PETITION FOR WRIT OF CERTIORARI

Transcription

1 E-Filed Document Jul :44: KA COA Pages: 5 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI VANESSA LYNN PAGE PETITIONER v. No KA-1456 STATE OF MISSISSIPPI APPELLEE PETITION FOR WRIT OF CERTIORARI COMES NOW the petitioner, Vanessa Lynn Page, Pursuant to Rules 17(a)(1), (2), and (3)(ii), Mississippi Rules of Appellate Procedure, and files this Petition for Writ of Certiorari and respectfully requests that this Court grant the relief requested and review the decision of the Court of Appeals of the State of Mississippi entered in this cause and in support of this petition states unto the Court the following: I. Page was convicted of driving under the influence and was sentenced to five years in the custody of the Mississippi Department of Corrections, with three years suspended and two to serve. II. Appeal of the conviction and sentence was timely perfected in this Court, and the case was assigned to the Court of Appeals. On February 27, 2018, the Court of Appeals rendered its opinion in the matter and affirmed the judgment and sentence of the trial court. 1

2 III. On March 13, 2018, Page filed a Motion for Rehearing with the Court of Appeals, and the same was denied by order entered on June 19, IV. Review is appropriate in this case because the opinion of the Court of Appeals conflicts with published opinions of this Court. Specifically, the Court of Appeals s analysis failed to properly consider this Court s precedent as it relates to police s failure to corroborate anonymous tips before making an investigatory stop. In this case, there was no corroboration, and, therefore, the stop of Page s vehicle violated her constitutional rights. ARGUMENT Issue: There was no reasonable suspicion for an investigatory stop of Page s vehicle. The Court of Appeals erred in Issue I in which it found police had reasonable suspicion for an investigatory stop of Page s vehicle. (Op ). The Court of Appeals s opinion overlooks controlling Mississippi Supreme Court precedent Cook v. State, 159 So. 3d 534 (Miss. 2015). Cook held that failure to corroborate an anonymous report does not give rise to reasonable suspicion to make an investigatory stop. Though the Court of Appeals mentions Cook, it fails to offer any distinction of Cook to the facts of the instant case. In the instant case, the police failed to corroborate an independent tip from an individual not known to be previously reliable. In Cook, Officers received a call from dispatch to be on the lookout for a vehicle that was driving erratically and the driver of the vehicle was possibly flashing a badge of some sort. The dispatched officer did not know who made the initial call, but saw a 2

3 vehicle matching the description and starting following it. Id. at 535. The officer did not see the driver flash a badge of any sort or drive erratically. On certiorari, this Court noted that the officers in Cook failed to take further action to corroborate the criminal activity reported in the tip prior to stopping Cook. Cook, 159 So. 3d at 540. Without taking further action to corroborate the report, the officers did not have reasonable suspicion to stop Cook. Id. An accurate description of Cook's vehicle and location was insufficient. The court further noted: [P]ermitting a stop solely on an anonymous tip such as the one here can open the door for legal stops based on tips provided by persons with intent to harass or embarrass others[.] Id. The facts of this case are indistinguishable from those of Cook. The police received an anonymous tip, indicating a person was driving under the influence. In the instant case, the trial court distinguished Cook from the facts of this case, focusing in part on the fact that the person who called 911 identified herself (Tr. 43). It is irrelevant that the caller to 911 identified herself. For the purposes of this analysis, anonymous does not mean unknown or any other colloquial definition. Rather, based on the caselaw cited above, an anonymous tip is one in which law enforcement does not have a working relationship with the tipster. See, generally, Floyd v. City of Crystal Springs, 749 So. 2d 110, 114 (Miss. 1999). Police had no working relationship with the person who called dispatch. It matters not that she identified herself, or that her allegation contained specificities. The trial court s conclusion that the situation in this case falls under [an] exception that the Supreme Court left an opportunity to occur and that this tip was not necessarily anonymous is erroneous. (Tr. 45). Anonymous tips in this area 3

4 of the law center on the relationship between the police and the tipster. Floyd, 749 So. 2d at 112. In this case, there was no such relationship. The officer in this case admitted under oath that he saw no traffic violation. (Tr. 19). Absent the anonymous tip, there was no reason to believe that the car in question was being operated by someone who was intoxicated. Because law enforcement violated Page s constitutional right to be free from unreasonable seizure, this Court should grant this petition and reverse the Court of Appeals. WHEREFORE, PREMISES CONSIDERED, Page prays that this Court will issue a Writ of Certiorari, review and reverse the decision of the Court of Appeals, and remand this case to the trial court for further proceedings. By /s/ Justin T. Cook Justin T. Cook Justin T. Cook, Miss. Bar No OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, MS T: (601) jcook@ospd.ms.gov 4

5 CERTIFICATE OF SERVICE I, Justin T. Cook, counsel for Vanessa Lynn Page, hereby certify that I have this day filed by means of the electronic case filing system the foregoing Petition for Writ of Certiorari, pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to all ECF participants in this cause is made including: Alicia Marie Ainsworth Assistant Attorney General Post Office Box 220 Jackson, MS This, the 3rd of July, /s/ Justin T. Cook Justin T. Cook, Miss Bar # Justin T. Cook Miss. Bar No OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Post Office Box 3510 Jackson, MS T: (601) F: (601) jcook@ospd.ms.gov Attorney for the Petitioner 5