text:
    Roger Eric THORSON v. STATE of Mississippi.
    No. 2010-CA-01010-SCT.
    Supreme Court of Mississippi.
    Sept. 15, 2011.
    Rehearing Denied Dec. 8, 2011.

      Jim Davis, attorney for appellant.
    Office of the Attorney General By: Jason Lewis Davis, Marvin L. White, Jr., attorneys for appellee.
   CARLSON, Presiding Justice, for the Court:

¶ 1. Roger Eric Thorson was indicted on June 3, 1987, and charged with the capital murder of Gloria McKinney, his ex-girlfriend, during the commission of a kidnapping on March 4, 1987. On Thorson’s direct appeal of his capital-murder conviction and sentence of death, this Court affirmed the trial court on all issues except a Batson issue, and the case was remanded to the trial court to conduct a Batson hearing. Thorson v. State, 653 So.2d 876, 896 (Miss.1994). On remand, the trial court found no Batson violation, thus holding that Thorson was not entitled to a new trial. Thorson v. State, 721 So.2d 590, 592 (Miss.1998). On appeal, this Court found that the trial court had committed reversible error in allowing the State to peremptorily strike a member of the jury venire based solely on her religious affiliation, in violation of Article 3, Section 18 of the Mississippi Constitution and Mississippi Code Section 13-5-2. Id. at 598. Thus, the case was reversed and remanded for a new trial. Id. After another jury trial, Thorson was again convicted for the crime of capital murder and sentenced to death by lethal injection, and on appeal, this Court affirmed both the conviction and sentence. Thorson v. State, 895 So.2d 85, 132 (Miss.2004). The United States Supreme Court denied Thorson’s petition for writ of certiorari on October 3, 2005. Thorson v. Mississippi, 546 U.S. 831, 126 S.Ct. 53, 163 L.Ed.2d 83 (2005).

¶ 2. Thorson subsequently filed a Petition for Post-Conviction Relief with this Court, seeking an Atkins hearing pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002); Lynch v. State, 951 So.2d 549 (Miss.2007); and Chase v. State, 873 So.2d 1013 (Miss.2004). See Thorson v. State, 994 So.2d 707, 709 (Miss.2007). We granted Thorson relief and permitted him an evidentiary hearing to determine whether he was mentally retarded. Id. On January 7-8, 2010, the Circuit Court of the Second Judicial District of Harrison County conducted a hearing, with Judge Roger T. Clark presiding. After the hearing, Judge Clark took the matter under advisement, directed the court reporter to transcribe the proceedings and to furnish copies of the transcript to counsel for the parties, and established a briefing schedule. Once all briefs had been submitted, Judge Clark, on June 4, 2010, entered an eight-page order thoroughly discussing the issue before him and finding that Thorson was not mentally retarded under Atkins. Upon entry of this order denying his petition for post-conviction relief under Atkins, Thorson appealed to us.

¶ 3. The Court heard oral arguments of counsel and received from the parties, through counsel, post-argument citation of supplemental authority under Mississippi Rule of Appellate Procedure 28(j). Upon review, we find that the trial court did not abuse its discretion by finding that Thor-son was not mentally retarded. The record supports the trial court’s finding that Thorson failed to meet the first prong of Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335.

PROCEEDINGS IN THE TRIAL COURT

¶ 4. At the evidentiary hearing on January 7-8, 2010, both the defense and the State offered expert testimony on the issue of whether Thorson was mentally retarded under Atkins, which required Thorson to show that: (1) he had significantly subaverage intellectual functioning; (2) he had deficits in two or more adaptive skills; (3) he was eighteen years of age or younger when the retardation manifested itself; and (4) he was not malingering. See Chase, 873 So.2d at 1027-29 (interpreting Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335).

¶ 5. Thorson called Dr. Victoria Swanson and Dr. Mark Zimmerman, who both tes-tifíed that Thorson was mentally retarded. In rebuttal, the State called Dr. Gilbert MacVaugh and Dr. Reb McMichael, who disagreed with Thorson’s experts and opined that Thorson was not mentally retarded. Both parties’ experts either conducted or had other psychologists to conduct IQ tests on Thorson. Both parties’ experts also relied on IQ tests formerly conducted on Thorson in reaching their opinions. Accordingly, for the first prong, the trial court heard expert testimony based, inter alia, on three IQ tests and two psychiatric examinations:

• Dr. William Gasparrini conducted the WAIS-R on Thorson in 1988, finding that Thorson had a full-scale IQ of 77.
• Dr. Henry Maggio conducted a psychiatric examination on Thorson in 2002 and agreed with an IQ score of 77.
• Dr. Mark Zimmerman conducted the WAIS-III on Thorson in 2005, finding that Thorson had a full scale IQ of 70.
• Dr. Victoria Swanson conducted several examinations on Thorson, reviewed the IQ tests performed on Thorson, and opined that Thorson had an IQ of 71 to 72.
• Dr. Gilbert MacVaugh, with the aid of his team at Whitfield, conducted the WAIS-III on Thorson, finding his IQ to be 79.

¶ 6. Having heard testimony from both parties’ experts and having considered all the IQ tests performed on Thorson, the trial court found that Thorson had failed to show that he had an IQ of 75 or below:

All of the IQ test scores contained in this record were administered after 1987, the date of the crime. The earliest tests resulted in full scale I.Q. results of 77 and 79. Dr. William Gasparrini administered the WAIS-R to Thorson in 1988 and found his “full scale I.Q. to be 77.” In 2000, Dr. George Tate reported that Thorson’s mother told him that the school told her that Thorson was just above the level for special ed classes. Dr. Henry Maggio conducted a psychiatric examination of Thorson on February 28, 2002, and agreed with the IQ score of 77. The reports of these doctors were submitted as evidence, and were reviewed by all of the experts. Dr. Gilbert S. MacVaugh, as part of a team of forensic clinicians at Whitfield, evaluated Thorson on August 25, 2008, and found he was not mentally retarded. At that time Thorson achieved a “full scale” I.Q. of 79. Defense expert, Dr. Mark Zimmerman, tested Thorson in 2005 and placed Thorson’s I.Q. at 70. He reached this result in part by adjusting the raw score based on the “Flynn Effect.”
As the fact-finder, it is clear to this Court that Roger Thorson’s I.Q. has not been proven to be 75 or below....

¶ 7. In reaching his conclusion that Thorson did not have an IQ of 75 or below, the trial judge did not find Thorson’s experts’ reliance on the Flynn Effect to be persuasive. The Flynn Effect “is a phenomenon positing that, over time, standardized IQ test scores tend to increase with the age of the test without a corresponding increase in actual intelligence in the general population. Those who follow the Flynn Effect adjust for it by deducting from the IQ score a specified amount for each year since the test was normalized.” Wiley v. Epps, 625 F.3d 199, 203 n. 1 (5th Cir.2010) (citing In re Salazar, 443 F.3d 430 n. 1 (5th Cir.2006)).

¶ 8. Notwithstanding the trial court’s finding that Thorson had not met the first prong of Atkins, the trial court, “out of an abundance of caution ... reviewed the evidence regarding the other three prongs of the Atkins test, adaptive skills, manifestation before age eighteen, and malingering.” As to the second Atkins prong, addressing whether Thorson had shown at least two deficits in adaptive functioning, the State did not retrospectively assess Thorson for adaptive functioning by applying standardized tests, maintaining that retrospective testing for adaptive functioning is not standardized for use with offenders who have been incarcerated for a number of years. Instead, to make its determination, the State reviewed more than 300 documents pertaining to Thorson’s history and interviewed Thorson, but did not conduct personal interviews of any witnesses. Based on this research, Dr. Mac-Vaugh concluded that Thorson’s only adaptive deficit was in the area of functional academics.

¶ 9. In contrast, Dr. Swanson conducted a Vineland-II Adaptive Behavior Scales (VABS-II) test and an Adaptive Behavior Assessment System-II (ABAS-II) to determine whether Thorson had deficits in adaptive functioning. Specifically, she administered these tests retrospectively to Thorson’s former girlfriend and a co-worker of Thorson’s from the 1980s. Applying these tests, Dr. Swanson ultimately concluded that, prior to the age of eighteen, Thorson’s

subdomain standard scores indicate that, at about the age of 18 to 22, deficits (2 or more standard deviations below the mean) existed in the areas of (1) communication; (2) functional academic skills; (3) self-care; (4) use of community resources; (5) social/interpersonal relationships; (6) leisure; (7) self-direction; (8) health; and (9) work.

¶ 10. Aside from the Vineland test, Dr. Swanson also interviewed several other witnesses familiar with Thorson and reviewed numerous documents relating to Thorson’s history. She conducted other tests on Thorson, including the Woodcock Johnson test to assess Thorson’s academic functioning. Dr. Swanson testified that, based on the Woodcock Johnson test, Thorson had a score of 52 in oral communication, consistent with a first-grade level and “much lower in comprehension, fifth grade spelling, fourth grade math.” The Wide Range Achievement Test, Fourth Edition (WRAT-4) revealed that Thorson’s word recognition was on a sixth-grade level.

