State v. Abercrombie

• Decision Date: 21 May 2007
• Docket Number: No. 27814.,27814.
• Citation: 229 S.W.3d 188
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jodi Lynn ABERCROMBIE, Defendant-Appellant.
• Court: Missouri Court of Appeals

229 S.W.3d 188

STATE of Missouri, Plaintiff-Respondent, v. Jodi Lynn ABERCROMBIE, Defendant-Appellant.

No. 27814.

Missouri Court of Appeals, Southern District, Division Two.

May 21, 2007.

Motion for Rehearing or Transfer to Supreme Court Denied June 11, 2007.

Application for Transfer Denied August 21, 2007.

Margaret Mueller Johnston, Columbia, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

In October 2003, Jodi Lynn Abercrombie (Defendant) was convicted after a bench trial of committing the class C felony of possessing methamphetamine. See § 195.202.¹ The court suspended imposition of sentence and placed Defendant on three years probation. In June 2006, Defendant's probation was revoked for stealing, and she was sentenced to three years imprisonment. The court suspended execution of sentence and placed Defendant on two years probation. On appeal, Defendant claims the trial court erred in denying her motions to suppress and admitting in evidence two baggies of methamphetamine that had been hidden on Defendant's person. Defendant surrendered the drugs to police after her arrest for possessing marijuana, which had been discovered during an earlier, warrantless search of her car. Defendant contends the methamphetamine should have been excluded because it was discovered only after her illegal seizure by police following a traffic stop. We affirm.

I. Standard of Review

At a suppression hearing, "[t]he burden of going forward with the evidence and the risk of nonpersuasion shall be upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled." § 542.296.6; State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992). Therefore, the State bore the burden of production and persuasion to show that the warrantless search of Defendant was valid. State v. Hampton, 959 S.W.2d 444, 450 (Mo. banc 1997).

On appeal, we only determine whether the trial court's decision to deny the motion to suppress is supported by substantial evidence. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). In reviewing that ruling, we consider the record made at the suppression hearing and the evidence introduced at trial. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). The complete record before the trial court is viewed in a light most favorable to the ruling on the motion to suppress. State v. Jackson, 186 S.W.3d 873, 879 (Mo.App. 2006). We disregard all evidence and inferences unfavorable to the court's ruling. State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001); State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998).

We will not reverse the trial court's ruling unless the decision is clearly erroneous, leaving this Court with a definite and firm impression that a mistake has been made. State v. Williams, 97 S.W.3d 462, 469 (Mo. banc 2003); State v. Newberry, 157 S.W.3d 387, 397-98 (Mo App.2005). We review issues of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). We give deference, however, to the trial court's factual findings and credibility determinations. Id. For this reason, "[t]he trial court may not be reversed if its decision is plausible, even if we are convinced that we would have weighed the evidence differently if sitting as the trier of fact." State v. Davalos, 128 S.W.3d 143, 147 (Mo.App.2004). The evidence and inferences contained in the complete trial record, viewed in the light most favorable to the trial court's ruling on the motion to suppress, are summarized below.

II. Factual and Procedural Background

On May 31, 2002, Sullivan police officer Shannon Gregory (Officer Gregory) was on duty. Sometime between midnight and 2:00 a.m., Officer Gregory received a dispatch that reported possible narcotics activities at the Sullivan Wal-Mart. According to the dispatch, the police department had received a telephone call from Wal-Mart reporting that two white, slender females with light-colored hair had been in the store purchasing components to manufacture methamphetamine. The caller described the vehicle these persons were driving as a "blue over silver" Cavalier with Missouri license plate number 918-PYE. Officer Gregory went to Wal-Mart, but he was unable to locate the car in the immediate vicinity.

On June 1, 2002, Officer Gregory was on duty again. At 1:43 a.m., he observed a "blue over silver" Cavalier with Missouri license plate number 918-PYE. After calling in the license and determining that it was supposed to be on a 1986 Ford automobile, he activated his emergency lights and stopped the car. Defendant was the only person in the vehicle. She remained inside her car, and Officer Gregory stood on the shoulder. Defendant was not acting unusually nervous, and Officer Gregory saw nothing suspicious or illegal in the vehicle. He asked for Defendant's license and registration. She produced her driver's license and a bill of sale for the vehicle dated April 27, 2002. Officer Gregory gave Defendant a summons for failing to register her vehicle, and she signed it. At that point, the traffic stop ended. Defendant was free to go, although Officer Gregory did not tell her so in "those exact words." This part of the encounter had lasted about three minutes.

