State v. Abeln

• Decision Date: 11 May 2004
• Docket Number: No. WD 62180.,WD 62180.
• Citation: 136 S.W.3d 803
• Parties: STATE of Missouri, Appellant, v. Jonathan B. ABELN, Respondent.
• Court: Missouri Court of Appeals

136 S.W.3d 803

STATE of Missouri, Appellant, v. Jonathan B. ABELN, Respondent.

No. WD 62180.

Missouri Court of Appeals, Western District.

May 11, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2004.

Timothy W. Anderson, Assistant Attorney General, Jefferson City, MO, for appellant.

Frederick P. Tucker, Moberly, MO, for respondent.

Before JOSEPH M. ELLIS, Chief Judge, HAROLD L. LOWENSTEIN, Judge and ROBERT G. ULRICH, Judge.

JOSEPH M. ELLIS, Judge.

The State of Missouri appeals from an order entered by the Circuit Court of Macon County sustaining Respondent Jonathan B. Abeln's motion to suppress evidence sought to be introduced in the criminal case against him.¹ For the following reasons, we affirm.

I.

On December 13, 2001, Missouri State Highway Patrol Trooper Steve Wilhoit stopped Respondent's truck as he was traveling west on U.S. Highway 36 east of Bevier, Missouri. Based on evidence obtained after Abeln's vehicle was stopped, Abeln was charged with attempting to produce a controlled substance, § 195.211,² possession of a chemical with the intent to create a controlled substance, § 195.420, and possession of a controlled substance, § 195.202.

Prior to trial on those charges, Abeln filed a motion to suppress the evidence resulting from the traffic stop that led to his arrest, asserting the stop was improper and violated his Fourth Amendment right to protection against unreasonable seizure.

In opposing Abeln's motion, the State relied entirely upon a written stipulation as to the testimony Trooper Wilhoit would offer. By way of the stipulation, Trooper Wilhoit offered the following testimony. Trooper Wilhoit stated that he was driving west on U.S. Highway 36 when he received a dispatch indicating that an individual wearing a tan colored Carhart coat had been seen picking up a case of starter fluid at the Macon, Missouri Orscheln store. The dispatch further indicated that the individual put the case down after noticing people watching him, that he purchased one can of starter fluid and that he drove away in a burgundy pickup truck. The dispatch also indicated that Orscheln employees had seen the individual purchasing funnels and hoses earlier in the week. Trooper Wilhoit claimed that moments later he saw a burgundy pickup truck driven by a man wearing a tan Carhart coat driving east on U.S. Highway 36. Trooper Wilhoit indicated that he then made a U-turn across the median in his patrol car and started after the truck. The trooper testified that he could not get directly behind the truck because the highway changed to two-lanes before he reached the truck and another vehicle was between his patrol car and the truck. Trooper Wilhoit testified that he saw the individual reach toward the glove box, an action the trooper described as "furtive." The trooper claimed that, in correlation with the individual's movements toward the glove box, he "observed on 2 occasions ... that the passenger side tires of the truck traveled over what is commonly referred to as the fog line." He asserted that the individual's movements toward the glove box caused him "to go over to the shoulder." The trooper stated that he then passed the other vehicle, called the radio operator and ran a check on the license plate on the truck. The trooper indicated that the check revealed that the truck was registered to Abeln. Trooper Wilhoit further stated that he "had received information that Jonathon [sic] Abeln was involved in local methamphetamine trade and also had information that he was possibly carrying a pistol on his person." The trooper testified that he then activated his lights and made a traffic stop.

After reviewing the motions and the stipulated testimony, the trial court sustained Abeln's motion. The State appeals from that order.

II.

On appeal, the State contends that the trial court clearly erred in sustaining Abeln's motion to suppress because the trooper had probable cause to believe that Abeln had committed a traffic violation. The State further claims that the totality of the circumstances established that the trooper had a reasonable suspicion to believe that Abeln was involved in criminal activity.

The first fundamental problem with the State's argument on appeal is that, while properly setting out the proper standard of review for this court to follow on appeal, the State wholly disregards that standard of review in making its argument. The State treats all of the trooper's stipulated testimony as though it had been found credible by the trial court. The State then views the evidence and all reasonable inferences drawn therefrom in the light most favorable to itself and disregards all evidence and inferences to the contrary.

