State v. Burkhardt

Decision Date11 September 1990
Docket NumberNo. 72256,72256
Citation795 S.W.2d 399
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Heidi BURKHARDT, Defendant-Appellant.
CourtMissouri Supreme Court

John Sims, Neosho, William Taylor, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Robert V. Franson, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.

RENDLEN, Judge.

Defendant was convicted of possessing more than 35 grams of marihuana and punishment assessed at four years' imprisonment. Her cache of contraband measured some 57,753 grams (127 pounds) exceeding by 57,718 grams the established limit of 35 grams 1 necessary to assess punishment of five years in the state penitentiary. The single issue on appeal involves the trial court's refusal to suppress as evidence the marihuana found in her car when stopped by state troopers following a traffic violation. A divided court of appeals held the trial court erred in not suppressing such evidence, concluding the marihuana had been seized in a unlawful search and ordered defendant discharged. We accepted transfer and now affirm the trial court's ruling.

On February 28, 1988, State Highway Patrol Troopers Timothy Rousset and Daniel Banasik were in a patrol car near the intersection of Missouri 43 and Interstate 44 in Newton County near the city limits of Joplin. The troopers were working west and east bound traffic along Interstate 44 in a region where the posted speed limit was 55 miles per hour. At approximately 10:30 that night, they spotted a 1988 Chrysler Fifth Avenue speeding eastbound on Interstate 44 at 64 miles per hour and as the automobile passed, Rousset noted that defendant, accompanied by a passenger, was driving.

Turning on their siren and lights, the troopers gave chase and about one and one-half miles further defendant pulled to the shoulder of the road followed by the patrol car. The troopers approached the automobile, Rousset on the driver's side, Banasik the other, and Rousset informed defendant she had been speeding. On request, defendant presented her driver's license, showing her as a California resident. The passenger, Beth Merrifield, produced her driver's license, indicating her residence as North Carolina.

Because of the din from passing traffic, Rousset asked defendant to accompany him to the patrol car that he might obtain the information for preparation of a traffic ticket. Banasik accompanied them leaving Merrifield in defendant's car. While in the patrol car, defendant stated the automobile was a rental she had picked up in California and showed them the rental agreement papers which appeared to be in order. The patrolman "thought it was unusual that one of them was from the West Coast and one of them from the East Coast." Further, the distances involved prompted the officers to ask why defendant rented a vehicle to travel from California to Ohio instead of flying. Defendant had no reply to this inquiry. Rousset then asked defendant the purpose of her trip and her relationship to Merrifield and, as noted above, explaining in his testimony that he found it somewhat unusual that defendant was from the West Coast and Merrifield from the East. He asked defendant how long she had known Merrifield to which defendant replied (1) "she had known her a long time", (2) that she had attended college with Merrifield's sister, and (3) had met her through the sister. Further, that (4) she worked as an artist and (5) Merrifield worked at a place near defendant's home in California. Defendant also related that they were traveling to Akron, Ohio to see defendant's sister. During this questioning, observing that defendant was "visibly nervous," "fidgety" and "yawning," and noting the yawns appeared to be forced, Rousset became suspicious that all was not as it appeared. He then left defendant in the patrol car and went to the other car where he asked the same questions of Merrifield and was given quite a different story. Merrifield stated (1) she had not known defendant long, (2) she made no mention of her sister with whom defendant had attended college, (3) she did not recall how they had met, and (4) was not currently employed, but (5) was looking for a job. Rousset returned to the patrol car where defendant and Trooper Banasik were waiting and confronted defendant with the conflicting story of Merrifield. Defendant, immediately became more nervous, began again to yawn, pointing to a nearby Holiday Inn saying she was tired and just wanted to leave and go to sleep. When faced with this second round of questioning and advised that their tales failed to jibe in many important aspects, defendant's nervousness heightened appreciably, she "squirmed" in her seat, began "wringing" her hands and her voice developed a "tremor."

At this point Banasik left the patrol car and approached the rented Chrysler. During a cursory check for weapons, he noticed two pieces of luggage, an overnight bag and a suitcase in the back seat of the automobile. Banasik asked Merrifield whose luggage it was and she replied "ours" and indicated that one of the pieces belonged to defendant.

