State v. GAMBOW

• Decision Date: 10 March 2010
• Docket Number: No. SD 30076.,SD 30076.
• Citation: 306 SW 3d 163
• Parties: STATE of Missouri, Appellant, v. Mitchell P. GAMBOW, Respondent.
• Court: Missouri Court of Appeals

306 S.W.3d 163

STATE of Missouri, Appellant,
v.
Mitchell P. GAMBOW, Respondent.

No. SD 30076.

Missouri Court of Appeals, Southern District, Division Two.

March 10, 2010.

Brian Keedy, Prosecuting Atty., Richelle Christensen, Asst. Prosecuting Atty., Camdenton, for Appellant.

No appearance for Respondent.

DANIEL E. SCOTT, Chief Judge.

The State appeals an order suppressing evidence.¹ The relevant facts are not in dispute.

Facts

Defendant was a front-seat passenger in a car stopped for speeding. A deputy approached the vehicle, smelled marijuana, asked the driver to step out, and got her permission to search the car. The deputy then asked Defendant to get out and conducted a Terry² pat-down for officer safety. The deputy felt no weapon, just a hard object in Defendant's pocket. The deputy did not think it was a gun or knife, but did not know what it was.³ He ordered Defendant

306 SW 3d 164

to empty his pockets. Defendant did so. The hard object was a small container. The deputy saw it, thought it might contain narcotics, opened it without asking permission, and discovered two Xanax pills. After the car search turned up nothing, the deputy asked Defendant if he had anything else illegal. Defendant reached inside his shirt and handed over a bag of marijuana.

Ruling

The trial court found probable cause for the traffic stop, consent for the vehicle search, and that a Terry pat-down for officer safety was justified under the circumstances.

However, after the officer determined that the Defendant was not armed the reason for the Terry search ended. Therefore, the directive for the Defendant to empty his pockets and the seizure of the metal container and search of it without a warrant or consent constituted an unreasonable search and is, therefore, suppressed. State v. Kelley, 227 S.W.3d 543 (Mo.App. S.D.2007). See also State v. Courtney, 102 S.W.3d 81 (Mo.App. W.D.2003).

The court also suppressed the marijuana and Defendant's related admissions because they "flowed from the unreasonable search of the Defendant's pockets and the metal container."

Claim of Error/Analysis

The State urges an analysis not under Terry, but "as a search based upon probable cause." It makes a three-step argument for reversal. First, it correctly finds probable cause to search the car based on marijuana odor. See State v. Hamilton, 227 S.W.3d 514, 516-17 (Mo. App.2007). Second, it cites Wyoming v. Houghton, 526 U.S. 295, 307, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) for its statement that "police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search." Third, it argues from these propositions that "the police, with probable cause to search a vehicle, also have the right to...