State v. Barnum
| Decision Date | 30 March 2022 |
| Docket Number | SD 36859 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Nikia BARNUM, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Attorney for Appellant: Ellen H. Flottman of Columbia, MO.
Attorneys for Respondent: Eric S. Schmitt, Atty. Gen., and Robert J. Bartholomew, Asst. Atty. Gen., of Jefferson City, MO.
Nikia Barnum (Defendant) was charged by information with committing the following offenses in December 2016: the class A felony of trafficking in the first degree in violation of § 195.222 (Count 1); the class D felony of resisting arrest in violation of § 575.150 (Count 2); the class C felony of possession of Adderall, a controlled substance, in violation of § 195.202 (Count 3); and the class A misdemeanor of possession of drug paraphernalia in violation of § 195.233 (Count 4).1
Defendant waived a jury trial, and he did not testify or present any evidence. After hearing all of the evidence and arguments, the trial court found Defendant guilty on all four counts. The court sentenced Defendant to 15 years’ imprisonment for trafficking in the first degree; two years for felony resisting arrest; five years for possession of a controlled substance; and 90 days in county jail (with credit for time served) for misdemeanor possession of drug paraphernalia. The sentences were concurrent, except for Defendant's sentence for felony resisting arrest. That sentence was to be served consecutively to the sentences imposed on the other counts. This appeal followed.
Defendant presents two points for decision. Point 1 challenges the sufficiency of the evidence on the resisting-arrest count. Point 2 challenges the denial of a motion to suppress. Finding no merit in either point, we affirm. For ease of analysis, we will review the points in reverse order.
In Point 2, Defendant challenges the denial of his motion to suppress evidence and the admission of that evidence at trial.2 The basis for Defendant's objection was that the highway patrol troopers he encountered did not have "reasonable suspicion that criminal activity was afoot" when they seized him. According to Defendant, this means all of the evidence recovered after the seizure should have been excluded. The motion to suppress was denied after the court conducted an evidentiary hearing. At trial, Defendant's objection was renewed, and additional evidence relevant to this issue was presented.
An appellate court reviews the trial court's denial of a motion to suppress in the light most favorable to that ruling, and we defer to the trial court's credibility determinations. State v. Rice , 573 S.W.3d 53, 66 (Mo. banc 2019). We will not reverse unless the trial court's ruling on the motion to suppress was clearly erroneous. State v. Holman , 502 S.W.3d 621, 624 (Mo. banc 2016). Clear error exists only if, after reviewing the entire record, an appellate court is left with the definite and firm belief a mistake has been made. Id .
The Fourth Amendment, applicable to the states through the Fourteenth Amendment, "protects the right of citizens to be free from unreasonable searches and seizures[.]" State v. Lovelady , 432 S.W.3d 187, 190 (Mo. banc 2014). "Warrantless seizures are generally unreasonable and, therefore, unconstitutional, unless an exception applies." Id . at 191 ; State v. Smith , 448 S.W.3d 835, 840 (Mo. App. 2014). One such exception involves the so-called Terry stop. See Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Pike , 162 S.W.3d 464, 472 (Mo. banc 2005). Pursuant to this exception, an officer may conduct a brief investigatory stop when he or she has a reasonable suspicion, based upon specific and articulable facts, that illegal activity has occurred or is occurring. Pike , 162 S.W.3d at 472. Another exception to the warrant requirement is an arrest based upon probable cause. See State v. Wykert , 639 S.W.3d 547 (Mo. App. 2022) ; State v. Ganaway , 624 S.W.3d 361, 366 (Mo. App. 2021).
On appeal, "determinations of reasonable suspicion and probable cause are reviewed de novo. " State v. Grayson , 336 S.W.3d 138, 142 (Mo. banc 2011) (internal quotation marks and citation omitted). We consider the evidence presented to the trial court at the hearing on the motion to suppress and the evidence presented at trial to determine whether there is sufficient evidence in the record to support the trial court's ruling. State v. Hughes , 563 S.W.3d 119, 124 (Mo. banc 2018). We have applied these principles in summarizing the evidence presented.
On December 9, 2016, the Missouri Highway Patrol conducted a "ruse drug checkpoint" operation on I-44 near Exit 33 in Lawrence County. Sergeant Gary Braden (Sergeant Braden) and Sergeant James Musche (Sergeant Musche) were involved in the operation. Signs were placed on the inner and outer shoulders of the eastbound lanes of I-44 that said: "Drug Checkpoint Ahead, K9 in Use." There was no actual drug checkpoint being conducted.
