State Of Mo. v. Pesce

• Decision Date: 30 November 2010
• Docket Number: No. WD 71559.,WD 71559.
• Citation: 325 S.W.3d 565
• Parties: STATE of Missouri, Respondent, v. Cynthia A. PESCE, Appellant.
• Court: Missouri Court of Appeals

325 S.W.3d 565

STATE of Missouri, Respondent,

v.Cynthia A. PESCE, Appellant.

No. WD 71559.

Missouri Court of Appeals,Western District.

Nov. 30, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

William J. Swift, Columbia, MO, for appellant.

Shaun J. Mackelprang and James B. Farnsworth, Jefferson City, MO, for respondent.

Before Division Four: LISA WHITE HARDWICK, Chief Judge, Presiding, MARK D. PFEIFFER, Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.

After a jury trial, Cynthia Pesce was convicted of possession of a controlled substance (methamphetamine), Section 195.202. ¹ Based on this conviction, Pesce was sentenced by the trial court as a “prior offender” and “persistent offender” ( Section 558.016) to five years in the Missouri Department of Corrections. For the reasons stated below, we affirm Pesce's conviction and enter an order amending the trial court's judgment of sentence.

I. Factual Background

Cynthia Pesce was charged in the Circuit Court of Buchanan County with possession of a controlled substance for events occurring on October 23, 2008, in violation of Section 195.202. The substitute information alleged that Pesce was a “persistent offender” under Section 558.016 because she had been convicted of “two or more felonies committed at different times.”

Prior to trial, Pesce filed a motion to suppress the methamphetamine in question, based on her allegation that it was unlawfully seized during an “illegal detention.” After an evidentiary hearing, the trial court denied Pesce's motion to suppress.

Beginning on July 7, 2009, the case was tried before a jury. After the jury returned a guilty verdict on the sole count charged, the trial court sentenced Pesce to five years in the Missouri Department of Corrections as a prior and persistent offender on September 21, 2009. Pesce now appeals.

Further facts pertaining to the circumstances of Pesce's arrest and conviction will be outlined as relevant in the analysis section.

II. Analysis

In Point One, Pesce argues that the “trial court clearly erred in overruling the motion to suppress ... methamphetamine found in Ms. Pesce's car because ... she was unlawfully detained once the check on her driver's license and registration were completed as the investigation of the alleged traffic violation of careless and imprudent driving was over such that the subsequent questioning that occurred without reasonable suspicion of criminal activity constituted an illegal detention that rendered the continuation of the encounter non-consensual and made any subsequent purported consent to search invalid.”

The Missouri Supreme Court outlined our applicable standard of review in State v. Sund regarding the trial court's ruling on a motion to suppress:

A trial court's ruling on a motion to suppress will be reversed on appeal only if it is clearly erroneous. This Court defers to the trial court's factual findings and credibility determinations, and considers all evidence and reasonable inferences in the light most favorable to the trial court's ruling. Whether conduct violates the Fourth Amendment is an issue of law that this Court reviews de novo.

215 S.W.3d 719, 723 (Mo. banc 2007) (citations omitted). “When reviewing the trial court's overruling of a motion to suppress, this Court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling.” State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005).

The Fourth Amendment to the United States Constitution guarantees that individuals will not be subject to unreasonable searches or seizures. U.S. Const. amend. IV. A “seizure” occurs when the totality of the circumstances surrounding the incident indicates that “a reasonable person would have believed that he was not free to leave.” State v. Werner, 9 S.W.3d 590, 600 (Mo. banc 2000) (quotation omitted).

“As a general rule, warrantless searches are considered unreasonable and, therefore, prohibited by the Fourth Amendment.” State v. Brand, 309 S.W.3d 887, 892 (Mo.App. W.D.2010). “When a defendant moves to suppress evidence found as a result of a search that she claims violates the Fourth Amendment, it is the State's burden to show that the search was reasonable and that it was conducted under circumstances such that a warrant was not required.” Id. “One case where a warrant is not required for law enforcement to conduct a search of an automobile is when the owner of the automobile voluntarily consents to the search.” Id. “An officer may at any time ask a citizen whether he has contraband in his car and may ask for permission to search; if consent is given without coercion, the subsequent search is not prohibited by the Fourth and Fourteenth Amendments.” State v. Woolfolk, 3 S.W.3d 823, 831 (Mo.App. W.D.1999).

