State v. Hawkins

• Court: Missouri Court of Appeals
• Writing for the Court: Patricia Breckenridge
• Citation: State v. Hawkins, 137 S.W.3d 549 (Mo. App. 2004)
• Decision Date: 06 July 2004
• Docket Number: No. WD 61979.,WD 61979.
• Parties: STATE of Missouri, Respondent, v. Terrence L. HAWKINS, Appellant.

137 S.W.3d 549

STATE of Missouri, Respondent, v. Terrence L. HAWKINS, Appellant.

No. WD 61979.

Missouri Court of Appeals, Western District.

July 6, 2004.

Rosemary E. Percival, Kansas City, MO, for appellant.

Andrea Mazza Follett, Assistant Attorney General, Jefferson City, MO, for respondent.

Before NEWTON, P.J., ULRICH and BRECKENRIDGE, JJ.

PATRICIA BRECKENRIDGE, Judge.

Terrence L. Hawkins appeals his conviction for one count of the class D felony of unlawful use of a weapon, under section 571.030, RSMo 2000,¹ and one count of the class A misdemeanor of possession of a controlled substance, marijuana, under section 195.202. On appeal, Mr. Hawkins claims that the court erred in overruling his motion to suppress evidence because the initial stop, the pat-down search of his person, and the subsequent search of the car in which he was a passenger were illegal, and any evidence obtained was inadmissible as fruit of the poisonous tree. Mr. Hawkins also claims that the State did not establish that he knowingly carried a loaded gun on or about his person and, therefore, failed to prove that he committed the crime of unlawful use of a weapon. Because this court finds that the stop and searches were lawful, and the evidence was sufficient to support Mr. Hawkins' conviction for unlawful use of a weapon, the judgment is affirmed.

Factual and Procedural Background

In the early morning hours of April 2, 2002, Lieutenant Michael Smith of the Jefferson City Police Department was conducting surveillance of 10 and 12 Jackson Street, which are two buildings known as the Dulle and Hamilton Towers. In his twelve-year tenure with the police department, Lieutenant Smith was familiar with this area because the department had received numerous calls to the area concerning "[e]verything from narcotics transactions to trespassing disturbances." Additionally, in the six years he was assigned to the community services unit, he spent a lot of his time in this neighborhood. According to Lieutenant Smith, the neighborhood was "a common area for [drug] transactions to take place." Lieutenant Smith had had recent contact with members of the Housing Authority Staff, who "believed that they had a [drug trafficking] problem there."

At around 12:50 A.M., Lieutenant Smith was watching the activity at the Dulle and Hamilton Towers through binoculars when he saw a red Chevrolet Corvette pull up in front of the Towers. There were two men inside the Corvette. As the Corvette pulled up, a man exited one of the buildings and approached the car. The passenger got out of the car. Lieutenant Smith recognized the passenger to be Mr. Hawkins. Lieutenant Smith knew Mr. Hawkins from Mr. Hawkins' prior arrest, during which Mr. Hawkins was found to be in possession of a stolen car, $1300 in small bills, and several grams of crack cocaine.

After Mr. Hawkins got out of the Corvette, Lieutenant Smith saw Mr. Hawkins and the man who had come out of the building do a "hurried action." Lieutenant Smith believed the "hurried action" was a hand-to-hand transaction, during which the two men passed something between them. According to Lieutenant Smith, it looked like more than just a handshake. Instead, the movement of their hands indicated "that there was something that had been exchanged between the two." Lieutenant Smith testified that this action took less than thirty seconds.

Believing it likely that a narcotics transaction had taken place, Lieutenant Smith exited the lot and pulled up behind the Corvette. Lieutenant Smith's patrol car was unmarked, and he did not activate the dashboard lights or siren. As Lieutenant Smith's car approached the rear of the Corvette, the unidentified man hurriedly left the area and went back into the building. Mr. Hawkins stepped back into the front passenger seat of the Corvette. As Lieutenant Smith started to get out of his car, the driver of the Corvette drove away.

Lieutenant Smith got back into his car and followed the Corvette on Jackson Street for half a block before activating his dashboard lights. The Corvette stopped. Lieutenant Smith ran a check on the license plate and found that the car was registered to General Davis. Lieutenant Smith also radioed for backup. As he was waiting for backup to arrive, Lieutenant Smith got out, stood by his car, and watched the men in the Corvette.

In less than thirty seconds, Officer Steve Dappen arrived in a patrol car and parked behind Lieutenant Smith. Lieutenant Smith told Officer Dappen he had seen a hand-to-hand drug transaction between Mr. Hawkins and another man. The two officers began walking toward the Corvette. As Lieutenant Smith approached the driver's side, he watched both men through the Corvette's rear window. Lieutenant Smith saw Mr. Hawkins, still sitting in the front passenger seat, make "some form of furtive movements." Specifically, Lieutenant Smith saw Mr. Hawkins' shoulders move forward, and Mr. Hawkins "appeared to lean forward as if he was placing something on the floor or under the seat." Concerned, Lieutenant Smith told Officer Dappen to keep a close eye on Mr. Hawkins, because he had seen Mr. Hawkins bend over and put something under the seat.

