State v. Berry, ED77851

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PER CURIAM
• Citation: 54 S.W.3d 668
• Parties: State of Missouri, Respondent v. Travis Berry, Appellant. ED77851 Missouri Court of Appeals Eastern District 0
• Docket Number: ED77851
• Decision Date: 31 July 2001

State of Missouri, Respondent
v.
Travis Berry, Appellant.

ED77851

Missouri Court of Appeals Eastern District

07/31/2001

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)(FN1). 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.(FN2) 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...