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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 95-KA-00940 COA MILTON GREEN v. STATE OF MISSISSIPPI APPELLANT APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: DISTRICT ATTORNEY: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 09/07/95 HON. LAMAR PICKARD COPIAH COUNTY CIRCUIT COURT KATE EIDT OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS ALEXANDER C. MARTIN CRIMINAL - FELONY POSSESSION OF A WEAPON BY A CONVICTED FELON: SENTENCED TO SERVE 3 YRS WITH THE MDOC REVERSED AND RENDERED - 9/23/97

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

10/14/97

BEFORE THOMAS, P.J., DIAZ, HERRING, AND SOUTHWICK, JJ. DIAZ, J., FOR THE COURT: Milton Green was convicted in the Circuit Court of Copiah County for possession of a firearm by a convicted felon. Green was sentenced to serve three years in the custody of the Mississippi Department of Corrections. Aggrieved, Green appeals the conviction on three issues. Green claims that (1) the trial court erred when it denied his motion for dismissal of the indictment based upon lack of probable cause to stop the defendant in his vehicle and the search of the vehicle, (2) the trial court erred when it allowed the indictment to proceed to trial as the evidence of the charge was a result of an illegal search and seizure, and (3) the jury verdict was contrary to the overwhelming weight of the

evidence. FACTS On December 31, 1994, Milton Green was driving his fiance's Ford Taurus a short distance north of Highway 27 and Highway 51 in Copiah County when he was pulled over by two unmarked vehicles. The unmarked vehicles were the patrol cars of Officers Crew, Stuart, and Young. The basis of the stop was that the officers believed Green had committed the crime of conspiracy by agreeing to purchase drugs from a confidential informant, and that he was traveling to a meeting place where Green was to purchase the narcotics. This meeting never took place. It is not clear where Green was going when he was stopped, but he was headed in the direction of his fiance's home. The State argues that the officers had probable cause to stop Green because they believed he was acting in furtherance of the conspiracy at that time. The officers stopped Green, removed him from the vehicle, and patted him down for weapons. Simultaneously, another officer conducted a search of the vehicle and discovered a .9 millimeter firearm. Green was ultimately charged with and indicted for possession of a weapon by a convicted felon. ISSUES A. Did the trial court err in failing to grant Green's motion to dismiss the indictment for lack of probable cause to stop the appellant? Green moved to dismiss the indictment pre-trial stating that there was no probable cause to initially stop or detain Green. Green argues that Officers Crew, Stuart, and Young specifically set out to engage Green in a conspiracy and initiated this with a call to Green by a confidential informant who was working for the government. The confidential informant and Green had several telephone conversations which were taped and one final telephone conversation which was not taped or heard by any third party. At some point in these conversations a meeting place was set for the sale of cocaine from the confidential informant to Green. There is some confusion as to exactly where the meeting place was to be, but Green was headed north when he was stopped. The State argues that they had probable cause to stop Green because they had reason to believe that he had committed the crime of conspiracy, and he was acting in furtherance of the conspiracy. We hold that the State is mistaken in its belief. Mississippi law is clear on this issue. When two or more people conspire to commit a crime then there exists a conspiracy. Miss. Code Ann.

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