State v. Melville

• Decision Date: 09 November 1993
• Parties: STATE of Missouri, Respondent, v. Regina MELVILLE, Appellant. WD 46272.
• Court: Missouri Court of Appeals

Page 452

864 S.W.2d 452

STATE of Missouri, Respondent, v. Regina MELVILLE, Appellant.

WD 46272.

Missouri Court of Appeals,

Western District.

Nov. 9, 1993.

Jerome S. Antel, II, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.

Before BERREY, P.J., and BRECKENRIDGE and HANNA, JJ.

HANNA, Judge.

Regina Melville appeals her court-tried conviction of drug trafficking in the second degree for which she was sentenced to six years imprisonment.

About 1:40 a.m. on November 19, 1990, Trooper David Spurgeon stopped a 1990 white four-door Lincoln Continental bearing Georgia license plates for speeding on I-70 in Callaway County. Defendant was a passenger in the car. Before stopping the car, Trooper Spurgeon ran a check on the license plates which came back as not on file. He asked the driver, John Backhaus, to produce his drivers license and to accompany him to the patrol car. Spurgeon testified that Backhaus was nervous and twice passed over his drivers license as he looked through his wallet. When the trooper asked Backhaus if there was anything illegal in the vehicle, he appeared nervous and he did not respond. The question was repeated and Backhaus replied in a stuttering manner that there was nothing illegal in the car. The trooper asked if he could look through the car. Backhaus replied, "I dont know if Regina would like you going through her things." Spurgeon went to the passenger side of the front seat of the Lincoln automobile, and asked the defendant her name and from where they were traveling. She identified herself as Regina Melville and described their journey from Georgia to Boston, which contradicted Backhaus earlier statement that their travels had originated in Arizona. Spurgeon asked the defendant if there was anything illegal in the car and if he could look through the car. She glanced toward the back seat where the third occupant, Joseph Parolisi, was seated and did not respond. Spurgeon asked again, "if [he] could search the car." The defendant replied, "Yeah, sure, you can look around."

Spurgeon searched the front seat area including the glove box where he found one thousand, eight hundred thirty dollars ($1,830.00) in cash, which caused him to be suspicious. He then searched the back seat including two shoulder totes found there. Spurgeon removed the key from the ignition and opened the trunk where he found two more shoulder totes and four suitcases. A search of the two shoulder totes revealed no contraband. In one of the suitcases he found four yellowish brick-shaped parcels. He believed the contents to be a controlled substance, possibly cocaine. It was later determined that the bundles from all of the suitcases amounted to approximately one hundred twenty-nine pounds of marijuana. During the time that the search was being conducted, the defendant was standing in front of the Lincoln automobile.

Upon finding the brick-shaped parcels, Spurgeon shut the trunk and asked the defendant and Parolisi to whom the suitcases belonged. Both denied they owned a suitcase and Spurgeon arrested Backhaus. Backhaus only claimed ownership of one of the shoulder totes. A backup officer was called and when he arrived the other two occupants were arrested. The defendants name was listed on the name tag on one of the suitcases in which marijuana was found.

All three occupants were charged. A lengthy hearing was held on the motions to suppress filed by all three occupants of the vehicle. The court found against the defendants at which point the state dismissed the charges against Backhaus and Parolisi. Defendants bench trial resulted in a finding of guilty and subsequent sentence of six years imprisonment. This appeal followed raising one issue: whether the court erred in overruling the defendants motion to suppress the controlled substance because the search exceeded the scope of the consent given.

The review of the trial court's order causes the reviewing court to consider the facts stated favorably to the order challenged on appeal. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985), cert. denied, 480 U.S. 698, 107 S.Ct. 1596, 94 L.Ed.2d 678 (1987). We look "only to determine whether the evidence was sufficient to support the ruling." State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). The trial courts decision on the motion to suppress should be sustained if the evidence is sufficient to sustain its finding. Blair, 691 S.W.2d at 260.

The state raises a standing issue maintaining that the defendant does not have standing to challenge the search of a vehicle rented to Parolisi with Backhaus as the authorized driver when the defendant denies any interest in the property in the trunk. The Missouri Supreme Court has held that a defendant has standing to challenge a search or seizure if defendant was on the premises during the search; alleged a proprietary or possessory interest in the premises; or was charged with an offense that includes, as an essential element, possession of the seized evidence at the time of the challenged search and seizure. State v. Johnson, 598 S.W.2d 123, 127 (Mo. banc 1980), cert. denied, 449 U.S. 1067, 101 S.Ct. 795, 66 L.Ed.2d 611 (1980); see also State v. Lorenzo, 743 S.W.2d 529, 531 (Mo.App.1987). Defendant was charged with trafficking in the second degree, specifically with possession of more than thirty kilograms of marijuana. See § 195.223, Subd. 7, RSMo Supp.1990. As possession of the marijuana is an essential element of the crime as charged, defendant has standing to challenge the search of the automobile.

The sole point raised by the defendant is whether Trooper Spurgeons search of the trunk and the suitcase exceeded the scope of the consent given by defendant. The scope of the search is limited to the extent of the consent given. United States v. McBean, 861 F.2d 1570, 1573 (11th Cir.1988).

A consent search is a recognized exception to the requirements of probable cause and a search warrant. State v. Hyland, 840 S.W.2d 219, 221 (Mo. banc 1992). The standard for measuring the scope of one's consent under the Fourth Amendment is that of objective reasonableness. Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The court must consider what the "typical reasonable person [would] have understood by the exchange between the officer and the [one granting the consent]." Id. at ----, 111 S.Ct. at 1803-04. Furthermore, the scope of a search is generally defined by its expressed object. Id. at ----, 111 S.Ct. at 1804.

The extent of the search in this case is governed then by the totality of the circumstances, and specifically, by the police officer's identification of the expressed object of the search--anything illegal in the car--his question: "if [he] could search the car"; and the defendant's response: "Yeah, sure, you can look around." We consider what a typically reasonable person would have understood by this question and its response under this fact situation.

The extent of a lawful search was discussed in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) in which the Court held:

A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.... When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand.

Id. at 820-21, 102 S.Ct. at 2170-71. [Footnotes omitted, emphasis added]

Ross involved a search warrant, but the same rules that apply to search warrants also apply to searches authorized by consent. See Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1980). If the search in this case was legitimate, the fact that it extended into the trunk of the car was permissible. Ross establishes that the consensual search here properly extended to the trunk of the vehicle.

This court addressed a very similar fact situation in the case of State v. Law, 847 S.W.2d 134 (Mo.App.1993). In that case, the driver was asked if he had anything illegal in his vehicle and he replied that he did not. The officer asked if Law would mind if the officer searched his vehicle. Permission was given and Law opened the trunk revealing several bags. The officer opened one of the bags and found two shaving kits. When one of the kits was opened it revealed a large amount of cash wrapped in rubber bands. At this point Law was handcuffed for safety purposes and the officer continued his search by opening the second shaving kit. Inside was a prescription medicine bottle which contained marijuana and marijuana seeds. Law complained that the scope of the search exceeded the consent given when the officer opened the closed bags and containers found in the bags. Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), was the authority the court followed in sustaining the search in Law.

In Jimeno, the defendant filed a motion to suppress cocaine discovered in a closed paper bag found in his car after he had been stopped for a traffic violation. When Jimeno gave permission to search, the officer located a folded paper sack on the floorboard of the rear seat which contained cocaine. The Jimeno court held that "[t]he standard for measuring the scope of a suspects consent under the Fourth Amendment is that of objective reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Id. at 1803-04. In our case, as in Jimeno, the expressed object of the search was illegal drugs and...