¶ 11. In light of these findings, her mental examination of Thorson, and the Vineland test, Dr. Swanson further concluded that Thorson currently had “significant limitations,” which satisfied Atkins’s second prong, in communication, functional academics, self-direction, and work skills.

¶ 12. Viewing all the evidence offered at the hearing concerning Thorson’s adaptive functioning, the trial court found Dr. Swanson’s retrospective tests to be “unreliable and unpersuasive.” The trial court stated,

Dr. Swanson’s opinion is that Thorson is deficient in at least eight areas of adaptive functioning with “significant limitations” in 1) communication, 2) functional academics, 3) self direction and 4) work skills.... The Court has given careful consideration to all available evidence and the experts’ interpretation of it. The defense would discount Dr. MacVaugh’s opinions because he reviewed the voluminous documents and interviewed Thorson, but conducted no “personal interviews of any witness” to support his opinion. Dr. Swanson reviewed the same material, and administered retrospective tests to Thorson’s former girlfriend and a co-worker of Thorson’s at Morrison’s Cafeteria in the mid to late 1980s ... Dr. Swanson also interviewed Thorson’s birth mother, adopted sister, uncles and aunts, cousins, a schoolteacher and special education administrator. Some of these interviews confirmed information previously provided but did not provide any new information that is persuasive in making an Atkins determination. Dr. McMichael, expert for the state, testified that the retrospective testing administered by Dr. Swanson should be viewed with a “great deal of scepticism [sic].” The Court finds the application of the retrospective Vineland tests unreliable and unpersuasive.

¶ 13. The trial judge then specifically discussed the evidence in support of his conclusion that Thorson had failed to prove adaptive deficits in communication and work skills. He found that the “record is replete with examples of Thorson’s ability to communicate, albeit not always truthfully.” He also found that a social-history evaluation performed circa 2001 noted that Thorson’s development was within the normal range; Thorson’s medical requests from 1988 to 1998 demonstrate an ability to ask for specific medications and to monitor the medications he received; and a neurologist, Dr. Sidney Smith, had examined Thorson on April 3, 1987, and had found that Thorson was “completely oriented” and without “cognitive deficits.” The trial court also pointed out that Dr. McMichael had testified Thorson’s vocabulary and word use, as demonstrated in his videotaped statement, was not consistent with a mentally retarded person.

¶ 14. Regarding work skills, the trial court found that Thorson had maintained several jobs from 1974 to 1987, and some of those jobs had lasted for more than a year. The trial court reasoned that the record did not reveal why Thorson had left these jobs or had been asked to leave. Additionally, the trial court noted that Thorson, in a 2008 interview, had stated “that he used marijuana beginning at age thirteen and did ‘thirty-five to forty joints’ daily until he was nineteen.”

¶ 15. Both Dr. MacVaugh and Dr. Swanson agreed that Thorson had a deficit in academic functioning. The trial judge even stated that “except for the deficit in academics the defendant has failed to establish significant deficits in any other adaptive functioning.” However, the trial court further explained that Thorson had failed to prove by a preponderance of the evidence that Thorson’s academic deficits “were caused by his mental retardation.” Accordingly, the trial court concluded that Thorson did not have a deficit in academic functioning for purposes of Atkins. The trial judge did not provide any specific discussion as to why Thorson did not have a deficit in self-direction.

¶ 16. In today’s appeal, Thorson argues that the trial court committed clear error when it found that Thorson was not mentally retarded under Atkins. Thorson alleges that the trial court committed several errors, arguing that the trial court abused its discretion (1) in permitting Dr. MacVaugh and Dr. McMichael to offer expert testimony for the State related to the assessment or diagnosis of mental retardation; (2) by not relying on Dr. Swanson’s and Dr. Zimmerman’s expert assessments and diagnoses of mental retardation; (3) by accepting Dr. MacVaugh’s and Dr. McMichael’s determination that Thorson did not exhibit significantly subaverage intellectual functioning; (4) by rejecting Dr. Swanson’s and Dr. Zimmerman’s determination that Thorson exhibited significantly subaverage intellectual functioning; (5) by ignoring scientifically established errors of measurement for the assessment of significantly subaverage intellectual functioning; (6) by accepting Dr. MacVaugh’s and Dr. McMichael’s determinations that Thorson did not have concurrent deficits or impairments in at least two areas of adaptive functioning; (7) by rejecting Dr. Swanson’s determination that Thorson exhibited concurrent deficits or impairments in at least two areas of adaptive functioning; (8) by rejecting Dr. Swanson’s use of retrospective testing for adaptive functioning; (9) by rejecting Dr. Swanson’s clinical judgment; and (10) by applying an incorrect standard to the adaptive-functioning prong of a mental-retardation assessment and ignoring clear evidence of onset prior to age eighteen.

¶ 17. For purposes of this opinion, we have combined some of these issues. Moreover, because this Court finds the first issue to be dispositive, we do not address the second Atkins prong — deficits in adaptive functioning — or any issues raised by Thorson pertaining thereto.

DISCUSSION

¶ 18. “When reviewing a lower court’s decision to deny a petition for post conviction relief this Court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Doss v. State, 19 So.3d 690, 694 (Miss.2009) (citing Brown v. State, 731 So.2d 595, 598 (Miss.1999)) (citations omitted). This Court “must examine the entire record and accept ‘that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact....’” Doss, 19 So.3d at 694 (citing Mullins v. Ratcliff, 515 So.2d 1183, 1189 (Miss.1987)) (citations omitted).

¶ 19. However, “ ‘where questions of law are raised the applicable standard of review is de novo.’ ” Doss, 19 So.3d at 694 (citing Brown v. State, 731 So.2d at 598). “The burden of proof at an evidentiary hearing on a PCR case is on the petitioner to show ‘by a preponderance of the evidence’ that he is entitled to relief.” Doss, 19 So.3d at 694 (citing Miss.Code Ann. § 99-39-23(7) (Rev.2007).

¶ 20. In Atkins, 536 U.S. at 321, 122 S.Ct. 2242, the United States Supreme Court held that imposing the death penalty on mentally retarded inmates constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The Atkins decision left to the States “the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Lynch, 951 So.2d at 556 (citing Atkins, 536 U.S. at 317, 122 S.Ct. 2242) (citations omitted).

¶ 21. In Atkins, the majority approvingly cited two definitions of mental retardation. The American Association on Mental Retardation (AAMR) provided one definition:

Mental retardation refers to substantial limitations in present functioning. It is characterized by significantly subaver-age intellectual functioning existing concurrently with related limitations in two or more of the following applicable adaptive skill areas: communication, self-care, community use, self-direction, health and safety, functional academics, leisure, and work. Mental retardation manifests before age 18.

Chase, 873 So.2d at 1027 (quoting Atkins, 536 U.S. at 308 n. 3, 122 S.Ct. 2242). The American Psychiatric Association (APA) provided the second, similar definition of mental retardation:

The essential feature of Mental Retardation is significantly subaverage gener-
al intellectual functioning (Criterion A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system.

Chase, 873 So.2d at 1028 (citing Diagnostic and Statistical Manual of Mental Disorders 39 (4th ed. 2000)).

¶ 22. In Foster v. State, 848 So.2d 172, 175 (Miss.2003), this Court adopted these definitions and further held that “the Minnesota Multiphasic Personality Inventory-II (MMPI-II) is to be administered since its associated validity scales make the test best suited to detect malingering. ...” In Chase, we clarified this statement, “stating that the expert should use the MMPI-II, and/or any other tests and procedures permitted under the Mississippi Rules of Evidence, and deemed necessary to assist the expert and the trial court in forming an opinion as to whether the defendant is malingering.” Chase, 873 So.2d at 1028 n. 19.

¶ 23. In Chase, this Court held that no defendant can be adjudged mentally retarded under the Eighth Amendment unless the defendant produces an expert who testifies that:

1. The defendant is mentally retarded, as that term is defined by the American Association on Mental Retardation and/or the American Psychiatric Association;
2. The defendant has completed the Minnesota Multi phasic Personality Inventory-]! (MMPI-II) and/or other similar tests, and the defendant is not malingering.

Chase, 873 So.2d at 1029.

¶24. In Chase, this Court explained that the DSM-IV provides that “‘mild’ mental retardation is typically used to describe persons with an IQ level of 50-55 to approximately 70.” Chase, 873 So.2d at 1028 n. 18. Accordingly, we note that the cutoff for mild mental retardation is an IQ of 70, which is two standard deviations of 15 points below the mean of 100, as measured by the Wechsler Adult Intelligence Scale. See Atkins, 536 U.S. at 309 n. 5, 122 S.Ct. 2242; Bowling v. Commonwealth of Kentucky, 163 S.W.3d 361, 374-75 (Ky. 2005) (informing that the Wechsler Adult Intelligence Scale (3rd. ed.) defines significantly subaverage intellectual functioning as ... two or more standard deviations below the mean).

