State v. HowesState v. Howes
- Reporters:
- , ,
- Before:
- Gaertner
Appellant, Paula Howes (“Defendant”) appeals from the judgment of the Circuit Court of Marion County convicting her of possession of a controlled substance,
1
Sergeant Gottman then asked Defendant if she had anything illegal in her purse, which was lying on the front seat of the boat, after she confirmed that it was her purse. Defendant grabbed the purse, and began to walk away from him. Sergeant Gottman asked Defendant to come back, and asked her again if she had anything illegal in her purse. She responded in the negative. Sergeant Gottman asked if he could look into the purse. She initially consented to a search and opened the purse, but then turned around with the purse in her hand and began to walk away again. Sergeant Gottman did not get a good look at what was inside the purse when she unzipped her purse. As she walked away, Sergeant Gottman seized the purse and searched through it. Inside the purse was an Altoid candy tin, and Sergeant Gottman asked her if there was candy in the tin. She did not answer, so he removed the tin and shook it. Sergeant Gottman opened the tin and inside found a marijuana pipe and loose plant material, which was later confirmed to be marijuana. At this point, Sergeant Gottman read Defendant her Miranda rights, continued to search the purse, and found another marijuana pipe and a baggie of marijuana in the purse.
Defendant was charged with possession of a controlled substance,
Defendant has stated four points on appeal in her appellate brief, but these points can easily be consolidated into one point on appeal. Defendant argues that the trial court erred in denying her motion to suppress evidence. Discussion of whether the court erred in denying Defendant’s motion to suppress will be divided into three sub-points.
When reviewing a trial court’s ruling on a motion to suppress, we limit our review to determining whether there is substantial evidence to support the court’s decision. State v. Whitaker, 101 S.W.3d 332, 333 (Mo.App. E.D.2003). We give deference to the trial court’s factual findings and credibility determinations, but review questions of law de novo, including whether the Fourth Amendment has been violated. Id.
The Fourth Amendment to the United States Constitution protects an individual from unreasonable searches and seizures.
State v. Adams,
51 S.W.3d 94, 98 (Mo.App. E.D.2001). Missouri’s constitutional protection is co-extensive with the
The State asserts that the encounter between Defendant and Sergeant Gottman was a voluntary encounter in which Defendant initiated the conversation and consented to a search of her purse.
In the absence of consent or exigent circumstances, law enforcement officers must obtain a warrant to conduct a search and seizure that would invade a constitutionally-protected privacy interest. State v. Smith, 134 S.W.3d 35, 37 (Mo.App. E.D.2003). A warrantless search in which proper consent, voluntarily given, is obtained is constitutionally valid. Id. A search pursuant to proper consent is valid even if the search is not otherwise supported by probable cause or a reasonable suspicion of criminal activity. State v. Hyland, 840 S.W.2d 219, 221 (Mo.banc 1992). When consent is withdrawn, an officer must stop the search unless the officer has a warrant or probable cause to continue the search. State v. Hayes, 51 S.W.3d 190, 194 (Mo.App. W.D.2001).
It is true that viewing the facts in the light most favorable to the State, the conversation between Defendant and Sergeant Gottman was initiated by Defendant. Defendant also initially consented to a search of her purse. However, as Defendant argues, her consent to a search of her purse was clearly withdrawn when she turned with her purse and walked away from Sergeant Gottman. Sergeant Gott-man finally obtained possession of the purse by grabbing the purse from Defendant as Defendant was walking away. Therefore, the consent exception to a war-rantless search and seizure is not applicable to this case.
Second, the State contends that the search of Defendant’s purse was constitutional because if Sergeant Gottman had not searched her purse for contraband, Defendant could have destroyed any potential evidence of criminal wrongdoing by throwing the evidence into the water.
Because boats are similar to automobiles in that both are inherently mobile, the exceptions to the warrant requirement applicable to automobiles apply to boats as well. State v. Sullivan, 935 S.W.2d 747, 755 (Mo.App. S.D.1996). Law enforcement personnel may conduct a war-rantless search of an automobile and seize contraband found if there is: l)probable cause to believe that the vehicle contains contraband and 2)exigent circumstances necessitate the search. State v. Middleton, 995 S.W.2d 443, 458 (Mo.banc 1999). Practically speaking, exigent circumstances exist every time an automobile is involved, because the mere possibility that the vehicle can be moved is generally sufficient justification for a warrantless search. Id. Courts have commented that the need for the exigent circumstances doctrine is particularly compelling in narcotics cases in which contraband can be quickly destroyed while a search is progressing. State v. Vega, 875 S.W.2d 216, 219 (Mo.App. E.D.1994). In an automobile setting, probable cause to search exists “when the facts and circumstances would lead a reasonably prudent [person] to believe that the vehicle contains contraband.” State v. Milliorn, 794 S.W.2d 181, 183 (Mo.banc 1990), quoting United States v. Clark, 559 F.2d 420, 424 (5th Cir.1977). Essentially, probable cause requires a reasonable belief that it is more probable than not that the vehicle contains illegal property. Milliorn, 794 S.W.2d at 183.
The possibility that Defendant could destroy any contraband she may have had in her purse by throwing it into the water qualifies as an exigent circumstance. Therefore, the critical inquiry here is whether Sergeant Gottman had probable cause to believe Defendant’s purse contained contraband.
The final argument made by the State in support of upholding the motion to suppress is that Sergeant Gottman was justified in searching Defendant’s purse to protect his own safety.
Protective searches executed by law enforcement officers are limited only in the sense that the officer executing the search must possess a reasonable belief that the suspect is dangerous and the protective search must be directed only to locations which may contain a weapon and to which the suspect may have access. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). The critical inquiry is whether a reasonably prudent person in similar circumstances would be warranted in the belief that his safety or that of others was in danger. Id. at 1050, 103 S.Ct. 3469.
The State claims that one of the reasons Sergeant Gottman took Defendant’s purse and searched it was to protect his own safety. Defendant never said anything threatening to Sergeant Gottman, and she never made any type of threatening gestures or movement in his direction. On the contrary, she was walking away from Sergeant Gottman when he grabbed her purse. He then proceeded to search her purse, and did not find any dangerous weapons, but instead removed a small Al-toid candy tin from her purse. He shook the tin and decided “that there was not candy in the tin.” There is no evidence in the record to support a finding that Sergeant Gottman had a reasonable belief that there may have been a weapon in the small tin that posed a risk of harm. Nor does Sergeant Gottman claim that the marijuana and marijuana pipe, found in the tin after he opened it, sounded like a dangerous weapon when he shook the tin. The search of the small Altoid tin and subsequent search of the purse cannot be justified as a valid protective search.
Having reviewed the record, it is clear that without the evidence seized in Defendant’s purse, the State does not have a submissible case against Defendant. A remand of this case to the trial court for further proceedings would be futile. Therefore, the judgment of the trial court is reversed and Defendant’s conviction is ordered overturned.