motion to be filed in the trial court for the consideration of mental retardation evidence as a defense to the death penalty as cruel and unusual punishment under U.S. Const. amend. VIII. Chase v. State, 873 So. 2d 1013, 2004 Miss. LEXIS 548 (Miss. 2004).

In defendant’s capital murder case, defendant’s right to a fair trial was not violated by the trial court’s admission of testimony about the sexual assault of the victim, which defendant was not charged with, that occurred in the moments preceding her murder where the sexual molestation was integrally related to her murder such that one could not coherently present the facts of her demise without reference to it, and it described part of the res gestae of the crime charged and helped shed light on defendant’s motive. McGowen v. State, 859 So. 2d 320, 2003 Miss. LEXIS 413 (Miss. 2003).

In a prosecution of defendant for the unlawful sale of cocaine, defendant’s argument that he was denied due process because the jury selection process was not adequately reflected in the record failed; the supplemented record clearly indicated that a prospective juror, as well as several other potential jurors, was struck for cause. Martin v. State, 832 So. 2d 611, 2002 Miss. App. LEXIS 854 (Miss. Ct. App. 2002).

Because the testimony given by a witness was cumulative, any error in the admission of that evidence did not rise to the level of a due process violation. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 2238 (S.D. Miss. 2000).

A bill which created a sewer district and an ordinance that established a gray-water collection system and that regulated the use of public and private sewers and drains were not unconstitutional. Croke v. Lowndes County Bd. of Supervisors, 733 So. 2d 837, 1999 Miss. LEXIS 100 (Miss. 1999).

The jurisdictional provisions of the Youth Court Act in §43-21-151 do not violate the rights to due process and equal protection under the United States Constitution and the Mississippi Constitution. Miller v. State, 740 So. 2d 858, 1999 Miss. LEXIS 173 (Miss. 1999).

The defendant city’s refusal to rezone residential property to light commercial was not a denial of due process, notwithstanding that property across the street had already been commercially developed by various businesses, since the city’s decision was “fairly debatable.” Burdine v. City of Greenville, 755 So. 2d 1154, 1999 Miss. App. LEXIS 332 (Miss. Ct. App. 1999).

The defendant was not amenable to the exercise of in personam jurisdiction over him by the a county chancery court in a contempt proceeding alleging that he was in default on payment of certain amounts of child support due under an escalation clause contained in the property settlement agreement between the parties; although the parties were married in Mississippi and the plaintiff and the child lived in Mississippi after the parties’ divorce, the defendant had never been a resident of Mississippi, had no significant contacts with Mississippi, and the judgment sought to be enforced was a Tennessee decree. McCubbin v. Seay, 749 So. 2d 1127, 1999 Miss. App. LEXIS 481 (Miss. Ct. App. 1999).

Neither the Fifth or Sixth Amendment rights of the defendant were violated when the trial court had him removed from the courtroom during a hearing on a motion for mistrial where the state requested that he be removed because the legal issue to be argued concerned a question that he had been asked on the stand, but to which he had yet to give an answer. Ludgood v. State, 710 So. 2d 1222, 1998 Miss. App. LEXIS 140 (Miss. Ct. App. 1998).

Impeachment evidence as well as exculpatory material comes within the scope of the Brady rule; failure to produce does not depend upon the good faith or bad faith of the prosecution, nor upon the specificity of the defense request. Malone v. State, 486 So. 2d 367, 1986 Miss. LEXIS 3139 (Miss. 1986).

Guarantee of due process does not require that an accused have more than one full opportunity to be heard. Simmons v. State, 197 Miss. 326, 20 So. 2d 64, 21 So. 2d 822, 1945 Miss. LEXIS 323 (Miss. 1945).

58. –Statutes and court rules, due process.

Retroactive application of §81-5-105, limiting the personal liability of a former officer of a failed federal savings and loan association to gross negligence, intentional tortious conduct, intentional breach of the duty of loyalty, and corporate waste, did not violate due process as expressed in the federal and state constitutions because a vested property right in the tort action did not arise under Mississippi law until the claim was reduced to judgment; where a plaintiff has no vested right in tort claims, abrogation of those claims by legislative enactment does not constitute a deprivation of property in violation of due process. Resolution Trust Corp. v. Scott, 887 F. Supp. 937, 1995 U.S. Dist. LEXIS 8119 (S.D. Miss. 1995).

Rule providing that case could not be heard or re-heard en banc unless majority of all judges in regular active service, including any who may be recused in particular case, vote that case be heard or re-heard en banc does not deny equal protection and due process. United States v. Nixon, 827 F.2d 1019 (5th Cir. Miss. 1987), cert. denied, 484 U.S. 1026, 108 S. Ct. 749, 98 L. Ed. 2d 762, 1988 U.S. LEXIS 349 (U.S. 1988).

Mississippi’s system for awarding punitive damages is not unconstitutional, and therefore the imposition of punitive damages did not violate a defendant’s constitutional right to due process. Ciba-Geigy Corp. v. Murphree, 653 So. 2d 857, 1994 Miss. LEXIS 354 (Miss. 1994).

Section 97-3-7(2) is not unconstitutionally vague on the ground that it does not define the term “serious bodily harm,” particularly when applied in a case involving brutal injuries; in more ambiguous cases, prosecutors and trial courts should refer to the definition of “serious bodily injury” set out in § 210.0 of the Model Penal Code. Fleming v. State, 604 So. 2d 280, 1992 Miss. LEXIS 382 (Miss. 1992).

A mother whose parental rights were terminated under [former] §93-15-103(3)(e) on the ground that there was a “substantial erosion of the relationship” between her and 2 of her children failed to show that the statute was unconstitutionally vague, since a person of common intelligence should have been aware that the result of a factual situation such as the mother’s could well be the termination of one’s parental rights. If the statute were more specific, then the cases in which it could be applied could be so drastically reduced as to make it ineffective in protecting the children it was meant to serve. Vance v. Lincoln County Dep't of Public Welfare, 582 So. 2d 414, 1991 Miss. LEXIS 360 (Miss. 1991).

A statute providing for incorporation of a municipality by the proclamation of the Governor, does not violate due process. Gambrill v. Gulf States Creosoting Co., 216 Miss. 505, 62 So. 2d 772, 1953 Miss. LEXIS 660 (Miss. 1953).

59. –Local ordinances, due process.

Requiring a landowner to pay for a sewer connection after he refused a free connection did not violate equal protection. The owner was notified that after a certain period of time, he would be responsible for the connection costs, and he was treated no differently than any other person who refused to allow the district to connect him for free Croke v. Southgate Sewer Dist., 857 So. 2d 774, 2003 Miss. LEXIS 557 (Miss. 2003).

A city’s noise control ordinance, which prohibited “unnecessary or unusual noises... which either annoys, injures or endangers the comfort, repose, health or safety of others...,” violated the due process clauses of the federal and state constitutions because it failed to provide clear notice and sufficiently definite warning of the conduct that was prohibited. A statute is unconstitutionally vague when the standard of conduct it specifies is dependent upon the individualized sensitivity of each complainant, and whether a noise is “unnecessary,” “unusual” or “annoying” depends upon the ear of the listener. Nichols v. Gulfport, 589 So. 2d 1280, 1991 Miss. LEXIS 796 (Miss. 1991).

