State v. Selvy

• Decision Date: 07 April 2015
• Docket Number: No. ED 101785,ED 101785
• Citation: 462 S.W.3d 756
• Parties: State of Missouri, Appellant, v. Charles A. Selvy, Jr., Respondent.
• Court: Missouri Court of Appeals

462 S.W.3d 756

State of Missouri, Appellant

v.Charles A. Selvy, Jr., Respondent.

No. ED 101785

Missouri Court of Appeals, Eastern District, DIVISION ONE .

Filed: April 7, 2015

Chris Koster, Atty. Gen., Andrew C. Hooper, Asst. Atty. Gen., P.O. Box 899, Jefferson City, MO 65102, for Appellant.

Samuel Buffaloe, 1000 West Nifong, Bldg. 7, Ste. 100, Columbia, MO 65203, for Respondent.

Opinion

LAWRENCE E. MOONEY, PRESIDING JUDGE

The State of Missouri brings this interlocutory appeal after the trial court sustained defendant Charles A. Selvy Jr.'s motion to suppress physical evidence found in a search during a traffic stop.¹ We affirm. The traffic stop and resulting search were unlawful in that the stop extended longer than necessary, without reasonable suspicion to justify extending the stop, and the consent given by Mr. Selvy was not voluntarily given. The trial court, therefore, did not clearly err in sustaining the motion and suppressing the evidence.

Factual and Procedural Background

Under the standard by which we review a trial court's order suppressing evidence, we view the facts and the reasonable inferences from those facts in the light most favorable to the trial court's ruling. The State acknowledges this standard, but then fails to apply it in bringing this appeal. Adopting the correct vantage point, we recount the circumstances of the traffic stop.

We begin by noting that the entirety of the traffic stop was recorded and subsequently viewed by the trial court before ruling on the Motion to Suppress.

Trooper Matthew Lomedico, of the Missouri State Highway Patrol, was on patrol one afternoon on the south side of Cape Girardeau in his fully-marked police car. Trooper Lomedico was not conducting a routine traffic patrol, rather he was part of a task force “looking for drugs” and conducting directed patrols to combat violent crimes and narcotic distribution on the south side of Cape Girardeau. Trooper Lomedico observed a car drive past him that displayed a rear Missouri license plate but not a front license plate. He activated his overhead lights, to pull the car over. Trooper Lomedico did not have to activate his siren, as the offending car immediately pulled over to the side of the road. Trooper Lomedico had “no problems” getting the car to stop. Once stopped, Trooper Lomedico, dressed in full uniform, with gun, exited his car and approached the offending car. He observed two men in the car—the driver, defendant Selvy, and a male passenger sitting in the front passenger seat. As Trooper Lomedico approached the car, he did not smell any marijuana. He did not see any drugs or alcohol. Indeed, Trooper Lomedico acknowledged at the suppression hearing, that he did not see anything illegal except the absence of a front license plate. Trooper Lomedico further testified that neither Mr. Selvy nor his passenger appeared to be under the influence of any drugs or alcohol.

Trooper Lomedico informed Mr. Selvy of the reason for the traffic stop, and asked him where his front license plate was. Mr. Selvy responded that he did not know, as it was his sister's car. Upon request, Mr. Selvy and the passenger immediately produced their identification for Trooper Lomedico. Mr. Selvy also produced his insurance papers. Neither Mr. Selvy nor the passenger tried to hide their identities. When Trooper Lomedico got the passenger's identification, he read the passenger's name, “Brian Harris,” out loud while standing next to the lowered driver's side window, with Mr. Selvy still sitting in the driver's seat.

Trooper Lomedico next asked Mr. Selvy to come sit in his patrol car. Selvy exited his car, and when asked, denied having a weapon on him. Mr. Selvy then consented to a pat-down prior to getting into the patrol car. Upon giving his consent, Mr. Selvy extended his arms out, so that Trooper Lomedico could perform the pat-down. Trooper Lomedico instead ordered Mr. Selvy to lean over and place his hands on the hood of the patrol car. Trooper Lomedico took one minute to perform the pat-down, and largely focused on Selvy's pants pockets. Trooper Lomedico found nothing illegal on Selvy. He did not find any drugs, and he found no weapon. Trooper Lomedico acknowledged at the hearing that Selvy was cooperative. The audiovisual recording reveals that Selvy answered all of Trooper Lomedico's questions, and that he made eye contact with the trooper when speaking to him.

