State v. Heyer, 71452
| Decision Date | 20 January 1998 |
| Docket Number | No. 71452,71452 |
| Citation | 962 S.W.2d 401 |
| Parties | STATE of Missouri, Respondent, v. Thomas W. HEYER, Appellant. |
| Court | Missouri Court of Appeals |
Nick A. Zotos, Fabbri & Zotos, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Christine M. Blegen, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, Thomas Heyer ("defendant") appeals the judgment of the Circuit Court of Franklin County after the court found him guilty of possession of controlled substance with intent to distribute or deliver or sell, RSMo section 195.211 (1994), and sentenced him to five years imprisonment. We affirm.
On April 13, 1995, the Franklin County Sheriff's Department set up a drug enforcement checkpoint at the eastbound exit 242 ramp on Interstate 44, where Highway AH crosses the interstate. The sheriff's department placed two signs along Interstate 44, about one-quarter mile before the checkpoint area. The signs read "Drug Enforcement Checkpoint 1 Mile Ahead." The checkpoint area was selected because there was no services, food, gas, or lodging, so eastbound motorists would have little reason to leave Interstate 44. Contrary to the two signs, the sheriff's department set up the actual checkpoint at the top of the eastbound exit 242 ramp.
The drug enforcement checkpoint was operated pursuant to a written plan provided to the officers. The plan stated:
The exception [are] those which attempt to exit then return to the eastbound lanes, a chase car will be sent to stop them ... "
On April 13, 1995, Reserve Deputy Harry Tongay was stationed at the top of the ramp at the checkpoint area where he could observe vehicles approaching the exit. Around 10:00 a.m., Tongay observed a two-tone, black and gray Ford pick up truck with a camper shell. The truck had Pennsylvania license plates. The truck had its turn signal on and was approximately halfway out of the travel lane onto the ramp area when it reentered the flow of traffic on Interstate 44. After observing the truck attempt to exit then return to the eastbound lanes, Tongay, as called for in the plan, called for the pursuit car to stop the truck. Tongay spoke with Deputy Kenneth Hotsenpiller and gave him a description of the truck.
Hotsenpiller stopped the truck about one-half mile east of the checkpoint area. William Olsen was driving the truck. Defendant was the passenger. Defendant's dog was also in the truck. 1 Hotsenpiller asked Olsen for his driver's license and asked Olsen to step out of the truck. Defendant remained in the truck. Hotsenpiller then took Olsen to his patrol vehicle to run a record check. While waiting for the records check, Hotsenpiller advised Olsen the sheriff's department was operating a drug checkpoint, then explained to Olsen they had stopped him because he veered back onto Interstate 44. Hotsenpiller asked Olsen if he had any firearms, alcohol, or illegal drugs in his truck, and advised him if he had a misdemeanor amount of drugs in his possession they would seize the evidence and Olsen would be issued a summons to appear at a later date. Olsen responded he had eight pounds of marijuana in his possession. At that point, Hotsenpiller called for Deputy Pracht and Detective Guenther to come to his and Olsen's location. When Pracht and Guenther arrived, they took Olsen into custody then transported him back to the checkpoint area.
Hotsenpiller returned to Olsen's truck, informed defendant that Olsen had advised him there were drugs in the truck, and further advised defendant they were going back to the checkpoint area. Hotsenpiller drove defendant back to the checkpoint area in Olsen's truck, during which time he advised defendant of his Miranda rights. Olsen initially said he was just along for the ride but then declined to make a statement. When they arrived at the checkpoint area, defendant was again advised of his Miranda rights. Defendant declined to make a statement and was placed in the jail transport van. Defendant's dog remained in the truck.
Olsen refused to give his consent to search the truck, so a drug dog was used to sniff the outside of the truck for the presence of illegal drugs. The drug dog alerted the officers to the presence of illegal drugs in the truck by scratching on the tail gate. 2 Thereafter, the officers conducted a search of the inside of the truck. They recovered three duffle bags containing thirteen bundles of marijuana, weighing 128.80 pounds, in the bed of the trunk. When Hotsenpiller attempted to search the inside of the truck, defendant's dog, who was still inside, snapped at him. Defendant was then allowed to retrieve his dog from the truck and take the dog back to the jail transport van.