Any violation of the county’s regulations regarding notice of noncompliance with the county’s subdivision ordinance did not deprive a developer and lot owners of their due process right with respect to the county’s action for declaratory and injunctive relief to bring the lot into compliance with the ordinance since such a procedure was not a prerequisite to the filing and prosecution of the lawsuit. Additionally, the rights of the developer and the lot owners in the premises was reasonable advance notice of the lawsuit and the opportunity to appear and be heard. Johnson v. Hinds County, 524 So. 2d 947, 1988 Miss. LEXIS 194 (Miss. 1988).

60. –Administrative proceedings, due process.

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that it does not provide for an appeal to any other state court. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

The complaint procedure established by the Supreme Court for attorney disciplinary proceedings does not violate due process on the ground that members of the complaint tribunal are also members of the Mississippi Bar. Asher v. The Mississippi Bar, 661 So. 2d 722, 1995 Miss. LEXIS 449 (Miss. 1995).

There is no suggestion of partiality or impropriety in the use of an assistant attorney general as a hearing officer in a hearing before the Department of Natural Resources Permit Board; the attorney general’s office affords counsel to state agencies and there is no conflict or suggestion of unfairness in this arrangement. Thus, an environmental organization, which objected to a modified air emissions permit and was afforded an administrative hearing before the Natural Resources Permit Board, was not denied due process of law on the ground that the hearing officer who sat with the Board was a special assistant attorney general. Furthermore, the environmental organization waived any objections it might have had where it made no objection before the Board and proceeded through the hearing without objection, and the organization admitted having knowledge of the identity of the hearing officer as an assistant attorney general well before the hearing and in time to object if any legitimate objection existed. United Cement Co. v. Safe Air for Environment, Inc., 558 So. 2d 840, 1990 Miss. LEXIS 61 (Miss. 1990).

61. –Property interests, due process.

Failure of a water management district to give notice of its petition to acquire an easement to the life tenants and remaindermen of a piece of property and failure to join the life tenants, before the entering upon and taking possession of the property, was a denial of due process. The life tenants’ and remaindermen’s due process rights were violated by the taking of their property without notice and without a pre-deprivation hearing. Webb v. Town Creek Master Water Mgmt. Dist., 903 So. 2d 701, 2005 Miss. LEXIS 236 (Miss. 2005).

In a products liability case arising from use of a prescription drug, the trial court abused its discretion by improperly changing venue to Claiborne County because the record was replete with evidence that defendant drug company had sufficiently proved bias in the community of Claiborne County. Therefore, although the trial court correctly found that it was proper to change venue from Jefferson County, Claiborne County was not a proper venue in which a fair trial could be conducted. Janssen Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 2004 Miss. LEXIS 494 (Miss. 2004), modified, 2004 Miss. LEXIS 1002 (Miss. Aug. 5, 2004).

General guarantees of municipal level fire protection in annexation ordinance did not create protected property rights in homeowner personally. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Homeowner did not have federally protected property interest in fire protection by city; Constitution did not confer affirmative rights to governmental aid. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

Property interest in review of his claim was necessary to support homeowner’s assertion that his due process rights were violated by city’s selective payment of claims to some parties from city’s claims fund, but not others. Westbrook v. City of Jackson, 665 So. 2d 833, 1995 Miss. LEXIS 454 (Miss. 1995).

The continuance of electrical power is a property interest worthy of due process protections. Thus, the defense of sovereign immunity was not available to a county where a homeowner alleged that he had been damaged when the county and an electrical utility discontinued his electrical power, since sovereign immunity is no defense where a violation of constitutional rights is concerned. Tucker v. Hinds County, 558 So. 2d 869, 1990 Miss. LEXIS 173 (Miss. 1990).

A property owner’s claim of ownership under color of title by virtue of his adverse possession of the property after he purchased the property at a tax sale but before the redemption period had ended and he had the right of possession, was sufficient to apply the “doctrine of relation” back to the date of the tax sale purchase for the purpose of challenging a subsequent zoning ordinance by asserting a pre-existing nonconforming use. In the balancing of public benefit against private property losses, a landowner’s constitutional right under the due process clause prevails. Barrett v. Hinds County, 545 So. 2d 734, 1989 Miss. LEXIS 292 (Miss. 1989).

City is not constitutionally required to reimburse hospital for care furnished to suspect wounded by city police, as municipality’s constitutional duty to obtain necessary medical care for injured detainee does not include corresponding duty to compensate provider of that care. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 103 S. Ct. 2979, 77 L. Ed. 2d 605, 1983 U.S. LEXIS 91 (U.S. 1983).

Where a licensing agreement between foster parents and the State of Mississippi, as well as state statutes, made clear the foster parent-child relationship was merely a temporary one, there could have been no expectation or entitlement on the part of the foster parents that a child placed in their home would remain permanently in their home. Therefore, the foster parents had no liberty or property interests which were entitled due process protection under the Fifth or Fourteenth Amendments. Crim v. Harrison, 552 F. Supp. 37, 1982 U.S. Dist. LEXIS 16303 (N.D. Miss. 1982).

Labor is property and to deprive laborer and employer of right to contract peaceably with one another is to violate Fifth and Fourteenth Amendments which provide that no persons shall be deprived of life, liberty, or property without due process of law, and that no state shall deprive any person within its jurisdiction equal protection of law. Southern Bus Lines, Inc. v. Amalgamated Ass'n of Street, etc., 205 Miss. 354, 38 So. 2d 765, 1949 Miss. LEXIS 435 (Miss. 1949).

Shareholder of capital stock in an incorporated agricultural association, upon becoming ineligible to hold stock by reason of fact that he is no longer a producer of agricultural products and who is unable to sell or transfer his stock to another eligible producer or organization, is entitled under Code 1942 § 4485 to be paid by the association only the par value of his stock which may be paid by association’s certificate of indebtedness payable out of future earnings, and not the amount representing the proportion that his shares bear to the present assets of the association even though such amount may be greater than the par value of the shares, and such does not deprive the shareholder of property without due process of law in violation of the constitution. Avon Gin Co. v. Bond, 198 Miss. 197, 22 So. 2d 362, 1945 Miss. LEXIS 184 (Miss. 1945).

An employee’s seniority rights constitute “property” within the Fifth Amendment to the Federal Constitution. Stephenson v. New Orleans & N. E. R. Co., 180 Miss. 147, 177 So. 509, 1937 Miss. LEXIS 123 (Miss. 1937).

Sale of the property of a bankrupt by the trustee, free of liens, on at least 10 days’ notice by mail, does not take the property of lien creditors without due process. McRaney v. Riley, 128 Miss. 665, 91 So. 399, 1922 Miss. LEXIS 156 (Miss.), cert. denied, 260 U.S. 727, 43 S. Ct. 90, 67 L. Ed. 484, 1922 U.S. LEXIS 2635 (U.S. 1922).

Congress may not, as to previously made contracts for attorney’s fees for collecting Civil War claims, limit the amount of such fees. Lay v. Lay, 118 Miss. 549, 79 So. 291, 1918 Miss. LEXIS 92 (Miss.), aff'd, 248 U.S. 24, 39 S. Ct. 13, 63 L. Ed. 103, 1918 U.S. LEXIS 1716 (U.S. 1918).

