State v. Gabbert
| Decision Date | 13 February 2007 |
| Docket Number | No. WD 66350.,WD 66350. |
| Citation | 213 S.W.3d 713 |
| Parties | STATE of Missouri, Appellant, v. James D. GABBERT, Respondent. |
| Court | Missouri Court of Appeals |
David A. Baird, Maryville, MO, for appellant.
Sydney F. Weybrew, Jr., Maryville, MO, for respondent.
Before HOWARD, P.J., BRECKENRIDGE and HARDWICK, JJ.
This is an interlocutory appeal by the State from an order of the trial court suppressing all weapons seized from and statements made by James D. Gabbert during the stop and search that led to his arrest. The State asserts that the trial court erred in sustaining Mr. Gabbert's motion to suppress because Mr. Gabbert did not have standing to object to the seizure and the seizure was lawful. Specifically, the State claims that the arresting officer was not in an area protected by an expectation of privacy and, even if the initial stop was illegal, the illegality was purged when Mr. Gabbert voluntarily consented to the search of his person. This court finds that because the Fourth Amendment protects people, not places, Mr. Gabbert has standing to object to the search and seizure of his person. This court further finds that the initial seizure of Mr. Gabbert was unlawful and his subsequent consent to search was not sufficiently attenuated to purge the taint of the primary illegality. Accordingly, the order of the trial court suppressing the evidence is affirmed.
On April 29, 2005, Sergeant Jeff VonBehren of the Maryville Department of Public Safety responded to a residence located at 311 W. 7th Street in Maryville to assist other officers in a drug investigation and "well-being check." The mother of a female juvenile reported that, after she discovered drugs in her daughter's purse, she went to 311 W. 7th Street to try and get her daughter to come home. Upon arriving at the residence, the officers pulled into a gravel driveway on the west side of the residence and parked. Officers Hoza, Davis, and McGraw proceeded to the front of the residence and Sergeant VonBehren remained on the west side. The officers made contact at the front door. Sergeant VonBehren was proceeding to the front of the residence when Officer McGraw radioed that someone had gone out the back door. Sergeant VonBehren, along with Officer Hoza, proceeded to the rear of the residence. There, Sergeant VonBehren observed Mr. Gabbert leaning against the outside of the house with his hands in his pockets.
Sergeant VonBehren ordered Mr. Gabbert to remove his hands from his pockets and Mr. Gabbert complied. Sergeant VonBehren testified that, at that time, Mr. Gabbert was not free to leave because the officers were conducting an investigation. Sergeant VonBehren then asked Mr. Gabbert to consent to a pat down search of his person. Mr. Gabbert consented and, without being asked to do so, turned and put his hands on the house. Sergeant VonBehren located a pocketknife in Mr. Gabbert's front pocket and, as he was taking the knife, Mr. Gabbert told him that there was another knife down inside of his sock. Sergeant VonBehren was not able to see the knife, but recovered it from the sock on the inside of Mr. Gabbert's right leg. The knife was contained in a sheath with wrapping around the handle. Mr. Gabbert was then arrested, handcuffed, and taken to the department of public safety. Sergeant VonBehren did not read Mr. Gabbert his Miranda1 rights. At the department of public safety, Mr. Gabbert told Sergeant VonBehren that he did not live at 311 W. 7th Street and that he was in-between places.
On August 11, 2005, the State charged Mr. Gabbert by information with unlawful use of a weapon, in violation of section 571.030.1(1), RSMo Cum.Supp.2005.2 Mr. Gabbert filed a motion to suppress all physical evidence and any statements made by him prior to or subsequent to his arrest on April 29, 2005. The motion was heard on December 12, 2005, and the trial court issued its findings of fact and conclusions of law and order on December 20, 2005, suppressing all evidence and statements obtained from Mr. Gabbert as a result of the stop and search on April 29, 2005. Specifically, the trial court found that because Mr. Gabbert was not in a public place when the police approached him and there was no reasonably articulable reason for the stop, the court found that the stop was improper and any information obtained as a result of the stop, even though it was obtained through a search to which Mr. Gabbert consented, was illegally obtained and subject to suppression. The State filed this interlocutory appeal.
A trial court's order suppressing evidence is entitled to interlocutory appeal under section 547.200.1, RSMo 2000. State v. Wilson, 169 S.W.3d 870, 875 (Mo. App. W.D.2005). This court's review of a trial court's order on a motion to suppress evidence is limited to determining whether the decision is supported by substantial evidence. Id. This court will reverse only if the order of the trial court is clearly erroneous. Id. An order of the trial court is clearly erroneous if this court is left with a definite and firm impression that a mistake has been made. Id. This court views all of the facts and reasonable inferences therefrom in the light most favorable to the order of the trial court and disregards all contrary evidence and inferences. Id. However, "`[w]hether the Fourth Amendment has been violated is a legal question which this court reviews de novo.'" State v. Mosby, 94 S.W.3d 410, 415 (Mo.App. W.D.2003) (citation omitted).
