State v. Breese

Citation250 S.W.3d 413
Decision Date14 March 2008
Docket NumberNo. 27858.,27858.
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Lawrence M. BREESE, Defendant-Appellant.
CourtCourt of Appeal of Missouri (US)

Nancy A. McKerrow of Columbia MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Linda Lemke, Assistant Attorney General of Jefferson City MO, for Respondent.

DON E. BURRELL, Judge.

Lawrence Breese (Defendant) appeals from his conviction for possession of a controlled substance, a violation of Section 195.202.1 In the summer of 2006, Defendant was convicted of one count of possession of a controlled substance and sentenced as a prior and persistent offender to a term of ten years. On appeal, Defendant challenges 1) the sufficiency of the evidence to support the conviction; and 2) the trial court's overruling of his motion to suppress certain evidence and in allowing it to be admitted at trial. We affirm.

Facts

On March 21, 2005, Deputy Carmello Crivello (Deputy Crivello) of the Phelps County Sheriff's Department was nearing the end of his shift and was on Interstate 44 working his way toward home. While traveling in the right-hand lane, Deputy Crivello was passed by a black Ford Thunderbird with a California license plate traveling at a high rate of speed. After pacing the Thunderbird for some distance, Deputy Crivello determined that the vehicle was traveling at least eighty miles per hour-ten miles per hour over the posted speed limit. Deputy Crivello activated his emergency lights in an attempt to get the vehicle to pull over. The Thunderbird initially slowed and pulled to the shoulder, but then began to increase its speed. At that point, Deputy Crivello also accelerated and activated his emergency sirens. After he activated his sirens, the vehicle did come to a stop on the shoulder of the highway.

Deputy Crivello knew the driver of the vehicle to be Tanya Johnson (Johnson) and also recognized Defendant who was sitting in the front-passenger seat. A male juvenile, who Deputy Crivello did not know, was sitting in the rear seat of the vehicle. According to Deputy Crivello, both Johnson and Defendant exhibited signs of "tweaking," a condition he testified indicates "someone is high on methamphetamine and they're at a peak and they've been using some up to days" and have been without any sleep. Deputy Crivello stated that when a person is "tweaking" he cannot completely control his body or mouth movements. Deputy Crivello testified that both Johnson and Defendant exhibited a heavy amount of teeth grinding and mouth movement as if they were chewing a large amount of bubble gum.

Deputy Crivello asked Johnson to come back to the patrol car and she did so. While Deputy Crivello was speaking to Johnson in the patrol car, Defendant exited the Thunderbird and started pacing back and forth by the side of the vehicle while talking on a cell phone. Deputy Crivello left Johnson in the patrol car and asked Defendant to get off the phone2 and get back in the Thunderbird.

Defendant hung up the cell phone and Deputy Crivello asked him if he had any methamphetamine. Defendant told Deputy Crivello that he did not. Deputy Crivello then told Defendant that he knew Defendant was high. Defendant responded by saying, "I know, I love this shit, but I, I'm not selling any. I ain't got no money, I'm not selling it." At this point, Deputy Crivello returned to his patrol car to resume speaking with Johnson but was interrupted because Defendant had opened the door of the Thunderbird and was again using the cell phone. Deputy Crivello approached Defendant again and ordered him for the second time to get off the cell phone or he would be arrested. Defendant again hung up the phone at that point. Deputy Crivello returned to his patrol car and asked Johnson for consent to search the vehicle. Johnson gave him permission to do so. Deputy Crivello approached the Thunderbird and asked Defendant to exit the vehicle so he could search it. At that point, Defendant stated he was not going to allow Deputy Crivello to search the vehicle. Deputy Crivello responded that Defendant was not the owner of the vehicle and that he had obtained the driver's consent to conduct the search.

A black shower bag was on the floor in front of the front passenger seat—the seat Defendant occupied. Deputy Crivello opened the shower bag and found inside men's toiletries and a black, plastic container. Deputy Crivello shook the container and heard scales inside. He then opened the plastic container and inside was a scale and bowl with a white powdery substance on them that he believed to be drug residue.3 At no time while Deputy Crivello was going through the shower bag and its contents did Defendant ever claim to be the owner of the bag or in any way indicate that Deputy Crivello should not be searching it. Deputy Crivello conducted a field test on the scale which indicated a positive response for methamphetamine. After he had searched the bag and conducted his field test on the scale, Deputy Crivello asked Defendant who owned the bag and scale. Defendant initially denied that the bag and its contents were his, then admitted they were, and then finally claimed that his sister had packed the bag.

