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Floyd v. City of Crystal Springs11/24/1999
on the console of the car. When Floyd exited the vehicle, he staggered, almost fell into the highway, could not stand properly, almost fell over when he tried to fix his pants leg, and spoke with slurred speech, alternating between mumbling and loud speech.
. Additionally, the only statement from the telephone conversation testified to by Officer Palmer was Floyd's statement, "Yes, I've had a few drinks." Floyd had already told Officer Palmer, when Officer Palmer pulled Floyd's car to the side of the road, that he had been to the County Line beer joint where he had been drinking and that he had been drinking on the way home. The statement from the telephone conversation was merely cumulative and is, therefore, harmless.
CONCLUSION
. This Court affirms the trial court's conviction of Graham Floyd for DUI, first offense. The issues raised by Graham on appeal are without merit.
. Floyd's argument that Officer Palmer could not lawfully stop his vehicle because Officer Palmer did not personally observe the reckless driving is without merit. Officer Palmer had a reasonable suspicion, grounded on specific and articulable facts that Floyd had been driving recklessly. Floyd's argument that his constitutional right to counsel was violated is procedurally barred. Further, any error in admitting Floyd's statements from the telephone conversation was harmless, given the abundance of evidence of Floyd's impairment presented to the trial court and given Floyd's prior statements to Officer Palmer regarding the fact that he had been drinking.
. Therefore, this Court affirms Graham's conviction and the judgment of the Copiah County Circuit Court.
. CONVICTION OF DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR AND SENTENCED TO PAY A FINE OF $672.00 AFFIRMED.
PRATHER, C.J., PITTMAN, P.J., BANKS, MILLS, WALLER AND COBB, JJ., CONCUR. McRAE, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SULLIVAN, P.J.
McRAE, JUSTICE, DISSENTING:
. The majority writes that the information provided by a third party that Floyd was speeding and driving recklessly was sufficient to justify a Terry investigative stop. Terry v. Ohio, as the majority notes, allows police to make an investigatory stop if the officer has a reasonable suspicion that a person has committed or may be committing a crime. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, because it cannot be said that one who is speeding and/or driving recklessly is likely to be engaging in any crime other than speeding and/or driving recklessly, and one cannot investigate the crime of speeding and/or driving recklessly by stopping the alleged violator, allowing police to conduct an investigative stop under these circumstances stretches the concept of a Terry stop too far. Indeed, because the driver who commits no infractions while driving probably does not exist, the majority's opinion gives police carte blanche to search almost every driver on the road. Moreover, the officer in this case, although he was able to maneuver his vehicle behind the car behind Floyd, never observed Floyd speed or drive recklessly. Thus, the obvious Conclusion is that the informant's information which formed the basis for the alleged Terry stop was not reliable since no speeding or reckless driving occurred within the officer's presence. If the information forming the basis of the stop is not reliable, the information cannot support a warrantless search. Barton v. State, 328 So.2d 353, 354 (Miss. 1976).
. The Fourth Amendment to the United States Constitution prohibits both unreasonable searches and seizures. Just as a search must be commensurate wit
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