State v. Brand
| Decision Date | 18 May 2010 |
| Docket Number | No. WD 71068.,WD 71068. |
| Citation | 309 SW 3d 887 |
| Parties | STATE of Missouri, Respondent, v. Kelly J. BRAND, Appellant. |
| Court | Missouri Court of Appeals |
Matthew Ward, Assistant State Public Defender, Columbia, MO, for Appellant.
Chris Koster, Attorney General, Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.
Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judges.
Kelly J. Brand appeals her convictions of possession of a controlled substance in violation of section 195.2021 and possession of drug paraphernalia in violation of section 195.233, after a jury trial in Harrison County and for which she was sentenced to five years imprisonment. On appeal, Brand claims that the trial court erred in admitting evidence seized in what she argues was an unconstitutional search of an automobile and in admitting evidence of other uncharged crimes. She claims that the evidence of uncharged crimes was irrelevant to the determination of whether she possessed methamphetamine or a methamphetamine pipe. We affirm the judgment of the trial court.
On January 28, 2008, off-duty Missouri State Highway Patrol Trooper Jason Cross saw Brand and William Worley arguing in a Wal-Mart store in Bethany, Missouri. Worley was holding a one-gallon can of Coleman camping fuel. Cross thought the pair looked suspicious and watched them in the store. Worley purchased the camping fuel and some lithium batteries. Through his training, Trooper Cross knew that camping fuel and lithium batteries were essential components to one process used to manufacture methamphetamine.
Trooper Cross called the Bethany Police Department and told Officer Brian Holloway what he had observed. While he was talking to Officer Holloway, he followed Worley out of the store and saw him enter a red Dodge Durango with Iowa license plates.
Officer Holloway drove through the Wal-Mart parking lot and found the Dodge Durango matching the description that Cross had given him. Because he was in a marked patrol car, he contacted Harrison County Deputy Coleman, who was in an unmarked patrol car, advised him of the situation, and had him watch the Durango.
Officer Holloway waited in the area until Deputy Coleman advised him on the radio that the Durango was leaving the parking lot. Officer Holloway saw the Durango on a connecting street to the parking lot. The Durango did not signal when it turned onto another street or when it changed lanes shortly thereafter. The officer directed Deputy Coleman, who was directly behind the Durango, to stop it. The deputy stopped the Durango.
Officer Holloway arrived at the scene and approached the driver, Deana Doman-Bishop. Worley was in the front passenger seat and Brand was in the right rear passenger seat. There was a purse in the back seat, which at one point Brand had in her hands. The occupants of the Durango gave their identification cards to Officer Holloway. Worley was acting very nervous; he was visibly shaking as he handed his identification to Officer Holloway.
The officer asked Doman-Bishop to step out of the Durango and follow him to Deputy Coleman's car, which was directly behind the Durango and closer than his own vehicle. In the deputy's car, Officer Holloway checked all of the identifications for warrants but found none. The officer handed Doman-Bishop's license back to her and gave her a warning about the traffic violation. He then asked her if she were willing to speak with him further, and she asked him what he wanted to talk about. Officer Holloway asked Doman-Bishop if she had any illegal items in her car. She told him that she did not and invited him to look in her car. Officer Holloway asked her whether she was consenting to a search of her automobile, and she responded,
Officer Holloway left Doman-Bishop in the deputy's car with Deputy Coleman. He approached the passengers in the Durango, got the remaining occupants out of the vehicle, patted them down, and told them to have seats in patrol cars to stay warm. Brand was placed in Officer Holloway's car, and Worley was placed in the vehicle of another Missouri State Highway Patrol trooper who had stopped to give assistance.
Officer Holloway then searched the Durango. In Wal-Mart bags found behind the driver's seat, he found two cans of Coleman fuel, two cans of engine starting fluid, and a respiratory mask. Ether, the main ingredient of engine starting fluid, is also used in the production of methamphetamine. A 100-count case of needle syringes was found on the rear driver's-side seat. A bottle of pseudoephedrine was found on the console between the two front passenger seats. A ".38 special" gun was found on the right rear passenger floorboard, where Brand's feet would have been. The gun had six bullets in it, and twenty-one other bullets were found in a bag under the front passenger's seat.