62. –State action, due process.

In an action challenging the plaintiff’s incarceration for nine months in a Madison County jail as a result of a Hinds County detainer, without hearing or court appearance, the plaintiff failed to establish a violation of his Fifth Amendment rights where he failed to allege that the defendants were acting under authority of the federal government. Jones v. City of Jackson, 203 F.3d 875, 2000 U.S. App. LEXIS 1992 (5th Cir. Miss. 2000).

A landlord’s actions in locking up a tenant’s possessions pursuant to §89-7-51(2) did not violate due process requirements where the landlord failed to use the attachment for rent statutes; since §89-7-51 did not authorize the landlord to use self-help to seize the tenant’s property, there was no state action. Bender v. North Meridian Mobile Home Park, 636 So. 2d 385, 1994 Miss. LEXIS 160 (Miss. 1994).

63. –Juveniles, due process.

Minors were entitled to some form of due process prior to being placed in a detention center that placed extensive restrictions on its residents. In Interest of M.I., 519 So. 2d 433, 1988 Miss. LEXIS 38 (Miss. 1988).

64. –Driver’s licenses, due process.

The statutory law providing for pre-hearing suspension of a driver’s license when the driver refuses to submit to a breathalyzer test is not violative of minimum due process requirements. Lavinghouse v. Mississippi Highway Safety Patrol, 620 So. 2d 971, 1993 Miss. LEXIS 255 (Miss. 1993).

65. –Employment and job security, due process.

A 16-year veteran police officer, who had vested permanent employment rights under the civil service laws, resigned on his own volition and was not “constructively discharged” where he obtained legal counsel when he became aware that he was the object of an investigation and resigned his job on his attorney’s advice. Thus, he could not thereafter pursue an untimely claim that he was denied procedural due process. In order to ensure that a civil service employee preserves his or her procedural due process guarantees, he or she should “stay the course” and remain with the job until relieved from the assignment by an official with statutory authority to fire. While the work environment could become the source of some irritation or embarrassment, such embarrassment will usually afford the civil servant nothing in the way of a procedural due process claim after a voluntary resignation. The instances will be few when a claim of constructive discharge will preserve procedural guarantees that the employee has waived by resigning. The wisdom of “staying the course” is especially crucial in light of state law which deems civil service administrative remedies as the exclusive remedy before relief can be sought in state court. Bulloch v. Pascagoula, 574 So. 2d 637, 1990 Miss. LEXIS 798 (Miss. 1990).

The termination of employees of a state facility for the mentally retarded after the employees refused to take a polygraph examination regarding injuries received by a resident under their supervision did not violate the employees’ federally guaranteed right to due process. Jackson v. Hudspeth Mental Retardation Center, 573 So. 2d 750, 1990 Miss. LEXIS 828 (Miss. 1990).

A college professor did not have a property interest protected by due process in his grant of tenure. Section 37-101-15 empowers the Board of Trustees of Institutions of Higher Learning to terminate professors’ employment contracts at any time for malfeasance, inefficiency or contumacious conduct but does not create a legitimate expectation of continued employment for a non-tenured employee. If a state regulation conditions receipt of a benefit upon a discretionary decision of an administrator, there is no legitimate claim of entitlement to the benefit. Wicks v. Mississippi Valley State University, 536 So. 2d 20, 1988 Miss. LEXIS 591 (Miss. 1988).

Although a discharged police officer was denied due process in that the dismissal decision was made one day before the time for his response to the charges expired, the dismissed police officer waived this issue by not raising it before the Civil Service Commission prior to his full evidentiary hearing and he was thus precluded from challenging the pretermination procedure on appeal. Little v. Jackson, 375 So. 2d 1031, 1979 Miss. LEXIS 2461 (Miss. 1979), cert. denied, 445 U.S. 933, 100 S. Ct. 1325, 63 L. Ed. 2d 768, 1980 U.S. LEXIS 1198 (U.S. 1980).

Statutory pretermination procedures for nonprobationary municipal civil service employees do not contain adequate due process safeguards to be followed when discharging, suspending, or demoting covered municipal employees, whose right of continued employment is a property right. Thus, risk reducing procedures must be accorded such employees, including pretermination written notice of the reasons for termination and an effective opportunity to rebut such reasons, the right to respond in writing to the charges made and to respond orally before the official charged with the responsibility of making the termination decision, a written decision on the response of the employee at the earliest practicable date, and, although not required, examination of witnesses, trial or hearing, in the discretion of the responsible official. Little v. Jackson, 375 So. 2d 1031, 1979 Miss. LEXIS 2461 (Miss. 1979), cert. denied, 445 U.S. 933, 100 S. Ct. 1325, 63 L. Ed. 2d 768, 1980 U.S. LEXIS 1198 (U.S. 1980).

66. –Professional licensure, due process.

An attorney who was suspended from the practice of law following a felony conviction in the federal courts and who was disbarred 3 years later at the conclusion of his appeal of the federal conviction, was not denied equal protection or due process rights on the ground that he would be required to wait 3 years longer before reinstatement than an attorney who chose not to appeal a conviction. All disbarred attorneys are treated equally; the disparity of time arises when an attorney resists the disbarment pending his or her appellate procedures. Had the attorney accepted the disbarment following his conviction, no delay in entering a final order of disbarment would have resulted, and therefore there was no unequal treatment or denial of due process. Additionally, the attorney’s disbarment was not retroactive to the date of his suspension since the attorney’s initiative delayed the entry of the final order; retroactivity cannot be applied when the attorney seeks a stay of the final order. Mississippi State Bar v. Nixon, 562 So. 2d 1288, 1990 Miss. LEXIS 264 (Miss. 1990).

The provision of the State Bar Act which provides for automatic suspension of a member who fails to pay the required dues but gives a suspended member power to reinstate himself by payment of delinquent dues, does not violate any constitutional rights because of failure to provide for a judicial hearing. Board of Comm'rs v. Collins, 214 Miss. 782, 59 So. 2d 351, 1952 Miss. LEXIS 521 (Miss. 1952).

67. –Insurers, due process.

The highway patrol had no authority to deliver a stolen pickup truck, which had an altered vehicle identification number and had been seized from an innocent purchaser pursuant to a valid search warrant, to an insurance company, which had paid the owner the full value of the truck under a theft loss insurance policy and was therefore the lawful owner of the vehicle, absent court approval with no advance notice to the innocent purchaser of its intent to do so and without giving him an opportunity to contest the matter in a court of competent jurisdiction; the appropriate procedure would have been for the highway patrol, once the truck served no further purpose in the criminal investigation or prosecution, to make a motion in the justice court for authority to release it to the insurance company, and to give the innocent purchaser and the insurance company reasonable notice of such application and an opportunity to be heard; however, the circuit court erred in directing return of the pickup truck to the innocent purchaser without making the insurance company a party to the hearing or giving it any notice of the proceeding, as this was a blatant violation of the insurance company’s right to due process. Weaver v. State, 597 So. 2d 609, 1992 Miss. LEXIS 177 (Miss. 1992).

68. –Schools and school districts, due process.

