State Of Mo. v. Johnson

• Decision Date: 31 August 2010
• Docket Number: No. WD 70816.,WD 70816.
• Citation: 316 S.W.3d 390
• Parties: STATE of Missouri, Respondent,v.Kenneth Leroy JOHNSON, Appellant.
• Court: Missouri Court of Appeals

316 S.W.3d 390

Missouri Court of Appeals Western District.

STATE of Missouri, Respondent,v.Kenneth Leroy JOHNSON, Appellant.

No. WD 70816.

April 13, 2010.

Application for Transfer Denied

Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Nancy A. McKerrow, Assistant State Public Defender, Columbia, MO, for Appellant.

Chris Koster, Attorney General, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.

KAREN KING MITCHELL, Judge.

The State charged Appellant Kenneth L. Johnson with possession of a controlled substance. § 195.202, RSMo 2000. Johnson was convicted by a jury in the Circuit Court of Boone County, the Honorable Gary Oxenhandler presiding. Johnson preserved his right to appeal the circuit court's adverse ruling on his pre-trial motion to suppress evidence, which, if it had been granted, would have resulted in an acquittal. We affirm.

Facts and Procedural Background¹

On July 3, 2007, Officer Jonathan Logan and Officer Lance Bolinger were patrolling Douglas Park in Columbia, Missouri, during a special event. Logan was off-duty but was wearing his police uniform. Logan observed Johnson riding his bicycle. Logan testified that he had knowledge that there was an outstanding warrant for Johnson's arrest. Logan testified that he could not remember where he had obtained the information, but he remembered hearing about the outstanding warrant within the two weeks prior to his arrest of Johnson. Logan testified that he normally learned of warrant information at shift meetings, from other officers, or from the department's memorandum system. Logan was familiar with Johnson because he had arrested him in the past. When Logan heard about the outstanding warrant, Logan placed Johnson's name on a personal list that he maintained. Logan periodically checked his personal list of outstanding warrants to verify that they were still active; however, Logan did not check his list on July 3, 2007.

Logan stopped Johnson and said, “Kenny, I think you have a warrant.” Logan and Bolinger stepped in front of Johnson's bicycle, blocking his progress. Logan asked for Johnson's full name and date of birth so that he could check the police records to verify that the warrant for Johnson's arrest was still active. Logan testified that, had he not briefly detained Johnson, he could not have confirmed the active status of the warrant because “there's thousands of Kenny Johnsons.... You need a date of birth and a Social Security number to help confirm that.”

Both Logan and Bolinger testified that, while they were verifying that the warrant was still active, Johnson was not free to leave.

Through contacting the joint communications office of the police department, Bolinger verified that a warrant for Johnson's arrest was active. The warrant was issued by Monroe County on a misdemeanor charge of driving while intoxicated.

The police officers then handcuffed and searched Johnson. The search revealed two marijuana cigarettes. Bolinger transported Johnson to the police station. The police conducted an inventory search of Johnson. Turning out Johnson's pockets, the police found crack cocaine. The crack cocaine was not discovered during the initial search because it was pushed into the seam and not discoverable without turning the pocket inside out. The crack cocaine is the controlled substance at issue in this appeal.

Johnson filed a motion to suppress the evidence of the crack cocaine on the ground that its discovery resulted from an unlawful seizure of his person. Johnson argued that the police violated his rights under the Fourth Amendment to the United States Constitution when they initially stopped him. On July 8, 2008, the circuit court denied the motion to suppress.

Johnson went to trial. At trial, Johnson maintained a continuing objection to the admission of any evidence of the crack cocaine or marijuana. The trial court overruled the motion and denied Johnson's motion for an acquittal. The jury found Johnson guilty of possession of a controlled substance. The circuit court sentenced Johnson as a prior and persistent offender to seven years in prison. The court denied Johnson's motion for acquittal notwithstanding the verdict, or, in the alternative, for a new trial.

This direct appeal follows. In his only point on appeal, Johnson argues that the circuit court erred in denying his motion to suppress the evidence of the crack cocaine.

