State v. Clay, 60736

• Decision Date: 12 January 1993
• Docket Number: No. 60736,60736
• Citation: 845 S.W.2d 97
• Parties: STATE of Missouri, Respondent, v. Germaine D. CLAY, Appellant.
• Court: Missouri Court of Appeals

Page 97

845 S.W.2d 97

STATE of Missouri, Respondent, v. Germaine D. CLAY, Appellant.

No. 60736.

Missouri Court of Appeals,

Eastern District,

Division One.

Jan. 12, 1993.

Ellen H. Flottman, Columbia, for appellant.

William L. Webster, Atty. Gen., Rudolph R. Rhodes, IV, Asst. Atty. Gen., Jefferson City, for respondent.

CRIST, Judge.

Appellant Germaine D. Clay (Defendant) appeals from a conviction for possession of a controlled substance. Defendant was sentenced to three years' imprisonment and fined $2,000. We affirm.

On December 7, 1989, while on routine patrol, Patrolman Doug Hargate observed Defendant's yellow car traveling in excess of 45 miles per hour in a 35 mile per hour zone. Patrolman stopped Defendant. Patrolman contacted the police dispatcher by radio and gave his location and a description of Defendant's vehicle and license plates. The dispatcher responded that a Kevin Kelly and a Darryl Collins, two persons associated with the vehicle's license plates, were wanted by the St. Louis police. The dispatcher also reported the vehicle's license plates were supposed to be attached to a Dodge. Instead, the plates were displayed on a Chevy Chevette.

Patrolman approached Defendant's vehicle, asked him to exit from the passenger side, and to produce a driver's license. Defendant stated he had no driver's license. Patrolman then asked for other sources of identification. Defendant produced a University City High School identification which somewhat resembled Defendant. Patrolman was particularly concerned about Defendant's identity at this time because he did not know whether Defendant was one of the persons wanted by the police department. Patrolman asked Defendant for further proof of his identity. After Defendant was unable to find any, patrolman informed him that he was under arrest for speeding, for driving an improperly registered vehicle, and for driving without a license.

After his arrest, Defendant was placed in handcuffs and watched by another police officer while patrolman searched his vehicle. Nothing was found. Defendant was then patted down "for weapons and contraband" by patrolman. Patrolman found eight pieces of crack cocaine wrapped in foil inside Defendant's jacket pocket and informed him that he was under arrest for possession of cocaine with the intent to distribute.

Approximately an hour and forty-five minutes after Defendant was booked and placed in a cell, he asked to speak to patrolman. Defendant told patrolman he had a bad drug problem, was a member of the "Blood" gang in Los Angeles, and that he dealt drugs for a man named Calpall in University City.

Defendant complains about the overruling of his motion to suppress the cocaine seized and its admission into evidence.

Defendant has alleged that search of Defendant and the subsequent seizure of cocaine from his jacket was unlawful because (1) the seizure was the result of a search which exceeded the scope permitted under Terry v. Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968); and (2) the search was incident to a pretextual arrest.

The cocaine was lawfully seized and the search of Defendant was not incident to a pretextual arrest. A lawful arrest justifies a warrantless search of the arrestee for either weapons or evidence. Such search is constitutionally permissible. State v. Morr, 811 S.W.2d 794, 798 (Mo.App.1991); State v. Hudson, 793 S.W.2d 872, 881 (Mo.App.1990). Patrolman had a right to stop and detain Defendant. The traffic offense was committed in the...