Despite no trespassing sign, police went to area of common use when they went to back door of house

Facts

Kathleen and Charles Bowman married in 2003 and moved to 68 Owl Hoot Road in Pearl River County. Kathleen’s family members testified that throughout their relationship, although Kathleen was in poor health, Bowman never held a job on any consistent basis and so the financial burden was on Kathleen, and Kathleen felt it a lot. Bowman and Kathleen’s relationship was “rocky,” they often fought, and, according to Gerald (her brother), Kathleen was isolated and a lot of it (her isolation) had to do with Bowman. In 2009, Kathleen asked for his help to move her to Lafayette, Louisiana, to move in with their mother because she was leaving Bowman. And she did leave Bowman. However, Kathleen then moved back to Pearl River County with Bowman.

The Bowmans’ home at Owl Hoot Road was in disrepair and the couple was planning to build a new house on the property. Kathleen had injured her knee while working at Lockheed Martin and was supposed to get a workers’ compensation settlement in the spring of 2018, and, according to Gerald, Bowman claimed that he would soon be receiving money from a trust fund. With Kathleen’s workers’ compensation settlement and Bowman’s trust fund, the couple planned to finance the new house.

On Mother’s Day 2018, Bowman dropped Kathleen off at a family gathering at Gerald’s home. Kathleen spent the day with her family and, by all accounts, Kathleen was happy. But Gerald also testified that Kathleen confided in him that she was upset with Bowman and had given him an ultimatum on the Friday before he dropped her off on that Mother’s Day. She told him that if he did not show proof of the trust fund, she would no longer tolerate the “façade,” and their relationship would be over. Kathleen planned to give Bowman until Tuesday of the following week to produce the proof. That Mother’s Day weekend was the last time Kathleen’s family saw her alive.

Kirby (Kathleen’s daughter), Gerald, and Kathleen’s son Patrick all testified that for several weeks, they texted Kathleen as they normally did, but they received delayed or unusual responses back from Kathleen. They could not get Kathleen on the phone, and she would not return their calls. Toward the end of June, Patrick was planning a birthday party for his daughter and invited Kathleen (the child’s grandmother) to attend. He received no response. The next day, he received a strange text message from Kathleen’s phone that she was too busy to come. He tried to call Kathleen several times without success. At that point, the family members talked to each other about what was happening, and they knew then that something was wrong.

Kirby contacted the Pearl River County Sheriff’s Office for a welfare check on Kathleen. Deputy Jerry Fleming drove to the Bowman home. Bowman was in the front yard. He told Deputy Fleming that Kathleen was not at home but was on the coast. Deputy Fleming tried to call Kathleen but could not reach her.

Later that night, Deputy Fleming received a call from someone who identified herself as Kathleen Bowman. Deputy Fleming explained that her children were worried about her and asked her some identifying questions. He asked the woman for Kathleen’s height, weight, eye color, driver’s license number, and social security number. The woman hesitated for several seconds with every question but answered every question correctly except for the social security number. Deputy Fleming was unconvinced that he had spoken to Kathleen, so he sent two deputies to Kathleen and Bowman’s house to make contact with her (the second welfare check).

Deputy Jeremy Quave of the Pearl River County Sheriff’s Office testified that he drove to Owl Hoot Road for another welfare check on Kathleen. Quave knocked on the front door, and no one answered. He glanced inside a white Nissan parked outside, and no one was in the car. He knocked on the back door of the house and still received no answer. He could hear a dog barking inside. He left.

Late that same evening, a man named Antwanne Brazley called the Bay St Louis Police Department, reporting that he had been approached by an older white man in the parking lot of the Economy Inn in Bay St. Louis. Brazley said that the man was seeking a female to “do something sketchy for him.” The man explained that he needed a woman who was “white or really sounded white” to call the Pearl River Police Department and pose as his wife because her children had reported her missing. Brazley testified that he was with his girlfriend Alexandria Stevens at the motel and told the man that Alexandria could help. Alexandria testified at trial and said that Bowman asked her to call the police and pretend to be Kathleen. He had Kathleen’s “ID” and gave Alexandria all of Kathleen’s personal information. He also gave Alexandria a cell phone to use to make the call and sixty dollars.

As they (Bowman and Alexandria) were making the call, Brazley stepped outside where Bowman’s car was parked next to his own. He noticed that there was blood all over the front passenger seat of the man’s vehicle. Brazley said, “There was a white towel on the passenger’s seat and a blue towel wrapped around the head part of the seat. I reached in there, and I moved the towel, and the seat had nothing but blood everywhere; just nothing but blood.”

When Bowman finished with the phone call, Brazley confronted him. Brazley testified, “I’m like you killed your wife, and he was like, no, it’s just animal blood. It’s animal blood. I’m like man you killed your wife but the only thing he kept saying was it’s animal blood; dog.” Later Brazley drove to a gas station and called the police about what he had seen. He spoke to Officer James Sanchez who came to the gas station to collect Brazley’s information. Brazley had taken a photo of Bowman’s car tag and gave the information to Sanchez.

Sanchez testified that he ran the tag number from the photo Brazley had given him. Brazley had also given him an envelope on which Brazley had written the name Kathleen Bowman and a birth date. The vehicle registration came back as registered to Kathleen and Charles Bowman. Officer Sanchez then had dispatch contact the Pearl River County Sheriff’s Office with this information. Deputy Quave of the Pearl River County Sheriff’s Office testified that this call came in about 1:00 a.m. and prompted a third welfare check for Kathleen. Deputy Quave went back to Owl Hoot Road, but no one answered the door. The white Nissan that was there earlier in the night was gone.