Standard of Review

Once the accused files a motion to suppress evidence, the State has the burden to show that the evidence is admissible. State v. Hernandez, 954 S.W.2d 639, 642 (Mo.App. W.D.1997). In reviewing the circuit court's denial of a motion to suppress evidence, our inquiry is limited to whether the decision is supported by substantial evidence. Jackson, 186 S.W.3d at 879. We consider the facts in the light most favorable to the ruling, and we disregard any contrary evidence and/or adverse inferences. Id. We defer to the circuit court for factual findings and credibility determinations, but we review questions of law de novo. Id. “An appellate court will not reverse a trial court's ruling on a motion to suppress unless the decision is clearly erroneous and leaves the appellate court with a definite and firm impression a mistake has been made.” Id.

Legal Analysis

The question presented by this appeal is whether, at the time he stopped Johnson, Logan had reasonable suspicion that there was an active warrant for Johnson's arrest.²

I. The Fourth Amendment

Johnson alleges that by stopping and subsequently searching him, the police violated his rights under the Fourth Amendment of the United States Constitution and article I, section 15 of the Missouri Constitution. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. The Fourteenth Amendment to the United States Constitution rendered the Fourth Amendment applicable to state action. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). While the Missouri Constitution may extend protections farther than those provided by the United States Constitution, such is not the case with respect to searches and seizures, for article I, section 15 of the Missouri Constitution is parallel to and co-extensive with the Fourth Amendment. State v. Rushing, 935 S.W.2d 30, 34 (Mo. banc 1996).

II. The Terry Stop exception to the Fourth Amendment's warrant requirement

Subject to only a few specific and well-delineated exceptions, warrantless searches and seizures are deemed per se unreasonable. State v. Martin, 79 S.W.3d 912, 916 (Mo.App. E.D.2002). The exception at issue here was first acknowledged by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There, the Court established the “stop and frisk” or “ Terry stop” exception to the Fourth Amendment's warrant requirement. Id.

Under the Terry stop exception, a police officer acts reasonably, and therefore does not violate the Fourth Amendment, when he or she “briefly stops or detains an individual ... to investigate when the officer has a reasonable suspicion supported by specific and articulable facts that criminal activity is afoot.” Martin, 79 S.W.3d at 916 (citing State v. Slavin, 944 S.W.2d 314, 317 (Mo.App. W.D.1997)); see also State v. Dixon, 218 S.W.3d 14, 22 (Mo.App. W.D.2007) (“[T]he Fourth Amendment requires that all warrantless ‘seizures' of an individual be founded upon at least reasonable suspicion that the individual seized is engaged in wrongdoing.”). The suspected criminal activity need not be ongoing-if a police officer has reasonable suspicion that a crime has occurred in the past, he or she may briefly stop the suspected individual for investigative purposes. United States v. Hensley, 469 U.S. 221, 227, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985).

The standard for “reasonable suspicion” is “whether the facts available to the officer at the moment of the seizure warrant a person of reasonable caution in the belief that the action taken was appropriate.” State v. Lanear, 805 S.W.2d 713, 716 (Mo.App. W.D.1991). This standard requires less certainty than that sufficient to establish “probable cause”; however, a justified Terry stop must still be supported by “ ‘some minimal level of objective justification.’ ” Id. (quoting Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). In determining whether the standard for “reasonable suspicion” has been met, the court must evaluate all of the relevant circumstances and must consider them together, not in isolation. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). In evaluating whether the “reasonable suspicion” standard has been met, we are mindful that police officers are permitted to make use of all of the information available to them, and they may make inferences from that information that would not be made by members of the public, who lack access to the officer's knowledge, information, and training. Id.

Assuming that reasonable suspicion exists at the outset of a Terry stop, the scope of the search and/or seizure that follow must be “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry, 392 U.S. at 19, 88 S.Ct. 1868 (quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring)).

III. The Terry stop exception as applied to Logan's stop of Johnson

1. A seizure occurred before Logan confirmed that the warrant for Johnson's arrest...