State v. Woods

• Decision Date: 23 May 1990
• Docket Number: Nos. 16691,16784 and 16786,16693,s. 16691
• Parties: STATE of Missouri, Plaintiff-Appellant, v. John R. WOODS, Defendant-Respondent (Two Cases).
• Court: Missouri Court of Appeals

Page 253

790 S.W.2d 253

STATE of Missouri, Plaintiff-Appellant, v. John R. WOODS, Defendant-Respondent (Two Cases).

Nos. 16691, 16693, 16784 and 16786.

Missouri Court of Appeals,

Southern District,

Division One.

May 23, 1990.

Martin Mazzei, Pros. Atty., Steelville, for plaintiff-appellant.

Arthur S. Margulis, Margulis & Grant, P.C., St. Louis, Dan L. Birdsong, Thomas, Birdsong, Clayton & Haslag, Rolla, R. Brooks Kenagy, Steelville, for defendant-respondent.

PARRISH, Judge.

John R. Woods (hereafter referred to as "defendant") is defendant in two criminal cases pending in the Circuit Court of Crawford County. He is charged in case number CR289-399FX with possession of more than 35 grams of marijuana, a controlled substance, § 195.020, ¹ and in case number CR289-407FX with unlawful possession of a firearm silencer (Count I), § 571.020.1(5), and unlawful possession of a machine gun (Count II), § 571.020.1(2). Defendant moved in each of the cases to suppress certain evidence. The trial court, after evidentiary hearing, ² sustained the motions in both criminal cases. The evidence that was suppressed was evidence seized from the premises of John R. Woods on May 30, 1989. "Said evidence includes but is not limited to marijuana, cocaine, drug paraphenalia [sic], weapons and ammunition of various descriptions and kinds." The State of Missouri filed interlocutory appeals from the trial court's suppression orders in the two criminal cases. ³ § 547.200. This court affirms.

The following parameters apply. Evidence obtained by an illegal search and seizure is not admissible against a defendant in a criminal case. U.S. Const. amend. IV; Mo. Const. art. I, § 15; State v. Mercer, 618 S.W.2d 1, 9 (Mo. banc), cert. denied, 454 U.S. 933, 102 S.Ct. 432, 70 L.Ed.2d 240 (1981); State v. Venezia, 515 S.W.2d 492, 493 (Mo. banc 1974); State v. Sutton, 454 S.W.2d 481, 484 (Mo. banc 1969). Evidence is inadmissible if illegally obtained, directly or indirectly, as a consequence of lawless official acts as contrasted to evidence obtained from "independent source." Peterson v. United States, 411 F.2d 1074 (8th Cir.), cert. denied, 396 U.S. 920, 90 S.Ct. 247, 24 L.Ed.2d 199 (1969).

In reviewing the trial court's order suppressing the evidence in question, the facts and reasonable inferences therefrom are to be stated favorably to the order challenged on appeal. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985). The correctness of the trial court's decision is measured by whether the evidence is sufficient to sustain the findings. Id.; State v. Cross, 757 S.W.2d 613, 614 (Mo.App.1988).

Defendant and his wife own approximately 3,000 acres of land in Crawford County which they use for recreational purposes. There are several buildings on the property, including a house that defendant's family sometimes uses as "a weekend residence." Defendant allows friends to hunt on the acreage.

In 1986 defendant anticipated having guests hunting at his property during deer hunting season. Defendant was interested in having someone available to patrol his property during the deer hunting season to keep poachers off the property, "and to generally ensure order for my hunters." A conservation agent introduced Stanley Warner to defendant. Warner was a water patrolman and a commissioned deputy sheriff. Defendant hired Warner at a rate of compensation of $7.50 per hour to work during the 1986 deer hunting season. In 1987 defendant and Warner made the same arrangement.

In 1988 defendant purchased additional property. There was a house on the new property. Defendant inquired of Warner whether he would be interested in renting the house. Defendant offered the house to Warner for $400 per month rent with an allowance of $200 per month for services which Warner would perform. The services would be performed throughout the year. Defendant had paid Warner "some $1,000 to $1,100" per year to assist during deer hunting season in 1986 and in 1987. The $2,400 credit on rent would pay for the same services Warner had previously provided during deer hunting season, "and the balance would be for the rest of the year, keeping an eye on the place." Warner accepted defendant's offer.

