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Floyd v. City of Crystal Springs11/24/1999
oyd refused medical assistance.
. Officer Palmer then thought it necessary to transport Floyd to the police department for the intoxilizer test, so he handcuffed Floyd and drove him to the police station. At the station, Officer Palmer told Floyd he had the right to refuse the test and explained the consequences of refusal. At that time, Floyd asked to use the telephone to call his attorney. Officer Palmer testified that, upon Floyd's request, he gave Floyd the nearest telephone available, which was only five feet from where the two were sitting. Officer Palmer did not leave the room while Floyd called his attorney. Floyd told his attorney on the phone that he had had a few drinks. Subsequent to the telephone conversation, Floyd refused to take the intoxilizer test.
. Floyd was tried and convicted by the Municipal Court of Crystal Springs, Mississippi, for DUI, first offense, on May 15, 1997. Floyd then appealed the conviction to the Circuit Court of Copiah County, Mississippi. Circuit Judge Lamar Pickard conducted a de novo bench trial and found Floyd guilty of DUI, first offense, in violation of Miss. Code Ann. § 63-11-30(1)(a) (Supp. 1998). At trial, Floyd's counsel objected to the introduction of the telephone conversation and moved to dismiss for lack of probable cause to stop Floyd's vehicle. Judge Pickard reserved ruling on the objection regarding the telephone conversation, and never issued a final ruling to that objection. Judge Pickard overruled the motion to dismiss, and stated that there was probable cause to stop the vehicle. From this ruling, Floyd appeals, raising the following issues:
I. WHETHER A POLICE OFFICER HAS THE LAWFUL AUTHORITY TO STOP A VEHICLE WHEN THE OFFICER DID NOT OBSERVE ANY MOTOR VIOLATIONS OR SUSPICIOUS DRIVING, YET RECEIVED SPECIFIC INFORMATION FROM A THIRD PARTY WARNING THAT THE DRIVER WAS OPERATING THE VEHICLE IN A RECKLESS MANNER.
II. WHETHER INCRIMINATING STATEMENTS MADE BY A SUSPECT DURING A TELEPHONE CONVERSATION WITH HIS ATTORNEY MAY BE USED AGAINST THE DEFENDANT WHEN THE CONVERSATION TOOK PLACE IN THE PRESENCE OF A POLICE OFFICER AND AFTER THE DEFENDANT HAD BEEN PLACED IN CUSTODY.
STANDARD OF REVIEW
. This Court must utilize a separate standard of review for each of the two issues raised by Floyd. First, determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed. 2d 911 (1996). This Court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident Judges and local law enforcement officers. Id. Thus, this Court is restricted to a de novo review of the trial Judge's findings using the applicable "substantial evidence"/"clearly erroneous" standard. McNeal v. State, 617 So. 2d 999, 1007 (Miss. 1993) (citing Hansen v. State, 592 So. 2d 114 (Miss.1991)).
. Second, this Court has held that " he standard of review regarding admission [or exclusion] of evidence is abuse of discretion." Thompson Mach. Commerce Corp. v. Wallace, 687 So. 2d 149, 152 (Miss. 1997). Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party." In re Estate of Mask, 703 So. 2d 852, 859 (Miss. 1997); Terrain Enters., Inc. v. Mockbee, 654 So. 2d 1122, 1131 (Miss. 1995).
DISCUSSION
I. WHETHER A POLICE OFFICER HAS THE LAWFUL AUTHORITY TO STOP A VEHICLE WHEN THE OFFICER DID NOT OBSERVE ANY MOTOR VIOLATIONS OR SUSPICIOUS DRIVING, YET RECEIVED SPECIFIC INFORMATION FROM A THIRD PARTY WARNING THAT
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