State v. Hensley

• Decision Date: 22 May 1989
• Docket Number: No. 16049,16049
• Citation: 770 S.W.2d 730
• Parties: STATE of Missouri, Plaintiff-Appellant, v. John Edward HENSLEY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 730

770 S.W.2d 730

STATE of Missouri, Plaintiff-Appellant, v. John Edward HENSLEY, Defendant-Respondent.

No. 16049.

Missouri Court of Appeals,

Southern District,

Division One.

May 22, 1989.

Martin Mazzei and James A. Broshot, Steelville, for plaintiff-appellant.

Dan L. Birdsong and Thomas, Birdsong, Clayton & Haslag, P.C., Rolla, for defendant-respondent.

GREENE, Judge.

The State appeals from the trial court's order sustaining the motion of defendant, John Edward Hensley, to suppress items taken by state highway patrolmen from the person of Hensley and his companion, Jeffrey Weber, and from the vehicle in which the two men were sitting, which items the State intended to use in its prosecution of Hensley on a criminal charge of felony possession of cocaine. We affirm.

The burden of showing erroneous action on the part of the trial court is on the appellant. Error must be affirmatively shown, or appear by necessary implication. Conjecture and inferences will not subserve such a purpose. State v. Harris, 534 S.W.2d 516, 519 (Mo.App.1976). Keeping this legal principle in mind, we turn to the evidence adduced at the motion to suppress hearing, which evidence we view in the light most favorable to sustain the trial court's ruling.

On February 9, 1988, at approximately 8:40 p.m., Jeffrey Paul and Robert Proctor, officers with the Missouri State Highway Patrol, were patrolling Interstate 44 in Crawford County, Missouri. They were traveling in a westerly direction and were approaching the Route F overpass when they noticed a pickup truck parked on the shoulder of the north outer road. As the officers continued westbound, they saw the pickup's backup lights come on which indicated that it was backing down the highway. Although the troopers had no facts to indicate that the occupant, or occupants, of the truck were engaged in any criminal activity, they decided to investigate. As they were exiting on the ramp that lead to the outer road, the officers stopped to render assistance to some people whose car was parked on the F ramp overpass. The nature of the trouble and the assistance rendered are not disclosed in the transcript of the suppression hearing.

The two officers then proceeded to the north outer road until it intersected with a gravel road known as Daniel Road. After turning left on Daniel Road, they observed two vehicles, one a pickup truck and the other a passenger car, parked on the far right side of the road. There was no one in the pickup. Weber was in the driver's seat of the car, and Hensley was in the front passenger seat. At this point, Paul and Proctor got out of their patrol car "to see if there was anything else we could do for these people. We didn't know if they were stranded or broken down or what." Trooper Paul testified that at this point the troopers had no reason to believe that either Hensley or Weber had committed a crime.

As Paul and Proctor were approaching the passenger car, Paul noticed a shotgun in the back seat. The shotgun was a legal weapon, and the troopers knew there was nothing illegal in having a shotgun in open view in the back seat of an automobile. At this time, Weber and Hensley had gotten out of the passenger car. For safety's sake, Paul and Proctor decided to "pat down" the two men. The "pat down" was for the personal protection of the two officers, and was made to see if either Weber or Hensley were carrying concealed "[s]mall caliber weapons or handguns." Paul patted down Weber and Proctor patted down Hensley. During his pat down of Weber, Paul felt a bulge the size of a film canister in Weber's "right top pocket." The transcript does not indicate whether the pocket was on Weber's shirt or pants. Paul removed the canister, which he knew was not a weapon, from Weber's pocket. He opened it, sniffed it and smelled what seemed to Paul to be "the odor of marijuana." Proctor then patted down Hensley. During his pat down, Proctor felt a small round cylinder that he thought was a bullet in the left breast pocket of Hensley's shirt. Proctor removed the object, which turned out to be a small vial. He then opened the vial, which contained what he suspected to be cocaine. At some later unspecified point in time, Weber and Hensley were arrested. Hensley was then charged with felony possession of cocaine, in violation of § 195.200.1(1), RSMo 1986.

After his preliminary hearing, and following his circuit court arraignment, Hensley's attorney filed a motion to suppress the cocaine taken from his person, as well as "any other controlled substance." The motion alleged that:

1. The search and seizure were made without warrant and without authority. The initial stop of Defendant was without probable cause and, thus, the subsequent seizure was illegal.