The procedures surrounding a school principal’s termination were not “tainted,” and no violation of his due process rights occurred, even though it could have been inferred from a witness’ reluctance to make a statement and from her affidavit. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So. 2d 898, 1995 Miss. LEXIS 269 (Miss. 1995).

The procedures surrounding a school principal’s termination were not “tainted,” and no violation of his due process rights occurred, even though it could have been inferred from a witness’ reluctance to make a statement and from her affidavit that she felt compelled to testify or lose her job, since such “evidence” of coercion was insufficient to overcome the “presumption of honesty and integrity” in the school board members who served as adjudicators and conducted the dismissal hearing. Harris v. Canton Separate Pub. Sch. Bd. of Educ., 655 So. 2d 898, 1995 Miss. LEXIS 269 (Miss. 1995).

The procedures followed at an administrative hearing before 3 members of the school board on a teacher’s 6-month suspension violated the teacher’s right to due process where, during a break in the formal proceedings, the 3 school board members told the teacher that they intended to reject suspension in favor of a formal reprimand, the teacher claimed to have relied on this information and rested her case prematurely, and the board ultimately reached a decision to suspend the teacher; although the teacher was afforded an opportunity to be heard, the school board, by its own actions, prevented her from taking full advantage of her right to present evidence in her favor by leading her to believe that there was no need to present additional evidence. Bowman v. Ferrell, 627 So. 2d 335, 1993 Miss. LEXIS 511 (Miss. 1993).

Where a suspended teacher’s procedural due process rights had been violated at her hearing before the school board, the chancery court erred in ordering the teacher’s reinstatement rather than a rehearing as required by §37-9-113(4). Bowman v. Ferrell, 627 So. 2d 335, 1993 Miss. LEXIS 511 (Miss. 1993).

The fact that an attorney for a school’s board of trustees participates in a dismissal hearing, advises the board and generally runs the hearing affords the employee no grounds for complaint unless it can be shown that in fact the attorney corrupted or otherwise destroyed the impartiality of the process. Hoffman v. Board of Trustees, East Mississippi Junior College, 567 So. 2d 838, 1990 Miss. LEXIS 551 (Miss. 1990).

Only those persons who, out of personal animosity, or personal or financial stake in the decision, are shown of such bias that the presumption of honesty and integrity of school board members is overcome, shall be disqualified from service on a hearing board based on due process considerations. Hoffman v. Board of Trustees, East Mississippi Junior College, 567 So. 2d 838, 1990 Miss. LEXIS 551 (Miss. 1990).

There is no legislative enactment providing teachers’ aides with a valid claim of entitlement to continued employment. Thus, a teacher’s aide’s termination deprived her of no property interest, the taking of which would invoke the due process provisions of the constitution. Harrison County School Bd. v. Morreale, 538 So. 2d 1196, 1989 Miss. LEXIS 51 (Miss. 1989).

Teacher’s constitutional right to due process was not violated by school board despite claim that he was denied fair and impartial hearing because school board had already determined to dismiss him when it informed him of his right to public hearing, and because even though board conducted hearing through hearing officer, the ultimate decision rested with board. First, teacher had made no complaint at time of hearing about possibility of impartiality of school board, and such failure waived point. Second, where board acts both investigatively and adjudicatively, court establishes presumption of honesty and integrity in those serving as adjudicators, and in order to rebut presumption, teacher must show that board members had personal or financial stake in decision, or that there was some personal animosity toward teacher. Finally, showing that board was involved in events preceding termination is not enough, absent showing of either personal animosity, personal stake, or financial stake in decision, to overcome presumption of honesty and integrity of board members. Spradlin v. Board of Trustees, 515 So. 2d 893, 1987 Miss. LEXIS 2871 (Miss. 1987).

Any deprivation of student’s interest in attending school must be attended by at least minimal procedural safeguards, but where suspension is for 10 days or less, due process requires only that student be given oral or written notice of charges against him, basis of accusation, and opportunity to present his side of story. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

Even assuming that hearing before school board met minimal procedural safeguards, facts did not establish that hearing given to student by board comported with more formal procedures necessary for long-term suspensions, where it was unclear from facts developed through pleadings and discovery whether or not isolation at issue involved sufficient educational deprivation to warrant being treated as equivalent of suspension; upon returning to school after 10 days suspension, student was required to remain in detention room, isolated from other students and excluded from regular classes. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

When student admits to conduct giving rise to suspension, need for due process hearing is obviated, since purpose of hearing is to safeguard against punishment of students who are innocent of accusations against them. Cole v. Newton Special Municipal Separate School Dist., 676 F. Supp. 749, 1987 U.S. Dist. LEXIS 12455 (S.D. Miss. 1987), aff'd, 853 F.2d 924, 1988 U.S. App. LEXIS 10868 (5th Cir. Miss. 1988).

69. – Zoning, due process.

A real estate developer’s due process rights were not violated when he was unable to obtain a building permit to construct apartments since he had no property right to construct the apartments. Bryan v. City of Madison, 213 F.3d 267, 2000 U.S. App. LEXIS 12822 (5th Cir. Miss. 2000), cert. denied, 531 U.S. 1145, 121 S. Ct. 1081, 148 L. Ed. 2d 957, 2001 U.S. LEXIS 1127 (U.S. 2001).

Decision of city fathers in drawing and maintaining line past which commercial development would not be allowed was not arbitrary, capricious, or unreasonable, where there was substantial evidence supporting both sides of rezoning application, thus making ultimate decision fairly debatable; same reasoning applied to denial of assertion that zoning restriction amounted to confiscatory taking in violation of due process of law under constitution because that issue is intertwined with review of whether zoning decision is arbitrary, capricious, or unreasonable. Saunders v. Jackson, 511 So. 2d 902, 1987 Miss. LEXIS 2614 (Miss. 1987).

The due process rights, if any, guaranteed to objectors of a rezoning proposal is reasonable advance notice of the substance of the rezoning proposal together with the opportunity to be heard at all critical stages of the process. Thrash v. Mayor & Comm'rs of Jackson, 498 So. 2d 801, 1986 Miss. LEXIS 2837 (Miss. 1986).

The construction and maintenance of a warehouse for the reception of freight on railroad right-of-way, which had existed as such for more than 50 years prior to the adoption of an ordinance making most of such right-of-way a residential district, held to be a reasonable use of such right-of-way in facilitating the company’s principal business and no more objectionable than the operation of trains, and to be authorized by provision of ordinance excepting existing nonconforming uses; and, accordingly, action of city authorities in denying such use of the property was an unreasonable and arbitrary interpretation of the ordinance which tended to deprive the company of its property and use thereof in violation of both Federal and State Constitutions. Jones v. Hattiesburg, 207 Miss. 491, 42 So. 2d 717, 1949 Miss. LEXIS 357 (Miss. 1949).

70. – Taxation, due process.

