State v. Franklin, No. 74851

• Court: United States State Supreme Court of Missouri
• Writing for the Court: COVINGTON; ROBERTSON; HOLSTEIN, J., concurs in opinion of ROBERTSON; PRICE; ROBERTSON
• Citation: 841 S.W.2d 639
• Decision Date: 27 October 1992
• Docket Number: No. 74851
• Parties: STATE of Missouri, Appellant, v. Curtis FRANKLIN, Respondent.

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841 S.W.2d 639 STATE of Missouri, Appellant,
v.
Curtis FRANKLIN, Respondent. No. 74851. Supreme Court of Missouri,
En Banc. Oct. 27, 1992.
As Modified on Denial of Rehearing Nov. 24, 1992.

Page 640

Albert A. Riederer, Pros. Atty., Robert Frager, Asst. Pros. Atty., Jackson County, Kansas City, for appellant.

Kathleen Kopach Woods, Byron Neal Fox, Kansas City, for respondent.

COVINGTON, Judge.

The State appeals from the trial court's order sustaining Respondent Curtis Franklin's motion to suppress evidence in which respondent challenged the initial stop, the subsequent arrest, and the legality of the searches that resulted in prosecution of respondent for possession of illegal drugs. The trial court found that the investigating officer had no reason to stop respondent and subsequently to search him and the car he was driving. The court further found that the subsequent arrest of respondent for failing to display a driver's license was a pretext to justify a more complete search of respondent and an inventory search of respondent's vehicle. The state made interlocutory appeal pursuant to § 547.200, RSMo 1986. The Missouri Court of Appeals, Western District, affirmed, addressing only the question of the validity of the arrest. This Court granted transfer to consider the important question of the allegedly pretextual arrest. Upon review of the record this Court finds the investigatory stop to have been invalid and does not, therefore, reach the question of the validity of the arrest. Affirmed.

The record reflects that on October 3, 1989, at approximately 6:45 p.m., Officer Duncan of the Kansas City Police Department received a dispatch stating "party armed, occupying a black 1984 Pontiac Fiero in the area of 4200 East 60th Terrace."

Officer Duncan proceeded to the area, where he saw a black Pontiac Fiero being driven westbound on 61st Street. The officer turned around to follow the Fiero and turned on his red lights. Respondent turned into a gas station and stopped.

Officer Duncan approached the Fiero with his gun pulled and directed respondent to exit the vehicle. Officer Duncan took respondent to the side of the vehicle, handcuffed him, and patted him down to determine whether respondent had a weapon on his person. Finding no weapon, Officer Duncan felt under the seats of the vehicle and checked the console for a weapon. Again he found no weapon. Officer Duncan then asked respondent for his driver's license.

When respondent was not able to produce a driver's license, Officer Duncan placed respondent under custodial arrest

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and searched him. Officer Duncan found a marijuana cigarette in respondent's pocket and, as a result, Officer Duncan placed respondent under arrest for possession of marijuana.

Officer Duncan conducted an inventory of respondent's vehicle and discovered two additional marijuana cigarettes and a brown grocery sack containing $37,843.99. Officer Duncan called a canine officer to search the car. The dog discovered another marijuana cigarette.

The trial court sustained respondent's motion to suppress the evidence seized from his person and from the vehicle. In the suppression order, the trial court found that Officer Duncan had no reason to believe that respondent was engaged in any type of criminal activity that would authorize an investigatory stop. The trial court further found the arrest for not bearing a driver's license to be pretextual.

On appeal the state contends that the initial stop was valid, that the arrest of respondent for not having a valid driver's license on his person was valid, and that the search pursuant to the arrest was permissible. Respondent contends that the trial court properly sustained respondent's motion to suppress because respondent and the vehicle were illegally searched. Respondent challenges the validity of the initial stop, the searches, and the arrest, which respondent claims was pretextual.

The reviewing court is to affirm the trial court's decision if the evidence is sufficient to sustain its finding. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). The facts and the reasonable inferences arising from the facts are to be stated favorably to the trial court's order with the reviewing court free to disregard contrary evidence and inferences. State v. Stokes, 710 S.W.2d 424, 426 (Mo.App.1986). Neither party disputes the facts of the present case. The correctness of the trial court's decision is, therefore, measured solely by whether the evidence is sufficient to sustain the findings.

