State v. Qualls

• Decision Date: 14 May 1991
• Docket Number: Nos. 55033,57488,s. 55033
• Citation: 810 S.W.2d 649
• Parties: STATE of Missouri, Plaintiff-Respondent, v. George QUALLS. George QUALLS, Movant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 649

810 S.W.2d 649

STATE of Missouri, Plaintiff-Respondent, v. George QUALLS.

George QUALLS, Movant, v. STATE of Missouri, Respondent.

Nos. 55033, 57488.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 14, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied June 12, 1991.

Application to Transfer Denied July 23, 1991.

Ellen H. Flottman, Columbia, David C. Hemingway, St. Louis, for movant.

William L. Webster, Atty. Gen., Frank A. Jung, Breck K. Burgess, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

PUDLOWSKI, Judge.

This is a consolidated appeal. Defendant/movant (hereinafter defendant) appeals his conviction in the Circuit Court of the City of St. Louis on the charge of possession of heroin, § 195.020 RSMo 1986 (repealed 1989). He also appeals the judgment of the motion court which denied his Rule 29.15 motion.

Defendant's sole claim on direct appeal is that the trial court committed plain error in admitting into evidence a blue Dormin ¹ bottle and its contents because such evidence was the product of an unreasonable search violating the defendant's Fourth Amendment Right. Defendant filed a pretrial motion to suppress the bottle and its contents. After a suppression hearing the hearing court overruled the motion and defendant proceeded to trial by jury.

Defendant's only contention is that the trial court erred in denying his motion to suppress evidence discovered on the lawn in front of 4053 West Bell. Although the defendant made a pretrial motion to suppress evidence discovered in the allegedly illegal search, he neglected to object when the evidence found on the lawn was introduced at trial. When a motion to suppress has been denied and the evidence is subsequently offered at trial, counsel must again make a timely objection in order to preserve the issue for appellate review. State v. Yowell, 513 S.W.2d 397, 402 (Mo.1974); State v. Harris, 670 S.W.2d 526, 528 (Mo.App.1984). Accordingly, our review is limited to plain error affecting substantial rights resulting in manifest injustice or miscarriage of justice.

On June 10, 1987, in the City of St. Louis, Detectives Kurt Shrum and Terry James were on patrol having been assigned that day to the fugitive apprehension strike team. Their broadly defined duties included looking for persons wanted on felony warrants. The officers' decision to choose the area in the 4000 block of West Bell Street to investigate for persons with outstanding warrants, was prompted by the fact that it was an area frequented by users of narcotics. Both officers testified that they were familiar with the residence at 4053 West Bell and associated that house with heroin and cocaine trafficking. However, both officers acknowledged that they knew of no outstanding warrants for either the defendant or anyone residing at 4053 West Bell Street.

While driving in their unmarked patrol car, the detectives who were both in plain clothes observed the defendant exiting the front gate at the yard of 4053 West Bell Street. After first noticing the defendant, Detective Shrum, who was driving, slowed the patrol car down and drove it over toward the defendant. The defendant did not notice the detectives' presence until they were approximately twenty feet away from him.

Upon seeing the detectives' car slow down, the defendant abruptly stopped, turned around and walked back through the gate toward the residence at 4053 West Bell. Both detectives observed the defendant reach into his clothing with his left hand as he was turning his back to the officers. Detective Shrum testified that: "what attracted my attention was when he looked at us and he had this sort of surprised look on his face and then he put his hand down the front of his pants." As soon as the defendant turned around, Detective Shrum stopped the car and reached for his service revolver believing that defendant was reaching for a weapon. Detective Shrum simply exited the patrol car and stood next to it as Detective James began to approach the defendant. The detectives both testified that their initial purpose in approaching the defendant was to look at the defendant's face to compare it with the photographs they had in their patrol car of wanted fugitives.

After the defendant turned around and entered the yard, he took two or three steps back toward the house. At that time the officers observed him throw with his left hand what appeared to be a blue and white Dormin bottle into the grassy area of the residence he had previously exited. Both officers then believed they had observed drugs being abandoned and simultaneously ordered the defendant to stop. Detective Shrum moved toward the defendant while Detective James retrieved the jettisoned bottle, opened it and found 34 clear blue capsules containing a tan powdery substance. Subsequent testing by a criminalist at the St. Louis Police Department Crime Laboratory revealed that the substance in the bottle was heroin.