“A routine traffic stop based on the violation of state traffic laws is a justifiable seizure under the Fourth Amendment.” State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). “So long as the police are doing no more than they are legally permitted and objectively authorized to do, the resulting stop or arrest is constitutional.” Id. “The fact that the police may detain a person for a routine traffic stop does not justify indefinite detention, however.” State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004). “The detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic violation.” Id. “A reasonable investigation of a traffic violation may include asking for the driver's license and registration, requesting the driver to sit in the patrol car, and asking the driver about his destination and purpose.” Id. at 517 (quotation omitted).

Here, Pesce does not dispute that the police had probable cause to detain her for the traffic violation of careless and imprudent driving. Rather, it is Pesce's contention that on appeal that her “continued detention was illegal and made any consent [to search her vehicle] invalid.”

At the suppression hearing, the only evidence presented was the testimony of Trooper John Gilliland of the Missouri State Highway Patrol. Trooper Gilliland testified that on October 23, 2008, he received notice from dispatch that various individuals had complained that a Cadillac Seville, traveling westbound on U.S. 36, “was all over the road, driving off the shoulder and coming back.” Trooper Gilliland made contact with the Cadillac Seville on U.S. 36 and observed the “vehicle travel off onto the outside shoulder” of the road twice, and he then pulled the vehicle over for a traffic stop.

Trooper Gilliland next made contact with the driver of the vehicle, who identified herself as Cynthia Pesce and provided the Trooper an Iowa identification card, but no driver's license. Pesce was alone in the vehicle. After being asked by Trooper Gilliland about her erratic driving, Pesce responded that “something was wrong with one of her tires.” Trooper Gilliland checked all four of the tires but found nothing visually wrong with any of them. Trooper Gilliland again advised Pesce why he pulled her over, and Pesce responded by “moving around, speaking rapidly, just kind of act[ing] nervous.” The Trooper “asked her to come and take a seat” in his patrol car.

When Pesce was seated in the patrol car, Trooper Gilliland noticed that she “continued to move around in [her] seat, was moving her hand, you know, twiddling, I mean, moving her hands a lot, speaking very rapidly [and][a]t some times it was hard to understand” her. Trooper Gilliland testified that Pesce “was constantly shifting her weight in my seat, constantly looking around, even when I was talking to her.” Trooper Gilliland testified that he found this conduct unusual because it was indicative of “drug involvement.”

While detaining Pesce during the traffic stop, Trooper Gilliland asked dispatch to run a records check on Pesce's car registration, driver's license, and criminal background, and these records checks eventually were provided to Trooper Gilliland. There is some contradiction in the evidence as to what order the records checks came back, but it appears from the evidence that the car registration and driver's license checks came back first and the criminal background check came back a few minutes later. Trooper Gilliland testified that the check of Pesce's driver's license revealed that she had a suspended driver's license in Iowa. While Trooper Gilliland did not immediately place her under arrest for this offense, nor did the State charge her with the offense, it goes without saying that the Trooper, at that point, could not allow Pesce to drive away in light of the fact that her license was suspended. ² It should also be noted that Pesce was also not ever charged or written a ticket for the careless and imprudent driving charge that gave rise to the original stop.

Trooper Gilliland then asked her from where she was coming, and Pesce responded Des Moines, Iowa, which was consistent with the direction she was traveling. Between the time the Trooper was given the results of the car registration check and driver's license check and the time that the Trooper was given the results of the criminal records check, the Trooper asked Pesce if there was anything illegal in her vehicle, to which Pesce responded that there was not. Trooper Gilliland then asked for Pesce's consent to search the contents of her vehicle, and Pesce verbally consented to the search. When requesting consent, Trooper Gilliland did not threaten Pesce in any way or suggest that he would obtain a search warrant or call a drug sniffing dog if Pesce did not consent. At the time he asked for Pesce's consent to search the vehicle, Trooper Gilliland stated that while he “had observed behavior that were indicators to drug use,” he “didn't have any other reason to suspect her of anything other than careless and imprudent driving” and that Pesce was not under...