State v. Cotterman, KCD

• Decision Date: 29 November 1976
• Docket Number: No. KCD,KCD
• Citation: 544 S.W.2d 322
• Parties: STATE of Missouri, Respondent, v. Darrel Lee COTTERMAN, Appellant. 28448.
• Court: Missouri Court of Appeals

Page 322

544 S.W.2d 322

STATE of Missouri, Respondent, v. Darrel Lee COTTERMAN, Appellant.

No. KCD 28448.

Missouri Court of Appeals, Kansas City District.

Nov. 29, 1976.

Robert G. Duncan, William E. Shull, Jr., Duncan & Russell, Gladstone, for appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Defendant was charged by way of an information with possession of a controlled substance (Section 195.020, RSMo Supp.1971). Having waived a jury, he was tried to the court, found guilty as charged, and sentenced to two years confinement in the custody of the Missouri Department of Corrections.

Prior to trial defendant filed a motion to suppress the controlled substance which was the gravamen of the offense. The motion was grounded on the proposition that the controlled substance was seized from defendant's person by means of an unreasonable warrantless search in violation of the Fourth Amendment of the Constitution of the United States. The motion to suppress was not taken up until the day of the trial. Evidence pertaining to the motion, by stipulation, was limited to the contents of two depositions taken of Troopers Fred Suroff and E. J. Dayringer by defendant's attorney in connection with an action initiated by the troopers for the forfeiture of defendant's automobile under Section 195.145, RSMo 1969. At this stage of the proceeding, the defendant and the state further stipulated, subject to defendant's continuing objection that the controlled substance was the fruit of an 'unlawful search and seizure', that the evidence relative to defendant's motion to suppress and an open court admission by defendant that one of the state's witnesses, a chemist, if called, would testify that the substance removed from defendant's person was 'methamphetamine', a 'schedule 2 controlled substance', constituted all the evidence to be presented at defendant's trial on the merits of the case. A jury was waived and the motion to suppress and the case on its merits were simultaneously submitted to the court per the joint stipulations and open court admission. The motion to suppress and the principal case were taken under advisement by the trial court and it subsequently overruled the motion to suppress and found defendant guilty as charged. Thereafter judgment was entered and sentence was imposed.

Defendant claims on appeal that the trial court erred in not sustaining his motion to suppress the controlled substance because it was obtained by an unreasonable warrantless search in violation of the Constitution of the United States (Fourth Amendment).

As aptly stated in Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 932 (1968), '(t)he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.' The 'concrete factual context' of this case must be determined by melding the deposition testimony of Troopers Suroff and Dayringer.

At approximately 1:50 P.M. on March 6, 1975, both troopers were in a Missouri State Highway patrol car which was stopped at a stop sign posted against northbound traffic on Grand Street in Sedalia, Missouri, at the intersection of Grand and 32nd Streets. While stopped they observed a late model 'white Buick convertible' travelling east on 32nd Street. As the Buick proceeded through the intersection the driver 'looked over towards us (the troopers) and then he abruptly turned away and slid down'. The troopers were unaware of the identity of the driver of the Buick. Solely on the basis of the limited facts just stated, the troopers became 'suspicious' that the white Buick convertible 'was a stolen vehicle'. Braced with their suspicion they proceeded to 'tail' the white Buick convertible with the thought of running a license check on the vehicle. Before they had a chance to do so they observed the driver of the Buick 'reach way down, as if to obtain an object or place an object under the right front seat' and as he did so the Buick abruptly swerved to its left and across the center line. At this point Trooper Suroff 'put the red lights of the patrol car on' for the purpose of stopping the Buick. Immediately thereafter the driver of the Buick swerved back to the right hand side of 32nd Street and stopped his vehicle. The troopers did not stop the Buick for the purpose of arresting the driver for violation of a traffic regulation committed in their presence. ¹ The troopers bluntly denied that they arrested or attempted to arrest the driver of the Buick for a traffic offense. To the contrary, the troopers, with commendable candor, testified that they stopped the Buick because they were dually 'suspicious' that the vehicle might be 'a stolen car' and that the driver 'had a weapon'. The troopers attributed their dual suspicions to 'three things': (1) the initial conduct of the driver in turning his face away from them and sliding down in his seat as he passed through the intersection; (2) conduct on the part of the driver which was characterized by the troopers as an attempt to remove or place an 'object' under the right front seat of his vehicle; and (3) the erratic movements of the Buick while it was being 'tailed' by the troopers.

