State v. Cross

• Decision Date: 12 July 1988
• Docket Number: No. WD,WD
• Citation: 757 S.W.2d 613
• Parties: STATE of Missouri, Appellant, v. Darrell Wayne CROSS, Respondent. 38974.
• Court: Missouri Court of Appeals

Page 613

757 S.W.2d 613

STATE of Missouri, Appellant, v. Darrell Wayne CROSS, Respondent.

No. WD 38974.

Missouri Court of Appeals Western District.

July 12, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 30, 1988.

Application to Transfer Denied Oct. 18, 1988.

Jerome S. Antell, III, Asst. Pros. Atty., Columbia, appellant.

Milt Harper, Columbia, respondent.

Before TURNAGE, P.J., and BERREY and GAITAN, JJ.

TURNAGE, Presiding Judge.

Appeal by the State from an order suppressing evidence of the presence of a gun under the driver's seat of an automobile. Order suppressing such evidence is reversed and cause remanded.

The facts are not in dispute. About 11:00 p.m. on March 1, 1986, Officer McCrary went to the Deja Vu in Columbia as a result of a report that someone had drawn a knife on another person at the door of the night club. ¹ The suspects were described to McCrary as two black males, one approximately 5' 7"' in height and wearing a black jacket. These men were last seen a few seconds before the officer arrived running south on Seventh Street. The officer began to search the area in his patrol car and, within three to four minutes after receiving the report, saw a vehicle going past Deja Vu with two black males, and the driver was wearing a black jacket. The officer started following the vehicle and checked its registration number and learned that the owner was Darrell Cross. When the name of Cross was broadcast, another officer came on the air to advise that Cross was known to carry weapons.

Officer McCrary stopped the Cross vehicle and ordered Cross and his passenger to stay in the car. Officer McCrary waited for another car to arrive.

On the arrival of the second police car, McCrary asked Cross to step out of the car and show some identification. While Cross was outside the car, another police officer arrived and immediately performed a search of the passenger compartment of the vehicle. That officer found a 25 caliber automatic handgun under the driver's seat. When the gun was found, McCrary performed a pat-down of Cross and found a 25 caliber automatic clip and bullets in his left front pocket. Cross was subsequently charged with carrying a concealed weapon.

On appeal by the state as authorized by § 547.200, RSMo 1986, the correctness of the trial court's decision is measured by whether the evidence is sufficient to sustain the findings. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985). ² This case does not present any conflict in the evidence so the evidence can only be stated as it was presented. Thus, the only test to be applied is whether or not the evidence is sufficient to sustain the finding that evidence of the presence of the gun under the seat be suppressed. ³

The first question presented is whether or not Officer McCrary had any legal justification to stop the Cross vehicle. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), first recognized the right of police officers to make an investigatory stop. In State v. Fernandez, 691 S.W.2d 267, 269[1-4] (Mo. banc 1985), the court stated that Terry recognizes the need for immediate stops even when there is no probable cause for arrest. A Terry-type stop has been extended to include the stop of a motor vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). In State v. McCabe, 708 S.W.2d 288, 290 (Mo.App.1986), it was held that a police officer may stop a vehicle for investigative purposes although no probable cause to arrest exists.

Fernandez held that Terry requires that the stop be justified at its inception. Quoting United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 681, 83 L.Ed.2d 604 (1985), Fernandez stated:

"[I]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved or is wanted in a completed felony, then a Terry stop may be made to investigate that suspicion."

691 S.W.2d at 269[5-7]. Fernandez further held that the circumstances surrounding the stop do not have to exclude the possibility of innocent behavior. Id.

In State v. Lasley, 583 S.W.2d 511, 518 (Mo. banc 1979), the court quoted from Terry that reasonable suspicion entitles an officer to stop an individual "when the officer is 'able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.' " The court further stated that the standard by which reasonable suspicion is gauged "is whether the facts available to the officer at the moment of the seizure warrant a person of reasonable caution in the belief that the action taken was appropriate." Id.

The resolution of the question of whether or not Officer McCrary had a reasonable suspicion that justified an investigative stop of the Cross vehicle involves the determination of whether or not a person of reasonable caution would believe the action taken was appropriate. The action of Officer McCrary meets that test.

The evidence was that it was 11:00 p.m. and that Officer McCrary did not see any other black males in the vicinity of Deja Vu. Certainly the fact that Cross and his passenger were black did not justify a stop. However, given the lateness of the hour, that Officer McCrary did not observe any other black males in the area of the Deja Vu, the fact that the suspects were described as two black males with one wearing a black jacket, and the presence of two such individuals in a car passing the Deja Vu within three to four minutes after the report of the assault, leads to the conclusion that a person of reasonable caution would believe that it was appropriate to make an investigative stop of the Cross vehicle.

There is no significance in the fact that McCrary followed the Cross vehicle for some distance. He never lost sight of the Cross vehicle, and he was justified in trying to learn some information about the ownership of the vehicle before he actually stopped it. The stop was justified under the test articulated in Terry and Lasley.

The second question concerns the propriety of the search of the passenger compartment after the stop. In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Court held that after an investigative stop the officer may conduct a search of those areas of the passenger compartment of the automobile in which a weapon may be placed or hidden "if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." 463 U.S. at 1049, 103 S.Ct. at 3481, 77 L.Ed.2d at 1220. The Court quoted from Terry: " '[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' " Id.

The Court held in Long that an officer conducting a legitimate search of the interior of the automobile cannot be required to ignore contraband which he may discover. Id.

In this case, the question is whether or not the police officers were reasonably warranted in believing that Cross was dangerous and might gain immediate control of weapons. Clearly the officers were justified in believing that Cross was dangerous because the incident they were investigating involved the drawing of a knife on another person and because of the information which was broadcast that Cross was known to carry weapons. A Terry search of the interior of the automobile was fully justified. ⁴

Under Long, the officers were not required to ignore the presence of the gun under the driver's seat when they conducted a Terry search.

To sustain the trial court's suppression of the evidence, this court is required to find the evidence sufficient to conclude that the stop and search were not authorized by law. Because the evidence is insufficient to support such a finding, the order of suppression must be reversed. The order suppressing evidence of the presence of the gun under the seat is reversed, and this cause is remanded with directions to admit such evidence.

GAITAN, J., concurs.

BERREY, J., dissents in separate opinion.

BERREY, Judge, dissenting.

I respectfully dissent.

The issue raised in the present case is stark and simple: Does being a black man who is wearing a black jacket and driving a car with a black companion near a crime scene give a police officer reasonable suspicion to justify the stop of the black man's car? The majority would have us believe so but after a thorough review of the facts in this case the majority position is clearly untenable.

Just after 11:00 p.m. on March 1, 1986, Officer McCrary of the Columbia, Missouri Police Department received a call to go to the Deja Vu, located at the northeast corner of Seventh and Cherry. The call indicated a disturbance and a suspect with a knife. McCrary arrived on the scene in fifteen (15) seconds as he was just around the corner. McCrary talked to the manager and was told that the suspect had just left. The manager said one was about five foot seven and wore a black jacket. Two persons were apparently involved, both black males, but the transcript is woefully short of testimony to elaborate further.

McCrary said he learned that "they just pulled a knife on somebody at the door and that was it." McCrary testified he did not know when the event happened. McCrary then put out the information he'd received on the radio to all officers. He was told the suspects were last seen running south on Seventh street.

McCrary then "cleared the area" and started looking around. He drove south on Seventh and "started looking around the area the way they ran and then came back through the same area." McCrary then observed a vehicle westbound on Seventh at Cherry, in front of the Deja Vu, containing two negro males, the driver wearing a black...