State v. Higgs, WD 84161

CourtCourt of Appeal of Missouri (US)
Citation649 S.W.3d 107
Docket NumberWD 84161
Parties STATE of Missouri, Respondent, v. Thomas Steve HIGGS, Appellant.
Decision Date03 May 2022

649 S.W.3d 107

STATE of Missouri, Respondent,
Thomas Steve HIGGS, Appellant.

WD 84161

Missouri Court of Appeals, Western District.

Opinion filed: May 3, 2022
Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2022
Application for Transfer Denied August 30, 2022

Richard A. Starnes, Jefferson City, for Respondent.

William J. Swift, Columbia, for Appellant.

Division Four: Cynthia L. Martin, Chief Judge, Thomas N. Chapman, Judge, and W. Douglas Thomson, Judge


Thomas Higgs ("Higgs") appeals from the judgment of the Circuit Court of Boone County convicting him of the class D felony of unlawful possession of a firearm after a bench trial. In his four points on appeal, Higgs contends that the trial

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court clearly erred in denying his motion to suppress and in admitting such evidence at trial over his objections because (1) the arresting officer racially profiled Higgs in finding reasonable suspicion to perform a Terry stop; (2) the totality of the circumstances did not support a finding of reasonable suspicion to perform a Terry stop; (3) the arresting officer's actions from the outset were not consensual and constituted a seizure; and (4) the failure to provide a Miranda1 warning prior to custodial interrogation rendered both the statement and physical evidence inadmissible. We affirm.

Factual and Procedural History

On December 31, 2018, around 6:00 p.m., Columbia Police Officer Joshua Popielarz ("Officer Popielarz") was on patrol when he drove to the end of a dead-end street adjacent to which was a small apartment building. Officer Popielarz knew this to be the residence of a known drug dealer named Scott Alvis. On two separate occasions earlier that year, Officer Popielarz had served search warrants upon Scott Alvis at this apartment building. Officer Popielarz observed a man in the parking lot of the residence with a bicycle. Upon seeing the officer, the man proceeded around to the back of the building, still with the bicycle. The officer could not identify the man other than to identify him as black. Officer Popielarz then drove around and parked in a different parking lot so that he was behind the building. At no time did Officer Popielarz activate his emergency lights or siren.

Officer Popielarz walked over to the man and asked, "How are you?"2 At that point, and for the first time in this encounter, Officer Popielarz recognized the man as Higgs from a recent arrest for felony assault which had followed a disagreement about a drug deal. Officer Popielarz asked Higgs, "[d]o you remember me?" and Higgs acknowledged that he did. Officer Popielarz asked Higgs what he was "doing rolling around over here," to which Higgs stated "just visiting," and then added that he had gone to the store for a friend named "Scott," and gestured to the building. Higgs was carrying several items from the store and began to drop item after item. Officer Popielarz believed nervousness caused Higgs to do so.

Officer Popielarz observed the bicycle parked upright in a clearing in the woods, noticeably away from the building. Officer Popielarz asked Higgs why he "went around here when you saw me." Higgs responded that he was "coming this way" before he had seen him. Officer Popielarz replied stating, "[c]ome on, [Higgs], be straight with me." Higgs stated that he was "being straight." Officer Popielarz reminded Higgs that "you ran from me last time, remember that? I'm the one that tackled you onto the ground at Flat Branch Park. That was me. Because you ran from me." Higgs again dropped items from his bag during which time the bicycle fell over. Officer Popielarz asked Higgs if the bicycle was his and Higgs said that it was. Officer Popielarz asked, "[h]ow long have you had that?" Higgs stated "[i]t's not mine. I'm just riding it." Officer Popielarz then asked Higgs if he "ha[d] anything illegal" on him. After a short pause and as he picked up his dropped items, Higgs stated "no" and began to walk away

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from Officer Popielarz, to which the officer asked, "[w]here are you going?" Higgs answered he was going to stand his bike back up, and Officer Popielarz responded, "[o]h, okay, go ahead." Officer Popielarz then approached the bicycle, shined his flashlight on it, and again asked, "[t]his is a nice bike. How long have you had it?" Higgs again stated that it was not his and that he was "just riding it."