2. The Defendant did not violate any law, either misdemeanor or felony, nor did he violate any municipal ordinance, in the presence of the officers, which would warrant the search or initial stop of the Defendant.

3. The arrest of the Defendant was not based on any reasonable and probable cause to believe that he had committed a felony.

4. The arresting officer had no knowledge that a felony had been or was about to be committed.

5. The search and seizure were not reasonably incident in time and place to any lawful arrest of the Defendant. The pat-down did not give the officer probable cause for a search of the Defendant's pockets and personal property.

6. The search was not reasonably necessary for the safety of the police officer in that the Defendant was already in custody at the time the search was made, and said search took place beyond the immediate vicinity of said arrest.

7. The Defendant did not consent to said search and seizure, and any consent which may be alleged was involuntary, a result of coercion inherent in Defendant's arrest and the presence and authority of the police officers, was given without Defendant first being informed of his right to remain silent, his right to the presence of an attorney, his right to have any [sic] attorney appointed for him if he could not afford one and his right to object to a warrantless search, and did not constitute a knowing, intelligent waiver of a known right.

8. Said search and seizure were the product, result and poisonous fruit of the unlawful confrontation set forth in the preceding sections of this Motion; the grounds for suppressing testimony concerning said confrontation set forth in the preceding sections are hereby incorporated by reference in this section.

9. The grounds herein enumerated make said search and seizure unreasonable, and violative of Article 1, Sections 15 and 19 of the Missouri Constitution, and of the Fourth and Fifth Amendments and the due process clause of the Fourteenth Amendment to the United States Constitution.

After an evidentiary hearing in which the evidence referred to above was introduced, the trial court made the following findings, conclusions, and orders:

The Court finds that Trooper Proctor and Trooper Paul testified that, at the time they approached the Defendant and Jeffrey Weber, the driver of the vehicle in which the Defendant was seated, they were not arresting either of said subjects for any crime and there was no probable cause to arrest them at that time. The Court finds that, as the Troopers approached Mr. Hensley and Mr. Weber, they observed a shotgun in the back seat of the vehicle driven by Mr. Weber. The Court finds that the Troopers at that time felt it necessary to, and did, make a pat-down of Mr. Weber. The Court finds that in the pocket of Jeff Weber one of the Troopers found a round receptacle which was a film canister. The Trooper acknowledged that he did not believe the film canister was a deadly weapon or that it constituted any danger to him. The Court finds that the Trooper at that time made an illegal search of the canister by opening it and smelling its contents, which he discovered to be marijuana. The Court finds, as a matter of law, that the search of the film canister and the subsequent search of the contents of the pockets of John Hensley were not made pursuant to any probable cause existing at that time and place and were not a proper part of a pat-down procedure under the case of Terry v. State of Ohio, 392 U.S. 1, 29-30, 88 S.Ct. 1868, 1884-85 (1968). The Court finds that neither of the officers would be justified in concluding after the pat-down that what they felt in the pockets of Hensley and Weber were weapons; and, in fact, both Troopers testified and admitted that they did not believe that Hensley or Weber had dangerous weapons. The search conducted after that pat-down was illegal and without probable cause and not pursuant to any lawful arrest or consent to search.

WHEREFORE, the Court hereby suppresses all items seized from the person or vehicle of John Hensley or Jeffrey Weber, including, but not limited to, the drug cocaine, or any other controlled substance for the reason that such items were seized illegally and in violation of the Constitutional rights of the Defendant, John Edward Hensley.

The State appealed, claiming that (1) Hensley had no standing to object to the search of Weber's automobile, which presumably was done after the arrest of Weber and Hensley, (2) Hensley did not have standing to object to the search of Weber, and (3) the evidence found on the person of Hensley was seized as a result of a valid stop and frisk.

We turn first to the issue raised in point three, as it is dispositive. That issue affects and controls the intended use by the State of all evidence seized from the person of Weber and Hensley and from the automobile the two had been sitting in, in any prosecution against Hensley.

Cornerstones in the state and federal constitutions are article 1, § 15 of the Missouri Constitution, and the fourth amendment of the U.S. Constitution, which amendment applies to state actions through application of the fourteenth amendment. Article 1, § 15 of the...