State v. Taylor
| Decision Date | 17 June 1993 |
| Docket Number | Nos. 17583,18191,s. 17583 |
| Citation | 857 S.W.2d 482 |
| Parties | STATE of Missouri, Respondent, v. Larry TAYLOR, Appellant. Larry TAYLOR, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Raymond L. Legg, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Millie Aulbur, Asst. Atty. Gen., Jefferson City, for respondent.
This case, in the ninth year of an odyssey through the Missouri judiciary, reaches this Court a second time. 1
A jury found Appellant, Larry Taylor, guilty of two counts, each a violation of § 195.020.1, RSMo Cum.Supp.1983 2:
Count I: Manufacturing marihuana;
Count II: Possession of more than 35 grams of marihuana.
The trial court sentenced Appellant, as a persistent offender, to imprisonment for twelve years on Count I and six years on Count II, consecutively. Appellant brings appeal 17583 from that judgment.
While appeal 17583 was pending, Appellant commenced a proceeding per Rule 29.15 3 to vacate the judgment. The motion court denied relief without an evidentiary hearing. Appellant brings appeal 18191 from that order.
We consolidated the appeals, Rule 29.15(l ) but address them separately in this opinion.
Appellant presents two points relied on, each of which concerns Count I only. The first point asserts the marihuana on which Count I was based should have been suppressed as evidence because it was obtained in an unlawful search and seizure. The second point maintains there was a fatal variance between the crime charged in Count I and the verdict-directing instruction by which that count was submitted to the jury. Because the sufficiency of the evidence to support the guilty verdicts is unchallenged, we set forth only the evidence pertinent to the claims of error.
Evidence germane to the first point was presented May 15, 1986, at a hearing on Appellant's motion to suppress. 4 In narrating the evidence, we honor the rule that the evidence and reasonable inferences arising from it are to be stated favorably to the trial court's ruling. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985), cert. granted, 474 U.S. 1049, 106 S.Ct. 784, 88 L.Ed.2d 762 (1986), and cert. dismissed, 480 U.S. 698, 107 S.Ct. 1596, 94 L.Ed.2d 678 (1987). 5 We disregard contrary evidence and inferences, and affirm the trial court's ruling if the evidence is sufficient to sustain that court's finding. Id., 691 S.W.2d at 260.
So viewed, the evidence establishes that a few weeks before October 5, 1984, Tom West, a McDonald County deputy sheriff, went to a mobile home in that county to serve "civil papers." There, West encountered Appellant, who stated "it was his place." West's testimony:
Q And did [Appellant] say who lived there with him?
A At that time, no.
Q He just said he lived there?
A Yes.
About 4:30 p.m., October 5, 1984, West returned to the mobile home with two warrants for Appellant's arrest: a misdemeanor warrant for an assault on Darlene Kinslow (who resided with Appellant in the mobile home), and a felony warrant for an assault on one Evenson. 6
Appellant came out of the mobile home as West approached. West arrested Appellant and escorted him to West's automobile.
About that time, McDonald County deputy sheriff Lloyd Perkins arrived by automobile. He parked about ten feet from a structure described in the record as a "metal covered shed" and an "outbuilding." We henceforth refer to it as "the shed." According to Perkins, the shed was between forty and sixty feet from the mobile home.
As Perkins exited his automobile, he thought he "smelled something burning." The aroma was emanating from the shed. He also heard "a motor or something running."
Perkins went to the shed door; it was locked. He then went to a window and raised it. A blanket covered the opening. Perkins pushed the blanket aside and looked in. He testified:
[I]t was kind of hazy in there, and I seen this motor, looked like a heater, or something, blowing down there. And I also seen what appeared to be marijuana on some screens. Looked like screens off of the window....
Perkins reported the discovery to McDonald County sheriff Lou Keeling, who had arrived with deputy sheriff John Heiskell. Shortly thereafter, everyone departed except Perkins.
Deputy West took Appellant to the sheriff's office in Pineville, booked him, and "locked him up." Sheriff Keeling then directed West to return to the mobile home and "stand by" while Darlene Kinslow removed her belongings.
West arrived back at the mobile home around 5:30 p.m. Perkins was still there. Ms. Kinslow arrived a few minutes later.
