State v. Hernandez, WD

• Decision Date: 28 October 1997
• Docket Number: No. WD,WD
• Citation: 954 S.W.2d 639
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. Jaime HERNANDEZ, Appellant. 53131.

Page 639

954 S.W.2d 639

STATE of Missouri, Respondent, v. Jaime HERNANDEZ, Appellant.

No. WD 53131.

Missouri Court of Appeals Western District.

Oct. 28, 1997.

Andrew A. Schroeder, Asst. Public Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before SMART, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

SMART, Judge.

After a jury trial in Jackson County Circuit Court, Jaime Hernandez was convicted of the Class D felony of unlawful use of a weapon pursuant to § 571.030.1(4), RSMo Supp.1995, and sentenced to twelve months in prison. Hernandez now appeals, claiming that the circuit court clearly erred in admitting into evidence a knife that the police recovered from him after they seized him. Hernandez contends that the knife was obtained only after the police unlawfully seized him, and thus the knife was inadmissible as "fruit of the poisonous tree." We affirm the appellant's conviction and sentence.

At 12:04 p.m. on the afternoon of December 29, 1995, Kansas City Police Department Officers Donald Angle, Greg Volker, and Ronald Fletcher responded to a department radio dispatch reporting that some men described only as Hispanics were throwing rocks at the back a of building in an alley between Madison and Summit near the intersection of 23rd Street and Southwest Boulevard. The officers, who were all in uniform and driving separate marked police cars, met one or two blocks east of the call before going in to the area of the reported disturbance. They then proceeded together to the incident scene with Volker's car in front and Fletcher's car bringing-up the rear.

Upon arriving in the alley, the Officers Volker and Angle saw four to six men who appeared to be Hispanic. As Officer Volker emerged from his patrol car and approached the group of men, Officer Volker saw one of the men, Defendant Hernandez, place his hands in his coat pocket. Hernandez then abruptly turned away from Officer Volker and ran away from him. At that point Officer Volker yelled, "Stop, police," but Hernandez continued running. Officers Volker and Angle (who had since emerged from his patrol car) then pursued Hernandez on foot.

After the chase began, Officer Volker noticed that Hernandez was carrying a black object in his right hand. Officer Fletcher was still in his patrol car and observed the other officers running in pursuit. Officer Volker reported by radio that he was running westbound through the alley. Officer Fletcher heard the communication and, knowing that the alley came out onto Madison, attempted to head-off Hernandez by turning south onto Madison from 23rd Street. Officer Fletcher made visual contact with Hernandez as Hernandez ran out of the alley and then jogged down Madison Avenue toward Southwest Boulevard. Hernandez led the officers across Southwest Boulevard despite the heavy traffic on that street. Officer Fletcher saw Hernandez enter the parking lot of Royal Liquors at 801 Southwest Boulevard and, turning off his siren, pulled into the parking lot behind Hernandez. Hernandez saw Officer Fletcher's car and then dashed across Southwest Boulevard a second time before Officer Fletcher exited his car and gave chase to Hernandez on foot. At this point, Officer Fletcher noticed that Hernandez was carrying a black object in his right hand. Officer Fletcher caught up to Hernandez and tackled him, bringing him to the ground. Hernandez got back on his feet, but Officer Fletcher grabbed him about the waist and tried to pull Hernandez back to the ground. It was while Officer Fletcher was attempting to pull Hernandez back to the ground that Hernandez produced a knife in his right hand, which he raised above his head in order to stab Officer Fletcher in the head and neck area. Officers Angle and Volker, who had arrived at that time, grabbed Hernandez before he could harm Officer Fletcher. Officer Volker then hit Hernandez's right hand against the ground repeatedly until Hernandez dropped the knife. The officers subdued Hernandez, who continued to be hostile and appeared to be in an intoxicated state. After subduing Hernandez, the officers seized the knife and a black sheath. They then placed Hernandez under arrest.