¶ 25. In Chase, this Court noted further that “mental retardation may, under certain conditions, be present in an individual with an IQ of up to 75” if this individual “exhibit[s] significant deficits in adaptive behavior.” Chase, 873 So.2d at 1028, 1028 n. 18. Therefore, if a defendant proves by a preponderance of the evidence that his or her IQ falls at or below the cutoff for mild mental retardation, the trial court should also consider the remaining Atkins prongs when reaching an ultimate determination regarding mental retardation. Id.

¶ 26. This Court also explained that any defense expert addressing whether a defendant meets the requirements of Atkins “must be a licensed psychologist or psychiatrist, qualified as an expert in the field of assessing mental retardation, and further qualified as an expert in the administration and interpretation of tests, and in the evaluation of persons, for purposes of determining mental retardation.” Chase, 873 So.2d at 1029.

¶ 27. Ultimately, to prove mental retardation, a defendant must show by a preponderance of the evidence that (1) he has significantly subaverage intellectual functioning (2) he has deficits in two or more adaptive skills; (3) he was eighteen or younger when the retardation manifested itself; and (4) he is not malingering. Id. at 1027-29.

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN PERMITTING DR. MacVAUGH AND DR. McMICHAEL TO OFFER EXPERT TESTIMONY FOR THE STATE RELATED TO THE ASSESSMENT OR DIAGNOSIS OF MENTAL RETARDATION.

¶ 28. The trial judge declared Dr. MacVaugh to be an expert in forensic psychology with a particular emphasis in Atkins determinations and Dr. McMichael to be an expert in the field of forensic psychology. Thorson contends that the trial court abused its discretion by allowing Dr. MacVaugh and Dr. McMichael to testify. Specifically, Thorson argues that Dr. Mac-Vaugh’s and Dr. McMichael’s backgrounds, training, and experience do not qualify them as experts under Chase, and allowing them to testify would render the Atkins decision illusory.

¶ 29. In support of this argument, Thorson argues that Dr. MacVaugh was admitted only as an expert in forensic psychology and that Dr. MacVaugh admitted that he was self-educated on Atkins. Thorson also points out that Dr. Mac-Vaugh is not board-certified and argues that he has insufficient experience, focusing his practice solely on forensic psychology and having “only personally examined ‘probably a hundred’ individuals to determine whether or not they are mentally retarded, much of which was done in his doctorate and post-doctorate training.” Moreover, Thorson contends that Dr. Mac-Vaugh has assessed individuals for mental retardation only twenty-five times in the last four years, which is obviously insufficient.

¶ 30. Thorson also argues that Dr. McMichael was improperly qualified to testify as an expert under Chase, which requires qualification “as an expert in the field of assessing mental retardation ... [and] in the administration and interpretation of tests.... ” See Chase, 873 So.2d at 1029. Thorson points out that Dr. McMi-chael candidly admitted that he neither administers nor interprets results for the purpose of diagnosing patients as mentally retarded and that he has not done many evaluations for the sole purpose of determining mental retardation.

¶ 31. The State argues that Thorson waived any objections to both of the State’s experts because Thorson did not object to the trial court’s expert certification of either Dr. MacVaugh or Dr. McMi-chael. The State argues that “[h]eight-ened appellate scrutiny in death penalty cases does not require abandonment of our contemporaneous objection rule which applies with equal force to death cases.” See Scott v. State, 878 So.2d 933, 953 (Miss. 2004), overruled on other grounds by Chamberlin v. State, 989 So.2d 320 (Miss. 2008).

¶ 32. Alternatively, the State argues that Dr. MacVaugh was properly qualified as an expert. In support of this argument, the State cites Doss v. State, 19 So.3d 690 (Miss.2009), and Wiley v. Epps, 668 F.Supp.2d 848 (N.D.Miss.2009), in which Dr. MacVaugh was certified as an expert. The State argues that Dr. MacVaugh’s experience — performing hundreds of assessments — not only makes him qualified to assess mental retardation in a clinical context, but also makes him uniquely qualified to assess mental retardation in individuals on death row. Additionally, the State argues that Dr. McMichael, Service Chief of the Forensic Services Unit at the Mississippi State Hospital, was correctly qualified to testify under Atkins. The State contends that Dr. McMichael is a licensed forensic psychiatrist.

¶ 33. This Court finds that the trial court did not abuse its discretion by permitting Dr. MacVaugh and Dr. McMichael to testify as experts. The record reveals that Thorson failed to object to the State’s experts. This Court has held that “[i]n death penalty cases, the contemporaneous objection rule is applicable,” despite the heightened standard of appellate review. Williams v. State, 684 So.2d 1179, 1208 (Miss.1996).

II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY NOT RELYING ON DR. SWANSON’S AND DR. ZIMMERMAN’S EXPERT ASSESSMENTS AND DIAGNOSES OF MENTAL RETARDATION.

¶ 34. In its Order, the trial court found that Thorson had failed to prove mental retardation by a preponderance of the evidence. Thorson now argues that the trial court abused its discretion by not relying on Thorson’s more experienced experts who testified that Thorson suffered from mild mental retardation.

¶ 35. In support of this argument, Thorson describes his experts’ credentials. Thorson points out that Dr. Zimmerman has had extensive experience in testing individuals for mental retardation as part of his clinical practice, having, inter alia, been responsible for assessing individuals to determine whether they were qualified for admission into the Lufkin State School in Texas. Dr. Zimmerman also has tested hundreds, if not thousands, of individuals for mental retardation and has been qualified as an expert in several states. Thor-son also points out that Dr. Swanson, a clinical psychologist, testified for Thorson. Dr. Swanson is eminently qualified, having assessed and tested “thousands and thousands” of people for mental retardation since 1973. Dr. Swanson ultimately testified that, with a reasonable degree of medical certainty, she believed Thorson is mentally retarded under Atkins.

¶ 36. This Court finds that Thorson’s argument is misplaced. Thorson cannot show that the trial court abused its discretion simply because Thorson’s two experts are vastly experienced in assessing mental retardation. This Court has never rubber-stamped the opinions of experts simply because the experts are experienced. See Miss. R. Evid. 702; see also Edmonds v. State, 955 So.2d 787, 791 (Miss.2007) (excluding the testimony of a qualified expert’s testimony and explaining that “a court should not give such an expert carte blanche to proffer any opinion he chooses”).

III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY ACCEPTING DR. MacVAUGH’S AND Dr. McMI-CHAEL’s DETERMINATION THAT THORSON DOES NOT EXHIBIT SIGNIFICANTLY SUBAVERAGE INTELLECTUAL FUNCTIONING AND BY REJECTING DR. SWANSON’S AND DR. ZIMMERMAN’S CONTRARY DETERMINATIONS.

¶ 37. Relying on the testimony of Dr. McMichael and Dr. MacVaugh, the trial court found that Thorson did not exhibit significantly subaverage intellectual functioning. Thorson contends that the trial court committed clear error by relying on the State’s experts’ findings, as opposed to Thorson’s experts’ findings.

¶ 38. Thorson argues that Dr. Mac-Vaugh administered no tests to determine Thorson’s level of intellectual functioning. Instead, six doctoral-level students performed most of the substantive work that Dr. MacVaugh relied upon in forming his expert opinion that Thorson is not mentally retarded. Dr. Robert Storer, a postdoctoral psychologist, administered the IQ test upon which Dr. MacVaugh based his expert report. Thorson argues that the State “should not be allowed to bootstrap potentially unscientific or improper testing performed by a potentially unqualified, and absent, witness by allowing another witness to ‘rely1 on the work of the absent witness.” Thorson also points out that Dr. McMichael candidly admitted that he does not administer or interpret IQ tests.

¶ 39. Moreover, Thorson argues that, even assuming Dr. MacVaugh’s reliance on the work of others in reaching his conclusions comports with the APA and the AAIDD, then the Full-Scale IQ (FSIQ) of 79 that resulted from the State’s IQ testing of Thorson should be reported with a confidence interval of between 75 and 83, without applying the Flynn Effect and the tree-stump effect. Dr. Swanson explained in her report and testified that “all the AMR [sic] editions that we’ve discussed and the DSM pay particular attention to the standard error of measurement.... They ask you to look at the standard error of measurement or the confidence interval around that score” which is “plus or minus five” points. Accordingly, considering this confidence interval, Thorson contends that he has satisfied the first prong under Atkins, an IQ of 75 or below, and argues that the trial court’s reliance on Dr. MacVaugh’s finding that Thorson did not have subaverage intellectual functioning was clearly erroneous given Dr. MacVaugh’s methodology.

¶ 40. Pointing to his own experts’ findings, Thorson continues to argue that the trial court abused its discretion in finding that Thorson did not have subaverage intellectual functioning. He points out that Dr. Zimmerman’s personally conducted IQ test of Thorson, which scored 70, was consistent with mental retardation. Dr. Zimmerman found that Thorson was not malingering and ultimately concluded that, based on thirty years of experience, Thorson was mentally retarded.