The four criteria that a taxing statute must satisfy to withstand a challenge under the commerce clause and due process clause of the United States Constitution are: (1) the tax must be applied to an activity with a substantial nexus with the taxing state; (2) the tax must be fairly apportioned; (3) the tax must not discriminate against interstate commerce; and (4) the tax must be fairly related to services provided by the taxing state; the failure to meet any one prong of the test renders the tax invalid. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

The imposition of use and excise taxes pursuant to §27-67-7 et seq. on a pipeline company’s use of natural gas taken from its interstate gas pipeline as fuel for its compressor engines located along the pipeline was permissible under the commerce clause and the due process clause of the United States Constitution since the activity taxed the consumption of natural gas in compressor stations located in Mississippi had a sufficient nexus with the State to justify the tax, the tax was fairly apportioned to assess only local activities and did not discriminate against interstate commerce by subjecting interstate taxpayers to a double taxation where similarly situated intrastate taxpayers would be subject to only single taxation, and the tax was fairly related to the benefits provided by the State to the pipeline company. Tennessee Gas Pipeline Co. v. Marx, 594 So. 2d 615, 1992 Miss. LEXIS 66 (Miss. 1992).

An amendatory provision in a sales tax statute (Code 1942 § 10122 as amended) reducing from six years to three years the time within which suit may be brought to recover the tax is not violative of the due process clause. Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So. 2d 91, 1947 Miss. LEXIS 363 (Miss. 1947).

A retroactive provision in a sales tax statute changing the limitation on the right of the taxpayer to sue to recover taxes paid is invalid in so far as it undertakes to compel a court to set aside a prior judgment in taxpayer’s favor, since the judgment conferred a vested right which could not be taken away without due process of law. Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So. 2d 91, 1947 Miss. LEXIS 363 (Miss. 1947).

71. – Governmental immunity, due process.

Parole board members receive absolute immunity in suit for damages by parolee alleging revocation procedures violated his right to due process, and official who, because of organization of government in particular state, performs parole board’s quasi-judicial duties enjoys same protection. Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 1988 U.S. App. LEXIS 1512 (5th Cir. Miss. 1988).

Officers whose activities fell within scope of parole board’s protected function were absolutely immune from liability in suit for damages alleging denial of prisoner’s due process rights where one, acting as hearing officer, had conducted hearing without critical adverse witness even though defendant requested his presence; other officer had served in prosecutorial role during revocation proceeding. Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 1988 U.S. App. LEXIS 1512 (5th Cir. Miss. 1988).

Commissioner of Corrections, whose conduct involved administrative activities which, although they impacted on adjudicatory process, were not integral part of it, merited only qualified immunity where allegation was that procedural due process violation had occurred; this official, who had failed to establish adequate policies or procedures to govern preliminary hearing in such an elementary case, should have known that his conduct violated a clearly established right and was therefore liable for damages. Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 1988 U.S. App. LEXIS 1512 (5th Cir. Miss. 1988).

72. – Elections, due process.

Fact that decision of federal court declaring Mississippi poll tax law unconstitutional was handed down on day which was deadline for filing protest petitions against issuance of state aid road bonds, thereby increasing the number of electors in county from 8855 to 13510, and making total number of signatures on petitions insufficient to prevent board of supervisors from issuing bonds without calling election therefor, did not deprive petitioners of their constitutional rights; for the decision of the federal court was a fact beyond the power of the board to alter, but of which they were bound to take cognizance. Ratliff v. Board of Supervisors, 193 So. 2d 137, 1966 Miss. LEXIS 1280 (Miss. 1966).

73. – Parole and probation generally, due process.

In a challenge to the banishment provision of defendant’s sentence pursuant to Miss. Code Ann. §99-39-5(1)(a), the substitution of some period of formal probationary supervision in place of a like term of banishment did not constitute an increase in the degree or character of defendant’s punishment that would invoke constitutional concerns of double jeopardy, U.S. Const. amend. V, and the requirement of supervised probation was essentially rehabilitative in its objectives and not punitive; thus, the change in probation terms was within the circuit court’s authority as contained in Miss. Code Ann. §47-7-35. Weaver v. State, 856 So. 2d 407, 2003 Miss. App. LEXIS 234 (Miss. Ct. App.), cert. denied, 859 So. 2d 1017, 2003 Miss. LEXIS 515 (Miss. 2003).

The banishment of the defendant from a 100 mile radius of the place that he committed a burglary was not justified where the trial court did not make an on the record finding of the benefits of banishment. Weaver v. State, 764 So. 2d 479, 2000 Miss. App. LEXIS 351 (Miss. Ct. App. 2000).

A prisoner is not denied due process by the denial of parole because the discretion conferred on the parole board affords a prisoner no constitutionally recognized liberty interest. Justus v. Mississippi State Parole Bd., 750 So. 2d 1277, 1999 Miss. App. LEXIS 586 (Miss. Ct. App. 1999).

Parole statutes contain no mandatory language, but instead employ permissive “may” rather than “shall,” and thus prisoners have no constitutionally recognized liberty interest in parole. Vice v. State, 679 So. 2d 205, 1996 Miss. LEXIS 419 (Miss. 1996).

Neither the due process clause nor Mississippi law gives rise to a protected liberty interest in the form of an expectation of release on probation. There is no liberty interest in release pursuant to the provisions of §47-7-47, which creates a procedure whereby the courts may place a prisoner on probation, since the language of the statute is permissive rather than mandatory in nature; the statute vests absolute discretion in both the Department of Corrections and the court in determining whether probation should be recommended and granted, and this discretion affords a prisoner no constitutionally recognized liberty interest. Smith v. State, 580 So. 2d 1221, 1991 Miss. LEXIS 326 (Miss. 1991).

The Mississippi parole statutes do not create a constitutionally protected liberty interest in the form of an expectation of parole because of the use of the permissive “may” in §47-7-3, which provides that a prisoner “may be released on parole as hereinafter provided,” read in the context of the other provisions of that section and, as well, those of §47-7-17. Thus, Mississippi law did not vest a convicted and incarcerated felon with a liberty interest in parole entitling him to due process of law incident to his application for parole. Harden v. State, 547 So. 2d 1150, 1989 Miss. LEXIS 370 (Miss. 1989).

A term of probation requiring defendant to remain at least 125 miles away from a particular county did not violate his First, Fifth, or Fourteenth Amendment rights, where the record indicated that the trial judge carefully and meticulously explained to defendant his rights, the trial court found that defendant voluntarily and knowingly pled guilty, the Department of Corrections conducted an investigation of defendant prior to sentencing, and defendant accepted the terms of probation, which were neither unreasonable nor arbitrary. Cobb v. State, 437 So. 2d 1218, 1983 Miss. LEXIS 2926 (Miss. 1983).

74. –Revocation of parole and probation, due process.

A defendant who allegedly violated the terms of his probation by committing the crime of sale of cocaine was denied due process of law by having his probation revoked immediately after a mistrial was declared in his trial on the charge of sale of cocaine where the revocation was based upon the trial which had just resulted in a mistrial, the defendant never agreed that the court could summarily revoke his probation in the event the trial resulted in anything other than a conviction, and he was not given advance notice of a revocation hearing. Grayson v. State, 648 So. 2d 1129, 1994 Miss. LEXIS 630 (Miss. 1994).

When failure to pay court-imposed fines becomes a possible basis for a probation revocation, the trial court must follow the procedural mandates of §99-19-20(2). Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A defendant was deprived of due process by a trial court’s failure to conduct an inquiry as to the reason she was delinquent in paying her probation fines before revoking her probation because of her failure to pay those fines. Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A defendant’s probation revocation violated her due process rights where there was no record of the defendant receiving notice of a probation violation, and the disparity between the court’s statements when probation was revoked, the written and signed order of revocation, and the court’s after-the-fact explanation at the defendant’s post-conviction relief hearing demonstrated a lack of actual notice. Berdin v. State, 648 So. 2d 73, 1994 Miss. LEXIS 637 (Miss. 1994), overruled, Smith v. State, 742 So. 2d 1146, 1999 Miss. LEXIS 260 (Miss. 1999).

