State v. Duncan, No. WD

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: ULRICH
• Citation: 866 S.W.2d 510
• Decision Date: 07 December 1993
• Docket Number: No. WD
• Parties: STATE of Missouri, Respondent, v. Cindy Lou DUNCAN, Appellant. 46213.

Page 510

866 S.W.2d 510 STATE of Missouri, Respondent,
v.
Cindy Lou DUNCAN, Appellant. No. WD 46213. Missouri Court of Appeals,
Western District. Dec. 7, 1993.

Rosalynn Koch, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.

Page 511

Before ULRICH, P.J., and BERREY and SMART, JJ.

ULRICH, Presiding Judge.

Cindy Lou Duncan appeals her conviction for unlawful use of a weapon (exhibiting), in violation of § 571.030, RSMo (1986). Ms. Duncan contends the trial court erred in overruling her motion to suppress the weapon she was accused of flourishing. Ms. Duncan asserts that the weapon was seized as a result of an unreasonable search and seizure in violation of the Fourth, Fifth, and Fourteenth Amendments and should have been excluded from evidence.

The judgment of conviction is affirmed.

Early the afternoon of August 25, 1991, Officer Robin McDonald received a dispatch to proceed to Ms. Duncan's address to contact a female about a theft at that address. Officer McDonald arrived at Ms. Duncan's home and parked in the driveway. Before Officer McDonald stepped onto the lawn, Ms. Duncan emerged from her front door holding a rifle in both hands with her right hand just behind the trigger. She yelled at Officer McDonald that "she didn't want to talk to anybody but Chumbley or Ludwig and if anybody stepped on her property, they would be taken off in a body bag." As she yelled, Ms. Duncan made a "sweeping motion" with the rifle; the arc of the rifle's motion "moved across" the officer.

Officer McDonald remained at the edge of the driveway. She briefly attempted to persuade Ms. Duncan to calm herself. In less than a minute Ms. Duncan went inside her house.

Officer McDonald returned to headquarters and contacted Sergeant Smith. Sergeant Smith enlisted the aid of Police Chief Koenig and Deputy Sheriff Trickel and the four officers returned to Ms. Duncan's address.

Chief Koenig and Officer McDonald approached the rear of the house, and Deputy Trickel and Sergeant Smith approached the front. Sergeant Smith testified that, through the windows, he could see Ms. Duncan and her "adult" son moving about inside the house. As the four officers approached the porch, Ms. Duncan emerged from the front door without the rifle. She left the front door open. Sergeant Smith and Deputy Trickel both testified that they could see the rifle leaning against a wall just inside the door. Chief Koenig informed Ms. Duncan that she was under arrest and, as she was being handcuffed, asked where the rifle was. Ms. Duncan responded that it was inside the door. Chief Koenig stepped inside and retrieved the rifle.

Ms. Duncan contends that the trial court erred in admitting the rifle into evidence over her objection and motion to exclude it. Ms. Duncan claims that the law enforcement officers viewed the weapon inside the house and seized it as the result of information she provided when interrogated without first being advised of her rights pursuant to Miranda. ¹ Additionally, Ms. Duncan claims the rifle was improperly admitted as evidence because it was seized from inside her home without a warrant, and she was arrested outside of the home.

Chief Koenig's inquiry of Ms. Duncan about the location of the rifle without first giving the Miranda warnings as she was arrested was permissible under a public safety exception. New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); State v. Turner, 716 S.W.2d 462, 466 (Mo.App.1986). The public safety exception does not depend on the motivation of the individual officers involved but rather whether a reasonable officer would ask instinctively to protect his own safety or the safety of others. Quarles, supra 467 U.S. at 656, 104 S.Ct. at 2631. The location of a rifle that the officers knew was brandished at the location a short time earlier would have been a reasonable safety concern to the officers. Ms. Duncan's threats made in Officer McDonald's presence that if anyone, other than two people Ms. Duncan had requested, stepped onto her property, "they would be taken off in a body bag," made the location of...