State v. Howes

150 S.W.3d 139, 2004 Mo. App. LEXIS 1740, 2004 WL 2590270
CourtMissouri Court of Appeals
DecidedNovember 16, 2004
DocketED 84127
StatusPublished
Cited by5 cases

This text of 150 S.W.3d 139 (State v. Howes) 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 v. Howes, 150 S.W.3d 139, 2004 Mo. App. LEXIS 1740, 2004 WL 2590270 (Mo. Ct. App. 2004).

Opinion

PER CURIAM.

Appellant, Paula Howes (“Defendant”) appeals from the judgment of the Circuit Court of Marion County convicting her of possession of a controlled substance, 1 section 195.202 RSMo 2000, 2 and unlawful use of drug paraphernalia, section 195.233 RSMo 2000. Defendant was sentenced to concurrent terms of ninety days in county jail on each count, but received a suspended execution of sentence and was placed on two years of supervised probation. We reverse.

*142 On June 15, 2003 at about 8:00 p.m., Erik Gottman (“Sergeant Gottman”), a sergeant with the Missouri State Water Patrol, saw a boat entering the Hannibal boat harbor with two of the occupants sitting on top of the seatback. Sergeant Gottman approached the boat, advised the three occupants of the violation of sitting on top of the seatback, did a safety inspection of the boat, and discussed the violation with Daniel Waters (“Waters”), the driver of the boat. Defendant, a 41-year old female, interrupted and stated she should receive the ticket or warning because she was the owner of the boat. While speaking with Sergeant Gottman, Defendant discussed losing her son and started crying. There were open containers of alcohol on the boat, and Defendant and Waters had each been drinking.

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, section 195.202, and unlawful use of drug paraphernalia, section 195.233. A bench trial was conducted on December 17, 2003 at which Defendant’s motion to suppress evidence of the marijuana and drug paraphernalia was denied. Defendant was found guilty on both counts. Defendant was subsequently sentenced to concurrent terms of ninety days in county jail on each count, but received a suspended execution of sentence and was placed on two years of supervised probation.

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 *143 protection provided by the United States Constitution. Id.

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.

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Bluebook (online)
150 S.W.3d 139, 2004 Mo. App. LEXIS 1740, 2004 WL 2590270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-howes-moctapp-2004.