State v. Dowell

• Decision Date: 26 June 1984
• Docket Number: No. WD,WD
• Citation: 675 S.W.2d 875
• Parties: STATE of Missouri, Respondent, v. David E. DOWELL, Appellant. 35015.
• Court: Missouri Court of Appeals

Page 875

675 S.W.2d 875

STATE of Missouri, Respondent, v. David E. DOWELL, Appellant.

No. WD 35015.

Missouri Court of Appeals,

Western District.

June 26, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 28, 1984.

Application to Transfer Denied

Oct. 9, 1984.

Roy W. Brown, Bruce B. Brown, Kansas City, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, P.J., and MANFORD and BERREY, JJ.

LOWENSTEIN, Presiding Judge.

The defendant Dowell appeals his jury conviction for felony possession of more than five grams of hashish and felony possession of psilocyn, both controlled substances. Section 195.020 RSMo.1978. He received a sentence of two years on the first conviction and five years on the latter. The facts will be set forth as relevant to each of his three points.

Dowell first claims error in the trial court's failure to sustain his motion to suppress certain evidence allegedly seized in violation of the Fourth Amendment to the United States Constitution and Article I Section 15 of the Missouri Constitution. The evidence produced by the state at the suppression hearing to justify the warrantless search of the appellant's vehicle indicated the following. While on routine traffic patrol on Interstate 35 in Clinton County, Missouri, Officer Liebig of the Missouri Highway Patrol stopped a northbound red pickup truck, indicated by his radar unit to be speeding. As the truck rolled to a stop, the officer noticed movements by the driver towards the right side of the passenger compartment, in what appeared to be an attempt to cover up an article on the right side of the truck's cab.

Upon request the driver, appellant Dowell, stepped out of the truck and produced his driver's license, which indicated his age of 19 years. The officer placed him under arrest for the speeding violation, and noticed a moderate odor of alcohol on Dowell and several empty beer cans, beer bottles in the back of the truck. He then placed Dowell under arrest for the investigation of possession of intoxicants by a minor, and proceeded around the passenger side of the vehicle to investigate a cooler which he could see sitting on a table between the seat and the firewall on the floor of the vehicle, partially covered with an army style sleeping bag. As the officer walked around to the passenger side of the truck, Dowell followed him and began crying, saying he did not want to go to jail and to "Please throw it away," he would never do it again. The officer opened the door, moved the sleeping bag off the cooler, and lifted the lid from the cooler. Through the ice in the cooler he saw a red container which appeared to him to be a beer can. He also saw a paper sack sitting on top of the ice. As he "pushed the sack up the bottom of it fell out," revealing plastic sacks containing what the officer thought was a controlled substance. Dowell was again placed under arrest and this time handcuffed. Liebig reached for what he thought was the beer can through the ice, but discovered it was a coffee can. He looked inside this coffee can and found another sack which also contained what appeared to be a controlled substance. He then looked through a cardboard box to the right of the cooler and found a set of scales and a brown substance also appearing to be drugs.

At trial Dowell testified that a hitch-hiker he had recently picked up put the sack in Dowell's cooler and the other containers which contained the substances, also unknown to him, belonged to the hitch-hiker. Dowell said he let the hitch-hiker off at a rest stop but continued on and he was going to dump out these containers but was first stopped by the trooper. Appellant moved to suppress evidence of the cooler and its contents, the scales, and the contents of the cardboard box. The state at the suppression hearing sought to justify the search as supported by probable cause that the vehicle contained intoxicating beverages. Their brief provides an additional justification for the search as one incident to a lawful arrest.

Dowell does not question the officer's actions in stopping him for the speeding violation. His brief also acknowledges five observations by the officer upon which probable cause could rest that Dowell, a minor, had in his possession intoxicating beverages. See §§ 311.325 and 312.407 RSMo 1978. These observations include 1) the moderate odor of alcohol on Dowell's breath; 2) Dowell's underage status as indicated by his driver's license; 3) the presence of empty beer cans in the back of his truck; 4) Dowell's movements towards the passenger side of the truck after having been stopped for speeding; and 5) a cooler partially covered with a sleeping blanket. None of these observations required any more than the officer's use of his own sense of sight and smell. Cf. State v. Fingers, 585 S.W.2d 203, 206 (Mo.App.1979) (discussing "plain view" doctrine).