The signs were placed relatively close to Exit 33. This particular exit was chosen because there were no gas stations, convenience stores or restaurants nearby, and the abutting road, Lawrence County Road 1010 (Road 1010), was surrounded by "basically farm country" and provided access only to a few residences. Sergeant Braden described what happened if a driver took Exit 33:
On that day, they were observed. We would have an unmarked, plainclothes officer, unmarked vehicle and a plainclothes officer sitting on the shoulder of the exit. He would observe how the – how the vehicle exited the interstate. Then he would observe and watch for any violations the vehicle might have committed. And we're in contact with him via radio the entire time. And he would call out a vehicle, the make, model, color, sometimes the registration if he could see it, of the vehicle that was exiting and then he would watch for any violations and call those out if they committed one.
Before reaching Exit 33, eastbound drivers would have passed by a "big Kum & Go gas station, convenience store [and] Subway restaurant" located at the top of the ramp at Exit 29 in Sarcoxie.
At 2:15 p.m., the trooper sitting on the shoulder of Exit 33 called out a gray Toyota Corolla (the Corolla) with a Texas license plate. The trooper said that the Corolla "was in the left lane and abruptly changed lanes and took the exit kind of at the last second." No traffic violation was observed. The Corolla went to the top of the ramp and turned south on Road 1010. There were only farms and residences in that direction on Road 1010. There was nothing on Road 1010 that would cause a driver to believe there was either a gas station or business at which one could ask for directions. Sergeant Braden checked the plates via computer and determined that the Corolla was a Hertz rental car from Texas. Sergeant Braden followed the Corolla.
The Corolla traveled less than one-quarter of a mile and turned into the first residence on the west side of Road 1010. Sergeants Braden and Musche were familiar with that residence because a felony narcotics arrest had been made in the driveway the previous day. Based on that event, Sergeant Braden knew the people who lived there would not be at home. As Sergeant Braden drove by the residence, he saw Defendant, who was the driver, and a female passenger, later identified as Kimberly Shanks (Shanks), get out of the Corolla.3 Defendant and Shanks "hurried" to the front door of the residence and knocked on the door. Sergeant Braden pulled into the next driveway south of the residence. Sergeant Musche, in plainclothes and an unmarked vehicle, pulled in behind Sergeant Braden.
Sergeant Braden decided to make consensual contact with the occupants of the Corolla. Because the occupants were not the homeowners and their vehicle was a rental from Texas, the troopers needed to "check to see if they needed any assistance or what the circumstances were that they were at that residence." The troopers then pulled their vehicles into the driveway behind the Corolla, exited and approached Defendant and Shanks.
After the troopers identified themselves as investigators, Defendant abruptly placed both of his hands in the dark leather coat he was wearing. When asked about the nature of their trip, Defendant said he and his passengers were returning to Michigan from Oklahoma City after having been there for four or five days. Defendant identified himself with a Michigan driver's license. According to Sergeant Musche, "Oklahoma City and Tulsa are some of the largest methamphetamine hubs in the Midwest," and travel from Oklahoma City or Texas to Michigan would be consistent with moving methamphetamine.4
Defendant said that he was looking for a gas station. Sergeant Musche then asked Defendant why he didn't stop at Sarcoxie, but Defendant "didn't provide a plausible answer." During that entire conversation, Defendant paused before answering each question.
The troopers also noticed a large bulge under Defendant's coat, in the upper chest area. When asked what was in his coat, Defendant produced a prescription pill bottle out of his left coat pocket and showed it to Sergeant Musche. The bottle contained several pills and was labeled with a prescription for Adderall.5 The Adderall prescription was for a person named Timothy Shanks. At that point, Sergeant Musche knew: (1) this medication had not been prescribed for Defendant; (2) the bottle contained a number of pills; and (3) Adderall was a Schedule II controlled substance. Defendant claimed that the bottle belonged to Shanks’ son, although he was not present in the Corolla.
Sergeant Musche became concerned that the large bulge under Defendant's coat might be a concealed weapon. When Sergeant Musche reached out to touch the large bulge to make sure Defendant did not have weapon, Defendant fled. Sergeant Musche...
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