Officer Holloway found a purse in the same area as the gun. It was the same purse he had seen in Brand's hands earlier. Without seeking further consent, Officer Holloway opened the purse. Inside the purse was a zippered pouch that contained three baggies of an off-white powder. The powder was later determined to be methamphetamine. The zippered pouch also contained a glass pipe wrapped in a bandana. The pipe contained methamphetamine residue. Also in the purse, Officer Holloway found three or four containers of marijuana, a marijuana pipe, a plastic bag of marijuana, two packages of rolling papers, a cigarette rolling machine, digital scales, a canceled check in Brand's name, a bank statement for Brand's son, and a piece of mail addressed to Brand.
Doman-Bishop told Officer Holloway that the purse was Brand's, and Brand was arrested for possession of methamphetamine and for possession of the methamphetamine pipe.
Before the trial, defense counsel moved to suppress the evidence found in the Durango. At trial, counsel renewed the motion before the State presented its case in chief, and again when Officer Holloway testified about what he found when he searched the Durango. The trial court did not allow a continuing objection, so counsel objected to each piece of evidence as it was introduced. The trial court overruled all of defense counsel's motions to suppress the evidence. The jury found Brand guilty, and this appeal follows.
"When reviewing the trial court's overruling of a motion to suppress, an appellate court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling." State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). We will reverse the trial court's ruling only if it is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Whether the Fourth Amendment has been violated, however, is an issue of law that we review de novo. State v. Sullivan, 49 S.W.3d 800, 806 (Mo.App. W.D.2001).
Once the evidence has been found not to have been obtained in violation of the Fourth Amendment, we review the admissibility of the evidence for abuse of discretion. State v. Mozee, 112 S.W.3d 102, 105 (Mo.App. W.D.2003).
Brand's first point on appeal is that Officer Holloway's search of Doman-Bishop's car and, thus, of Brand's purse,3 which was in the car, violated the Fourth Amendment's prohibition of unreasonable searches and seizures. As a general rule, warrantless searches are considered unreasonable and, therefore, prohibited by the Fourth Amendment. State v. Martin, 79 S.W.3d 912, 916 (Mo.App. E.D.2002). When a defendant moves to suppress evidence found as a result of a search that she claims violates the Fourth Amendment, it is the State's burden to show that the search was reasonable and that it was conducted under circumstances such that a warrant was not required. Id. One case where a warrant is not required for law enforcement to conduct a search of an automobile is when the owner of the automobile voluntarily consents to the search. Sullivan, 49 S.W.3d at 813. Brand acknowledges that Doman-Bishop gave Officer Holloway her consent for his search of her vehicle. However, she claims that by the time the consent was given, Doman-Bishop and the other occupants of the automobile were being detained beyond the reasonable scope of the initial stop of the automobile, thus negating the voluntariness of the consent and rendering the search illegal.4
The State offers two different justifications for the stop of Doman-Bishop's automobile. First, the State claims that Doman-Bishop was properly stopped for a traffic violation. Police may briefly stop an automobile when they observe a violation of the traffic laws. Martin, 79 S.W.3d at 916. Officer Holloway stopped Doman-Bishop because he observed her make a right-hand turn and then a lane change without using her turn signals. Thus, the stop of the Durango and its occupants was a proper traffic stop, even though it is considered a seizure of the occupants within the meaning of the Fourth Amendment. Id. Traffic stops may not go on indefinitely, however, while law enforcement conducts investigation of other suspected criminal activity. "If the detention extends beyond the time reasonably necessary to effect its initial purpose in this case, the traffic stop, the seizure may lose its lawful character unless a new factual predicate for reasonable suspicion is found during the period of lawful seizure." Id.
Brand argues that by the time Officer Holloway asked Doman-Bishop whether anything illegal could be found in her vehicle and whether he might search it, the traffic stop had effectively terminated. Officer Holloway had already run the computer search of the identifications of the Durango's occupants and had already given Doman-Bishop an oral warning about...
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