Settle v. State
| Decision Date | 08 August 1984 |
| Docket Number | No. WD,WD |
| Citation | 679 S.W.2d 310 |
| Parties | Robert J. SETTLE, Appellant, v. STATE of Missouri, Respondent. 34189. |
| Court | Missouri Court of Appeals |
James R. Wyrsch, Charles E. Atwell, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before LOWENSTEIN, P.J., and MANFORD and BERREY, JJ.
The defendant Robert Settle appeals a jury conviction for felony possession of a Schedule II narcotic, hydromorphone, in violation of § 195.200.1(1) RSMo.1978. He received a sentence of seven years imprisonment. This opinion will first address the defendant's challenge to the admission into evidence, over his motion to suppress, of evidence claimed to be the fruit of an illegal stop and illegal search of the defendant's car.
Both parties rely upon the evidence adduced at the suppression hearing as well as that developed at trial. See State v. Lane, 613 S.W.2d 669, 674 (Mo.App.1981). The focus lies primarily on the transcript of the hearing on the motion to suppress for the facts surrounding this issue, State v. Shelli, 675 S.W.2d 79 (Mo.App.1984), although all evidence bearing on the question may be considered on appeal. See State v. Hohensee, 473 S.W.2d 379, 380 (Mo.1971).
On May 22, 1981 Sergeant Joseph McHale of the Kansas City, Missouri Police Department drove the night shift patrol in north Kansas City. He wore a uniform and carried a gun. He drove alone in an unmarked Plymouth police car having no emergency lights, sirens or markings identifying it as a Kansas City police car other than a spotlight on the driver's side.
Close to 2:00 a.m. McHale patroled through a Quik Trip parking lot, a convenience store that remained open at that hour, on Highway 169 and Englewood Road in Clay County. He spotted a vehicle with Missouri license plates occupied by two women who appeared to be in their twenties. Another car, with Wyandotte County, Kansas plates, also drove into the lot. From the vantage point of a bank parking lot, McHale saw the two women leave their car and walk over to talk to the driver of the second car, defendant Settle, who appeared to be in his forties. The age difference between the two women and Settle, as well as the second car's out-of-state license plate, caught the officer's attention.
McHale watched as the two women walked over to Settle's car and then "promptly turned back around, got in their car, and proceeded to leave" without going into the store. He considered their behavior "strange." On cross-examination, he stated there could have been laughter exchanged. McHale also did not think at this time that Settle was drunk nor did he see him drink anything.
The two women proceeded onto Broadway in their car, Settle followed, and McHale followed behind both of the two cars. After leaving the corporate limits of Kansas City and after having entered into the city of Gladstone, McHale observed Settle's car "[leave] the roadway on the shoulder going off the road" at one point on the 5700 block of North Broadway. He stated Settle's rear wheel went onto the road's shoulder. He considered this "to be an indication that [the defendant] possibly was driving under the influence" and notified his Kansas City dispatcher to request assistance from the Gladstone police. He did not state what facts, if any, were related to the dispatcher. Officer Coup of the Gladstone Police Department testified he had been dispatched "to back a Kansas City police officer on a car check, traffic violation ...." McHale stated on cross-examination that the lack of any emergency equipment on his car prevented him from stopping Settle's car on Broadway.
McHale continued following the two cars into the North Star Apartments. McHale stated on cross-examination that the defendant had not committed any misdemeanor or felony, but believed a traffic violation in Gladstone had occurred. He had also checked Settle's license plate for wants or warrants before stopping. He stated he wished to talk to the defendant because he "felt him running off the road would give [him] probable cause to question him as to his sobriety ... during that time of the morning." Although his testimony states, "The vehicle was finally stopped at 6321 North Wyandotte," the only inference drawn from the evidence was the defendant stopped the car on his own, with McHale following shortly afterwards. When McHale was asked who was at the scene when the vehicle was stopped, he responded, "I requested Gladstone and Gladstone responded." The only inference to be drawn from the testimony, however, was that some interval of time transpired between his arrival and the arrival of two Gladstone officers, Coup and Toman. McHale did not testify on direct examination regarding what specific actions he took before the arrival of the Gladstone officers. He did state no arrest occurred, and refers to having taken identification from the two women, running a computer check on them, and allowing them to leave before the arrival of the Gladstone officers. He does not specifically refer to having taken identification from the defendant, although he refers to running a computer check using the defendant's identification upon the arrival of the Gladstone officers. On cross-examination, McHale stated he had walked up to the defendant and received identification from all three persons. He had told the two women "to come back to him."
McHale testified Officer Coup arrived in Officer Toman arrived in a separate car after Officer Coup. At McHale's direction, Officer Coup stood watching Settle while McHale continued checking Settle's identification, although problems with the computer had arisen. McHale did not state on direct what facts, if any, he related to the Gladstone officers regarding his reasons for stopping Settle. On cross-examination, McHale stated, "I believe I told [the Gladstone officers] that [the defendant] had gone off the road" in Gladstone. Neither McHale or Coup related any observations of the defendant supporting McHale's suspicion that Settle had been drinking alcohol or was intoxicated.
Officer Coup continued to watch Settle, who stood carrying a can of pop in one hand. Coup then saw Settle reach into his pocket with his other hand and pull out some object he could not identify. Settle then threw the can of pop, along with the unidentified object, into a grassy area. Coup asked the other two officers to watch Settle while he retrieved whatever had just been thrown by the defendant. Coup looked and less than a foot away from the can of pop, found a prescription vial containing small yellow tablets and small plastic bags containing a white powdery substance. Trial testimony identified two of the yellow tablets as hydromorphone.
The defendant was then placed under arrest, frisked, and his car opened and searched. A search of the car produced a handgun lying on the floorboard of the car, a brown sack containing additional white plastic bags of white powdery substances, some syringes, and some black pills. The plastic bags appeared similar to those found in the prescription vial. A search of the defendant's person produced another plastic bag holding a white powdery substance. Except for the gun, which was not allowed into evidence, all of the seized items were entered into evidence over the defendant's objections. Only the small yellow tablets in the prescription vial thrown by Settle were found to be controlled substances. The contents of the vial formed the basis of the charge for which Settle was convicted. At trial the powdery substance was identified as "kiddie dope," a non-controlled substance.
At the Gladstone Police Headquarters, Officer Coup administered a breathalyzer test to the defendant after completing paperwork. The test came out as .01, well below the level considered as legally intoxicated. The officers issued a citation for careless and imprudent driving. Trial testimony indicated the citation was dismissed.
According to the defendant at the suppression hearing, on the evening in question Settle drove out to visit the women. One of the women, Brenda Langston, who testified on his behalf, had known Settle, through her husband, for approximately two years. She and her friend agreed to meet Settle at the Quik Trip parking lot after Settle telephoned to say he could not find her apartment using her directions. Settle denied going off the road with his car. The defendant testified that the car driven by the two women pulled into the North Star Apartments, in Gladstone, on the left side of a driveway leading into a yard area of the apartment complex. Settle pulled his car behind the first, and walked toward the two women before remembering his car was unlocked. He walked back and locked his car, and had returned to the first car when Officer McHale's car then pulled in on the left side of the driveway, next to Settle's. The defendant testified that McHale He also requested identification from the two women. When Brenda told him she did not have identification on her person but could obtain it from her apartment, McHale refused to allow her to get the identification and instead asked for and received her name and birthdate. McHale then called into his dispatcher with the names. The defendant stated he did not attempt to walk away from the area because McHale Other than requesting the identification, McHale did not command him to halt or to freeze. Nor was he advised that he was being charged with anything. The two women were allowed to leave...
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