¶ 41. Thorson continues, providing that Dr. Swanson determined, based on her extensive review of Thorson, that Thor-son’s full-scale IQ was probably around 71 or 72 and that Thorson had not been malingering. Dr. Swanson did not personally perform an IQ test but reviewed IQ tests conducted by Dr. Gasparrini in 1988, by Dr. Zimmerman in 2005, and at Whitfield in 2008. She also testified that Thorson’s intellectual development “topped off” somewhere around the sixth grade, consistent with mild mental retardation, and that Thorson was still functioning at that sixth-grade level.

¶ 42. In contrast, the State argues that the trial court did not abuse its discretion by relying on the expert testimony of Dr. MacVaugh. The State argues that Thor-son did not object to the fact that the Whitfield doctors administered the tests to Thorson, and, therefore, Thorson’s claim is without merit. Alternatively, the State argues that Dr. MacVaugh evaluated Thor-son on August 25, 2008, and found him not to be mentally retarded. The team of six doctoral-level forensic clinicians/students at Whitfield conducted the assessment of Thorson, reviewing Thorson’s available records, psychological testing, and a clinical interview. Dr. MacVaugh also reviewed two reports submitted by Dr. Swanson as well as her raw data. Dr. MacVaugh testified that Thorson “scored a 29 out of 30” on a cognitive screening instrument which “suggests normal range of cognitive functioning.” He also testified that Thorson was not malingering and that he had achieved a full-scale IQ of 79 on the WAIS-III.

¶ 48. The State adds that Dr. Mac-Vaugh also reviewed Thorson’s report cards from first grade through his sophomore year at Ocean Springs High School. According to the State, these progress reports indicated that Thorson did not apply himself in school. The State also provided a copy of Thorson’s General Educational Development Test (GED) or High School Equivalency Diploma. In addition, the State pointed out that Dr. MacVaugh’s IQ score of 79 was within two points of Dr. Gasparrini’s 1988 score of 77, despite the fact that these scores were achieved on two different editions of a test, administered decades apart.

¶ 44. Dr. McMichael testified that Thorson failed to meet the first Atkins prong because Thorson did not have a sufficiently low IQ. He testified that Thor-son’s word choice in his videotaped statement was not consistent with someone who was mentally retarded.

¶ 45. Having considered the record, we find the trial court did not abuse its discretion by relying on the testimony of the State’s experts and finding that Thorson does not have an IQ of 75 or below. Although Dr. MacVaugh did not personally administer the IQ test to Thorson, the test was administered by a post-doctoral psychologist, present in the courtroom on the day of the hearing. Thorson did not object to Dr. MacVaugh’s testimony before the trial court, and even assuming that Thorson had made a contemporaneous objection, Mississippi Rule of Evidence 703 permits experts to base their opinions on evidence not in the record so long as experts in the field ordinarily rely on such opinions in forming their opinions. Here, all of the IQ tests performed on Thorson were submitted into evidence and subject to cross-examination. Both Dr. MacVaugh and Dr. Swanson relied on IQ tests performed by other psychologists in reaching their opinions. This argument is without merit.

¶46. Moreover, the trial judge had ample evidence before him in the form of two IQ tests above 75 to determine that Thorson was not mentally retarded. Although the margin of error or confidence interval in Dr. MacVaugh’s IQ test of 79 was 75-83, we find that the trial court committed no error by not picking the low end of an error margin to serve as a basis for finding that Thorson had proven mental retardation by a preponderance of the evidence, especially in light of the other IQ test score above 75. As Dr. MacVaugh stated, “Hit’s a little intellectually dishonest to do that because you don’t interpret a score only as existing in the low end of the confidence interval.” Moreover, Chase does not provide that the defendant’s IQ may fall within an error margin of mental retardation before the trial court considers the remaining Atkins factors. Chase, 873 So.2d at 1028 n. 18.

¶ 47. Accordingly, because of the varying IQ tests and the fact that Thorson had the burden of proof, we find that Thorson did not prove by a preponderance of the evidence that he has significantly subaver-age intellectual functioning. Of course, this argument presupposes that the trial court did not abuse its discretion by not applying margins of error to the IQ tests, which is the next issue this Court will address.

IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY NOT APPLYING ERRORS OF MEASUREMENT FOR THE ASSESSMENT OF SIGNIFICANTLY SUBAVER-AGE INTELLECTUAL FUNCTIONING.

¶48. As stated, the trial court found that Thorson had not proven significantly subaverage intellectual functioning. The trial court, however, did not apply the Flynn Effect or the tree-stump effect, which would have lowered the IQ scores. The Flynn Effect

is the name in recognition of the central role played by Professor James- R. Flynn in discovering and, in a series of fifteen or more publications between 1984 and today, documenting the fact that IQ scores have been increasing in one generation to the next in all fourteen nations for which IQ data is available
For the Wechsler (WISC and WAIS) and the Stanford-Binet IQ tests, the best rule of thumb is that Full Scale IQ gains have been proceeding at a rate of 0.30 points per year ever since 1947. This rate is based on comparisons of all the Wechsler and Standford-Binet tests used in recent years.... It means that for every year the test passes between when an IQ test was normed, that is, when its standardization sample was tested, obsolescence has inflated their IQs by 0.30 points.

Allen, 614 F.Supp.2d at 1275.

¶ 49. The trial court considered these phenomena in its Order; however, in finding these tests to be unpersuasive, the trial court stated:

The tests administered to Thorson are accepted as standard recognized testing which meet the testing standards required by Chase. There was some controversy over the application of “the Flynn Effect” and the “tree stump effect” which would require adjusting the I.Q. scores. All experts agreed that I.Q. scores are adjusted under certain circumstances ... and that an I.Q. score is not exact....

¶ 50. Thorson now argues on appeal that the trial court abused its discretion by not applying the Flynn Effect or the tree-stump effect to lower Thorsoris IQ score. Thorson points out that Dr. Swanson testified that failure to take the Flynn Effect into account results in an artificially high IQ score. Dr. Swanson wrote in her expert report that “[t]he Flynn Effect is generally accepted in the scientific community and experts in the field of mental retardation recommend that both the obtained and Flynn-adjusted IQ scores be reported in Aifans-related cases. Moreover, Thorson states that the AAIDD recognizes the Flynn Effect as necessary for reliability, particularly when conducting retrospective diagnoses, “when the individual with mental retardation did not receive an official diagnosis of mental retardation during the developmental period.”

¶ 51. According to Dr. Swanson, Thor-soris IQ is likely 71 or 72, applying these adjustments to Thorsoris varying IQ scores. Dr. Swanson’s report stated,

taking into account the Flynn Effect and the confidence interval for the three tests ... Mr. Thorson’s three Flynn-adjusted Full Scale IC (FSIQ) scores-including the test conducted by the State-fall somewhere between 64 and 72 (FSIQ, 67, 2005) and 71 and 80 (FSIQ, 75; 2008) at the 95% confidence interval. As noted above, the confidence interval is the probability the obtained score (FSIQ) reflects his true score.... A comparison across the three confidence intervals indicates there is an obvious overlap at 71 to 72.

63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 1988 WAIS-R (FSIQ-74) Dr. Gasparrini 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 2005-WAIS-III (FSIQ-67) Dr. Zimmerman 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 2008-WAIS-III (FSIQ-75) State Hospital 79 80 81 79 80 81 79 80 81

¶ 52. Thorson also points out that Dr. MacVaugh, in his report, applied the Flynn Effect and incorrectly stated that the IQ cutoff was 70 for mental retardation, as opposed to 75. Dr. MacVaugh wrote in his report that

Mr. Thorsoris true IQ score would likely fall somewhere between 75 and 83. However, because IQ scores become artificially inflated as the test becomes outdated (i.e., “Flynn Effect”), Mr. Thorson’s IQ score should be modified to account for test obsolescence. After adjusting for the Flynn Effect (.3 points per year) ... Mr. Thorsoris Full Scale IQ score of 79 should be reduced by four points, which places his Full Scale IQ score at 75 ... Nevertheless, Mr. Thor-soris IQ score is still above the cutoff for mental retardation (i.e., approximately 70 or below).

¶ 53. In contrast, the State argues that the trial court heard evidence from both parties concerning standard errors of measure and considered them when making its conclusions. The State cites Dr. MacVaugh’s testimony that the Flynn Effect is a “statistical phenomenon” and that considerable controversy exists regarding its application in this context:

Q. Yes, sir. Well, the Flynn Effect is something that you have looked into and you’re well familiar with, correct?
A. I am.
Q. That is — it is not universally accepted in the field at this time, is it? A. I think the Flynn Effect is generally accepted in the scientific community. I think what is more controversial is whether or not adjustments should be made to individual scores. The research looks at group means, that is the overall scores that tend to increase over time based on the instrument, not a particular individual’s score.
Q. All right, sir. So in other words, to automatically assume that each individual test — IQ test should be reduced by what is known as the Flynn Effect has not been universally accepted in the field?
A. It has not.

Dr. McMiehael also testified, stating that, to his knowledge, the publisher of the WAIS-III (the IQ test administered to Thorson) does not endorse the recommendation to modify the WAIS-III scores to correct for the Flynn Effect.

