525 S.W.2d 599 (Mo.App. 1975), KCD 27230, State v. Peterson

Docket Nº:KCD 27230.
Citation:525 S.W.2d 599
Party Name:STATE of Missouri, Respondent, v. David A. PETERSON, Appellant.
Case Date:July 07, 1975
Court:Court of Appeals of Missouri
 
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Page 599

525 S.W.2d 599 (Mo.App. 1975)

STATE of Missouri, Respondent,

v.

David A. PETERSON, Appellant.

No. KCD 27230.

Court of Appeals of Missouri, Kansas City District.

July 7, 1975

Page 600

R. Brian Hall, Gladstone, for appellant.

John C. Danforth Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P.J., PRITCHARD, C.J., and SWOFFORD, J.

SOMERVILLE, Presiding Judge.

Defendant was found guilty by a jury of illegal possession of more than thirty-five grams of marijuana (Sections 195.020 and 195.200, RSMo 1969, V.A.M.S., as amended, Laws of 1971) and his punishment was fixed at two years imprisonment in the Department of Corrections. The marijuana which defendant was charged and found guilty of illegally possessing was obtained by a warrantless search.

Defendant duly appealed, and in pressing this court for relief charges five instances

Page 601

of alleged error. His first charge, that the trial court erred in overruling his motion to suppress the marijuana, and in admitting it into evidence over his objection, because the warrantless search by which it was obtained was proscribed by the Fourth Amendment to the Constitution of the United States, becomes the critical focal point of review since it is decisive of the appeal.

Evidence adduced at the hearing held on defendant's pre-trial motion to suppress showed that at about 1:25 a.m. on July 18, 1973, as part of 'a raid' called by 'a Clay County Investigative Squad' to 'serve numerous warrants', Detective Captain Arthur L. Piburn of the Gladstone, Missouri, Police Department, proceeded to 8 North East 70th Place in Gladstone, Missouri. The address was the home of defendant's parents. The home faced the south. Piburn had with him a 'Clay County warrant' for defendant's arrest 'for dispensing marijuana'. Piburn was accompanied by two other Gladstone police officers and a Missouri Highway Patrol trooper. Piburn and one of the police officers approached the home from the front and the other police officer and the trooper approached the home from the rear. Defendant and both of his parents were in the home asleep at the time. Piburn knocked at the front door of the home and defendant's father responded and opened the front door. Piburn asked if defendant was there and his father replied that he was. Piburn then advised defendant's father that they had a warrant for defendant's arrest 'for dispensing marijuana', and the arrest warrant was displayed. Defendant's father advised that defendant was asleep in the basement at the time and he would go and get him. Piburn declined the offer and said he and the officer would go and get defendant. Piburn and the police officer with him were then admitted into the home and they proceeded to the basement. During the 'commotion' defendant's mother awakened, and she and defendant's father followed the officers down into the basement. The basement was divided into two sections 'down the middle' running east and west. The west end of the north section was further 'sectioned off' into a 'room' by means of a 'bamboo curtain' and a 'British flag'. The flag was hung so that it could be pushed aside to go 'in and out' of the 'room' formed by the 'sectioned off' area. The 'room', as described, was rented by defendant from his parents for $60.00 a month and was furnished with bedroom furniture belonging to defendant. Defendant's father testified that the 'room' was 'exclusively' the defendant's 'area' and no one else 'had a right to be there'. This testimony by defendant's father is the sum and substance of all the evidence presented concerning right of access to and control of the basement 'room' rented by defendant from his parents.

Piburn and the other officer with him entered the 'room' where they observed defendant asleep in bed without any clothes on. Piburn awakened defendant and read the arrest warrant to him. While doing so, Piburn noticed 'a brown leaf with a stem on it that appeared to be marijuana' tacked to the wall just above the bed which defendant had been asleep on.

There was a basement door near the 'room' occupied by defendant which provided access to and from the rear yard of the home. The other police officer and the trooper who had gone to the rear of the house were subsequently admitted through the basement door. They entered the basement 'room' occupied by defendant while he was in the process of getting dressed.

Either Piburn or one of the other officers searched each item of defendant's clothing before permitting him to dress. After defendant was dressed, he was handcuffed and the other two Gladstone police officers led him out of the house and placed him in a patrol car that was parked outside, leaving Piburn and the trooper in the 'room' with defendant's father and mother. Defendant's mother and father were in the

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'room' when defendant was arrested, while he dressed, and when he was handcuffed and taken from the house. Defendant's mother, according to Piburn, 'was quite upset' at the time and 'she was wanting to know what was going on, why we were there, what had he done and mostly crying, very upset', and defendant's father, who was also quite upset at the time, was 'attempting to calm' her down.

After defendant was taken outside and placed in the patrol car, Piburn asked defendant's father, who at the time was 'upset and confused', if it would be alright if they searched the 'room' for 'marijuana' and, according to Piburn, 'he said 'Go ahead', something to that effect.' Piburn and the trooper then proceeded to search the basement 'room' from which defendant had been removed. During the course of the search the trooper found a 'large brown sack' near the foot of the bed on a pile of 'bed clothes' or 'discarded clothing'. A purse was also discovered in another part of the room, and it contained a substance which was later identified as marijuana. The brown paper sack was either folded or twisted, when found by the trooper, so that its contents were not visible or in plain view. Piburn opened the brown paper sack and, according to his testimony, 'it contained I believe seven smaller sacks, some paper, some plastic, containing various amounts of brown ground up plant material.' Piburn also testified that the contents of the brown paper sack were subsequently analyzed as marijuana. Two cigarette butts found during the search were also subsequently analyzed as marijuana, as was the brown leaf with the stem on it tacked above defendant's bed. The contents of the brown paper sack, the purse, and two cigarette butts and the brown leaf with the stem on it tacked above defendant's bed were seized by Piburn and removed from the home. However, defendant was charged and tried solely for possession of the contents of the brown paper sack.

During cross-examination of Piburn by defendant's counsel at the pre-trial hearing on defendant's motion to suppress, the following occurred:

'Q Was there any remonstrance by Mr. Peterson when his son was handcuffed?

MR. ALLEN (attorney for the state): Your Honor, I object to that as irrelevant.

MR. HALL (attorney for defendant): Your Honor, we're trying to show here the character of this whole thing in terms of illegal search and seizure and as to whether or not the defendant or his parents were making decisions freely of their own choice, and I think it's necessary to show the nature of it, to show whether or not there might be any duress involved. This is a part of the motion to suppress.

MR. ALLEN: May it please the Court, I'm submitting this not as a consentual search at any rate, but a search incidental to a lawful arrest where they had a warrant, and the marijuana was in a paper bag out in plain view at this point. I think this is all irrelevant.

THE COURT: I'm going to overrule the objection at this point, but if you would hurry through it because I tend to agree with Mr. Allen.

MR. HALL: All right.'

Defendant's counsel did not press Piburn for an answer to the above question, and it went unanswered.

During direct examination of defendant's father, called...

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