A trial court properly denied a parolee’s petition for writ of habeas corpus, in which the parolee claimed that he was not afforded a timely parole revocation hearing, where the admitted evidence showed that the parolee had violated the conditions of his parole by 2 Tennessee felony convictions and failure to waive extradition back to Mississippi; these were reasonable grounds for revoking his parole, and therefore all procedural due process guarantees were met. Godsey v. Houston, 584 So. 2d 389, 1991 Miss. LEXIS 438 (Miss. 1991).

A probationer was not denied due process due to the lack of a preliminary hearing in his probation revocation proceedings, even though a hearing expressly designated as “preliminary” was not held, where 3 hearings were held in the circuit courts and the first and second hearings were, for all practical purposes, equivalent to a preliminary hearing. Additionally, the probationer was not wrongfully denied the opportunity to call his own witnesses where he made a last-minute request during the third hearing to call witnesses who allegedly would have testified in his behalf, the court concluded that the witnesses would have offered no new evidence, the probationer had already admitted that he committed probation violations, and at most the witnesses would have testified in regard to the probationer’s character and would have had no effect on the outcome of the case. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

The probation-revocation procedure delineated in §47-7-37 is constitutional; the statute includes the minimum due process requirements applicable to parole and probation revocation procedures set forth in Morrissey v Brewer (1972, US) 33 L Ed 2d 27, 92 S Ct 2593 and Gagnon v Scarpelli (1973, US) 36 L Ed 2d 656, 93 S Ct 1756. Riely v. State, 562 So. 2d 1206, 1990 Miss. LEXIS 240 (Miss. 1990).

75. –Treatment of incarcerated persons, due process.

In a capital murder case, the inmate asserted that he had been subjected to cruel and inhuman treatment in violation of his Fifth, Eighth, and Fourteenth Amendment rights because he had been kept in maximum confinement on Mississippi’s death row under conditions that included lock-down and isolation for at least 23 hours of the day and because he had been subjected to numerous execution dates during those 19-20 years; however, there was no law in the United States or Mississippi that supported the inmate’s claim and, thus, there were no grounds for postconviction relief on that issue. Wilcher v. State, 863 So. 2d 776, 2003 Miss. LEXIS 492 (Miss. 2003), cert. denied, 542 U.S. 942, 124 S. Ct. 2917, 159 L. Ed. 2d 821, 2004 U.S. LEXIS 4678 (U.S. 2004).

Involuntary treatment of the criminally accused with antipsychotic medication is permissible only where medically appropriate and, considering less intrusive alternatives, essential for safeguarding a compelling state interest. In re the Reinstatement of Turner, 635 So. 2d 894, 1994 Miss. LEXIS 197 (Miss. 1994).

Although prisoners do not enjoy an absolute constitutional right to unrestricted visitation, and their visitation privileges are subject to the discretion of prison officials, restrictions on an inmate’s visitation privileges should not be imposed arbitrarily or discriminatorily. Puckett v. Stuckey, 633 So. 2d 978, 1993 Miss. LEXIS 566 (Miss. 1993).

The unexplained failure to award an inmate meritorious earned time did not amount to a violation of his federal and state constitutional rights to due process and equal protection, since an inmate’s earning of “time” is a matter of grace or privilege under §47-5-142, which provides that “meritorious earned time may be awarded.” Since correctional officials are vested with discretionary power to award time under certain conditions, inmates are not entitled to it. Ross v. State, 584 So. 2d 777, 1991 Miss. LEXIS 483 (Miss. 1991).

A prisoner did not have a protected liberty interest in being transferred from a county correctional facility to a state prison, absent a state law or regulation or prison policy or procedure conditioning such a transfer on proof of misbehavior or some other event. McFadden v. State, 580 So. 2d 1210, 1991 Miss. LEXIS 306 (Miss. 1991).

A prison inmate does not have a protected liberty interest in a particular job assignment under the due process clause. However, a liberty interest may be created by state law or prison regulation. McFadden v. State, 580 So. 2d 1210, 1991 Miss. LEXIS 306 (Miss. 1991).

Inmates who are placed in administrative segregation have no constitutional basis for demanding the same privileges as those inmates in the general prison population since prison officials have the discretion to determine whether and when to provide prisoners with privileges such as showers, exercise, visitation, and access to personal property. Thus, the 5 hours a week of exercise plus nightly showers of 15 minutes which were provided to an inmate confined to administrative segregation did not constitute cruel and unusual punishment. Additionally, the procedures provided when the inmate was placed in administrative segregation satisfied the due process clause where the inmate received notice of detention and a hearing on the matter. Terrell v. State, 573 So. 2d 730, 1990 Miss. LEXIS 784 (Miss. 1990).

The actions of corrections officials in designating a prisoner eligible for earned time, due to an administrative or clerical error, and then in withdrawing that designation, did not amount to a forfeiture of earned time without due process since no earned time was accumulated by the prisoner. Doctor v. State, 522 So. 2d 229, 1988 Miss. LEXIS 81 (Miss. 1988).

76. –Jurisdiction, due process.

For court’s exercise of personal jurisdiction to comport with due process, defendant must have certain minimum contacts with forum, such that maintenance of suit does not offend traditional notions of fair play and substantial justice. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

Although the chancellor initially granted the mother’s motion to terminate the father’s parental rights, the Hinds County Chancery Court did not have proper subject matter jurisdiction to do so because the Scott County Chancery Court entered the initial order of child custody; when presented with information regarding the jurisdictional problem, the chancellor immediately corrected the defect by setting aside his previous orders and instructing that any further proceedings regarding the case be brought before the Scott County Chancery Court, pursuant to Miss. Code Ann. §93-5-23. C.M. v. R.D.H., 947 So. 2d 1023, 2007 Miss. App. LEXIS 29 (Miss. Ct. App. 2007).

For court’s exercise of personal jurisdiction to comport with due process, defendant’s contacts with forum must be such that he should reasonably anticipate being haled into court there. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

Joint venturer’s contacts with Louisiana, as state where radio station was purchased pursuant to joint venture agreement and where funds which joint venturer advanced were used in operating station, were sufficient to permit Louisiana courts to exercise personal jurisdiction in action brought by law firm which provided legal services to another member of venture to hold joint venturer liable on debt; lawsuit arose out of joint venturer’s contacts with forum, and even assuming that it did not, joint venturer’s contacts were systematic and continuous enough, extending over multiyear period when station was in operation, to satisfy due process. Cappaert v. Walker, Bordelon, Hamlin, Theriot & Hardy, 680 So. 2d 831, 1996 Miss. LEXIS 497 (Miss. 1996).

77. –Service of process, due process.