¶ 54. This Court finds that Dr. Mac-Vaugh was correct in his statement that the cutoff for mild mental retardation is 70. See Chase, 878 So.2d at 1028 (stating that “ ‘mild’ mental retardation is typically used to describe persons with an IQ level of 50-55 to approximately 70”). However, in Chase, importantly, this Court also recognized that, according to the DSM-IV, “ ‘it is possible to diagnose Mental Retardation in individuals with IQ’s between 70 and 75 who exhibit significant deficits in adaptive behavior.’ ” Id. at 1028 n. 18. Accordingly, if the defendant establishes by a preponderance of the evidence that his or her IQ is 75 or below, then the trial court must address the second Atkins prong — deficits in adaptive functioning.

¶ 55. We cannot say that the trial court abused its discretion by finding that Thor-son did not have an IQ of 75 or below, despite the Flynn Effect or the tree-stump effect. The trial court heard conflicting testimony as to the soundness of applying these phenomena in this context. Moreover, this Court has not explicitly adopted or rejected the Flynn Effect or the tree-stump effect. We also need not address the veracity of the Flynn Effect or the tree-stump effect under our rules of evidence today, as neither party objected to the trial court considering these phenomena.

¶ 56. In light of the conflicting expert testimony surrounding the Flynn Effect and the fact that this Court has neither adopted nor rejected this effect, this Court cannot say that the trial court committed clear error. The trial judge’s Order indicates that he considered both the Flynn Effect and the tree-stump effect, as presented by the experts, but found them unpersuasive under the facts of this case.

CONCLUSION

¶ 57. Based on today’s discussion, we find that Thorson failed to prove significantly subaverage intellectual functioning by a preponderance of the evidence under Atkins. We agree that the trial court’s factual findings were not clearly erroneous and find that Thorson failed to meet his burden of proof at the evidentiary hearing. The trial court had before it two IQ scores over the requisite minimum for continuing to test the defendant under Atkins. Therefore, the trial court did not have to address the remaining Atkins prongs. Because of our disposition on the issues discussed, we need not discuss the remaining issues raised by Thorson.

¶ 58. Thus, the trial court’s denial of Roger Eric Thorson’s petition for post-conviction relief is affirmed.

¶ 59. AFFIRMED.

WALLER, C.J., DICKINSON, P.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ„ CONCUR.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Dr. Zimmerman did not determine whether Thorson had deficits in adaptive functioning under the second Atkins prong. He performed no testing for deficits in adaptive functioning. Rather, Dr. Zimmerman testified that Thorson’s IQ established that Thor-son had satisfied the first Atkins prong.

      .Dr. William Gasparrini and Dr. Henry Mag-gio did not testify at the hearing. Only Dr. McMichael, Dr. Swanson, Dr. Zimmerman, and Dr. MacVaugh testified at the hearing.

      . Wechsler Adult Intelligence Scale-Revised.

      . Wechsler Adult Intelligence Scale-Third Edition.

      . In actuality, after addressing adaptive skills, Judge Clark found that "[wjithout sufficient proof to establish deficits in adaptive functioning, there is no need to address malingering or proof of mental retardation onset prior to age eighteen.”

      . According to Dr. Swanson's report, the VABS-II and the ABAS-II are "the three preferred standardized instruments currently used in assessing adaptive behavior” and are considered the "gold standard in these types of assessments.”

      . The onset of mental retardation for Atkins has to be before the defendant is older than eighteen years of age. Accordingly, Dr. Swanson had to apply her Vineland tests retrospectively on Thorson, now a middle-aged man. Experts for each side agreed that being on death row for twenty years could have had an effect, either positively or negatively, on Thorson's adaptive functioning.

      .On page twenty of her report, Dr. Swanson discussed a mental-status examination that she had conducted. She also conducted the WRAT-4 (Wide Range Achievement Test, Fourth Edition).

      . Dr. Swanson testified that she had found eight adaptive deficits in Thorson prior to the age of eighteen and four as an adult: "The testing that I did and others did, the affidavits I looked at, testing I did, indicated to me that he met the adaptive criteria prior to the age of 18, and I listed here eight of the eleven areas. And at this time it’s my opinion that he meets them in four.”

      . The American Association for Mental Retardation is now the American Association for Individuals with Developmental Disabilities (AAIDD).

      . The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR), published by the APA, sets forth this diagnostic criteria for mental retardation.

      . IQ tests typically have a standard error of measurement (also called a "confidence interval”). Accordingly, a base IQ score actually represents a range that could be five points higher or lower. Thus, despite the fact that 70 is the typical cutoff for mental retardation, the psychology profession accepts 75 as a qualifying score for a diagnosis of mental retardation. See DSM-IV-TR at 41-42. Of course, the defendant with an IQ of 75 or below must satisfy the remaining Atkins prongs. See Chase, 873 So.2d at 1028 n. 18.

      . For the sake of clarity, we note that the evidence sufficient to warrant the granting of an evidentiary hearing under Atkins in no way permeates the trial judge’s testing and weighing of the evidence presented at the actual Atkins hearing. See Bell v. State, 66 So.3d 90, at 94 (¶ 11) (Miss.2011) (noting that evidence presented by the defendant's experts in support of this Court’s grant of an Atkins hearing could be further tested at the actual hearing).
      In Chase, this Court set forth the requirements a defendant must meet to have an evidentiary hearing: "(1) the defendant has a combined ... [IQ] of 75 or below, and; (2) in the opinion of the expert, there is a reasonable basis to believe that, upon further testing, the defendant will be found to be mentally retarded, as defined herein." Chase, 873 So.2d at 1029. The requirements for proving that one is entitled to an evidentiary hearing differ from the actual requirements of proving mental retardation to a trial court.

      . Appellant's Issue IX is included under this section: Whether the trial judge abused his discretion by rejecting Dr. Swanson’s clinical judgment. Issue IX is essentially the same as Issue II. Thorson argues that the trial court erred by failing to rely on Dr. Swanson's clinical judgment, which the AAIDD defines as "a special type of judgment that emerges directly from extensive data and is rooted in a high level of clinical experience....” See AAIDD, User's Guide: Mental Retardation— Definition, Classification, and Systems of Supports (10th ed. 2007). Basically, Thorson argues that Dr. Swanson was the only expert qualified to provide reliable clinical judgment and the trial court abused its discretion by finding the State’s experts to be more persuasive.

      . This Court will address later the Flynn Effect and the tree-stump effect.

      . Dr. Zimmerman conducted the Wechsler Adult Intelligence Scale Three, the Test of Memory Malingering, the Short Category Test, the Wisconsin Card Sort, the Screening Test for the Luria-Nebraska Neuropsychological Battery, the full Luria Neuropsychological Battery, the Wide Range Achievement, and the Benton Visual Retention Test and malingering tests. All of these tests were consistent with mental retardation.

      .None of the experts found evidence to prove that Thorson was malingering.

      . The Whitfield team reviewed 309 documents.

      . Several courts have addressed the extent to which a trial court should consider, if at all, the Flynn Effect. See Sasser v. Hobbs, 751 F.Supp.2d 1063, 1082 n. 15, (W.D.Ark.2010) (citing Thomas v. Allen, 614 F.Supp.2d 1257 (N.D.Ala.2009) (holding that "[a] court must consider the Flynn Effect and the standard error of measurement in determining whether a petitioner’s IQ score falls within a range containing scores that are less than” seventy); Walker v. True, 399 F.3d 315, 322-23 (4th Cir.2005) (vacating district court’s opinion which dismissed the habeas petition, and remanding for consideration of "relevant evidence, namely Flynn Effect evidence”); In re Mathis, 483 F.3d 395, 398 n. 1 (5th Cir.2007) (refusing to recognize one way or the other whether or not the Flynn Effect is scientifically valid); Bowling v. Commonwealth, 163 S.W.3d 361, 374-75 (Ky.2005) (noting that because the Kentucky statute unambiguously sets IQ score of 70 as cutoff, courts cannot consider the Flynn Effect or standard error of measurement)).

      . According to Dr. Swanson, the tree-stump phenomenon is specific to the WAIS-III, which possibly included "too many low functioning people in the normative sample at the lower end. So what we found is you could give the test to somebody, [and] [he or she] would miss every item and ... still score in the 40’s. So that’s what the tree-stump means. A tree-stump could make the same IQ as a person that you administered it to. This had an effect in elevating the scores.... ”

      . In his appellate brief and at the hearing, Thorson mentioned Wiley v. Epps, 668 F.Supp.2d 848, 894 (N.D.Miss.2009), in which Dr. MacVaugh stated that “the Flynn Effect is generally accepted in the psychological community and must be taken into consideration in interpreting Petitioner’s full-scale IQ.” Thorson also questioned Dr. MacVaugh on cross-examination about an academic article in which Dr. MacVaugh stated that "the Flynn Effect has gained sufficient scientific acceptance that this factor should be described in Atkins assessments and that Flynn-corrected IQ scores ... should be reported in addition to the observed scores.”