If the officer had probable cause to believe that Dowell had in his possession intoxicating beverages, a warrantless search of his truck could follow based upon the "automobile exception" to the warrant requirement. Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). This exception recognizes that any delay caused by the necessity to secure a warrant to search an automobile would likely result in the object of the search being placed beyond the warrant's reach. Warrantless searches of vehicles are not unreasonable and violative of the Fourth Amendment if based upon the same objective facts that would justify the issuance of a warrant if one were required and obtained from a magistrate. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1983). "[A]n individual's expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband." Ross, 456 U.S. at 823, 102 S.Ct. at 2171.

The five observations by the officer acknowledged by Dowell in his brief well satisfy the standards required for the existence of probable cause, which include only the probability, and not a prime facie showing, of criminal activity. See United States v. Taylor, 599 F.2d 832, 837 (8th Cir.1979). Contrary to Dowell's assertions, the officer's information was reliable and trustworthy under Fourth Amendment standards since based upon his own firsthand observations. These observations raised more than a "mere suspicion" that Dowell had in his possession intoxicating beverages.

In United States v. Ross, supra, the Supreme Court addressed an unresolved question concerning the scope of the automobile exception recognized by Carroll. In Ross, the police conducted a warrantless search of the defendant's car, including a closed brown paper bag, after receiving a tip from an informant that narcotics were being sold from the trunk of the defendant's car. The Court held that the scope of a lawful warrantless search under the automobile exception encompasses as extensive a search as could be authorized under a warrant "particularly describing the place to be searched." Ross, 456 U.S. at 800, 102 S.Ct. at 2159 (quoting U.S. Const. 4th Amend.) The scope of the warrantless search of a vehicle "is defined by the object of the search and the places in which there is probable cause to believe that it may be found," rather than the nature of the container where the object is hidden. Ross, 456 U.S. at 824, 102 S.Ct. at 2172.

Appellant attempts to impress upon the facts of this case the decisions of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (holding as unreasonable a warrantless search of a 200 pound footlocker being loaded onto a train) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (holding as unreasonable a warrantless search of a suitcase carried by defendant at an airport and placed into the trunk of a taxi). These decisions both refused to extend the Carroll rationale justifying the warrantless search of vehicles to any moveable containers believed to be carrying an illicit substance. Ross, 456 U.S. at 809, 102 S.Ct. at 2164. "[I]n neither Chadwick nor Sanders did the police have probable cause to search the vehicle or anything within it except the footlocker in the former case and the green suitcase in the latter." Ross, 456 U.S. at 814, 102 S.Ct. at 2167.

In Arkansas v. Sanders, the defendant had placed the suitcase believed to be carrying marijuana into the trunk of a taxi, where "no danger existed that its contents could have been secreted elsewhere in the vehicle." Ross, 456 U.S. at 813, 102 S.Ct. at 2166. In Sanders, "[t]he relationship between the automobile and the contraband was purely coincidental ...." Ross, 456 U.S. at 813, 102 S.Ct. at 2166 (quoting Arkansas v. Sanders, 442 U.S. at 766-767, 99 S.Ct. at 2594-2595 (Burger, J., concurring). In contrast, in State v. Borotz, 654 S.W.2d 111 (Mo.App.1983), the defendant, reasonably believed by police to be carrying contraband either on his person or in the attache case he carried, placed the attache case into the passenger compartment of an automobile. This court applied the principles of Ross rather than Sanders, holding probable cause supported the search of the entire passenger compartment, including the attache case. 654 S.W.2d at 116-117.

Like State v. Borotz, the principles of Ross rather than Sanders control the present case. None of Officer Liebig's observations related to occurrences outside the area of the truck. This distinguishes Arkansas v. Sanders, where the probable cause to search the defendant's suitcase existed prior to and independent of its placement into the trunk of the taxicab. As in Borotz, in this case more than a merely "coincidental" relationship existed between the truck and the officer's search for intoxicating beverages. Probable cause supported the officer's search of the entire truck rather...