State v. Berry, ED77851

Citation54 S.W.3d 668
Decision Date31 July 2001
Docket NumberED77851
PartiesState of Missouri, Respondent v. Travis Berry, Appellant. ED77851 Missouri Court of Appeals Eastern District 0
CourtCourt of Appeal of Missouri (US)

Appeal From: Circuit Court of Audrain County, Hon. Keith M. Sutherland

Counsel for Appellant: Craig Johnston

Counsel for Respondent: Stacy L. Anderson

Opinion Summary:

Travis Berry appeals his conviction of possession of a controlled substance with the intent to distribute, in violation of Section 195.211, RSMo (1994). He was sentenced to twenty years' imprisonment.

Division Three holds: The court did not err in denying Berry's motion to suppress because the police did sufficiently corroborate the anonymous tip, and there was sufficient evidence to support appellant's conviction.

Crahan, J. concurs. Draper III, J., dissents in separate opinion.

Gary M. Gaertner, Sr, Presiding Judge

Appellant, Travis Berry ("appellant") appeals from the judgment of the Circuit Court of Audrain County convicting him of possession of a controlled substance with the intent to distribute, in violation of Section 195.211, RSMo (1994)1 Appellant challenges the denial of his motion to suppress and the sufficiency of the evidence to support his conviction. We affirm.

Appellant was charged with possession of cocaine with intent to distribute on November 15, 1999. Appellant filed a motion to suppress the evidence, alleging his rights were violated under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 15 of the Missouri Constitution, in that the evidence was the result of an unreasonable search and seizure. The trial court held a hearing on Appellant's motion to suppress on March 22, 2000. The following evidence was adduced at that hearing.

At 11:21 a.m. on September 20, 1999, Franca Ancell, a dispatcher with the Audrain County Sheriff's Department, received an anonymous telephone call from a woman. The caller stated that appellant left Mexico, Missouri around 10:00 a.m. and was en route to Kansas City to pick up a large quantity of cocaine. According to the caller, appellant was due in Kansas City about 12:00 or 12:30, and would return to Mexico before dark. The caller also stated that appellant would be driving a white Cadillac with "fancy" wheels and a "temp tag" in the left rear window. Ms. Ancell recorded and logged the call, then placed a note of the call in Deputy Wes Ancell's box.

At 1:00 p.m. on September 20, 1999, Ms. Ancell received another anonymous call. Ms. Ancell testified that the caller was the same person that had called earlier in the day. The caller stated that she had been mistaken about the date, and that all information given earlier would be for the next day. The information was then given to Deputy Ancell.

Deputy Ancell drove by appellant's residence at approximately 10:00 a.m. on September 21, 1999. Deputy Ancell did not see a vehicle parked at appellant's residence. Around noon on September 21, Audrain County Sheriff's Department Dispatcher Lena Rose received an anonymous phone call from a woman. The caller stated she had called the Sheriff's Department the day before with information concerning appellant. The caller further stated that appellant would be returning to Mexico around 3:00 or 4:00 p.m. that afternoon, and that he would be driving a white Cadillac. Ms. Rose then informed Deputy Ancell of the phone call.

At 3:00 p.m. on September 21, 1999, Deputy Ancell, Audrain County Sheriff's Deputy Dan Johnson and Missouri State Highway Patrol Trooper Phil Davis set up surveillance of northbound vehicles on Highway 54, just south of Mexico. Deputy Ancell stated this location was used because it was the most likely route appellant would take from Kansas City to Mexico. At 4:22 p.m. Deputy Ancell observed a vehicle that matched the caller's description of appellant's vehicle. Deputy Ancell testified that he recognized appellant as the driver because he had previous drug intelligence that appellant was involved in the sale of drugs and appellant had prior arrests and convictions for selling drugs. Appellant was the driver and Stacy Owens was a passenger in the vehicle.

Deputy Ancell initiated a traffic stop on the vehicle based on the anonymous tips. Deputy Ancell explained to appellant that he was stopped because he was suspected of having cocaine based on information received from an anonymous tip. Appellant denied having any drugs and informed Deputy Ancell he was welcome to search the car. Appellant and Mr. Owens both told Deputy Ancell that Mr. Owens was in appellant's car because Mr. Owens's car had broken down and appellant agreed to drive him to Mexico. Appellant, however, claimed he came across Mr. Owens by accident on the highway, while Mr. Owens claimed he called and asked appellant to pick him up.