      . Dr. MacVaugh also testified at trial that the tree-stump effect was a statistical phenomenon and that he was “not quite convinced yet that individual scores should be adjusted because of the tree-stump effect....”


source: Caselaw Access Project

author: LAMAR, Justice, for the Court: KITCHENS, Justice, concurring in result only: RANDOLPH, Justice,

license: Public Domain

text:
    David TREJO v. STATE of Mississippi.
    No. 2008-CT-02133-SCT.
    Supreme Court of Mississippi.
    Dec. 15, 2011.

      Office of Indigent Appeals by Hunter Nolan Aikens, Leslie S. Lee, attorneys for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ON WRIT OF CERTIORARI

LAMAR, Justice, for the Court:

¶ 1. In this certiorari case, the Court of Appeals reversed David Trejo’s conviction and sentence for possession of a controlled substance with intent to distribute, finding the State had violated David Trejo’s Fourth Amendment right against unreasonable seizure. The Court of Appeals held that the arresting officer lacked probable cause or reasonable suspicion to make the traffic stop that led to the discovery of cocaine; thus, the trial court should have suppressed the cocaine as fruit of the poisonous tree. While we agree that the officer lacked probable cause or reasonable suspicion to stop Trejo’s vehicle, we review the case to determine whether the stop was reasonable under the community care-taking function first pronounced in Cady v. Dombrowski. Finding the stop unreasonable under that doctrine too, we affirm the Court of Appeals’ reversal of Trejo’s conviction and sentence.

Facts

¶ 2. Officer Chris Picou was traveling North on 1-55 at approximately 1:17 a.m. when he came upon a red Chevrolet SUV with a Texas license plate traveling in the left-hand or inside lane. The SUV was traveling approximately 58-60 miles per hour in an area where the minimum posted speed limit is 45 miles per hour and the maximum is 70 miles per hour. Picou was traveling 70 miles per hour in the left-hand lane behind Trejo when he flashed his bright lights for the SUV to move over so that he could pass. When the driver failed to change lanes, Picou flashed his brights two more times, with ten seconds passing between each flash. After the third flash, Picou initiated his blue lights, and the driver immediately pulled onto the interstate shoulder.

¶ 3. Picou testified that he pulled over the SUV because he was concerned the driver was intoxicated or tired. Picou testified that he did not stop the SUV based on any traffic violation. Picou also testified there was no traffic in the right lane which would have prevented him from passing the SUV.

¶ 4. When Picou approached the vehicle, he noticed that the driver, David Trejo, did not have slurred speech but appeared tired, glassy-eyed, and nervous. His female passenger, Pebbles Nutt, seemed groggy. Picou also noticed that the car smelled strongly of fabric softener, which in his experience is used to cover the odor of controlled substances. He then requested Trejo’s driver’s license and checked his criminal history, which revealed previous convictions for possession of a controlled substance.

¶ 5. When Picou questioned Trejo about his criminal history, Trejo reported only a conviction for stealing an automobile. Pi-cou also ascertained that Trejo was traveling from Houston, a “source city” for drugs, to Ohio, a “source area” for distribution of drugs. Picou then asked for permission to search Trejo’s vehicle for controlled substances, and Trejo denied permission. Picou informed Trejo that he was going to run a dog around the vehicle, and requested that Trejo and Nutt stand away from the vehicle. When Nutt exited the car, she quickly turned her back to Officer Trejo, which further aroused his suspicion. Picou instructed Nutt to turn around to make sure she had no weapons, and when she did, he saw a large bulge under her clothing at her midsection. With the back of his hand, Picou felt the bulge. He immediately recognized that Nutt had strapped a controlled substance to her body, and he recovered two kilograms of cocaine.

¶ 6. Trejo was indicted and found guilty of possessing cocaine with intent to sell in violation of Mississippi Code Section 41-29-139 and sentenced to sixty years as a habitual offender. Prior to trial, Trejo filed a motion to suppress the cocaine, which the trial court denied. The trial court found that Trejo was stopped for “safety reasons,” namely “to check for the impairment of the driver, whether it was alcohol or sleep deprivation or whatever] else[,]” to prevent an accident.

Court of Appeals’ Opinion

¶7. Trejo appealed his conviction and sentence, arguing the circuit court erred in denying his motion to suppress. The Court of Appeals did not address the circuit court’s finding that this case involved a “safety” stop, as opposed to an “investigatory stop.” Rather, the Court of Appeals found that the initial traffic stop was an “investigatory stop” and looked to Terry v. Ohio to complete its analysis. The Court of Appeals determined that, since Picou’s “suspicion that Trejo was tired or impaired is not sufficient to constitute a reasonable basis for the traffic stop[,]” then “there was no probable cause or reasonable suspicion to justify the initial traffic stop....” The Court of Appeals then concluded that the cocaine was “fruit of the poisonous tree[,]” without which “there is no remaining evidence to uphold Trejo’s conviction.” It reversed and rendered a judgment of acquittal for Trejo.

Discussion

¶ 8. Aggrieved by the Court of Appeals’ decision, the State filed a petition for cer-tiorari with this Court. Although we conclude, as did the Court of Appeals, that there was no probable cause or reasonable suspicion of criminal activity to justify the stop, we ordered additional briefing to address the community caretaking function in light of the trial court’s finding that Picou had performed a “safety” stop.

¶ 9. The United States Supreme Court first applied the community caretaking function in Cady v. Dombrowski In that case, the Supreme Court upheld the search of an impounded automobile after its driver, an off-duty police officer, was arrested for drunk driving after reporting an accident. The police searched the vehicle without a warrant to look for the off-duty officer’s service revolver and found evidence of another crime. The off-duty officer moved to suppress the evidence, but the Court upheld the search, reasoning:

[Sjtate and local police officers, unlike federal officers, have much more contact with vehicles for reasons related to the operation of vehicles themselves. All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways.
Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community care-taking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

The Court found the search reasonable, as the police were “simply reacting to the effect of an accident — one of the recurring practical situations that results from the operation of motor vehicles and with which the local police must deal every day.” Furthermore, the Court noted that it was reasonable for the officers to search the vehicle to recover the revolver “for the safety of the general public who might be endangered if an intruder removed a revolver” from the vehicle.

¶ 10. The State argues that this Court should adopt the community caretaking function, as Picou was acting in his duty to protect the public’s safety when he stopped Trejo’s vehicle. It argues Picou reasonably developed suspicion of criminal activity after effecting the stop.

¶ 11. Conversely, Trejo argues the Supreme Court has used the community caretaking function only in support of inventory searches of impounded cars. Tre-jo argues we should not extend the function to create a new or separate exception to the warrant requirement. He also argues that the stop does not meet the community caretaking function even if we adopt and apply it in this case.

¶ 12. Numerous jurisdictions have applied the community caretaking function beyond the context of Cady to instances such as the present. And this Court recognized the doctrine in Floyd v. City of Crystal Springs. In that case, we were confronted with an officer’s stop of a vehicle based solely on a citizen complaint of reckless driving. The officer stopped the driver and found an opened bottle of vodka on the seat and arrested the driver for driving under the influence.

¶ 13. In Floyd, the State argued this Court should evaluate the stop under the following standard: “ ‘[W]hen police cross a threshold not in their criminal investigatory capacity, but as part of their community caretaking function, it is clear that the standard for assessing the Fourth Amendment propriety of such conduct is whether they possessed a reasonable basis for doing what they did.’ ” While we acknowledged the community caretaking function in that case, we ultimately upheld the stop as reasonable under the reasonable-suspicion standard.

¶ 14. We find “no reasoned argument in support of a categorical refusal to apply the community caretaking exception to vehicle stops[,]” and we conclude that the community caretaking function in Cady may apply in contexts other than inventory searches, as the police provide many functions apart from investigating criminal activity. But only “[u]nder appropriate circumstances [may] a law enforcement officer ... be fully justified in stopping a vehicle to provide assistance, without needing any reasonable basis to suspect criminal activity.” In applying the community caretaking function, “[t]he ultimate standard ... is reasonableness.” We review the determination of reasonableness under a de novo standard, but review findings of historical fact for clear error. As with other Fourth Amendment analyses, this Court will not try to determine the subjective intent of the person making the stop but will examine whether the stop is objectively reasonable In doing so, we look to whether the stopping officer can point to “ ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ ” the stop. The question becomes whether a reasonable person, “given the totality of the circumstances, would believe [the individual] is in need of help or that the safety of the public is endangered. However, courts must carefully analyze the totality of the circumstances, so that the community caretaking function is “ ‘cautiously and narrowly applied in order to minimize the risk that it will be abused or used as a pretext for conducting an investigatory [stop and] search for criminal evidence.’ ”

¶ 15. We begin our analysis by noting that at least two other jurisdictions applying the community caretaking function have concluded that stops effected under similar circumstances were unreasonable. Likewise, upon reviewing the totality of the circumstances in this case, we find the trial judge erred in finding the stop was reasonable under the Fourth Amendment. We are unable to conclude that a reasonable person would have believed Trejo was in need of help or that the public was endangered.