She entered the mobile home, accompanied by West and Perkins, and began gathering her possessions. As she did so, West and Perkins observed marihuana in several places in the mobile home. The marihuana was seized, and was the basis for Count II. Its admissibility is not questioned in this appeal.
About a half hour passed while Ms. Kinslow removed items from the mobile home. During this time, deputy Heiskell reappeared, accompanied by a highway patrolman.
Asked how long he stayed in the mobile home while Ms. Kinslow was picking up her belongings, Perkins testified, "I wasn't in there too long at that time." Then, this:
Q Where did you go?
A Back outside to try to keep watch on the [shed].
....
Q Had it caught fire, yet?
A No, but I was checking on it because I thought the motor was getting hot.
After Ms. Kinslow left the mobile home, Perkins removed some screws from a hasp by which a padlock secured the shed door. This enabled West to open the door.
The officers entered the shed and found marihuana suspended on screens above a heater blowing warm air upward. West disconnected the heater. The officers seized the marihuana, which was the basis for Count I.
Appellant's first point avers the trial court erred in denying Appellant's motion to suppress the shed marihuana as evidence in that it was seized in violation of his constitutional right to be free from an unreasonable search and seizure. Appellant asserts no exigent circumstances existed to search the shed without a search warrant, and the marihuana was not in plain view. 7
The State maintains Perkins lawfully discovered the shed marihuana in that exigent circumstances existed which justified his opening the window, pushing aside the blanket, and peering in. The State underscores this segment of Perkins' testimony:
Q Why did you look into the [shed]?
A Because I was afraid something was on fire in there.
The State relies on Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984). There, the Supreme Court of the United States recognized that a burning building creates an exigency that justifies a warrantless entry by fire officials to fight the blaze. 464 U.S. at 293, 104 S.Ct. at 646.
Here, of course, no flames were coming from the shed. However, according to Perkins, he thought he smelled something burning. An odor was a crucial factor in State v. Epperson, 571 S.W.2d 260 (Mo. banc 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979), where the Supreme Court of Missouri held an entry into the accused's home, without warrant, followed by seizure of evidence therein, was permissible because of exigent circumstances.
The State says Perkins' fear that something was afire in the shed was a circumstance of sufficient exigency to allow him to do what he did, without warrant, in determining whether a fire existed. Once he saw the marihuana, continues the State, the "plain view doctrine" applied.
That doctrine is recognized and set forth in State v. Schneider, 736 S.W.2d 392 (Mo. banc 1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 871 (1988). It allows seizure of evidence, without a search warrant, when: (1) the evidence is observed in plain view while the officer is in a place he has a right to be; (2) the discovery of the evidence is inadvertent; and (3) it is apparent to the officer that he has evidence before him. 736 S.W.2d at 399. The doctrine applies where the initial intrusion that brings the officer within plain view of the evidence is authorized by a recognized exception to the warrant requirement, such as the exigent circumstances exception. Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987).
We hold the evidence sufficient to support a finding that exigent circumstances existed--Perkins' fear that something was afire in the shed--justifying his raising the window, moving the blanket, and looking inside. See United States v. Echegoyen, 799 F.2d 1271, 1278-79 (9th Cir.1986). Consequently, no constitutional right of Appellant was violated when Perkins discovered the shed marihuana.
Appellant argues that even if Perkins' discovery of the shed marihuana was lawful because of exigent circumstances, the seizure was unlawful because of the delay between discovery and seizure. As best we can reconstruct the time sequence from the evidence, an hour and a half to two hours elapsed between discovery and seizure.
Citing State v. Rogers, 573 S.W.2d 710, 716 (Mo.App.1978), Appellant asserts that when the emergency validating the original warrantless entry ceases, further investigation may not proceed without authority of warrant. Id.
Other jurisdictions have considered instances where a delay occurred between discovery of evidence in plain view and physical seizure of it. In State v. Jolley, 312 N.C. 296, 321 S.E.2d 883 (1984), cert. denied, 470 U.S. 1051, 105 S.Ct. 1751, 84 L.Ed.2d 816 (1985), the accused fatally shot her husband in their home, then immediately phoned for help. A rescue squad and a law enforcement officer responded. The officer entered and saw a rifle six feet from the victim, who was being attended by rescue technicians. The officer...
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