State v. Childress, No. 17503

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: FLANIGAN; Hogan; SHRUM, P.J., and MAUS
• Citation: 828 S.W.2d 935
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Willie George CHILDRESS, Defendant-Appellant.
• Decision Date: 11 March 1992
• Docket Number: No. 17503

Page 935

828 S.W.2d 935 STATE of Missouri, Plaintiff-Respondent,
v.
Willie George CHILDRESS, Defendant-Appellant. No. 17503. Missouri Court of Appeals,
Southern District,
Division Two. March 11, 1992.
Motion for Rehearing or Transfer
Denied April 6, 1992.
Application to Transfer Denied June 2, 1992.

Page 937

Donald R. Cooley, Springfield, for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

FLANIGAN, Chief Judge.

The trial court, sitting without a jury, found defendant guilty of transportation of cocaine, § 195.025, ¹ and sentenced him to 20 years' imprisonment. Defendant appeals.

Defendant does not challenge the sufficiency of the evidence to support the conviction. The offense took place on November 6, 1988, on Interstate 44 in Greene County. Defendant was the driver of a Chevrolet Suburban, a van-type vehicle. A passenger in the Chevrolet was James McCarnes. Defendant was driving at a speed of 68 miles per hour. The speed limit was 55. Trooper Jack McMullin of the Highway Patrol pursued the Chevrolet. Both vehicles stopped on the shoulder. Defendant immediately got out of the Chevrolet and met the trooper at the rear of the Chevrolet. During the course of the stop, under the circumstances later set forth, Trooper McMullin searched the Chevrolet and sealed containers in it. In the containers the trooper found 1,224 pounds of cocaine, the subject of the offense.

Page 938

Defendant's sole point is that the trial court erred in denying his pretrial motion to suppress the cocaine and in receiving it into evidence "pursuant to a warrantless search of defendant's vehicle and the sealed containers therein" because the search: (a) was not based upon probable cause to believe contraband was in the vehicle; (b) was without any consent to search the vehicle or its contents; and (c) was conducted following the unlawful detention of defendant.

Seeking to uphold the trial court's denial of defendant's motion to suppress, the state argues: (a) probable cause existed for the trooper to search the Chevrolet; and (b) defendant and McCarnes consented to the search.

At the hearing on defendant's motion to suppress, defendant introduced no evidence. The only witness produced by the state concerning the circumstances leading up to and including the search was Trooper McMullin. At the time of the hearing on the motion to suppress, defendant was also charged, in a separate count, with possession of cocaine. Neither in the trial court nor in this court has the state raised any issue concerning defendant's standing to challenge the search.

Trooper McMullin testified, at the hearing on the motion to suppress, that he told defendant that he had stopped him for speeding and asked him for his driver's license and the vehicle registration. Defendant went to the Chevrolet, obtained the vehicle registration, and the two men went to the patrol car.

Defendant's driver's license showed his residence as Los Angeles. The Chevrolet had Illinois license plates and the registration showed that it was owned by one John Jackson of East St. Louis. Defendant told the trooper that he had recently moved to East St. Louis and was living with Jackson. He said he had borrowed the Chevrolet and had driven it to Amarillo, Texas, to visit relatives. Defendant told the trooper that he had been in Amarillo for about a week. Defendant said that McCarnes had made the trip to Texas with him.

While waiting for defendant to get the registration, the trooper noticed another person, James McCarnes, who was lying in the back of the Chevrolet. The trooper saw that McCarnes was "positioned in the Chevrolet van at what I considered to be an elevated level from the floor, as if he were lying on top of something." McCarnes was lying on two cushions and there were blankets beneath the cushions "covering or concealing something." The only luggage the trooper observed while standing at the back of the Chevrolet were two small duffle bags sitting on top of the blankets.

In the patrol car, the trooper asked defendant if he objected if he looked in the van, and defendant said he did not mind and that he didn't care. The trooper began to fill out a consent to search form issued by the highway patrol, but defendant told the trooper he was not going to sign anything. The trooper then called Sgt. Mease and he came to the scene "in two minutes."