¶ 16. Because of the risk of danger to a driver as well as the traveling public, we agree that it would be reasonable for a police officer to stop an individual who appears to be falling asleep while driving. However, the facts presented here simply do not support such an inference. There was no evidence of erratic driving. Trejo was traveling approximately 10-12 miles per hour below the maximum speed limit of 70 miles per hour and well above the minimum speed limit of 45 miles per hour in the left-hand lane around 1:00 a.m. We do not think his speed was so slow that a reasonable person would believe it indicative of distress. We also do not find that Trejo’s failure to change lanes after Picou flashed his bright lights was necessarily indicative of distress, nor was it so when considered with the other facts. Picou flashed his bright lights in quick succession on a deserted stretch of interstate. And no traffic prevented Picou from passing Trejo in the right lane. We find the following analysis by the Court of Appeals especially relevant:

Trejo was not weaving or driving erratically, and there is no indication that Trejo was even aware that he was being followed by law enforcement.... This lack of awareness is supported by the fact that when Officer Picou turned on his flashing blue lights, Trejo promptly pulled over to the side of the road.

Therefore, we find that the facts presented at the suppression hearing do not justify a reasonable belief that Trejo needed help or that the public was endangered, and as such, the trial court should have granted Trejo’s motion to suppress.

Conclusion

¶ 17. In applying the community care-taking function to the facts of this case, we find the trial court erred in denying Tre-jo’s motion to suppress the cocaine as evidence. As noted by the Court of Appeals, “[wjithout the cocaine, there is no remaining evidence to uphold Trejo’s conviction.” Therefore, we affirm the Court of Appeals’ judgment to reverse and render Trejo’s conviction and sentence.

¶ 18. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS REVERSED AND RENDERED.

WALLER, C.J., AND CARLSON, P.J., CONCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J.; DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J„ CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY PIERCE, J. CHANDLER AND KING, JJ., NOT PARTICIPATING.

KITCHENS, Justice, concurring in result only:

¶ 19. While I concur with much of the analysis and with the result reached by the plurality, I write briefly to express, with respect, my disagreement with the plurality’s unequivocal adoption of the so-called community caretaking function as a standard to be employed by Mississippi courts in determining whether police stops of motorists on public thoroughfares are reasonable in the context of established search and seizure law.

¶ 20. The plurality cites Floyd v. City of Crystal Springs, 749 So.2d 110, 118 (Miss.1999), as having recognized the doctrine of community caretaking by police, yet notes that Floyd was decided under the reasonable suspicion standard. Plur. Op. at ¶ 18. It is important to emphasize that the community caretaking language in Floyd was mere dicta, and in no way adopted this judicial contrivance as a standard that should apply to police stops of motorists.

¶ 21. Moreover, it is important to note that the facts in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), on which the plurality relies in adopting the community caretaking function, are vastly different from those in the present case. In Cady, the defendant was involved in a motor vehicle accident and telephoned police. Id. at 435-36, 93 S.Ct. 2523. The responding officers picked up the defendant at the tavern from which he had placed the call, drove him back to the scene of the accident, and en route, noted that the defendant appeared intoxicated. Id. at 436, 93 S.Ct. 2523. The defendant informed the officers that he was an off-duty policeman; and upon their arrival at the disabled vehicle, officers searched his car under the pretense of locating the defendant’s service revolver. Id. No revolver was found, and the disabled vehicle was towed from the roadside to a privately owned garage. Id. The defendant was eventually arrested and charged with driving under the influence of alcohol and later was hospitalized due to injuries sustained in the accident. Id. Operating under standard departmental procedure, one of the arresting officers then performed an inventory search of the defendant’s impounded vehicle, claiming to be looking for the service revolver. Id. at 437, 93 S.Ct. 2523. The search of the vehicle and trunk revealed not the revolver but evidence and instrumentalities of an unrelated crime. Id.

¶ 22. In finding that this was a reasonable search under the Fourth Amendment, the Supreme Court emphasized the following facts: the vehicle was disabled by an accident, the driver was intoxicated and unable to make arrangements to move the vehicle, the vehicle’s presence alongside the highway was a nuisance, the police had a form of custody over the vehicle after its having been towed to the garage, the search of the vehicle for the revolver was an exercise in public safety to prevent the defendant’s service revolver from falling into the wrong hands, and the search of an impounded vehicle was standard procedure for the police department. Id. at 442-43, 93 S.Ct. 2523. These facts are wholly distinguishable from the present case, in which Officer Picau made a traffic stop of a functional vehicle based upon a mere suspicion that Trejo was either intoxicated or drowsy. In the instant case, there was no accident requiring Picau’s assistance, there was no disabled vehicle on a roadside, and there was no standard-procedure, inventory search of an impounded vehicle.

¶ 23. The plurality states: “[W]e conclude that the community caretaking function in Cady may apply in contexts other than inventory searches, as the police provide many functions apart from investigating criminal activity.” Plur. Op. at ¶ 14 (emphasis added). However, the present case was not an instance in which a peace officer was acting in a capacity apart from investigating criminal activity, since Officer Picau testified that, despite any indication (i.e., of a traffic violation, or erratic driving), he suspected Trejo of being either drowsy or intoxicated and made the stop to “check the status on” Trejo.

¶ 24. The danger in expanding this community caretaking function to apply to governmental searches and seizures where traffic stops have been made in the interest of public safety is that officers who have no reasonable belief that there is an imminent threat of danger to the driver or other members of the public will be empowered to make traffic stops of motorists who have not violated the law in any way. Thus, any imaginable activity a police officer subjectively thinks could possibly be dangerous — including acts the legislature has not seen fit to prohibit by law, such as cell phone use or eating a sandwich — will provide justification for a police stop. Indeed, it is the legislature’s constitutional responsibility to decide whether such activities are to be deemed threats to public safety. It is not the role of this Court to legalize police stops of motorists who have neither committed some violation of established traffic law nor are threatened by some imminently dangerous situation.

¶ 25. The reasonableness of traffic stops should continue to be analyzed under traditional Fourth Amendment jurisprudence. “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ ” under the Fourth Amendment. Whren v. U.S., 517 U.S. 806, 809-810, 116 S.Ct. 1769, 1772 135 L.Ed.2d 89 (1996) (citations omitted). “An automobile stop is ... subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Id. at 810, 116 S.Ct. 1769 (citing Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)).

¶ 26. No one, of course, reasonably could question a police officer’s right— indeed, obligation — to stop a motorist when the officer reasonably perceives an imminent threat of harm to the motorist or other members of the public. Examples would include the officer’s observing lug nuts missing from a vehicle’s wheel, an automobile traveling toward a washed-out bridge, or gasoline leaking from a car or truck. In cases when such stop is challenged, the officer must establish to the satisfaction of a judge that his or her perception of imminent threat of harm was reasonable.

¶ 27. In the instant case, the officer conceded that, at the time of the stop, no probable cause existed that led him to believe a traffic violation had occurred. At the suppression hearing, Officer Picau testified that he had stopped Trejo on suspicion that Trejo could be fatigued or intoxicated, given that Trejo would not yield the left lane of travel to Picau. Picau testified that, while drivers are expected to obey traffic signs, such as those on multi-lane highways that direct slow-moving traffic to drive in the right lane, he admitted that he did not stop Trejo based on his failure to obey such a traffic sign. At no time was Trejo driving erratically, over the maximum speed limit, or under the minimum speed limit, and the record includes no evidence of any imminent threat of danger.

¶ 28. I add that it is not difficult to think of circumstances under which a peace officer may be justified in stopping and charging a motorist for prolonged presence in a far left, or inside, lane of a street or highway of four or more lanes. Mississippi Code Section 63-3-603(d) (Rev. 2004) reads, in pertinent part, as follows:

Whenever any roadway has been divided into three (3) or more clearly marked lanes for traffic ...
Upon all roadways any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic, or as close as practicable to the right-hand curb or edge of the roadway, except when overtaking and passing another vehicle proceeding in the same direction or when preparing for a left turn at an intersection or into a private road or driveway.

Although we do not find in the present case a clear violation of Mississippi Code Section 63-3-603(d), today’s decision should not be read to diminish the validity or importance of that statute, which, if violated, should be enforced. This statute plainly establishes that the far-inside lane is intended mainly for passing. In this case, even if Trejo had violated Section 63-3-603(d), the arresting officer articulated no awareness of this statute’s existence, and, in any event, did not rely on it as justification for stopping the Trejo vehicle. If he had, this case might have been decided differently. Such a stop would have required this Court to interpret Section 63-3-603(d) in light of the facts presented.

¶ 29. Accordingly, there exists no reasonable basis to justify the officer’s stop of the Trejo vehicle, and thus, no probable cause. I agree with the plurality’s decision to reverse and render the conviction and sentence for possession of a controlled substance with intent to distribute; however, I cannot join in its adoption of the community caretaking function as it applies to traffic stops by police.

DICKINSON, P.J., JOINS THIS OPINION.