Former husband representing himself, was unable to show a violation of the Fifth Amendment or Miss. Code Ann. §9-5-137 in a divorce action because the evidence demonstrated that he was not charged with a criminal offense and that a summons was properly issued on the civil complaint. Appellant husband erroneously believed a summons should not have been issued as the charge was not criminal but lay in divorce. Richardson v. Richardson, 856 So. 2d 426, 2003 Miss. App. LEXIS 259 (Miss. Ct. App. 2003), cert. denied, 2003 Miss. LEXIS 638 (Miss. Nov. 6, 2003).

Complete absence of service of process offends due process and cannot be waived. Mansour v. Charmax Indus., 680 So. 2d 852, 1996 Miss. LEXIS 498 (Miss. 1996).

Due process of law requires personal service to support a personal judgment, and, when the proceeding is strictly in personam brought out to determine the personal rights and obligations of the parties, personal service within the state or a voluntary appearance in the case is essential to acquisition of jurisdiction so as to constitute compliance with the constitutional requirement of due process. American Cas. Co. v. Kincade, 219 Miss. 653, 69 So. 2d 820, 1954 Miss. LEXIS 374 (Miss. 1954).

78. – Notice and hearing, due process.

Public Service Commission deprived ratepayers of procedural due process by failing to require notice to the ratepayers; no notice of the original filing was provided to the ratepayers. Miss. Power Co. v. Miss. PSC, 168 So.3d 905, 2015 Miss. LEXIS 315 (Miss. 2015).

Defendant’s due process rights were not violated by a contempt conviction because a trial court gave defendant notice and conducted a hearing where she was allowed to present evidence, even though not required for direct contempt. In re Hampton, 919 So. 2d 949, 2006 Miss. LEXIS 18 (Miss.), cert. denied, 547 U.S. 1131, 126 S. Ct. 2042, 164 L. Ed. 2d 784, 2006 U.S. LEXIS 3868 (U.S. 2006).

Denial of the inmate’s petition for writ of habeas corpus was affirmed as (1) Miss. Code Ann. §47-7-17 did not create a constitutionally protected liberty interest in parole, (2) the inmate waived his right to argue that he was prejudiced by the Parole Board’s failure to publish notice of his parole hearing as it was not raised below, and (3) the inmate did not argue in his petition that he had ever been denied the opportunity to call witnesses or that the Parole Board refused to listen to their testimony. Way v. Miller, 919 So. 2d 1036, 2005 Miss. App. LEXIS 471 (Miss. Ct. App. 2005).

The defendant was not denied the right to have compulsory process for obtaining witnesses in his favor, notwithstanding his contention that the state, by trying him at a time when charges were still pending against his other co-defendants, ensured that these potentially helpful defendants would be unavailable to the defense because, as a matter of self-preservation, they could be expected to invoke their Fifth Amendment right against self-incrimination and refuse to testify. Bell v. State, 733 So. 2d 372, 1999 Miss. App. LEXIS 56 (Miss. Ct. App. 1999).

There was no violation of due process caused by the time that elapsed between the alleged events that formed the basis for the criminal charge against the defendant for gratification of lust by touching or rubbing a child under the age of fourteen years and the time he was brought to trial where (1) the only claim of prejudice advanced at the hearing to dismiss was that the defendant could not locate his former wife, whom he believed would testify favorably to him, and (2) there was no evidence indicating that the state purposely delayed bringing formal charges against the defendant and, to the contrary, the evidence indicated that, once responsible officials became aware of the alleged events related by the child, the matter was pursued with all reasonable diligence. Haire v. State, 749 So. 2d 1130, 1999 Miss. App. LEXIS 493 (Miss. Ct. App. 1999).

The appellant was afforded a full, complete hearing at which he was given the opportunity to call witnesses and to be heard by the lower court during the divorce proceedings on the issues relating to the equitable division of marital assets that he later presented on appeal; accordingly, he was not denied due process of law, as required by both the U.S. Constitution and the Mississippi Constitution on those issues, for he was given an opportunity to be heard on the same issues he sought to modify a few months after the final decree was entered. Childers v. Childers, 717 So. 2d 1279, 1998 Miss. LEXIS 337 (Miss. 1998).

Due process requirements of clause in natural gas utility’s Army Corps of Engineers permit to lay natural gas pipelines across river, requiring notice and hearing before government could require utility to remove or alter its pipeline, did not apply to permit exculpation clause stating that government would not be liable for damage or injury to structure authorized and, thus, exculpation clause was enforceable without need for notice and hearing, in utility’s action against government, alleging negligence by Corps in designing and constructing dikes and revetment in projects to minimize scouring of river bank, causing utility’s pipelines to burst; clauses were independent of each other and both could be given meaning without reference to each other. Columbia Gulf Transmission Co. v. United States, 966 F. Supp. 1453, 1997 U.S. Dist. LEXIS 8814 (S.D. Miss. 1997).

A contemnor was denied due process of law where the show cause hearing for the contempt charges was conducted by the same judge who presided over the divorce proceedings and the related motion for recusal from which the alleged contempt originated, the contemnor was charged with a course of conduct that was committed, for the most part, outside the presence of the court, his conduct associated with the divorce proceedings involved the judge personally, and the judge chose to set a show cause hearing at a date subsequent to the alleged contemptuous conduct. Purvis v. Purvis, 657 So. 2d 794 (Miss. 1994), on rehearing (Miss. Apr. 27, 1995).

A county board of supervisors could not bar a chancery clerk, who had temporarily vacated his positions as clerk of the board of supervisors and county auditor, from performing his duties in those positions based upon a claim that the chancery clerk had failed to perform his duties, without affording him a hearing so as to comply with due process requirements. Barlow v. Weathersby, 597 So. 2d 1288, 1992 Miss. LEXIS 196 (Miss. 1992).

A chancellor’s refusal to grant a motion to set aside judgment pursuant to MRCP 60(b)(6) was an abuse of discretion where the record was devoid of any notice to the defendant as to the date of the trial; notice, whether of the time and place of a hearing, the contents of a complaint, or of the specific nature of a criminal charge, is the essence of due process. Johnson v. Weston Lumber & Bldg. Supply Co., 566 So. 2d 466, 1990 Miss. LEXIS 441 (Miss. 1990), but see Koerner v. Crittenden, 635 So. 2d 833, 1994 Miss. LEXIS 184 (Miss. 1994).

A circuit judge erred in deciding not to subject a creditor to liability for injurious violation of a debtor’s constitutional right to due process when the creditor seized the debtor’s mobile home and furnishings in compliance with §11-37-101 simply because the creditor acted pursuant to a presumptively valid (albeit unconstitutional) statute. An evidentiary hearing should have been held, and the creditor’s claim of good faith reliance on a presumptively valid statute should have been considered in light of not only the sincerity in its belief that it was acting properly, but the reasonableness of its actions under the circumstances. A fact finder conceivably could have concluded that the creditor’s “surprise” seizure of the debtor’s mobile home and its contents was, under the circumstances, unreasonable and compensable, where the record indicated no explanation for the necessity of an immediate seizure. Underwood v. Foremost Financial Services Corp., 563 So. 2d 1387, 1990 Miss. LEXIS 286 (Miss. 1990).

In an action against a husband for contempt for failing to abide by the terms of a divorce decree, the husband was deprived of due process where, after the husband was held in contempt, the chancellor did not allow him to present evidence in support of his motion for a new trial in order to prove that he had abided by the terms of the divorce decree, and the chancellor then dispensed with the husband’s motion for a new trial by denying it without hearing the additional evidence. Weeks v. Weeks, 556 So. 2d 348, 1990 Miss. LEXIS 12 (Miss. 1990).