After the rental arrangement was made between defendant and Warner, Warner's duties remained similar to those he had been performing during deer hunting seasons. Defendant gave Warner keys to some of the buildings on the property, including keys to the residence (cabin) where defendant and his wife stayed when they were at the property. Defendant gave Warner authority to enter the cabin in the event of an emergency. Defendant did not show the cabin to Warner at that time. He had shown the cabin to Warner previously. At the time the cabin was shown to Warner, the doors to the bedrooms were closed. The rooms were identified as bedrooms, but Warner was not shown inside the rooms.

In late February or early March, 1989, defendant's wife called Warner and reported that a burglar alarm in the cabin had been activated. She had been notified about the alarm by a security company that monitors it. Warner went to the cabin and found that the alarm had been activated because the front door had blown open. He tried to shut off the alarm by entering a code in a keyboard which provides the controls for the alarm. That effort failed. Warner saw a note above the keyboard that said the shutoff was in the bedroom closet. He went to the cabin's master bedroom, found a grey metal box with a switch on its side, tried unsuccessfully to shut the alarm off there, then called the alarm company. Warner was told to just enter the code through the keyboard. After entering the code, "about four more times," the alarm stopped. Warner testified that during the time he was in the closet attempting to shut off the alarm from the control box, he smelled what he believed was the odor of burnt marijuana. He did nothing about it then.

On May 12, 1988, Warner entered the cabin again. He had been given pieces of a telephone that had been converted to a lamp for delivery to defendant. He had previously left the items for defendant in a barn. After the items remained there for some time, Warner decided to take them to the house and leave them on a kitchen table. Warner testified that while he was in the kitchen, he looked across a breakfast bar at a tray and saw what he thought was a remnant of a marijuana cigarette, a "roach." He picked it up, ripped it open and, believing it to be marijuana, took a piece of brown paper bag from under a counter, wrapped it up and put it in a sandwich bag. He testified that he started to call defendant to report what he had found, but as he started to the telephone, he recalled the earlier occasion when he smelled what he thought was burnt marijuana in the closet to the master bedroom. Warner again went to the closet. He testified:

. . . . .

I have a really good nose for dope and so I just more or less sniffed it down to the chest of drawers and when I opened the center drawer in the chest of drawers there was a paraphernalia, a little bottle of seeds that I thought were Marijuana seeds, and there was rolling papers, rolled up bags of, plastic bags that had what I thought was residue Marijuana left in it.

He opened a medicine bottle that was in the drawer and found twelve hand-rolled cigarettes that he believed to be marijuana. He took nothing from the drawer, shut it, then left the cabin. Warner took the remains of the cigarette that he had seized from the counter in the kitchen. He placed that item in the evidence vault assigned for his use at the Crawford County Courthouse.

On May 15, the following Monday evening, Warner went back to the cabin. His purpose was to inspect the contents of the drawer he had previously inspected. He let himself in the front door with his key and went directly to the chest of drawers in the master bedroom closet, looked in the container where the twelve hand-rolled cigarettes had been and found "only ten left." He saw nothing else unusual in the cabin. He left, taking nothing from the cabin.

After May 15, Warner was away for four days attending a training program. Upon his return on May 19, Warner met with the chief deputy sheriff at a local restaurant and told the deputy sheriff about his observations. The chief deputy sheriff told Warner to "keep a handle on it." Warner was told by the chief deputy sheriff that a search warrant could be requested if it could be determined when the items believed to be marijuana cigarettes were disappearing. That same day Warner and the chief deputy sheriff met with the sheriff of Crawford County. The sheriff was told about Warner's observations.

After leaving the May 19 meeting with the sheriff, Warner planned again to enter the cabin. On May 29, after a holiday weekend, Warner again entered the cabin for purposes of determining whether or not more of the cigarettes had been smoked. While in the cabin on this occasion, Warner observed a balloon hanging from a small drawer in a piece of furniture in the living room of the cabin. Warner observed a residue of white powder in or on the balloon. He seized the balloon, then again entered the closet in the master bedroom and opened the drawer in the chest of drawers that he had previously examined. He did not again open the jar in which he previously found the hand-rolled cigarettes. Warner took the balloon that he had seized to the sheriff's office. Eventually, a laboratory analysis determined that the residue of white powder was not from a controlled substance.

On May 30, Warner and the chief deputy sheriff of Crawford County met with the sheriff and furnished the information that Warner had developed to the sheriff. Thereafter, the sheriff executed an affidavit to apply for a search warrant. Information that was provided by Warner was referred to in the affidavit as having come from a confidential informant. A search warrant was issued for purposes of searching the...