Lieutenant Smith asked the driver for his license, identified him as Mr. Davis, and then asked him to step to the rear of the car where they could talk. During his conversation with Mr. Davis, Lieutenant Smith obtained Mr. Davis' permission to search the car. Meanwhile, Officer Dappen, who did not move any closer to the passenger side than the rear bumper, shone his flashlight on Mr. Hawkins. Officer Dappen was unable to see Mr. Hawkins' hands, but he believed Mr. Hawkins was fidgeting with something in his lap. When Officer Dappen asked to see Mr. Hawkins' hands, he raised them. Once Mr. Hawkins raised his hands, Officer Dappen saw that he was holding a cell phone.

Officer Dappen asked for Mr. Hawkins' identification, and Mr. Hawkins complied. Officer Dappen then explained to Mr. Hawkins that Lieutenant Smith had stopped him for suspicious activity. He also asked Mr. Hawkins if he had been at the Towers, gotten out of the Corvette, and made a drug deal, to which Mr. Hawkins said, "No." Officer Dappen asked Mr. Hawkins to step out of the car.

Because of Mr. Hawkins' actions when the officers first approached the car, and because of the transaction Lieutenant Smith had witnessed, Officer Dappen was concerned for their safety and asked Mr. Hawkins if he would consent to a pat-down search for weapons. Mr. Hawkins consented. During the pat-down search, Officer Dappen patted the left front pocket of Mr. Hawkins' shirt. As his hand hit the pocket, Officer Dappen "immediately" felt a paper bag and a leafy substance inside the paper bag. Officer Dappen did not manipulate the substance or push against the shirt pocket. In his training and experience as a police officer, Officer Dappen had found paper bags that contained marijuana on people or in vehicles. Based upon this training and experience, Officer Dappen believed that the leafy substance in the paper bag was marijuana. Upon feeling the bag, Officer Dappen asked Mr. Hawkins what was in his pocket. Mr. Hawkins told him it was a paper bag. When Officer Dappen asked him why he had a paper bag in his pocket, whose bag it was, and what was in the bag, Mr. Hawkins did not reply.

While Officer Dappen held Mr. Hawkins, Officer Dappen asked Lieutenant Smith to remove the paper bag from Mr. Hawkins' pocket. Lieutenant Smith pulled the paper bag out from Mr. Hawkins' pocket. As Lieutenant Smith removed the paper bag, Officer Dappen saw a brown and green leafy substance fall from a hole in the bottom of the paper bag. From their training and experience, Lieutenant Smith believed the material to be a controlled substance, and Officer Dappen thought it was, specifically, marijuana. Officer Dappen arrested Mr. Hawkins for possession of a controlled substance, handcuffed him, and read him his Miranda rights.

After Mr. Hawkins was arrested, Lieutenant Smith informed Mr. Davis that his passenger had been arrested for possession of a controlled substance. Lieutenant Smith then began searching the car starting with the passenger side. Lieutenant Smith knelt on the curb and looked into the passenger side of the car. As he was looking into the car from that position, he saw part of a small handgun on the floor, sticking out from under the front edge of the front passenger seat. Lieutenant Smith retrieved the gun, a Sterling .22, and checked it for safety purposes. As he was checking the gun, he found a magazine loaded with six rounds of ammunition.

Mr. Hawkins was taken into custody, and the gun and the marijuana were taken to the Highway Patrol laboratory for testing. The gun, which was not registered, was found to function as designed by the manufacturer. Specifically, it was found to function as a semi-automatic firearm. Officer Dappen field-tested the substance in the bag and found it to be marijuana. Later, the Highway Patrol laboratory weighed and tested the substance and determined it was .24 gram of marijuana.

Mr. Hawkins was subsequently charged, as a prior and persistent offender, with one count of the class D felony of unlawful use of a weapon, under section 571.030; and one count of the class A misdemeanor of possession of a controlled substance, namely, marijuana, under section 195.202. Before trial, Mr. Hawkins filed a motion to suppress the gun, marijuana, and any testimony concerning this evidence on the basis that the stop and subsequent searches were unlawful. The motion was denied after a hearing.

Trial was held on August 13, 2002. Mr. Hawkins' defense focused primarily on the unlawful use of a weapon charge. Mr. Hawkins' main witness, Charles Key, testified that Mr. Hawkins had been staying with him and his son. According to Mr. Key, Mr. Hawkins had been home all day with him, lounging around and lying on the couch wearing pants but no shirt or shoes....