The patrol car stopped behind the Buick and the two troopers got out and 'cautiously' approached the driver's side of the Buick. As they did so, the driver, the defendant, opened the door on the driver's side and at the same time 'got low in the seat' with his right arm positioned 'low in his lap'. At that moment Trooper Suroff ordered defendant to '(p)lace (his) hands where (he could) see them' and then proceeded to 'pull' defendant out of the Buick. As defendant was being removed from the Buick he was ordered to give his name or otherwise identify himself, but refused to do so. After removing defendant from the Buick, Trooper Suroff ordered defendant to 'place his hands on the car' and then 'frisked him (defendant) for a weapon'. Trooper Suroff's testimony reveals that he used the term 'frisk' as being synonymous with 'pat-down'. Defendant was wearing a jacket at the time. The 'frisk' or 'pat-down' of defendant revealed an object in defendant's right jacket pocket which 'felt like the butt of a small automatic'. There is not a whit of evidence that the frisk or pat-down revealed any object which felt like a weapon in defendant's left jacket pocket or that Trooper Suroff visually observed anything in the area of defendant's left jacket pocket which appeared to be a bulge or which otherwise might indicate the presence of a weapon. The state argues in its brief that '(n)owhere in the transcript does it say whether or not the officer patted the second pocket or went directly into it without patting'. The state's reference to the 'transcript' obviously refers to the depositions given by Troopers Suroff and Dayringer. The state stipulated that evidence pertaining to defendant's motion to suppress consisted solely of the testimony of Troopers Suroff and Dayringer as disclosed by their depositions. This court on the basis of a holistic review of the evidence concludes that the 'pat-down' conducted by Trooper Suroff did not suggest the presence of a weapon in defendant's left jacket pocket and that Trooper Suroff did not visually observe anything indicating a weapon in the area of defendant's left jacket pocket. Were it otherwise, it seems only fair to assume that the state would have presented evidence which indicated to Trooper Suroff the presence of a weapon-like object in defendant's left jacket pocket before he intruded into that pocket.

Trooper Suroff, relying on the facts heretofore set forth as justification for doing so, reached into defendant's right jacket pocket and removed what initially felt to him like 'the butt of a small automatic'. However, instead of being an 'automatic', the right jacket pocket of defendant contained only a 'considerable sum of money' which was 'folded in half'. Trooper Suroff testified that at this point his 'suspicion rose to the fact that maybe he (defendant) had just held up a place'. This was a raw suspicion at best since Trooper Suroff had no knowledge by way of a report or otherwise that a robbery had recently been committed. Buttressed with the bare suspicion that 'maybe he (defendant) had just held up a place', and absent any ratiocinative basis induced by tactile or visual senses from which to reasonably conclude that defendant's left jacket pocket contained a weapon of some kind, Trooper Suroff reached into defendant's left jacket pocket and removed an additional sum of money folded around a 'plastic Baggi with a white powdery substance'. The record is silent as to the size and dimension of the 'plastic Baggi' and its contents. Defendant was then placed under arrest for possession of a controlled substance.

Defendant does not contest the action of the troopers in stopping him and conducting a protective search for weapons. He does contend, however, that the search which resulted in the discovery and seizure of the controlled substance was unreasonable in its scope and therefore cannot be constitutionally justified as a protective search for weapons when measured by the criteria laid down in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The state, citing Terry, contends otherwise and seeks to uphold the constitutionality of the search as falling within the 'stop' and 'frisk' exception.

In Terry, 392 U.S. at 19--20, 88 S.Ct. at 1879, the Supreme Court carefully pointed out that '. . . in determining whether the seizure and search were 'unreasonable' our inquiry is a dual one--whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.' The...