Upon the arrival of Sgt. Mease, the trooper went to the passenger side of the Chevrolet, opened the right front door and spoke with McCarnes. He asked McCarnes who owned the Chevrolet, and McCarnes said he thought it belonged to his cousin, Stanley McCarnes, who lived in Los Angeles. The trooper asked McCarnes where they were coming from, and McCarnes answered, "Los Angeles." The trooper asked McCarnes if he had any objection to his looking in the van, and McCarnes said "No."

McCarnes crawled into the front seat, and the trooper opened the right rear door. The trooper saw some boxes partially hidden by the blankets. One of the boxes had a U-Haul logo on it and was a moving box. The trooper testified that he had seen in the past a picture of a seizure made by some Oklahoma authorities of some narcotics taken from a U-Haul box. The trooper testified that he thought there was a possibility the boxes contained narcotics, "due to the way of concealment and the U-Haul boxes."

The flaps on the boxes were covered with tape. The trooper opened the boxes and found "bricks" or packages wrapped with

Page 939

some type of cling wrap. They were all bricked up uniformly. The trooper testified: "In my experience I have seen similar packages of these bricks, and they had contained cocaine." The trooper removed one brick from the boxes and slit it open with a pocket knife. It contained white powder which the trooper believed to be cocaine. He arrested defendant and McCarnes.

On cross-examination, the trooper testified that defendant had a valid driver's license and that the vehicle registration was in order. There were no warrants outstanding with respect to defendant. He testified that defendant was held at the scene longer than it takes to write a speeding ticket because the trooper became suspicious of certain actions. Defendant had come out of the van to meet the trooper "a little fast, he came out quick."

The trooper testified that he suspected that defendant might be transporting some type of contraband. "What I saw inside the vehicle showed me there was something contraband could have been in, the blankets covering, his getting out of the van quick."

In reviewing the trial court's denial of a motion to suppress, the appellate court does not substitute its discretion for that of the trial court and determines only whether there was sufficient evidence to support the trial court's ruling. The weight of the evidence and the credibility of the witnesses are matters for the trial court. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990).

WAS DEFENDANT AGGRIEVED BY THE SEARCH?

"The provisions of Chapter 542, RSMo, shall govern procedure in searches and seizures." Rule 34.01. Section 542.296.1 reads, in pertinent part: "A person aggrieved by an unlawful seizure made by an officer and against whom there is a pending criminal proceeding growing out of the subject matter of the seizure may file a motion to suppress the use in evidence of the property or matter seized." Similarly, in a reference to Rule 41(f) of the Federal Rules of Criminal Procedure, a leading authority has stated: "A motion to suppress may be made only by a 'person aggrieved by an unlawful search and seizure.' " Wright, Federal Practice and Procedure: Crim.2d, § 674.

The Fourth Amendment's prohibition against unreasonable searches and seizures is enforceable against the states through the due process clause of the Fourteenth Amendment. Assertions of an unlawful search and seizure should be raised by a motion to suppress under § 542.296. The proponent of such a motion has the burden to establish that his constitutional rights were violated by the challenged search or seizure; however, the burden is on the state to justify a warrantless search and to demonstrate that such falls within an exception to the warrant requirement. Burkhardt, supra, at 404.

One well established exception is a search of an automobile on the highways pursuant to probable cause to believe that contraband, weapons, or evidence of a crime are within the automobile. The automobile exception stems from the fact that an automobile's mobility often presents an exigent circumstance making it unfeasible to procure a search warrant, and the fact that citizens have a less significant expectation of privacy in their automobiles than in their homes or offices. Id.

The initial inquiry is whether defendant suffered violation of any Fourth Amendment right.

Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.

Page 940

Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978) (emphasis added) (citations omitted). In Rakas, the Court rejected the so-called "target theory" under which any criminal defendant at whom a search was "directed" would have standing to contest the legality of that search and object to the admission at the trial of evidence obtained as a result of the search. In United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 2551, 65 L.Ed.2d 619 (1980), the Court...