RANDOLPH, Justice,

concurring in part and dissenting in part:

¶ 30. I concur with the adoption of the “community caretaking” doctrine, but dissent to the plurality’s result, which does not apply it. The plurality presents an excellent synopsis of the “community care-taking” doctrine and has crafted a clear, workable standard for its application. Assessing the exercise of a “community care-taking” function on a case-by-case basis, by objective reasonableness under “the totality of the circumstances,” is a sound approach according balance to the interests of public safety and individual Fourth Amendment protections. (Plur. Op. at ¶ 14).

¶ 31. Despite the plurality’s balanced, common-sense approach, Justice Kitchens rejects the “adoption of the community caretaking function as it applies to traffic stops by police[,]” predicated upon “imaginable activity a police officer subjectively thinks could possibly be dangerous. (Kitchens Op. at ¶¶ 6, 11). Justice Kitchens’s opinion ignores the standard of objective reasonableness under the “totality of the circumstances” championed by the plurality and the United States Supreme Court. (Plur. Op. at ¶ 14) (citing Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (rejecting the officer’s subjective intent)). Can it fairly be argued that a police officer may not stop a delivery truck with an unsecured cargo door in the interest of public safety? A vehicle with an under-inflated tire? An RV with an unlatched hatch cover flapping in the breeze? Where is the constitutional violation or putative 42 United States Code Section 1983 claim in such cases? Although no imminent hazard may exist, if left unchecked, each could have dire consequences for the traveling public. Whether one considers his scenarios or mine, all illustrate why a case-by-case examination of the applicability of “community caretaking” in a traffic-stop context is required. The appropriate inquiry by the trial court is whether the stop was objectively reasonable, given the totality of the circumstances surrounding the condition(s) observed by an officer, that the driver, occupants, or other members of the traveling public were endangered.

¶ 32. I part ways with the plurality only insofar as it concludes that the circuit court “erred” in finding that the subject traffic stop was “reasonable” because “the facts presented ... do not justify a reasonable belief that Trejo needed help or that the public was endangered.... ” (Plur. Op. at ¶¶ 1, 15-16) (emphasis added). The plurality’s ultimate finding is undergirded by a presupposition of de novo review, despite the fact that “[i]n reviewing the denial of a motion to suppress, we must determine whether the trial court’s findings, considering the totality of the circumstances, are supported by substantial credible evidence.” Delker v. State, 50 So.3d 300, 303 (Miss.2010) (quoting Moore v. State, 933 So.2d 910, 914 (Miss.2006)) (emphasis added). The circuit judge received credible evidence to support his finding that the subject traffic stop was initiated “for safety reasons[,]” a distinct and separate undertaking from a Fourth Amendment seizure based upon probable cause or reasonable suspicion of criminal activity. Specifically, Picou presented the circuit court with “objective, specific, and articulable facts” from “a trained and experienced police officer[,]” informed by his “inference and deduction[,]” in support of his perception that the driver may need aid, as opposed to the suspicion of criminal activity. State v. Marx, 289 Kan. 657, 662, 215 P.3d 601 (2009); State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335, 339 (2007) (internal citations omitted). The circuit judge found that the traffic stop based thereon was objectively reasonable, in the interest of protecting both the driver and the safety of the general public. See People v. Mc-Donough, 239 Ill.2d 260, 272, 346 Ill.Dec. 496, 940 N.E.2d 1100 (2010). See also State v. Mitchell, 498 N.W.2d 691, 694 (Iowa 1993) (“[t]he State has a valid interest in the safety of its citizens on its roads and highways.”). As I would find that the circuit court did not err in concluding that Trejo was stopped “for safety reasons[,]” the “community caretaking” doctrine should apply to the subject traffic stop. Under “the totality of the circumstances,” the circuit court’s conclusion was “supported by substantial credible evidence.” Delker, 50 So.3d at 303 (quoting Moore, 933 So.2d at 914). Accordingly, I conclude that the circuit court did not err in denying Trejo’s “Motion to Suppress,” premised upon the “safety” stop.

¶ 33. Because I would reverse the decision of the Court of Appeals and reinstate and affirm the ruling of the circuit court denying Trejo’s “Motion to Suppress,” I respectfully concur in adoption of the “community caretaking” doctrine, but dissent as to the result reached by the plurality.

PIERCE, J., JOINS THIS OPINION.

      . It is undisputed that the Fourth Amendment applies to vehicle stops. Floyd v. City of Crystal Springs, 749 So.2d 110, 114 (Miss. 1999) (citations omitted).

      . Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

      . Picou flashed his bright lights between mile markers 114 and 115.

      . Picou had nineteen years of law enforcement experience, and his official title is "master sergeant in the Narcotics Division.”

      . Trejo v. State, 76 So.3d 702, 704-05 (Miss. Ct.App.2010).

      . We note the Court of Appeals erroneously referred to Couldery v. State, 890 So.2d 959 (Miss.Ct.App.2004), as a decision of this Court. Id. at 963-964.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Trejo, at 705-07.

      . Id. at 703-04, 707.

      . Id. at 705-07, 709.

      . Id. at 709.

      . Cady v. Dombrowski, 413 U.S. 433, 436, 448, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

      . Id.

      . Id. at 437, 93 S.Ct. 2523.

        .Id. at 441, 93 S.Ct. 2523; see also Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (finding police engaged in caretaking duties in inventory search of a lawfully impounded vehicle); South Dakota v. Opperman, 428 U.S. 364, 372-75, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) (finding inventory search reasonable because police caretaking procedures are designed to secure and protect vehicles and their contents).

      . Cady, 413 U.S. at 446, 93 S.Ct. 2523.

      . Id. at 447, 93 S.Ct. 2523.

      . Floyd v. City of Crystal Springs, 749 So.2d 110, 114-15 (Miss. 1999).

      . Id. at 112.

      . Id. at 112-13.

      . Id., at 117 (quoting State v. Alexander, 124 Md.App. 258, 721 A.2d 275, 284-85 (Md.Ct. Spec. App. 1998)).

      . Id. at 118.

      . People v. Madrid, 168 Cal.App.4th 1050, 85 Cal.Rptr.3d 900, 906 (Cal.Ct.App.2008).

      . State v. Brown, 509 N.W.2d 69, 71 (N.D. 1993).

      . Cady, 413 U.S. at 439, 93 S.Ct. 2523.

      . Floyd, 749 So.2d at 113.

      . See generally Brigham City, Utah v. Stuart, 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (Court ruling that it had "repeatedly rejected” considering an officer’s subjective intent and that "subjective motivation is irrelevant”).

      . Gonzales v. State, 963 So.2d 1138, 1142 (Miss.2007) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

      . Corbin v. State, 85 S.W.3d 272, 276 (Tex. Crim.App.2002) (quoting Wright v. State, 7 S.W.3d 148, 151 (Tex.Crim.App. 1999)).

      . See Cady, 413 U.S. at 447, 93 S.Ct. 2523.

      . State v. Rinehart, 617 N.W.2d 842, 844 (S.D.2000) (quoting Com. v. Waters, 20 Va. App. 285, 456 S.E.2d 527, 530 (Va.App. 1995)).

      . See Rowe v. Maryland, 363 Md. 424, 769 A.2d 879 (2001) (stop unreasonable where defendant was driving at 1:00 a.m. in far right lane of interstate at 50-54 miles per hour where speed limit was 65 and defendant’s car had crossed white edge-line onto shoulder); Corbin v. State, 85 S.W.3d 272 (Tex.Crim.App. 2002) (stop unreasonable where defendant was driving 52 miles per hour in 65 miles-per-hour zone at 1:00 a.m. near intersection of interstate and highway, and defendant’s car crossed onto shoulder of road for less than one second). But see State v. Martinez, 260 N.J.Super. 75, 615 A.2d 279 (N.J.Super.Ct.App.Div.1992) (stop reasonable where defendant was traveling less then 10 miles per hour on a 25 miles-per-hour residential street at 2 a.m.); State v. Rinehart, 617 N.W.2d 842 (S.D.2000) (stop reasonable where defendant was traveling at 1:05 a.m. on a deserted street going 20-25 miles per hour where speed limit was 40 miles per hour); Ortega v. State, 974 S.W.2d 361 (Tex.Ct.App. 1998) (stop reasonable where defendant was driving "[i]n the early morning hours” a 1979 Ford Bronco at 18-20 miles per hour in a 50 miles-per-hour zone).

      . Trejo, at 707.

      . Id. at 709.

      . Justice Randolph asks: "Can it fairly be argued that a police officer may not stop a delivery truck with an unsecured cargo door in the interest of public safety? A vehicle with an under-inflated tire? An RV with an unlatched hatch cover flapping in the breeze?” Since all of these illustrations unquestionably present threats of imminent danger, I am grateful to my esteemed colleague for providing additional support for my position.

      . Compare this to Winston Churchill’s statement to Parliament that "[t]his is one of those cases in which the imagination is baffled by the facts."

      . An imminent danger does not have to be of the moment, but rather ''[a]bout to occur at any moment: Impending.” Webster’s II New College Dictionary 553 (2001).

      .Using exclusionary rule standards by way of analogy, how exactly did the "constable ... blunde[r]” here? Delker, 50 So.3d at 306 (quoting People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (opinion of the Court by Cardozo, J.)).