Greene v. State

Decision Date03 September 2019
Docket NumberNo. SC 96973,SC 96973
Citation585 S.W.3d 800
Parties Cletus GREENE, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Supreme Court

585 S.W.3d 800

Cletus GREENE, Appellant,
v.
STATE of Missouri, Respondent.

No. SC 96973

Supreme Court of Missouri, en banc.

Opinion issued September 3, 2019
Rehearing Denied November 19, 2019


Greene was represented by Stephen Ranz of the public defender’s office in St. Louis, (314) 340-7662.

The state was represented by Shaun Mackelprang of the attorney general’s office in Jefferson City, (573) 751-3321.

Patricia Breckenridge, Judge

Cletus W. Greene appeals the motion court’s judgment overruling his Rule 29.15 motion for postconviction relief without an evidentiary hearing. He claims his trial counsel provided ineffective assistance in

585 S.W.3d 802

failing to seek suppression of methamphetamine found during a warrantless search of a cigarette pack seized from his pocket because the search occurred approximately 30 minutes after his arrest in an area outside Mr. Greene’s immediate control.

The motion court did not err in overruling Mr. Greene’s postconviction motion because trial counsel was not ineffective in failing to file a motion to suppress the evidence of methamphetamine found when Mr. Greene’s cigarette pack was searched. A motion to suppress would not have been meritorious because the search of the cigarette pack was a lawful search incident to arrest. Accordingly, this Court affirms the motion court’s judgment.

Factual and Procedural Background

In May 2014, officers assigned to the Southeast Missouri Drug Task Force responded to an anonymous tip regarding narcotics activity at a motel in Jackson, Missouri. Detective Bobby Sullivan, Detective Chris Newton, and other officers went to the second-floor balcony, where Mr. Greene stood with his friend, Matthew Robinson. Detective Newton talked with Mr. Greene, who was smoking a cigarette. Mr. Greene initially gave Detective Newton a false name, but Detective Sullivan personally knew him and addressed him by his real name. When Detective Sullivan asked if Mr. Greene "[had] anything on [him]," Mr. Greene responded, "Yes, I've got marijuana" and motioned down to his left front pocket.

The other officers noticed Mr. Robinson had a gun, so they handcuffed both men and moved them to the ground. Detective Sullivan then asked if he could remove the items in Mr. Greene’s pocket, and Mr. Greene consented. Detective Sullivan removed several items from Mr. Greene’s pocket, including a small bud of marijuana and a pack of Kool brand cigarettes.

Soon after the items were seized from Mr. Greene, the officers heard the door of a nearby motel room ("Room 1") slam shut. Detective Newton then heard shuffling inside. Upon knocking on the door and entering Room 1, officers found two men and two women they suspected of engaging in narcotics activity, carrying firearms, and destroying evidence. Task Force Officer Mike Alford arrived several minutes later and helped to secure the individuals in Room 1.

The officers placed the items seized from Mr. Greene’s pocket inside Mr. Greene’s hat and secured them, along with Mr. Robinson’s firearm, on the dresser in an adjacent motel room ("Room 2"), guarded by two officers standing out front. The male suspects found in Room 1 were searched and detained in that same room, and the officers searched Room 1. Simultaneously, the two female suspects were taken to Room 2, where they were searched. Directly after their search, the two women were escorted out of Room 2.

Approximately 30 minutes after Detective Sullivan initially removed the cigarette pack from Mr. Greene’s pocket, Officer Alford entered Room 2, opened the pack, and looked underneath the cellophane. There, he found a small plastic baggie containing an off-white substance "secured or taped to the top of the flip top on the inside." Detective Newton performed a field test, which indicated the substance was methamphetamine. This was later confirmed by a laboratory test.

Mr. Greene was charged, as a prior and persistent drug offender under sections 195.275, RSMo 2000, and 195.291.1, RSMo 2000, with the class C felony of possession of a controlled substance (methamphetamine), section 195.202, RSMo Supp. 2013. He pleaded not guilty and was tried by a jury. His defense counsel did not file a

585 S.W.3d 803

motion to suppress or object at trial to evidence of the methamphetamine found during the search of the cigarette pack. The jury returned a guilty verdict, and the circuit court sentenced him to 10 years in prison on the methamphetamine count.