Following the search of the truck, the Chief of Detectives for the Franklin County Sheriff's Department, Russell Rost, was called out to the checkpoint area. Hotsenpiller briefed Rost regarding the stop and advised him defendant had been informed of his rights and did not want to speak with anyone. Rost went to the jail transport van and advised defendant they were waiting for the DEA agent to arrive and defendant would be booked for possession of a controlled substance. Rost also told defendant arrangements would be made for the Franklin County Humane Society to take care of his dog. At that point, defendant told Rost he had been hired to drive the truck for $2,000, gave Rost $1,805 in cash he still had, and told Rost he was not present when the marijuana was loaded.
A preliminary hearing was conducted on July 6, 1995, following which defendant was formally charged with possession of a controlled substance with intent to distribute or deliver or sell. On August 28, 1995, defendant filed motions to suppress the evidence and his statements. In his motion to suppress the evidence, defendant alleged the evidence was obtained pursuant to an unlawful search and seizure and that he was arrested without probable cause. In his motion to suppress his statements, defendant argued the length and nature of his interrogation and the conditions under which he was detained were inherently coercive. Defendant claimed he was induced to make statements by promises, either explicit or implied, of leniency.
A hearing on the motion to suppress was conducted March 15, 1996. Tongay testified he had worked full-time with the Sheriff's Department from 1987 through 1992, and then remained with the department as a reserve officer. He participated with the drug interdiction program "once or twice" before April 13, 1995. Tongay testified although the plan stated the deputies were to stay out of sight, in order for him to see the vehicles that might come up the ramp he had "to be visible to a certain amount." Tongay was wearing his full uniform which included his hat, and testified he was "possibly" seen from the chest up by vehicles on eastbound Interstate 44. Additionally, Tongay testified there were several patrol cars parked along the on-ramp on the opposite side of the checkpoint exit. Tongay testified as he was watching down the ramp toward Interstate 44, he observed Olsen's truck "had a turn signal on, attempted to come up the exit ramp, then changed their mind, and went back out onto the flow of traffic on eastbound 44." Tongay further testified Olsen's truck was "approximately halfway out of the travel lane onto the ramp," that "about half of the vehicle [was] off of the Interstate 44 and onto the exit ramp" when the truck veered back onto Interstate 44.
Hotsenpiller testified, after receiving a call from Tongay, he stopped Olsen's truck. Hotsenpiller testified, while he and Olsen were in the patrol car waiting for the records check, Olsen "was getting kind of nervous." Olsen subsequently told him he had "eight pounds" in his possession. Hotsenpiller testified he advised defendant of his constitutional rights when he drove defendant back to the checkpoint area. Defendant thereafter volunteered he had just been along for the ride. Hotsenpiller testified he reminded defendant of his constitutional rights and defendant replied he did not want to make a statement.
Rost testified that, when he arrived at the checkpoint area, Hotsenpiller told him defendant had been advised of his rights and did not want to make a statement, and defendant and his dog were in the transport van. Rost testified he went to the van to see defendant because he was concerned about the way defendant was secured. Rost also went to see defendant to reassure him his dog would be taken care of. Hotsenpiller had told Rost defendant was concerned about his dog. Rost testified when he approached defendant he advised him they were waiting for the DEA agent to arrive and the Franklin County Humane Society could take care of his dog, or arrangements could be made to send the dog home. Rost testified that, as he explained to defendant what arrangements could be made for his dog, defendant volunteered "this was really stupid," then said he had just been paid to drive. Rost testified he reminded defendant of his rights, and defendant responded that he did not mind talking to Rost. Defendant then told Rost he had been paid $2,000 to drive the truck and handed him $1,805 in cash.
Defendant testified at the time Tongay observed them start to leave Interstate 44, he and Olsen were planning to stop for something to eat. Olsen decided not to get off at the checkpoint area because there were no restaurants at that exit. Defendant testified that, when Rost approached him, Rost...
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