Appellant told Deputy Ancell that he owned the car, then gave the officers both verbal and written consent to search the car.2 Deputy Johnson testified that appellant was very calm when Deputy Ancell inspected the driver's compartment of the vehicle, but paid close attention when Deputy Ancell searched the trunk. Deputy Ancell noticed that most of the mounting screws were missing from one of the speakers in the trunk. Deputy Ancell then removed the remaining screws and found four individual bags of what appeared to be cocaine in the speaker box. Deputy Johnson testified that appellant uttered a profanity when he saw Deputy Ancell remove the bags from the speaker box. Deputy Ancell also seized a total of $279.99 from appellant's pocket. Tests revealed the bags contained a total of 124.3 grams of cocaine. Paperwork in the car showed that appellant had recently purchased the car. Appellant claimed he had bought the speakers from someone in Centralia.

Appellant filed a motion to suppress the evidence pursuant to Section 542.296. The trial court overruled the motion to suppress stating the stop was proper because there was reasonable suspicion to stop appellant, the stop was brief, and although the officers did not corroborate the time appellant left Mexico on the morning September 21st, they did corroborate all the other information they had. A bench trial immediately followed. The parties stipulated to the testimony adduced at the suppression hearing, except as to evidence of appellant's prior convictions or reputation. The trial court found appellant guilty of possession of a controlled substance with intent to distribute, and appellant was sentenced to twenty years' imprisonment without probation or parole. This appeal follows.

Appellant raises two points on appeal. Appellant first argues the trial court erred in denying his motion to suppress the cocaine found in the vehicle as the illegal fruit of an unreasonable search and seizure. Appellant then challenges the sufficiency of the evidence to support his conviction. The State has the burden of going forward with the evidence and the risk of nonpersuasion to show by a preponderance of the evidence that a motion to suppress should be overruled. Section 542.296.6; State v. Weddle, 18 S.W.3d 389, 391 (Mo.App.E.D. 2000). Upon review of a motion to suppress, we examine the record made at the motion to suppress hearing and the trial record. Id. We review the facts in the light most favorable to the order challenged on appeal. Id. We review questions of law de novo, but give deference to the trial court's factual findings and credibility determinations, reviewing only to determine if they are clearly erroneous. Id. at 391, 392. "However, the question of whether the historical facts as found by the trial court add up to reasonable suspicion requires de novo review." Id. at 392.

The Fourth Amendment of the United States Constitution protects the people against unreasonable search and seizures. Generally, a search or seizure is allowed only if the police have probable cause to believe the person has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91 (1964). The Fourth Amendment, however, allows a Terry stop, which is a minimally intrusive form of seizure that is lawful if the police officer has a reasonable suspicion supported by articulable facts that the individuals stopped are engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 20 (1968). Reasonable suspicion is a less demanding standard and can arise from less reliable information than probable cause. Alabama v. White, 496 U.S. 325, 330 (1990). Reasonable suspicion is determined by looking at the totality of the circumstances to determine if the content of the information possessed by the police and its degree of reliability is sufficient to create a "reasonable suspicion" of criminal activity. Id.

"An anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity." Id. at 329. However, if the police corroborate the anonymous tip it may exhibit "sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop". Id. at 327.

The question presented in this case is whether the police did enough to corroborate the anonymous tip for it to exhibit sufficient reliability to provide reasonable suspicion to stop the appellant's vehicle. Appellant argues the tip leading to his stop and subsequent arrest came from an anonymous source and lacked the required indicia of reliability to provide reasonable suspicion for the search and seizure. Appellant relies on Florida v. J.L., 529 U.S. 266 (2000), in which the Supreme Court recently addressed the issue of anonymous tips. In that case, the Miami-Dade police received an anonymous tip that "a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun." Id. at 268. Two officers responded to the tip and found three black males standing at the bus stop. Id. One of the three, J.L., was wearing a plaid shirt. Id. The police had no reason, apart from the tip, to suspect any of the three of illegal conduct. Id. One of the police officers approached J.L., told him to put his hands up,...

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