State v. Marquess

988 S.W.2d 123, 1999 Mo. App. LEXIS 304, 1999 WL 136941
CourtMissouri Court of Appeals
DecidedMarch 16, 1999
DocketNo. WD 56037
StatusPublished
Cited by1 cases

This text of 988 S.W.2d 123 (State v. Marquess) 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. Marquess, 988 S.W.2d 123, 1999 Mo. App. LEXIS 304, 1999 WL 136941 (Mo. Ct. App. 1999).

Opinion

SPINDEN, Judge.

The state charged Johnnie L. Marquess with one count of manufacturing methamphetamine, one count of creating a controlled substance, one count of possessing illegal drug paraphernalia, one count of possessing a controlled substance and two counts of endangering the welfare of a child. Mar[124]*124quess responded to the state’s charges by filing a motion to suppress evidence which officers obtained during their search of his house. Marquess argued that the officers’ search violated his constitutional rights. He asserted that, even though another resident of the house consented to the search, officers’ warrantless search was unlawful because he was present when they searched and he objected to their search. The circuit court sustained Marquess’ motion to suppress, and the state filed this interlocutory appeal. Because we are unable to ascertain from the record the timing of Marquess’ objection to the search — crucial to determining whether the officers’ search was lawful — we remand to the circuit court for further evidence.

At the suppression hearing, the state presented evidence1 that, on February 27, 1997, Bill Davidson, an officer with the Independence police, saw Kenton Griffey in a car parked in front of a house at 324 East Walnut in Independence. Suspecting Griffey of stealing the car or its contents, Davidson stopped and asked Griffey some questions. Davidson saw Griffey throw something on the car’s floorboard. After Griffey gave Davidson his driving license and told Davidson that he owned the car and lived at 324 East Walnut, Davidson learned that authorities had issued a warrant for Griffey’s arrest, so he arrested Griffey. While searching Griffey’s car, Davidson found on the floorboard a wet, white powdery substance which had a chemical odor. Davidson believed that the substance was recently-manufactured methamphetamine.

Because Griffey told Davidson that he lived at 324 East Walnut, Davidson went to the house to ask about Griffey. When Davidson knocked on the door, Diane Daniels and Marquess responded. They told Davidson that they were residents of the house and that Griffey lived there, too. Marquess invited Davidson into the house’s living room. Inside the house, Davidson smelled an odor which he believed was associated with methamphetamine production. Davidson told Daniels and Marquess that he was concerned that methamphetamine was being produced somewhere in the house, and Marquess became uncooperative and did not want to talk further. Davidson asked Marquess for permission to search the house. Marquess did not respond.

Daniels, however, remained cooperative. When Davidson asked her about the odor, she made a vague reference to its emanating from the basement. At some point, Davidson and Daniels went in the bedroom which Daniels shared with Marquess, and Marquess did not follow.2 Davidson asked Daniels whether any narcotics were in the house, and Daniels pulled a tray of what appeared to be marijuana from underneath the bed. She said that the substance belonged to her. Because of the odor and the suspected marijuana, Davidson called the Drug Enforcement Unit of the Independence Police Department.

What happened next is the crucial evidence which the record does not explain adequately. The record establishes that Daniels gave her consent to search the house and that police searched the bedroom and found drug paraphernalia in a bed stand. Daniels told them that the paraphernalia belonged to Marquess. Daniels also took a white, powdery substance and other drug paraphernalia from her purse and gave them to police. Police then arrested Daniels and Marquess. We know that Marquess changed his apparent attitude of acquiescing to the search of the bedroom and voiced objection to officers’ searching his house, but we do not know sufficiently when that occurred.

While in the bedroom, Daniels told Davidson that two children, ages seven and ten, were in the house. Because no adults would be in the house to care for the children after Daniels’ and Marquess’ arrest, Detective Brad Slaybaugh of the Drug Enforcement Unit searched the house for the children. He found one child in a bedroom on the first floor and the other child downstairs in the basement. While looking in the basement, [125]*125Slaybaugh saw glassware, plastic bags, red stained coffee filters, syringes, and other equipment which he believed had been used to manufacture methamphetamine. Officers included what Slaybaugh saw in the basement in their application for a search warrant which the circuit court issued.

On September 26, 1997, the circuit court convened a hearing on Marquess’ motion to suppress. The circuit court ordered the suppression of all tangible evidence recovered from 324 East Walnut. The state appeals the circuit court’s ruling.

The circuit court hinged its decision to suppress the evidence on Marquess’ refusing to allow a search. It concluded, “Any consent given by Diane Daniels was vitiated by Marquess[’] refusal to consent to the search when asked to by Detective Slaybaugh.” We cannot determine from this record when Marquess objected to the search, and the timing of his objection is crucial to determining this case.

If the search of the bedroom took place before Marquess refused consent, the evidence should not have been suppressed because Marquess, by standing by silently in the living room, acquiesced in Daniels’ consent for the search of the bedroom. See State v. White, 755 S.W.2d 363, 367 (Mo.App.1988) (consent is valid when target of search is present and remains silent while third party gives consent). If the officers’ arrest of Marquess was pursuant to a lawful search of the bedroom, the items discovered by Slaybaugh while he looked for the children were admissible because of exigent circumstances and the plain view doctrine. See State v. Hicks, 853 S.W.2d 955, 956 (Mo.App.1993) (exigent circumstances exist if delay in search warrant would endanger life); State v. Taylor, 857 S.W.2d 482, 485 (Mo.App.1993), cert. denied, 510 U.S. 1056, 114 S.Ct. 719, 126 L.Ed.2d 683 (1994) (if exigent circumstances justifies intrusion into defendant’s house and officer inadvertently observes evidence in plain view, the evidence may be seized without a search warrant).

If, however, the search of the bedroom took place after Marquess refused consent, the issue — which is one of first impression in Missouri — would become whether police can search a house when they have valid consent from one member of a household but have been told by another member of the household, who is present at the time of the search, that they may not search the house without a search warrant. We should not endeavor to resolve this issue in this case until we are certain of the facts. The facts established at the suppression hearing regarding the timing of the search of the bedroom and Marquess’ objecting to the search were equivocal at best.

Davidson said that he did not search the bedroom until Slaybaugh arrived at the house. When Slaybaugh arrived, Davidson said that they asked and received Daniels’ consent to search. Davidson testified:

After she signed my consent we did check the — the bedroom area that she said that was hers and her boyfriend Johnnie Marquess. We did locate some other drug paraphernalia in the bed stand next to the bed, and she stated that was Johnnie’s.

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Related

State v. Cromer
186 S.W.3d 333 (Missouri Court of Appeals, 2005)

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Bluebook (online)
988 S.W.2d 123, 1999 Mo. App. LEXIS 304, 1999 WL 136941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marquess-moctapp-1999.