State ex rel. Boling v. Malone

952 S.W.2d 308, 1997 Mo. App. LEXIS 1531, 1997 WL 532710
CourtMissouri Court of Appeals
DecidedSeptember 2, 1997
DocketNo. WD 52923
StatusPublished
Cited by7 cases

This text of 952 S.W.2d 308 (State ex rel. Boling v. Malone) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Boling v. Malone, 952 S.W.2d 308, 1997 Mo. App. LEXIS 1531, 1997 WL 532710 (Mo. Ct. App. 1997).

Opinion

SPINDEN, Judge.

Clifford Malone appeals the circuit court’s judgment for forfeiture of his property under the Criminal Activities Forfeiture Act (CAFA) pursuant to § 513.6071 and § 195.140 of the Narcotic Drug Act. We affirm in part, and we reverse and remand in part.

On November 14, 1994, Marshall police received a tip from a person, who did not identify herself, that a man from the St. Louis area, who was on parole for murder, was selling crack cocaine at the house where he resided in exchange for money and electronic equipment. Police watched the house to verify the tip. Police determined that a license plate on a car parked outside the house had been issued to Malone who was from the St. Louis area and on parole for murder. Five times, between 10:30 P.M. on November 15, 1994, and 12:15 A.M. on November 16, 1994, police saw people drive to Malone’s house and enter it. Each time, a light would go on in a bedroom for a brief time. After the light would go out, the persons would leave quickly. One of the people entering the house carried an item which appeared to the police to be a video cassette recorder, and the person left without it. Police followed the fifth car leaving the house. After police confronted the car’s driver and a passenger, the two told police that they had purchased crack cocaine from Malone in exchange for money and food stamps.

Police searched Malone’s house about two hours later pursuant to a warrant which authorized them to search the house for crack cocaine. When police found crack cocaine in the house, they arrested Malone and seized property from inside the house and from Malone’s car parked outside. Among the property taken was cocaine, guns and ammunition, money, food stamps, “open” car titles, electronic equipment, jewelry, and tools.

The state charged Malone with one count of distributing a controlled substance near public housing,2 one count of drug trafficking in the second degree, and one count of receiving stolen property. On November 22, 1994, the state sought forfeiture of the seized property under CAFA and the Narcotic Drug Act.

. Before trial, Malone asked the circuit court to suppress the evidence seized from his car, and the state agreed to suppress the evidence. On June 8, 1995, a jury convicted Malone of one count of distributing a controlled substance near public housing and one count of drug trafficking in the second degree. The circuit court sentenced Malone to two concurrent life terms to be served concurrently with Malone’s prior conviction for murder.

Later that day, the circuit court ordered confiscation and disposal of the firearms found in Malone’s house and car pursuant to § 571.095.3 On February 23, 1996, the circuit court convened an evidentiary hearing to consider forfeiture of the remaining property seized from Malone’s house and car. The state’s only evidence was a request that the court notice Malone’s criminal case and convictions, including the trial transcripts and exhibits admitted at trial. Malone appeared pro se and presented no evidence. On June 3, 1996, the circuit court ordered that a stolen firearm recovered from Malone’s house be returned to its rightful owner and that the [311]*311remaining property be forfeited. On June 6, 1996, the circuit court entered an amended judgment, correcting the date of the June 3, 1996, judgment, to accurately reflect the day, month and year that the judgment was entered.

Malone contends in his first three points on appeal that the circuit court erred by ordering the forfeiture of: (1) any of the property because the state did not establish that the seized property was derived from, or realized through, criminal activity as required by CAFA; (2) the elec2tronic equipment and jewelry because its seizure exceeded the scope of the search warrant, and the police did not have probable cause to believe the items were the product of any criminal activity; and (3) the property seized from his car because its seizure exceeded the scope of the search warrant, and the state had stipulated to the suppression of that evidence before trial. In his fourth point, Malone contends that the circuit court did not have jurisdiction to enter the forfeiture order on June 3, 1996, because its order entered pursuant to § 571.095 a year earlier after his conviction deprived it of jurisdiction to consider the forfeiture case.

Malone did not preserve these alleged errors for our review. He asks us to review the issues for plain error under Rule 84.13(c). We restrict exercise of our discretion to review for plain error to those issues which facially establish substantial grounds for believing that manifest injustice or a miscarriage of justice has resulted. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc), cert. denied, — U.S. -, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995).4 We consider his points in reverse to the order that he presented them.

His fourth complaint is meritless on its face and does not warrant plain error review. The circuit court ordered on June 8, 1995, the confiscation and disposal of all firearms and ammunition seized from Malone pursuant to power granted in § 571.095. Malone does not deny that the circuit court had the power to enter the order of June 8,1995, but he makes a meritless argument that this order somehow affected the circuit court’s jurisdiction to consider the forfeiture proceedings. We reject the point out of hand.

His third point of error—that the property seized from his car should not have been forfeited because it exceeded the scope of the search warrant—also is not an issue worthy of plain error review. Section 513.607.5(2) requires that officers seizing property before obtaining a writ of seizure5 must seize the property “incident to a lawful arrest, search or inspection” and the officer must have “probable cause to believe the property is subject to forfeiture and will be lost or destroyed if not seized.” Examining the issue on its face, we discern no basis for believing that the officers’ search of Malone’s automobile was unlawful.

Police testified to having a probable cause that contraband was in the car after finding crack cocaine in Malone’s house and to facing an exigent need for searching the car immediately rather than obtaining a search warrant. The long-recognized “automobile exception” provides that police may “conduct a warrantless search of a vehicle and seize contraband found if (1) there is probable cause to believe that the vehicle contains contraband and (2) exigent circumstances necessitate the search.” State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Exigent circumstances exist because of “the mere possibility that the vehicle can be moved.” Id. Requiring especially small police departments such as the Marshall department to have the personnel and equipment needed to impound or guard a vehicle until a search warrant has been obtained places an impermissible burden on the police. State v. Ritter, 809 S.W.2d 175, 178 (Mo.App.1991)(citing Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970)). We do not see a proper basis for exercising our discretion to conduct plain error review of this issue.

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Bluebook (online)
952 S.W.2d 308, 1997 Mo. App. LEXIS 1531, 1997 WL 532710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-boling-v-malone-moctapp-1997.