Defendant did not object to the testimonial evidence of the bottle and its contents.

It is well held that the warrantless search or seizure of abandoned property does not violate the fourth amendment. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924); Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960). "The test for abandonment in the search and seizure context is distinct from the property law notion of abandonment: it is possible for a person to retain a property interest in an item, but nonetheless to relinquish his or her reasonable expectation of privacy in the object." United States v. Thomas, 864 F.2d 843, 845-846 (D.C.Cir.1989).

For purposes of fourth amendment analysis, the test for determining abandonment is primarily a question of intent and therefore an objective one, which may be inferred from "words spoken, acts done and other objective facts." United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973); See State v. Achter, 512 S.W.2d 894, 899 (Mo.App.1974). We will not disturb the trial court's determination that an abandonment occurred unless that finding is clearly erroneous. United States v. Kendall, 655 F.2d 199, 203 (9th Cir.1981), cert. denied sub nom. Akers v. United States, 455 U.S. 941, 102 S.Ct. 1434, 71 L.Ed.2d 652 (1982).

Both detectives testified that they observed the defendant, who was not in custody, turn around and walk back toward the house at 4053 West Bell Street immediately upon his seeing the unmarked patrol car. They both saw the defendant consciously throw, not accidentally drop, a blue Dormin bottle into the yard at 4053 West Bell. The detectives further observed the Dormin bottle land approximately five feet away from the defendant and the defendant did not move to retrieve it.

After being accosted by the detectives, the defendant immediately denied ownership of the bottle and its contents. He repeated his denial of ownership of the bottle and its contents at trial. The defendant further denied even having possession of the bottle when he was initially seen by the detectives.

While the mere denial of ownership of an object does not in all cases ² result in a finding of a valid and "voluntary" abandonment for fourth amendment purposes, it is our belief that the defendant by throwing the Dormin bottle into the grassy area of the yard at 4053 West Bell Street, placed the bottle and its contents within the reach of the world generally, thereby relinquishing his reasonable expectation of privacy in that bottle.

In our determination that the trial court did not commit plain error in admitting the aforementioned evidence we must determine whether the police conduct improperly caused or precipitated the abandonment. United States v. Koessel, 706 F.2d 271, 274 (8th Cir.1983).

We review the actions of Detectives Shrum and James immediately preceding the discard of the Dormin bottle by the defendant. The detectives were on patrol in a high crime area looking for fugitives. They were in plain clothes and riding in an unmarked patrol car. The officers slowed their car down when they saw the defendant exit the house at 4053 West Bell Street--a house they associated with drug trafficking. The officers slowed their vehicle to better view the defendant's face and compare it with the pictorial list of fugitives they had in their car. When the defendant noticed the detectives' presence he immediately reacted and returned to the yard.

As soon as the detectives saw the defendant turn around, they stopped and exited their car. Detective Shrum testified that he reached for his gun but there is nothing further in the record showing that there were any other forms of force exhibited toward the defendant. ³ Both detectives observed the defendant toss the Dormin bottle. At that point both detectives simultaneously requested the defendant to halt and he complied with their order.

There was no prolonged chase or surveillance of the defendant and the events leading up to the detectives' stop order occurred quickly. The detectives did not identify themselves as police officers, activate their siren, or address the defendant in any way until after they observed him throw the Dormin bottle. The detectives also did not block the defendant's movement or means of escape.

Defendant alleges that he was illegally seized prior to his relinquishment of the Dormin bottle, thereby tainting the subsequent seizure of the bottle and its contents. In determining whether the defendant was illegally seized within the meaning of the fourth amendment, we look to the standard just recently announced in California v. Hodari, 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), declaring that to constitute a seizure of the person, just as to constitute an arrest, there must be either the application of physical force, however slight, or where that is absent, submission to an officer's "show of authority" to restrain the subject's liberty.

The facts that the...