Accused was not denied due process by the trial court’s refusal to grant a preliminary evidentiary hearing on his motion to suppress identification where there was no showing of illegality in either the photographic identification of the defendant or in the several lineup identifications. Howard v. State, 319 So. 2d 219, 1975 Miss. LEXIS 1471 (Miss. 1975), cert. denied, 425 U.S. 954, 96 S. Ct. 1733, 48 L. Ed. 2d 199, 1976 U.S. LEXIS 1500 (U.S. 1976).

79. –Discovery, due process.

Defense counsel was given every opportunity to listen to the tapes and view the transcripts, as all evidence was made available to defense counsel, and no evidence was intentionally withheld by the State; additionally, when applying the four-part test to determine if Brady violations occurred in the inmate’s case with respect to two witnesses, the trial court finding on that issue was supported by the record. Therefore, all exculpatory issues raised by the inmate regarding those two witnesses were without merit, and there was no violation of defendant’s due process rights. Manning v. State, 929 So. 2d 885, 2006 Miss. LEXIS 109 (Miss. 2006).

In his petition for post-conviction relief, the inmate demonstrated (1) that the shoe-print report, indicating the likely size of the shoe, which did not match the inmate’s shoe size, existed and was known to the prosecution at the time of the trial; (2) that despite seeking discovery of all exculpatory evidence, the report was not disclosed to the defense; and (3) that there was a reasonable probability that the outcome of the murder trial would have been different had evidence that a shoe-print not matching the inmate’s shoe size was found at the scene of the crime been presented; therefore, the inmate should be allowed to proceed in the trial court on the issue that his constitutional rights were violated by the State’s suppression of exculpatory information concerning the shoe print. Additionally, the inmate was allowed to seek post-conviction relief on the question of whether the State had knowingly suppressed additional exculpatory evidence, including (1) notes taken on the door-to-door canvas conducted following the murders; (2) statements of other neighbors implicating another suspect; and (3) other impeachment evidence. Manning v. State, 884 So. 2d 717, 2004 Miss. LEXIS 469 (Miss. 2004).

In a contract dispute over the installation of a swimming pool, a trial court violated a contractor’s procedural due process rights in basing its judgment on testimony that was neither taken under oath nor subject to cross-examination where the contractor consulted with a concrete finisher, and relied on the finisher’s unsworn opinion. Pulliam v. Chandler, 872 So. 2d 752, 2004 Miss. App. LEXIS 419 (Miss. Ct. App. 2004).

The defendant’s Fifth Amendment due process and fair trial rights were not infringed by a number of discovery violations which concerned five witnesses who either testified at his 1994 trial or were prohibited from testifying by the trial court. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 7033 (S.D. Miss. 2000).

The failure of the state to provide the last known address and telephone number of a witness was not a violation of defendant’s due process right or right to a fair trial; failure to provide the location of the witness to the defense did not undermine the confidence in the outcome of trial and, therefore, the defendant was not entitled to a mistrial on this basis. Beckwith v. Anderson, 89 F. Supp. 2d 788, 2000 U.S. Dist. LEXIS 2238 (S.D. Miss. 2000).

Government did not violate Brady in drug conspiracy case when it failed to produce defendant’s financial records and car titles, which the government seized while executing a search warrant, absent showing that such records were not available to defendant through his own diligence. United States v. Dixon, 132 F.3d 192, 1997 U.S. App. LEXIS 36328 (5th Cir. Miss. 1997), cert. denied, 522 U.S. 1061, 118 S. Ct. 721, 139 L. Ed. 2d 661, 1998 U.S. LEXIS 260 (U.S. 1998), cert. denied, 523 U.S. 1096, 118 S. Ct. 1581, 140 L. Ed. 2d 796, 1998 U.S. LEXIS 2864 (U.S. 1998).

A litigant is not shut off from all remedies for discovery merely because the rules of civil procedure do not apply to administrative proceedings or because the rules of the administrative agency do not promote it. In appropriate cases, a “pure bill for discovery” will lie and statutory remedies may be available to the end that due process be afforded. State Oil & Gas Bd. v. McGowan, 542 So. 2d 244, 1989 Miss. LEXIS 184 (Miss. 1989).

There is no discovery violation as to an officer’s notes, taken in the presence of witnesses and destroyed in good faith. Thus, the destruction of original handwritten notes of a defendant’s statement, which were transcribed into a typed statement, and admission of the typed statement into evidence, did not deprive the defendant of his rights to a fair and impartial trial and adequate defense as provided by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Woodward v. State, 533 So. 2d 418, 1988 Miss. LEXIS 492 (Miss. 1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1767, 104 L. Ed. 2d 202, 1989 U.S. LEXIS 2004 (U.S. 1989).

80. –Compulsory process, due process.

There can be no per se prohibition against a child witness testifying in a divorce case between the child’s parents. The right of every litigant to compulsory process for witnesses and to have them testify under oath in court is so well grounded that any per se exclusion simply because he or she is a child of the divorcing parents risks offending the due process provisions of the Fifth and Fourteenth Amendments of the United States Constitution and Mississippi Constitution Art 3, § 14. Before excluding the testimony of a child witness of tender years in a divorce proceeding, the chancellor, at a minimum, should follow the procedure required by Crownover v Crownover (1975) 33 Ill App 3d 327, 337 NE2d 56. Although no parent can be precluded from having a child of the marriage testify in a divorce proceeding simply because of that fact, parents in a divorce proceeding should, if at all possible, refrain from calling children of their marriage as witnesses, and counsel should advise their clients against doing so except in the most exigent cases. Jethrow v. Jethrow, 571 So. 2d 270, 1990 Miss. LEXIS 700 (Miss. 1990).

81. – Rights of indigent defendant, due process.

DNA testing of the knife used in an assault would have been of little assistance to defendant and therefore was not necessary to preserve defendant’s due process guarantees as both the victim and the eyewitness testified that defendant attacked the victim, and if the blood on the knife was found to be defendant’s blood, it would have added little support to his theory of self-defense; thus, defendant was not denied a fair trial nor was his request for expert assistance necessary to preserve his due process guarantees. Grubbs v. State, 956 So. 2d 932, 2006 Miss. App. LEXIS 379 (Miss. Ct. App. 2006), cert. denied, 957 So. 2d 1004, 2007 Miss. LEXIS 313 (Miss. 2007).

In a prosecution for capital murder committed during the commission of a rape, the trial court’s failure to provide funds to the defendant to retain an independent pathologist constituted reversible error where the opinion of the State’s pathologist that the victim was raped was the only evidence offered to prove this critical aspect of the State’s case. In re the Reinstatement of Turner, 635 So. 2d 894, 1994 Miss. LEXIS 197 (Miss. 1994).

While the due process clause requires that an indigent defendant should at times be allowed an expert in the interest of fundamental fairness, a court is not required to appoint an expert upon demand. Some of the factors to be considered in determining if the defendant was denied a fair trial when the court did not appoint a requested expert include the degree of access the defendant had to the State’s experts and whether those experts were available for vigorous cross-examination. Another con