Around 5:00 a.m., Chief Investigator Marc Ogden of the Pearl River County Sheriff’s Office obtained a search warrant for the property on Owl Hoot Road. Deputy Fleming helped with the search and looked inside a shed. There, he found a metal bucket containing what appeared to be human bones and a woman’s ring. Kirby testified that the ring belonged to Kathleen and that she never went anywhere without it. They then searched a burn pit on the property and found more human bones and a medical stent. The remains were confirmed to be those of Kathleen.

A manhunt for Bowman began and he was captured in Utah. When Bowman saw the police, he said, “It’s not what you think. I just committed a small felony.” They took Bowman into custody. Pursuant to a search warrant, his vehicle was searched. In the vehicle, among other things, were various knives and guns. Parts of the interior of the car were saturated with blood. DNA analyst George Shiro with Scales Laboratory testified that he compared the swabs of blood taken from Bowman’s car to the DNA of Kathleen’s mother Geraldine Fabre and determined that Geraldine was the mother of the person whose blood was in the car with a probability of 99.992 percent. The parties stipulated that the remains found at the Bowman property were those of Kathleen Bowman.

A bullet was found lodged in the driver’s seat of the car. Chief Investigator Ogden testified that given the height of the bullet hole in the side part of the driver’s seat and the angle of the bullet hole, you would have to be on the other side of the car to make that hole while shooting. The person would have to be standing on the passenger side of the car with the door open.

Bowman said that Kathleen shot herself with his gun outside of a bank in Slidell, Louisiana, as they were going to talk about options for financing the new house. He panicked because Kathleen’s mother was a devout Catholic so he burned her body, lied to Deputy Fleming, asked Alexandria to make a call to police, and then left for Utah to think about everything some more.

Bowman was convicted of murder and sentenced to 40 years. On appeal, he argued there was insufficient probable cause for the warrants and that going to his back door was an illegal trespass. MCOA affirmed.

Analysis

A. Search Warrant

Bowman asserts that the information underlying the warrants was insufficient to support a finding that a crime had probably been committed and that evidence of said crime could probably be found at the Bowman’s property. We disagree.

The written underlying facts and circumstances showed that Kathleen’s daughter was concerned about her mother and had received a text message from her that was not typical of her mother. Two attempts had been made by officers to make contact with Kathleen, but both were unsuccessful. The same night, Bowman went to a motel to find a “female” to make “some phone calls for him.” A witness at the motel saw that the front seat of Bowman’s car was covered in blood. The oral testimony presented was that the same evening an officer received a phone call from a woman claiming to be Kathleen. We find that this information, taken as a whole, would justify a man of average caution to believe that a crime has been committed and that a particular person (Bowman) committed it.

B. Illegal Trespass

Bowman asserts that the search warrants were based on information obtained from illegal entries onto his property because there was a “no trespassing” sign. We find this assertion is without merit under the applicable Mississippi law. In Mitchell v. State, 792 So. 2d 192 (Miss. 2001), for example, the police were searching for a missing person, as in this case, and went to the defendant’s property without the defendant’s permission to go on the property. One of the officers came across the defendant on the property and told him they just wanted to ask him some questions. The defendant fled. Again like the officers here, the officers in Mitchell went only to areas of common use on the property, including the driveway and the back door. Citing Waldrop v. State, 544 So. 2d 834 (Miss. 1989), the MSC held that a claim of trespass cannot be made regarding areas that are typically used by visitors.

As explained in Waldrop, it is not objectionable for an officer to come upon that part of the property which has been open to public common use. Continuing, the MSC observed that the route which any visitor to a residence would use is not private in the Fourth Amendment sense, and thus if police take that route for the purpose of making a general inquiry or for some other legitimate reason, they are free to keep their eyes open. Summarizing this principle, the MSC observed, thus, when the police come on to private property to conduct an investigation or for some other legitimate purpose and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.

In the case before us, the officers drove on the driveway to enter the property, and went to the front door and back door of Bowman’s home—areas of “common use.” Based on the MSC decisions in Mitchell and Waldrop, we find no “illegal trespass.” Because the information supporting the search warrants was not obtained illegally, we find that the trial court did not err in denying Bowman’s motions to suppress on this basis.

C. The Utah Evidence and the “Fruit of the Poisonous Tree” Doctrine

Bowman asserts that the same facts supporting the searches of the Mississippi property were also insufficient to support the search of his vehicle in Utah and, in any event, the evidence obtained through the search warrant for Bowman’s car in Utah should have been suppressed as “fruit of the poisonous tree inasmuch as the initial Mississippi warrant was invalid.” The “fruit of the poisonous tree” doctrine prohibits introduction into evidence of tangible materials seized during an unlawful search. However, as discussed above, the searches in this case were lawful. Specifically, we find that the search warrants for both the Mississippi and Utah searches were issued based upon a sufficient showing of probable cause, and the search warrants were not based on information illegally obtained by trespass. We therefore find that Bowman’s “fruit of the poisonous tree” assertion with respect to the Utah evidence is without merit.

 

https://courts.ms.gov/images/Opinions/CO164513.pdf