"`At a suppression hearing, the State bears both the burden of producing evidence and the risk of nonpersuasion to show by a preponderance of the evidence that the motion to suppress should be overruled.'" State v. England, 92 S.W.3d 335, 339 (Mo.App. W.D.2002) (quoting State v. Weddle, 18 S.W.3d 389, 391 (Mo. App. E.D.2000)). In ruling on a motion to suppress, "[t]he trial court may choose to believe or disbelieve all or any part of the testimony presented by the State, even though it may be uncontradicted, and may find the State failed to meet its burden of proof." State v. Talbert, 873 S.W.2d 321, 325 (Mo.App. S.D.1994) (emphasis added).

In reviewing the trial court's decision to grant a motion to suppress, we view the evidence presented and all reasonable inferences drawn therefrom in the light most favorable to the trial court's order and disregard all evidence and inferences to the contrary. State v. Hoyt, 75 S.W.3d 879, 882 (Mo.App. W.D.2002). Even where the trial court's decision was based solely "`on the records,' we defer to the trial court as the finder of fact in determining whether there is substantial evidence to support the judgment and whether the judgment is against the weight of the evidence." Reece v. Director of Revenue, 61 S.W.3d 288, 291 (Mo.App. E.D.2001). We defer to the trial court's factual findings, and the only issue that we review de novo where the trial court has ruled on a motion to suppress is whether the Fourth Amendment was violated as a matter of law under the historical facts found by the trial court. State v. Schmutz, 100 S.W.3d 876, 878 (Mo.App. S.D.2003). "If the ruling is plausible, in light of the record viewed in its entirety, an appellate court will not reverse, even if convinced that it would have weighed the evidence differently." State v. Haldiman, 106 S.W.3d 529, 533 (Mo.App. W.D.2003) (citing State v. Milliorn, 794 S.W.2d 181, 184 (Mo. banc 1990)).

Where, as here, "the parties have not requested findings of fact or conclusions of law and none are entered, the trial court is presumed to have made findings in accordance with the decree entered," and "[t]he judgment will be affirmed under any reasonable theory supported by the evidence." State v. Kampschroeder, 985 S.W.2d 396, 398 (Mo.App. E.D.1999). Thus, we must view the evidence submitted to determine whether it would support any set of factual findings under which the trial court could have found that the State failed to meet its burden of proving that the stop was proper.

III.

On the record in this case, the trial court could reasonably have found that Trooper Wilhoit did not observe any driving behavior that would warrant stopping Respondent's vehicle to issue a citation or a warning. First, in light of Trooper Wilhoit's overall testimony, it cannot be said that it would be unreasonable for the trial court to be skeptical about the witness' credibility. The stipulation is succinct, cursory and without the explanation that trial testimony might provide. The trooper's stipulation relates that he observed a gray over burgundy Ford pickup traveling west on U.S. Route 36 "east of Bevier" while he was traveling east and that he was able to observe that the driver was wearing a "tan colored Carhart style coat." U.S. Route 36 west of Macon and east of Bevier is a four lane, divided highway, and the speed limit is 65 miles per hour.³ To find any justification for the stop, the trial court would have had to believe: (1) that Trooper Wilhoit, while traveling east at highway speed on a four lane, divided highway, was able to look out his window, across the median, and identify Abeln's pickup truck traveling west at highway speed and also observe that Abeln was wearing a "tan colored Carhart style jacket"; (2) that later Trooper Wilhoit, while traveling west on a two lane undivided highway, with a vehicle between him and Abeln's pickup, was able to see the passenger side tires of Abeln's truck travel over the fog line⁴ twice; and (3) that Trooper Wilhoit, while traveling west on a two lane undivided highway, with a vehicle between him and Abeln's pickup, was able to see Abeln making "several furtive motions for the passenger side of the truck,"⁵ and from that testimony infer that Abeln was being stealthy, doing something wrong, or that there was something sinister afoot. While all of this may have been possible, and may all be true, it would not be unreasonable for a fact finder to conclude that (1) it would be impossible to identify a "tan colored Carhart style jacket" on Abeln under the circumstances described by the officer; (2) it would be impossible for the driver of a car on a two lane road that is following another vehicle to observe the "passenger side tires" of a pickup in front of the intervening vehicle travel across the fog line; and (3) that it is highly unlikely that the officer could even see what the driver of the pickup was doing, but assuming he could, there was nothing sinister or stealthy about Abeln's motions toward the passenger side.⁶

In ruling on a motion to suppress, "[t]he trial court may choose to believe or disbelieve all or any part of the testimony presented by the State, even though it may be uncontradicted, and may find the State...