The scale was later sent to the Missouri State Highway Patrol crime lab for additional testing. The lab analyst who conducted the test testified that methamphetamine is soluble in water. In conducting his test, the lab analyst rinsed the scale with water then tested the water for the presence of methamphetamine. The test indicated that the water contained methamphetamine. The analyst testified he had to use the water because there was not quite enough of the substance present on the scale for him to scrape out, weigh, and test by itself.

A jury found Defendant guilty of possession of methamphetamine, a controlled substance. For ease of analysis, we review Defendant's points on appeal in reverse order.

Search of the Vehicle

For his second point on appeal, Defendant argues that the trial court erred in overruling his motion to suppress and thereafter admitting at trial the evidence derived from Deputy Crivello's search of the vehicle. Defendant claims it was unreasonable for Deputy Crivello to believe that Johnson had authority to consent to a search of the car when a juvenile with the same last name as the registered owner of the vehicle was also in the car.4 Because he believes Johnson lacked authority to consent to the search of the vehicle, Defendant reasons that the search was unconstitutional because Deputy Crivello lacked probable cause to search the vehicle.

We review a trial court's ruling on a motion to suppress in the light most favorable to the ruling and defer to the trial court's determinations of credibility. State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). Our review of the ruling is limited to determining whether it was supported by sufficient evidence and we will reverse only if we find it to be clearly erroneous. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). In determining whether or not sufficient evidence has been presented, we review evidence adduced at the hearing on the motion to suppress as well as evidence adduced at trial. State v. Gonzalez, 235 S.W.3d 20, 23 (Mo.App. S.D.2007).

Under the Fourth and Fourteenth Amendments to the United States Constitution, citizens are protected from "unreasonable searches and seizures" by state officers. Mapp v. Ohio, 367 U.S. 643, 654-55, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Additionally, Article I, Section 15 of the Missouri Constitution is coextensive with the Fourth Amendment. State v. Jackson, 186 S.W.3d 873, 879 (Mo.App. W.D.2006).

Searches or seizures conducted without a warrant are presumptively invalid. Id. In order for a court to uphold a search made without a warrant, the search must have fallen within one of the recognized exceptions to the warrant requirement. Id. In determining whether or not an exception applies to the search at hand, we consider what the officer had reason to believe at the time of his search. State v. Childress, 828 S.W.2d 935, 944 (Mo.App. S.D.1992).

Routine traffic stops for violation of a traffic law are justifiable seizures under the Fourth Amendment. Jackson, 186 S.W.3d at 879. Additionally, consent is one of the recognized exceptions to the warrant rule. State v. Wood, 218 S.W.3d 596, 603 (Mo.App. S.D.2007).

In the case at bar, Deputy Crivello testified that he pulled Johnson over for exceeding the speed limit and asked for her consent to search the vehicle. Johnson consented to the search. Defendant does not challenge the finding that Johnson consented to the search but claims that Johnson lacked the authority to grant such consent and that it was unreasonable for Deputy Crivello to believe that Johnson had such authority. The State argues that Defendant does not have standing to contest the search of the vehicle.

"[C]apacity to claim the protection of the Fourth Amendment depends ... upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded space." State v. Lane, 937 S.W.2d 721, 722 (Mo. banc 1997) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). The mere status of being a passenger in a vehicle does not accord a legitimate expectation of privacy in the vehicle that would entitle the passenger to challenge a search of it. State v. Shoults, 159 S.W.3d 441, 445 (Mo.App. E.D.2005). Because Defendant had no reasonable expectation of privacy in the vehicle, he cannot now contest whether it was reasonable for Deputy Crivello to rely on Johnson's consent to search the vehicle. More specifically, however, Defendant seeks suppression of evidence discovered while Deputy Crivello was searching Defendant's shower bag. A passenger does have a legitimate expectation of privacy in his...

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