Upon Officer Popielarz taking this further interest in the bicycle, Higgs began to walk away again. Officer Popielarz told Higgs, "[d]on't go anywhere" and told Higgs to "sit down." Higgs repeatedly asked why and Officer Popielarz repeated his command to sit down. Higgs eventually complied. As Higgs sat on the concrete, Officer Popielarz told him that this was his "one warning," and "if you try to walk away from me again, I will throw you on the ground. You have my word. Do you understand me?"3 Higgs acknowledged that he understood.

Because Higgs had begun to walk away after stating for the second time he was "just riding [the bike]", Officer Popielarz called for backup and another officer arrived shortly thereafter. Officer Popielarz then turned to Higgs and stated, "I'm investigating a couple things right now, [Higgs], okay? I needed him here (pointing to the approaching officer) so you don't run from me again." Officer Popielarz then turned his attention back to the bicycle.4 The bicycle's serial number was radioed in by Officer Popielarz to see if it had been reported stolen. Dispatch reported the serial number was not on file.5 Officer Popielarz also ran Higgs for any outstanding warrants; none were reported.

Officer Popielarz asked Higgs for permission to search him. Higgs provided a mumbled, unintelligible response, and Officer Popielarz asked, "[y]ou do mind?" Higgs then volunteered, "I have paraphernalia." When asked, Higgs clarified that he had drug paraphernalia on his person. Officer Popielarz told Higgs to stand up so that he could place him under arrest. As Higgs stood up, he began reaching into his right jacket pocket. Officer Popielarz grabbed his arms and placed them behind his back. As Officer Popielarz reached for handcuffs, Higgs again attempted to move his arms back in front of him. Officer Popielarz warned Higgs that he would take him to the ground if he did so again. While attempting to handcuff Higgs, Higgs again moved his arms in front of him, and Officer Popielarz pushed him to the ground. Higgs landed with his hands beneath him and was still trying to reach into his right jacket pocket. Officer Popielarz demanded him to stop resisting and in the midst of the struggle unsheathed his taser, which Higgs quickly grabbed and pulled out of Officer Popielarz's grip. Officer Popielarz was able to recover the taser, and in the struggle the taser deployed and struck Higgs. Officer Popielarz was thereafter able to secure Higgs in handcuffs.

A search of Higgs subsequent to arrest revealed a 9mm handgun in his right jacket pocket. The handgun was loaded with a round in the chamber. Several more bullets were discovered in Higgs's pocket. Two pipes used for ingesting illicit drugs

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were found in Higgs's left jacket pocket and pant pockets. The entire encounter between Officer Popielarz and Higgs, from initial backyard interaction to finally being handcuffed, lasted approximately nine minutes.

Higgs was charged as a prior and persistent offender with the felonies of unlawful possession of a firearm and attempting to disarm a peace officer, and with the misdemeanors of resisting a lawful detention and possession of drug paraphernalia. In exchange for Higgs waiving a jury trial, the State dismissed all counts except unlawful possession of a firearm.

On September 21, 2020, Higgs filed a motion to suppress evidence and statements, arguing that the evidence seized and statements given were the result of an unlawful search and seizure "in violation of [Higgs]’s rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments[.]" Following a suppression hearing, the trial court denied the motion.

On October 7, 2020, a bench trial was held. At trial, the State offered into evidence the firearm and ammunition found on Higgs, to which Higgs objected based on his motion. Higgs again objected by renewing his motion when Higgs's statements were offered. The trial court overruled Higgs's objections. Higgs was found guilty of felony unlawful possession of a firearm as a prior and persistent offender. The court sentenced Higgs to ten years in the custody of the Department of Corrections.

Higgs appeals. Further factual details will be provided as relevant in the analysis below.

Standard of Review

This Court's review of the circuit court's ruling is a two-part inquiry. "Th[is] Court defers to the trial court's determination of credibility and factual findings, inquiring only whether the decision is supported by substantial evidence, and it will be reversed only if clearly erroneous." State v. Hughes , 563 S.W.3d 119, 123 (Mo. banc 2018) (quoting State v. Carrawell , 481 S.W.3d 833, 837 (Mo. banc 2016) ). This Court considers both the evidence presented before the ruling on the motion...

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