The first issue is the question of whether the initial stop was permissible under the Fourth Amendment of the United States Constitution. Respondent contends that the stop was improper because Officer Duncan lacked the requisite reasonable suspicion to make an investigatory stop. Respondent's contention is correct and is dispositive.

The Fourth Amendment of the United States Constitution affords citizens constitutional protection from unreasonable searches and seizures. The Fourth Amendment is not offended when a law enforcement officer briefly stops a person if the officer has a reasonable suspicion, based upon specific and articulable facts, that the person was or is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985). Nor is the Fourth Amendment offended when a law enforcement officer briefly stops a moving automobile to investigate, founded upon a reasonable suspicion that the occupants are involved in criminal activity, if the suspicion is supported by specific and articulable facts. United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975).

Although a stop must be supported by reasonable suspicion, a detaining officer is not always required personally to observe the facts that lead to reasonable suspicion, just as an arresting officer is not always required personally to observe the facts that lead to probable cause for an arrest. See United States v. De Leon-Reyna, 898 F.2d 486, 489 (5th Cir.1990); United States v. Webster, 750 F.2d 307, 323 (5th Cir.1984), cert. denied, 471 U.S. 1106, 105 S.Ct. 2340, 85 L.Ed.2d 855 (1985). See generally, 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(b) (2d ed. 1987).

An officer may receive information through another officer sufficient to authorize either an arrest or a stop. The appropriateness of an arrest made on the basis of information received through police channels was first addressed by the United States Supreme Court in Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). The Court held that an arresting officer is entitled to act on the strength of a radio bulletin. Where it is later determined,

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however, that the warrant underlying the bulletin was unsupported by probable cause, the arrest is not necessarily insulated from challenge simply because the instigating officer relied upon other officers to make the arrest. Id. at 568, 91 S.Ct. at 1037.

After Whiteley the question remained whether the Whiteley standard extended to situations in which an officer effects a Terry stop, rather than an arrest, on the basis of information received from another police officer or department. The United States Supreme Court in United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985), confronted the question and extended Whiteley to Terry stops. Hensley examined the legality of a Terry stop to investigate a past crime. The Hensley Court made clear that evidence from a Terry -type stop is inadmissible if an officer makes the stop on the basis of information provided by another officer or police department if the requesting officer or department lacked reasonable suspicion to make the stop. ¹ In Hensley a police officer

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stopped the defendant in reliance upon a flyer issued by another police department indicating the defendant was wanted for questioning. Id. at 229, 105 S.Ct. at 680. The Court recognized that effective law enforcement is dependent upon police officers acting at the request of other officers or police departments and detaining officers cannot be expected to cross-examine their fellow officers about the foundation for transmitted information. Id. at 231, 105 S.Ct. at 681. The Court held, however, that if an officer makes a stop in objective reliance on information provided by another officer or law enforcement office, the evidence uncovered as a result of the stop is inadmissible if the police who issued the bulletin lacked reasonable suspicion to make the stop or if the stop was significantly more intrusive than would have been permitted by the issuing department. ² Id. at 232, 105 S.Ct. at 682. ³

In the present case it is clear that if Officer Duncan had made a stop in objective reliance on information provided by a written bulletin, Hensley would control. The inquiry, then, is whether Hensley controls a stop made in reliance on a police radio dispatch, as well as a stop made in reliance on a police flyer. This Court finds no rational distinction between a stop made in reliance on a flyer and a stop made in reliance on a police radio dispatch, and no other court has made such distinction. ⁴ The logical application of Hensley, in fact, requires a finding that a police radio dispatch must be based upon reasonable suspicion if a stop initiated in reliance upon the dispatch is to be justified under the Fourth Amendment.

It remains to apply Hensley to this case. Hensley requires a determination of the following: (1) did the dispatch objectively support the action taken by Officer

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Duncan; (2) was the dispatch issued on the basis of a reasonable suspicion that the occupant of the Fiero had been involved in a crime; and (3) was the stop that in fact occurred any more intrusive than would have been permitted the...