Doe v. St. Louis Cnty. Police Dep't, No. ED 104149

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Colleen Dolan, Judge
• Citation: 505 S.W.3d 450
• Parties: John DOE, Appellant, v. ST. LOUIS COUNTY POLICE DEPARTMENT, Criminal Records Repository, St. Louis County Prosecuting Attorney's Office, Associate Court Division 35, and Lambert International Airport P.D. Transportation Security Administration, Respondents.
• Decision Date: 13 December 2016
• Docket Number: No. ED 104149

505 S.W.3d 450

John DOE, Appellant,
v.
ST. LOUIS COUNTY POLICE DEPARTMENT, Criminal Records Repository, St. Louis County Prosecuting Attorney's Office, Associate Court Division 35, and Lambert International Airport P.D. Transportation Security Administration, Respondents.

No. ED 104149

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: December 13, 2016

Matthew D. Fry, John H. Moffitt, St. Louis, MO, for Plaintiff/Appellant.

Shujat A. Qalbani, Clayton, MO, for Defendant/Respondent St. Louis County Police Department.

Associate Circuit Division 35, Clayton, MO, Pro Se.

St. Louis County Prosecuting Attorney, Clayton, MO, Pro Se.

Criminal Records Repository, Jefferson City, MO, Pro Se.

Lambert International Airport P.D. Transportation Security Admin., St. Ann, MO, Pro Se.

Colleen Dolan, Judge

I. Introduction

John Doe (Petitioner) appeals an order and judgment of the Circuit Court of St. Louis County denying his petition for expungement under § 610.122 RSMo Supp. 2014.¹ Petitioner argues the court erred in finding his arrest was not based on false information. We reverse.

II. Factual and Procedural Background

On October 3, 2014, Petitioner arrived at the Lambert–St. Louis International Airport (the Airport) and was detained when Transportation Security Administration (TSA) agents found a loaded, semi-automatic pistol in his carry-on luggage as he passed through a security checkpoint. Petitioner was arrested for unlawful use of a weapon in violation of § 571.030.1(1). He

505 S.W.3d 452

was subsequently charged in St. Louis County Circuit Court and the case was dismissed on May 18, 2015, following the prosecutor's filing of a memorandum of nolle prosequi .

On August 5, 2015, Petitioner petitioned the court for expungement of his arrest. Petitioner testified at the expungement hearing that TSA agents did find his gun inside his carry-on luggage when it was screened at a security checkpoint within the Airport. Petitioner stated he informed the police he had a valid concealed carry permit but he had removed it from his wallet in anticipation of his vacation. He explained that he had forgotten to remove his firearm from his backpack, which he had not checked prior to entering the screening area in order to save time. Petitioner testified that his concealed carry permit was valid at the time of his arrest and he had not been re-charged with any crime relating to this incident, or received a suspended imposition of sentence for the offense. He also testified that he did not have any prior or subsequent misdemeanor or felony convictions and that no other civil action was pending relating to his arrest in this case. The court found there was probable cause to believe that Petitioner committed the offense of unlawful use of a weapon at the time of the arrest and the arrest was not based on false information. Accordingly, the court denied Petitioner's petition for expungement.

On March 3, 2016, the court heard arguments on Petitioner's motion for new trial. Petitioner asserted there was no probable cause at the time of the expungement hearing to believe Petitioner committed a crime because it was undisputed that Petitioner possessed a valid concealed carry permit at the time of his arrest. The court acknowledged the proper standard under § 610.122 is not probable cause at the time of the arrest but whether there was probable cause at the time of the action to expunge. The court did not make a finding of whether there was probable cause for the arrest at the time of the expungement hearing. Instead, the court stated that in its original ruling, it found the arrest was not based on false information and denied the motion for new trial on that basis.

The court took judicial notice of § 571.030.1(1), which states: "A person commits the offense of unlawful use of [a] weapon[ ], except as otherwise provided by section 571.101 to 571.121, if he or she knowingly: (1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use into any area where firearms are restricted under section 571.107." Section 571.107 lists where a concealed carry permit does not authorize concealed firearms. Petitioner argued that he did not commit the offense of unlawful use of a weapon because § 571.107.2 specifically provides that it is not a "criminal act" for a person with a valid concealed carry permit to carry a concealed firearm into an airport in Missouri. Petitioner further argued that arresting someone and charging them with a crime for conduct that is not criminal must involve the use of false information. However, the court found that Petitioner did have a gun in his backpack while going through security, concluded that the arrest was not based on false information, and denied Petitioner's motion.

Petitioner filed a notice of appeal to this Court on March 14, 2016.

III. Standard of Review

Under Missouri law, any record of arrest may be expunged if: (1) the court determines it was based on false information; (2) there was no probable cause at the time of the expungement hearing to believe the individual committed the offense;

505 S.W.3d 453

(3) no charges were pursued as a result of the arrest; (4) the arrest did not lead to a suspended imposition of sentence; (5) the petitioner has no prior or subsequent misdemeanor or felony convictions; and (6) no civil action is pending relating to the arrest or records sought to be expunged. § 610.122 ; In re Dyer , 163 S.W.3d 915, 918 (Mo. banc 2005).

On review of a court-tried case, we affirm the judgment of the court "unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Doe v. Mo. State Highway Patrol Crim. Records Repository , 474 S.W.3d 171, 174 (Mo. App. E.D. 2015). "The trial court's application of...