In the State's sole point on appeal, the State asserts that the trial court erred in sustaining Mr. Gabbert's motion to suppress because Mr. Gabbert did not have standing to object to the seizure and that the seizure was lawful. Specifically, the State contends that Mr. Gabbert has no more standing to assert a violation of his Fourth Amendment rights than would be granted to a passenger in a vehicle owned by another because Mr. Gabbert did not have a legitimate expectation of privacy in the rear yard because it was not his residence. The State also contends that, even if the initial stop was illegal, the illegality was purged when Mr. Gabbert voluntarily consented to the search of his person.
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. Article 1, section 15 of the Missouri Constitution is coextensive with the Fourth Amendment. State v. Jackson, 186 S.W.3d 873, 879 (Mo. App. W.D.2006). An individual aggrieved by an unlawful seizure may file a motion to suppress evidence that is the product of an unlawful search and seizure. Mosby, 94 S.W.3d at 415. The State then has the burden to show, by a preponderance of the evidence, that the evidence should not be suppressed. Id.
The State claims that Mr. Gabbert did not have standing to object to the seizure because Mr. Gabbert did not have a legitimate expectation of privacy in the rear yard of the residence of a third party. In order for a defendant to have standing to assert a violation of his Fourth Amendment rights, the defendant must have a legitimate expectation of privacy in the place or thing searched. Id. The State is correct in its assertion that "[a] person who is aggrieved by an illegal search and seizure only through the introduction of physical evidence secured by the search of a third person's premises or property has not had an infringement of Fourth Amendment rights." State v. Clark, 729 S.W.2d 579, 584 (Mo.App. E.D.1987). However, the focus of the State's inquiry is misplaced. The question is not whether Mr. Gabbert has standing to object to the introduction of evidence secured by a search of a third person's premises or property. Rather, the question is whether Mr. Gabbert has standing to object to a search and seizure of his person.
"The Fourth Amendment protects people, not places." State v. Corpier, 793 S.W.2d 430, 437 (Mo.App. W.D.1990) (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). "Thus[,] the focus should not be on the area[,] but rather the defendant's actual expectation of privacy and the reasonableness of such." Id. Because "the Fourth Amendment is a personal right that must be invoked by an individual," Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), it follows that an individual may always challenge the legality of a search and seizure of his person. Mr. Gabbert, not the residence of the third party, was the subject of the search and seizure. Therefore, Mr. Gabbert has standing to object to the search and seizure of his person.
The State claims that even if Mr. Gabbert has standing to object to the search and seizure, Mr. Gabbert's pre-arrest encounter with Sergeant VonBehren was not an unlawful seizure. Specifically, the State claims because Sergeant VonBehren did not use any physical force or assert any police authority, Mr. Gabbert was not seized for purposes of the Fourth Amendment. Not all encounters between the police and private citizens constitute a seizure. State v. Stacy, 121 S.W.3d 328, 332 (Mo.App. W.D.2003). A seizure occurs only when an individual is subject to the application of physical force or voluntarily submits to the assertion of police authority. Id. In determining whether a police encounter constitutes a seizure, a court must examine all of the circumstances surrounding the encounter to determine whether the officer's conduct would have communicated to a reasonable person that he was not free to leave. Id. Although not exclusive, factors indicating a seizure has occurred are: "`the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice...
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... ... Defendant was thus not seized at the time the officers approached him. Mosby, 94 S.W.3d at 416 ... Defendant's failure to comply distinguishes this case from State v. Gabbert, on which Defendant relies. 213 S.W.3d 713 (Mo.App. W.D.2007). In Gabbert, the defendant actually complied with the officer's order to remove his hands. Id. at 718-19. The trial court found that he had been seized, and the appellate court affirmed the granting of the motion to suppress. Id ... ...
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...Amendment rights, the defendant must have a legitimate expectation of privacy in the place or thing searched.” State v. Gabbert, 213 S.W.3d 713, 718 (Mo.App. W.D.2007). “Whether a person has a reasonable expectation of privacy depends on a two-part inquiry, ‘first that a person have exhibit......
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...in the front. They don't adjust in the back. That's what I commonly see." Norfolk urges us to follow the holding in State v. Gabbert, 213 S.W.3d 713 (Mo. App. W.D. 2007) to overturn his conviction. In Gabbert, several police officers were called to assist other officers in a drug investigat......
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... ... Defendant was thus not seized at the time the officers approached him. Mosby, 94 S.W.3d at 416 ... Defendant's failure to comply distinguishes this case from Gabbert, on which Defendant relies. 213 S.W.3d 713 (Mo. App. W.D. 2007). In Gabbert, the defendant actually complied with the officer's order to remove his hands. Id. at 718-19. The trial court found that he had been seized, and the appellate court affirmed the granting of the motion to suppress. Id ... ...