Mr. Greene appealed the judgment, which was affirmed. State v. Greene , 476 S.W.3d 309 (Mo. App. 2015). He subsequently filed a Rule 29.15 motion, claiming his trial counsel was ineffective for failing to file a motion to suppress the methamphetamine found in his cigarette pack. The motion court overruled his postconviction motion without an evidentiary hearing, finding the search was legal because it was incident to a lawful arrest. Mr. Greene appealed the motion court’s judgment. After opinion by the court of appeals, this Court ordered the cause transferred. Mo. Const. art. V, sec. 10.

On appeal, Mr. Greene contends the motion court clearly erred in overruling, without an evidentiary hearing, his claim that trial counsel was ineffective for failing to file a motion to suppress the methamphetamine found in the warrantless search of the cigarette pack seized from his pocket. He asserts a Fourth Amendment challenge to the search would have been meritorious because the cigarette pack was subsequently searched unlawfully when it was outside the area of his immediate control and reasonable trial counsel would have challenged the search.

Standard of Review

"In reviewing the overruling of a motion for post-conviction relief, the motion court’s ruling is presumed correct." McLaughlin v. State , 378 S.W.3d 328, 336-37 (Mo. banc 2012). This Court overturns a motion court’s judgment only when its findings of fact or conclusions of law are "clearly erroneous." Rule 29.15(k). To be overturned, the ruling must create a "definite and firm impression that a mistake has been made." Zink v. State , 278 S.W.3d 170, 175 (Mo. banc 2009). Furthermore, a movant is entitled to an evidentiary hearing only if: "(1) [the movant] pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to [the movant]." McLaughlin , 378 S.W.3d at 337.

Review of claims of ineffective assistance of counsel are governed by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland , the Supreme Court recognized "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Id. at 684, 104 S.Ct. 2052. "[T]he right to counsel is the right to the effective assistance of counsel." Id. at 686, 104 S.Ct. 2052 (quoting McMann v. Richardson , 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ). To prevail on a claim for ineffective assistance of counsel under Strickland , a criminal defendant must demonstrate both that counsel "failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances" and that the defendant "was thereby prejudiced." Sanders v. State , 738 S.W.2d 856, 857 (Mo. banc 1987).

Both Strickland prongs must be proven by a preponderance of the evidence. McLaughlin , 378 S.W.3d at 337. When defense counsel fails to raise a Fourth Amendment claim, the defendant must "prove that [the defendant’s] Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence." Kimmelman v. Morrison , 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

585 S.W.3d 804

Fourth Amendment Claim Not Meritorious

Determination of the merits of Mr. Greene’s claim that the search of his cigarette pack was unlawful requires examination of Fourth Amendment jurisprudence. The Fourth Amendment protects the right to be free from "unreasonable searches and seizures." U.S. Const. amend. IV. A warrantless search is "per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). One exception to the warrant requirement is a search conducted incident to a lawful arrest. Id. Under this exception, an arresting officer may search: (1) "the person of the arrestee" and (2) "the area within the control of the arrestee." United States v. Robinson , 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The search incident to arrest exception allows officers "to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape" and to "seize any evidence on the arrestee’s person in order to prevent its concealment or destruction." Riley v. California , 573 U.S. 373, 383, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (quoting Chimel v. California , 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ).

In cases with facts similar to this case, the Supreme Court has...

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4 cases
  • State v. Higgs
    • United States
    • Missouri Court of Appeals
    • May 3, 2022
    ...search is "per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." Greene v. State , 585 S.W.3d 800, 804 (Mo. banc 2019) (quoting Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ). A search incident to arrest is one ......
  • State v. Higgs
    • United States
    • Missouri Court of Appeals
    • May 3, 2022
    ...to resist arrest . . . and to seize any evidence on the arrestee's person in order to prevent its concealment or destruction." Greene v. State, 585 S.W.3d at 807 Riley v. California, 573 U.S. 373, 383 (2014)). Here, upon Higgs's voluntary statement admitting to the possession of paraphernal......
  • State v. Creutz
    • United States
    • Missouri Court of Appeals
    • December 21, 2022
    ...search is 'per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.'" Greene v. State, 585 S.W.3d 800, 804 (Mo. banc 2019) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)). "Inventory searches are now a well-defined exception to the warrant......
  • Chandler v. State
    • United States
    • Missouri Court of Appeals
    • April 13, 2021
    ...omitted). "In reviewing the overruling of a motion for post-conviction relief, the motion court's ruling is presumed correct." Greene v. State, 585 S.W.3d 800, 803 (Mo. banc 2019) (internal quotation omitted). We will only find that a motion court has clearly erred when we are left with a d......

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