The State charged Hernandez by amended information with unlawful use of a weapon, in violation of § 571.030.1(4) RSMo Supp.1995 Supp. On June 10, 1996, the case went to trial before a jury in Jackson County Circuit Court. Before the trial, Hernandez sought to suppress the use of the knife as evidence on the ground that it was the "fruit" of an illegal seizure. The trial court denied the motion. At trial, Hernandez renewed his objection and the court overruled Hernandez's objection to admission of the knife. Hernandez testified on his own behalf with the help of an interpreter. He admitted that before the police arrived he had been throwing a knife at a wooden fence. He claimed that the object police saw him put into his pocket was a Bible. Denying that he had any intention of stabbing Officer Fletcher, Hernandez claimed instead that he pulled out his knife in order to throw it away. The jury found Hernandez guilty as charged, and Hernandez was sentenced to twelve months in the custody of the Jackson County Department of Corrections.

Hernandez argues on appeal that the circuit court erred in denying his motion to suppress and then admitting the knife into evidence, alleging that the knife had been acquired as the "fruit" of an illegal seizure. Starting with the premise that the seizure of his person when Officer Fletcher tackled him was not justified by probable cause or reasonable suspicion, Hernandez further argues that he would not have drawn the knife "but for" the illegal seizure. Hernandez thus concludes that the seizure of the knife was tainted by the illegal seizure of his person and that this taint was not attenuated. Since the State would have had no case without the knife, Hernandez maintains that the alleged error was obviously prejudicial.

While it is conceptually interesting that Hernandez claims that his voluntary decision to draw out his knife was the "fruit" of his seizure by police, our finding that the seizure was legal obviates any need to decide whether the evidence to be suppressed was tainted by an illegal seizure.

In a hearing to suppress evidence as having been obtained through an unlawful search and seizure, the State has the burden of showing that the motion should be denied. § 542.296.6, RSMo 1994. Once the trial court has made its decision, however, there is an abuse of discretion only if reasonable persons could not differ as to the propriety of the trial court's action. State v. Jimerson, 820 S.W.2d 500, 502 (Mo.App.1991).

As the Missouri Supreme Court recently noted in State v. Rushing, 935 S.W.2d 30, 34 (Mo. banc 1996), the extent of Missouri's constitutional "search and seizure" guarantee (Mo. Const. art. I, § 15) is co-extensive with that of the Fourth Amendment of the United States Constitution, which has been incorporated into the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). For purposes of the Fourth Amendment, there is no "seizure" of a person until that person either is subjected to the application of physical force by the police or voluntarily submits to the assertion of police authority. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991).

An investigative stop short of arrest may be based on reasonable suspicion not rising to the level of probable cause. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889 (1968). Such reasonable suspicion is present when law enforcement officers have knowledge of specific and articulable facts which, when taken together with rational inferences from those facts, create a reasonable suspicion that a person has or is about to commit a crime. Rushing, 935 S.W.2d at 32 (citing Terry, 392 U.S. at 30, 88 S.Ct. at 1884-85). In reviewing for reasonable suspicion in street encounters, courts may consider "a police officer's trained instinctive judgment operating on a multitude of small gestures and actions impossible to reconstruct." Sibron v. New York, 392 U.S. 40, 78, 88 S.Ct. 1889, 1909-10, 20 L.Ed.2d 917 (1968)(Harlan, J., concurring). See State v. Sims, 639 S.W.2d 105, 107 (Mo.App.1982). When multiple police officers are working together closely in order to effect an arrest or engage in an investigatory stop, the Fourth Amendment is satisfied if the information known by all of the officers collectively amounts to probable cause or reasonable suspicion. See Wayne R. LaFave Search & Seizure: A Treatise on the Fourth Amendment § § 3.5(b)-(c), 9.4(i) (3d ed.1996). See also State v. Franklin, 841 S.W.2d 639, 644 n. 6 (Mo. banc 1992).

Because a Terry stop is less intrusive than a full arrest, the reasonable suspicion standard is less strict than the probable cause requirement. State v. Lasley, 583 S.W.2d 511, 518 (Mo. banc 1979). Reasonable suspicion does not require that the articulable facts and rational inferences on which the police act exclude all possible non-criminal interpretations. State v. Lanear, 805 S.W.2d 713, 716 (Mo.App.1991). ¹

For example, in State v. Adell, 716 S.W.2d 469 (Mo.App.1986), an officer received a radio dispatch reporting possible criminal activity involving several men and the use of a firearm. The officer saw the defendant and another man walking one block away from the reported scene at 3:30 a.m. The officer then observed that the two men, upon seeing her patrol car, slowed their...