State v. Cook, No. 18520

• Decision Date: 04 May 1993
• Docket Number: No. 18520
• Citation: 854 S.W.2d 579
• Parties: STATE of Missouri, Plaintiff-Appellant, v. James T. COOK, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 579

854 S.W.2d 579

STATE of Missouri, Plaintiff-Appellant, v. James T. COOK, Defendant-Respondent.

No. 18520.

Missouri Court of Appeals,

Southern District,

Division Two.

May 4, 1993.

Motion for Rehearing or to Transfer

Denied May 26, 1993.

Application to Transfer Denied June 29, 1993.

Thomas E. Mountjoy, Pros. Atty., Pat J. Merriman, Asst. Pros. Atty., Greene County, Springfield, for plaintiff-appellant.

Louis J. Nolan, Springfield, for defendant-respondent.

FLANIGAN, Judge.

This is an interlocutory appeal by the state, pursuant to § 547.200.1, RSMo 1986, from an order of the trial court suppressing evidence. The order was entered in the underlying criminal case in which defendant-respondent James Cook is charged with the Class C felony of possessing more than 35 grams of marijuana.

The information alleges that the offense took place on February 25, 1992, in Greene County. Defendant filed a pretrial motion to suppress evidence. The motion sought suppression of the marijuana, test results concerning the marijuana, and statements made by defendant after his arrest. The motion alleged that the search of defendant's vehicle and the seizure of the marijuana violated defendant's rights under the provisions of the Constitution of the United States and the Constitution of Missouri pertaining to unreasonable searches and seizures. Following an evidentiary hearing, the trial court sustained defendant's motion, and this appeal ensued.

The state's sole point is that the trial court erred in sustaining defendant's motion because defendant consented to an interior inspection of his vehicle by Corporal Clay Crowe during a routine traffic stop, and "defendant's consent to look in the vehicle authorized the trooper's plain view detection of the odor of marijuana, thus providing an independent probable cause for a full scale search of the automobile."

At the hearing on the motion to suppress, the state's witnesses were Corporal Crowe and Corporal David Henson of the Highway Patrol. Defendant did not present any evidence. There is no significant factual dispute.

Corporal Crowe testified: "On February 25, 1992, while on duty, I encountered a GMC van driven by defendant on U.S. I-44 in Greene County. Defendant was going 63 miles per hour in a 55 miles per hour speed zone. I activated my emergency lights and attempted to stop the van. It drove down to the shoulder about 200 yards before coming to a complete stop. Defendant got out of the van and I met him at the back of the van. I asked to see his driver's license. When defendant reached in his billfold to get it, his hands were shaking uncontrollably and he was very nervous.

"I patted him down and found no weapons. I had him stand at the right front corner of the van and I did a brief search around the driver's side area for a weapon. I was concerned about defendant because his hands were shaking, he would not face me, he would not make good eye contact with me, he was stuttering, and he wanted to talk to me at a very low volume. I was concerned he might have a weapon in the vehicle.

"Defendant was traveling alone, but he had a dog with him on the passenger's side of the driver's seat. I asked defendant if he was carrying any weapons or drugs and he said, 'No.' I asked him if I could look in the back of the van and he said 'Yes.' Defendant got the keys from the ignition, unlocked the door, and opened the doors for me. I searched the van with the doors folded back and defendant standing to the right.

"There was a custom made bed in the van which had a long compartment at the bottom of it. I went to that compartment and pulled a large door down. He had several items stacked in there. There were a couple of boxes of boots and some other clothing items. I reached down to remove the boot boxes and at that time I smelled what appeared to be freshly processed marijuana. I have had training in the detection of marijuana and have smelled it at least 100 times. The freshly cut grass or plant material has a very strong pungent odor to it, and this smelled like marijuana.

"As I moved the boxes to one side, I attempted to reach a large maroon suitcase which was under the bed. I was about to get to the suitcase when defendant stepped up beside me and took the boot boxes and dropped them down or slid them down over on my hands. I asked if I could look in the suitcase and he said, 'No,' and he started grabbing the doors to close them. I got out of the situation because I was afraid a fight was going to take place or he was going to take off running.

"After defendant closed the van doors and locked them, I asked him to wait in the van. I went back to the patrol car and radioed headquarters for a backup. Corporal Henson arrived in about five minutes and I told him the situation. Corporal Henson had his dog Wiko with him. We had Wiko walk around the van. Defendant was standing off to the side holding his dog. Henson opened the van doors, pulled the suitcase out, and opened it. It contained freshly processed marijuana. I arrested defendant for felony possession of marijuana, handcuffed him, and read him his Miranda rights. Defendant was taken to headquarters. At headquarters, defendant said that he had bought the marijuana from two Mexicans in Texas."

Corporal Henson testified: "On my arrival at the scene, I talked with Corporal Crowe and conducted a canine search of the vehicle with Wiko; I had Wiko sniffing as we went around the van. When Wiko senses something, he will shut his mouth and breathe intensely through his nose. Then he is aggressive and scratches and bites and barks and tries to get at the object holding the scent. On this occasion, Wiko alerted me on the back doors of the van. He was sniffing very intensely and scratching the rear doors. After Wiko alerted the back of the van, I returned Wiko to my car.

"Based on what Corporal Crowe told me and the fact that Wiko did alert, and based on the demeanor of defendant, I was satisfied there were drugs in the van. I searched the van. Under the bed there was a space 12 inches high. In that space were a maroon suitcase and a pair of cowboy boots in a box. As I reached for the suitcase I could definitely smell the odor of marijuana. I have had training in detecting marijuana. I opened the suitcase and found processed marijuana wrapped in a black plastic bundle. At that point, Crowe placed defendant under arrest and gave defendant his Miranda warnings. The suitcase was in view when the back doors of the van were open. On the way to headquarters, defendant told me there was 30 pounds of marijuana in the back of the van."

At the close of the state's evidence, the trial court sustained the motion. The court said:

The Court focuses then, upon the language that Trooper Crowe used on two occasions, and that is what has been concerning me. The language which would form the basis for the opening of the lid and the removing of the boot boxes would be: "Do you mind if I take a look?" And the answer of the defendant, yes, and he opened up the back doors. At no time in my memory did Trooper Crowe testify that he asked permission to search. There's a difference between looking and searching and the opening of a lid, and the moving of the boxes is clearly beyond looking.... The Court finds that the defendant did not give consent to a search; he gave consent to a look. That the discovery of the suitcase and the smell of the marijuana by Officer Crowe came while conducting a search that was in violation of the Fourth Amendment.

Appellate review of a trial court's ruling on a motion to suppress is limited to a determination of sufficiency of the evidence to sustain the trial court's finding. State v. Villa-Perez, 835 S.W.2d 897, 902 (Mo. banc 1992). "[I]n so doing, we examine all circumstances and the total atmosphere of the case, and defer to the trial court's vantage point in assessing the credibility of the witnesses and weighing the evidence." Id. "Only if the trial court's judgment is clearly erroneous will an appellate court reverse." State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). If the trial court's ruling "is plausible in light of the record viewed in its entirety," this court "may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 184. Where, as here, there is no factual dispute, determination of the reasonableness of a search, under the Fourth Amendment, is a question of law. U.S. v. Walker, 941 F.2d 1086, 1090 (10th Cir.1991); U.S. v. Pena, 920 F.2d 1509, 1513-1514 (10th Cir.1990); U.S. v. Arango, 912 F.2d 441, 444 (10th Cir.1990).

In Villa-Perez, supra, the court said, at 902:

The proponent of [a motion to suppress] has the burden of establishing 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, e.g. search of a stopped car on...