In the patrol car, Rousset, recognizing defendant's visibly increasing nervousness, asked appellant if there was something in the car which made her nervous, to which she replied "no," so he asked if she would mind if he looked in the car for something that might be making her nervous. He then asked defendant if she would consent to a search of her automobile and her response was an inquiry: she wanted to know if she must allow the troopers to search her car. The trooper informed her that she did not and she stated she did not mind if they searched the automobile as long as they did not look in the luggage. Rousset then informed her that he would have to inspect the luggage because "it would be easy to conceal something, for instance drugs, in the luggage, and that we would not know whether the car contained drugs or not unless we looked in the luggage." Defendant said the luggage should not be searched because she did not want her lingerie "stretched up and down the side of the highway." The trooper assured her he had no intention of "stretching her lingerie up and down the highway and that if there was contraband in the car, that if she would tell us where it was, then there would be no need to go through her luggage." (Emphasis added.) Defendant responded that she "didn't know if she should tell" him and asked if he was going to search the car and its contents anyway. Trooper Rousset responded he "felt that we had probable cause based on her nervousness, and the fact that their stories didn't coincide." To this defendant responded, "You might as well go ahead and search it yourself. I'm not going to tell you where it's at." (Emphasis added.)

At this point, Trooper Rousset left defendant in the patrol car and went to the Chrysler where Merrifield had remained and asked her permission to search the car. Merrifield replied she did not feel the troopers had a right to make the search. Rousset told her he believed he had the right given the differences in their stories and when Merrifield refused to give permission, the trooper told her to go to the patrol car and wait.

Only then did Rousset commence to search the automobile. He reached into the back seat and picked up the overnight bag and returned to the patrol car, asking the women to whom it belonged. Defendant told him it was hers. Rousset then opened the bag and found a small plastic package containing a small quantity of marihuana. 2 Thereupon, he informed the women they were under arrest for possession of marihuana.

After the arrest, Rousset returned to the Chrysler and removed the large suitcase from the back seat. Opening it he discovered several large bags of marihuana and, on opening the trunk, found two large pieces of luggage, each containing sixteen plastic bags of marihuana, totaling in all 57,753.6 grams or approximately 127 pounds.

The officers called for a tow truck and defendant's car was taken to the police station where defendant waived her right to an attorney and informed the police she had only recently met Merrifield. Some friends of Merrifield had convinced her, as well as Merrifield, to drive from Laguna Beach to Akron to deliver a quantity of marihuana for which defendant would receive $1,000, and because she was having financial difficulties relating to delinquent income taxes, she agreed to the plan.

Prior to trial, defendant's counsel moved to suppress the marihuana and all of defendant's post arrest statements. At the suppression hearing, only the two troopers and the officer who recorded defendant's statements testified. The trial court denied the motions and at trial, both the marihuana and defendant's post arrest statements were admitted in evidence. The jury found defendant guilty of possession of more than 35 grams of marihuana, § 195.020.1, RSMo 1986, and defendant was sentenced to four years' imprisonment. § 195.200.1(1)(b), RSMo Supp.1987.

The sole issue is defendant's contention that the marihuana taken from the car was inadmissible under the Fourth Amendment to the U.S. Constitution as the officers lacked probable cause to undertake the search.

The Fourth Amendment's prohibition against unreasonable searches and seizures is enforceable against the states through the due process clause of the Fourteenth Amendment. State v. Witherspoon, 460 S.W.2d 281, 284 (Mo.1970). Assertions that evidence intended for use at trial is the product of an unlawful search and seizure should be raised by motion to suppress, § 542.296, RSMo 1986; State v. Stuart, 415 S.W.2d 766, 767 (Mo.1967), to determine as a matter of law whether items alleged to have been unlawfully seized are inadmissible for that reason. State v. Simone, 416 S.W.2d 96, 100 (Mo.1967). The proponent of such motion has the burden of establishing that his constitutional rights were violated by the challenged search or...

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