With the pat-down completed, Trooper Lomedico and Mr. Selvy took their respective places in the patrol car. Trooper Lomedico sat in the driver's seat, where he began entering information into his laptop computer, in order to complete a records check of both men and so that the computer could print out the ticket. Mr. Selvy sat in the front passenger seat. The audiovisual recording shows that Selvy just sat in his seat, looking straight ahead. He did not fidget or make any other sudden or involuntary moves. Occasionally, he turned his head to look out the passenger-side window, and on occasion, when a car passed by, he turned his head to look out the driver's side window. He also occasionally looked in the direction of the computer, which was mounted in the front seat of the patrol car, between Selvy and Trooper Lomedico. Mr. Selvy responded to all of Trooper Lomedico's questions.

Trooper Lomedico, motioning towards Selvy's car, where the passenger was still sitting, asked Mr. Selvy, “How do you know him?” Selvy responded, “He's a family friend.” Despite the fact that Trooper Lomedico had the passenger's identification—it was sitting in front of him on the computer keyboard—and despite the fact that Trooper Lomedico had previously spoken the passenger's name out loud, and despite the fact that he knew Mr. Selvy knew all this, Trooper Lomedico nevertheless asked, “What's his name?” Mr. Selvy leaned toward the computer, and with a slight smirk on his face, responded, “Brian Harris, I guess.” He then pointed to the identification and said, “Right here, what it says on the id. He's just a family friend.” Selvy then stated that he was giving the passenger a ride home.

Trooper Lomedico remarked that Selvy had “hesitated” when answering, and asked Selvy, “You know what I mean?”

Mr. Selvy shook his head and said “No.” For the next three minutes, Trooper Lomedico continued working on his computer. Except for asking Mr. Selvy how old he was and if he had ever been arrested, Trooper Lomedico worked in silence. Selvy answered Trooper Lomedico's questions and looked at the trooper when doing so. Trooper Lomedico then abruptly told Selvy to “sit tight.” He then exited the patrol car and approached the passenger side of Selvy's car. He asked the passenger to step out of the car. The passenger complied. Trooper Lomedico asked the passenger his name, and asked where he and Mr. Selvy were going. Consistent with the identification, the passenger said he was Brian Harris. And consistent with Selvy's explanation, the passenger stated that Mr. Selvy was giving him a ride home. Trooper Lomedico told the passenger to have a seat back in the car, which he did.

Trooper Lomedico returned to the passenger side of his patrol car, opened the door, and asked Mr. Selvy to get out of the car. Selvy complied. Once standing outside the car, Trooper Lomedico asked Mr. Selvy, “So, what's going on tonight?” Trooper Lomedico then began asking Selvy for consent to search his car. Selvy said no, to which Trooper Lomedico asked, “Why don't you want me to search?” Trooper Lomedico then stated, “Why not?” Selvy responded, “I just don't.” Trooper Lomedico sarcastically repeated Selvy's answer, saying, “You just don't.” He then asked, “Am I going to have to call a canine?” and then “I can call a canine.” Selvy again responded, “I don't want you to search.” Trooper Lomedico again echoed Selvy's response, saying, “You don't want me to.” He then ordered Selvy to sit on the curb next to the patrol car. Mr. Selvy complied.

At this point, the passenger, Mr. Harris, called out the window to Trooper Lomedico, remarking that they had given the trooper their identification. Trooper Lomedico walked back to the passenger side of Selvy's car, to talk to Mr. Harris. Trooper Lomedico explained that he was asking Mr. Selvy to give his consent to a search of the vehicle, but that Selvy was refusing to give that consent. Mr. Harris remarked that it was not his vehicle. Trooper Lomedico said he knew that, and then asked if Mr. Harris had anything on him, Mr. Harris said no. Trooper Lomedico then asked if anything was in the car. Mr. Harris stated he did not know, and again stated that it was not his car. Trooper Lomedico stood in place for a short time and then turned and walked slowly back to Mr. Selvy sitting on curb. While other times Trooper Lomedico took only six seconds to walk from one car to the other, this time Trooper Lomedico took 12 seconds—double the time—to walk from one car to the other. Once back at his car, Trooper Lomedico stood over Mr. Selvy, hoisted up his weapon belt, crossed his arms, and stared down at Mr. Selvy on the curb without speaking. Trooper Lomedico stared at Selvy in silence for at least twelve seconds. He then told Selvy, “Last chance, man.” It was at this point that Selvy consented to a search of his car. That search revealed a bag on the backseat that contained crack and powder cocaine, hallucinogenic mushrooms, and marijuana. Trooper Lomedico placed Mr. Selvy under arrest.

The State charged Mr. Selvy with four counts of the class B felony of possession of a controlled substance with intent to distribute, in violation of Section 195.211 RSMo., and one count of the class A misdemeanor of possession of drug paraphernalia, in violation of Section 195.233. Selvy claimed that the search and seizure violated his rights under the United States and Missouri Constitutions, and that his consent was not voluntary or understandingly and knowingly given. He thus moved to suppress all evidence seized as a result of the search.

At the...