State v. Allen, WD
| Decision Date | 02 February 1988 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Rudolph H. ALLEN, Appellant. 39274. |
| Court | Missouri Court of Appeals |
Donald W. Petty, Gladstone, for appellant.
William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.
Before COVINGTON, P.J., and SHANGLER and MANFORD, JJ.
This is a direct appeal from a jury conviction for possession of a controlled substance, in violation of § 195.020, RSMo 1986. The judgment is reversed and appellant ordered discharged.
Appellant presents two points which, in summary, charge the trial court erred in (1) overruling his motion to suppress evidence obtained as a result of a motor vehicle search in that the search which discovered the evidence was without probable cause and without consent, and (2) in overruling his motion for acquittal because the prosecution failed to prove appellant was in possession of more than 35 grams of marijuana.
The pertinent facts are as follows:
On September 23, 1986, a Missouri Highway Patrolman was operating his vehicle westbound on I-70 in Lafayette County, Missouri. At about mile post 57, he observed an eastbound vehicle. (No other eastbound vehicles were present.) The trooper determined by radar that the eastbound vehicle was traveling at 66 m.p.h., some 11 miles per hour above the then-permitted speed limit. The trooper crossed the median and pursued the eastbound vehicle. The red lights atop the patrol vehicle were not operational, so the trooper drove alongside the eastbound vehicle and another trooper (a passenger in the vehicle) signaled to the operator of the eastbound vehicle to pull over and stop, and the eastbound vehicle responded immediately.
The trooper who had been driving the patrol vehicle approached the driver's side of the eastbound vehicle and asked the driver for his license. The driver (appellant) immediately provided the trooper with an Illinois operator's license. The trooper had observed Illinois license plates on the vehicle and asked for registration papers. Seated in the right front seat was a female passenger, who presented to the trooper an automobile-rental agreement, which was not legible, and her Illinois driver's license. The trooper asked appellant if he (appellant) would accompany him (the trooper) back to the patrol vehicle and appellant readily agreed.
The two troopers and appellant returned to the patrol vehicle. One trooper engaged appellant in conversation while preparing a "warning ticket." The trooper asked appellant where he was going. According to the trooper's testimony, appellant told him that they were en route to Chicago, Illinois, and were coming from Jackson, Kansas. The trooper testified he thought that was unusual since he had lived and worked in the general area for years and had never heard of Jackson, Kansas. The trooper then retrieved an atlas from the visor over the steering wheel and asked appellant where Jackson, Kansas was located. Appellant then responded, "Yeah, it's around Kansas City." The trooper then stated, "Do you mean Jackson Avenue?", to which appellant responded, "Yeah, Jackson Street." The trooper then asked appellant who the female passenger was, and appellant told the trooper she was his (appellant's) girlfriend. The trooper then asked her name and appellant, at first, mumbled, then stated, "I don't know her name." The trooper thought it unusual that appellant would not know the name of the claimed girlfriend, and told appellant so, to which appellant responded, "Well, her name is Martha Lewis." The trooper, being in possession of the female's Illinois driver's license, observed the name thereon as Maureen Wright, which was her correct name. The trooper testified that appellant was evasive in his responses, would mumble and stutter, which led to the trooper's asking the questions more than once. The trooper asked appellant where he had been specifically, and appellant responded that he had been at a "guy's house." The trooper asked appellant how long he had been there and appellant said a couple of days. The trooper then asked appellant if he could look through the vehicle and appellant responded, "Sure, go ahead." The trooper handed a written consent to search form to appellant and asked him to sign it. According to the trooper, appellant started to sign the form and then stated to the trooper, "Well, the car is rented to her, so maybe I should let her sign it." The trooper then stated to appellant, To this, appellant responded, "Okay".
The trooper then proceeded to the right side of the stopped vehicle and engaged the female passenger in conversation. He asked her to step outside the vehicle and she did so. The trooper and the female passenger were standing at the right-front fender of the stopped vehicle on the shoulder when the trooper asked her if he could look through the stopped vehicle. According to the trooper's testimony, she stated, "That will be okay." At that point, the trooper handed her a written consent to search form, along with the request that she sign it. She started to sign the form, then stopped and told the trooper, "I really don't know if I should sign this or not."
The trooper, having received an oral consent from both appellant and the female, commenced a search of the interior of the vehicle in the front seat area. He checked for weapons and found none. He removed the keys from the ignition, went to the trunk, and upon opening it, observed a large trash bag containing what he suspected to be marijuana. Later, chemical analysis established the substance to be marijuana and its weight was nearly 19 pounds. Both appellant and the female were placed under arrest.
A pre-trial motion to suppress was filed and a hearing was held on the motion. Both appellant and the female testified only that they had not given the trooper consent to search the vehicle. The motion was...
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