Because the car Defendant was driving matched the description of the vehicle identified in the Wal-Mart dispatch from the prior evening, Officer Gregory was concerned. He decided to request consent to search the car. He asked Defendant if she could step out of the car and step to the rear so he could speak with her.² Defendant walked back and stood on the sidewalk between her car and Officer Gregory's vehicle. Defendant was joined there by Officer Gregory and another officer who had arrived at the scene. Officer Gregory asked Defendant if she would consent to a search of her car. Defendant was told that it was her decision and that she could refuse to permit the search. She gave permission for her car to be searched.

During the search, Officer Gregory found a blue baggie containing a green, leafy substance that appeared to be marijuana inside a bag on the passenger seat. The bag also contained a spiral notebook with Defendant's name written on it. Defendant was arrested for misdemeanor possession of marijuana, patted down for weapons and taken to the Sullivan Police Department for further processing.

At the station, Officer Gregory asked that Defendant's person be searched by a female officer, Jerri Janssen (Officer Janssen). Prior to the commencement of that search, Officer Janssen asked Defendant if she had any drugs, weapons or paraphernalia on her. Defendant said she had "meth," and she reached inside her bra and removed two blue baggies.³ Each baggie contained a white powdery substance. Field tests of the baggies were positive for methamphetamine.

After being given a Miranda warning, Defendant voluntarily provided police with a hand-written statement concerning this incident.⁴ In the statement, Defendant said she found the two baggies containing methamphetamine in a tin can in the car as she was returning from St. Louis to her home in Sullivan. She removed the baggies from the can and placed them in her bra so she could later "confront" the person(s) who left the drugs in her car. The statement then recited that, "[w]hen I got pulled over I gave permission to search my car because I don't not [sic] have anything in my car & thought that because of what I found earlier that there was not anything."

In November 2002, Defendant was charged with committing the class C felony of possession of a controlled substance in violation of § 195.202. Subsequently, Defendant filed separate motions to suppress the evidence seized from her car and the statements she made to police based on the Fourth and Fourteenth Amendments to the United States Constitution and art. I, § 15 of the Missouri Constitution. Defendant contended the aforementioned evidence should be suppressed, pursuant to these constitutional provisions, because Defendant was illegally seized after her traffic stop was completed.

In March 2003, the trial court conducted a hearing on the motions to suppress and received testimony on these issues from Officer Gregory and Officer Janssen. After considering the evidence, the court denied the motions to suppress.

After Defendant waived her right to a jury, a bench trial was conducted in September 2003. Before any evidence was received, Defendant renewed the constitutional objections presented in her motions to suppress to preserve them for appellate review. By stipulation of the parties, the evidence at trial consisted of: (1) the testimony presented at the hearing on Defendant's motion to suppress; (2) a certified copy of Officer Gregory's police report, which included a copy of Defendant's statement to police; and (3) a certified copy of a laboratory report confirming that the powdery substance Defendant removed from her bra was .31 grams of methamphetamine. Defendant was convicted, and this appeal followed. Additional facts necessary to the disposition of the case are included below as we address Defendant's point on appeal.

III. Discussion and Decision

The issue presented is whether the trial court clearly erred in denying Defendant's motions to suppress and admitting evidence found during the search. Defendant argues that she was illegally seized, in violation of the Fourth Amendment of the United States Constitution and art. I, § 15 of the Missouri Constitution, because: (1) the initial traffic stop was over; (2) the police did not have any new, articulable suspicion that Defendant had committed a crime; (3) the discovery of marijuana during the warrantless search of her car occurred during an illegal seizure; and (4) the subsequent discovery of the methamphetamine was "tainted" by this seizure. For the reasons explained below, we disagree.

The Fourth Amendment to the United States...