State v. Hutchinson, 16952
| Decision Date | 20 September 1990 |
| Docket Number | No. 16952,16952 |
| Parties | STATE of Missouri, Plaintiff-Appellant, v. James E. HUTCHINSON, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Thomas E. Mountjoy, Pros. Atty., Pat J. Merriman, Asst. Pros. Atty., Springfield, for plaintiff-appellant.
Dee Wampler, Wampler, Wampler & Catt, Springfield, for defendant-respondent.
The State appeals 1 a trial court's order sustaining defendant's motion to suppress evidence. The order suppressed "all objects seized at the scene of the arrest" 2 of defendant by Jack McMullin, a member of the Missouri Highway Patrol.
The State's sole point on appeal is that the trial court erred in suppressing the evidence seized by the officer, "pursuant to the arrest of the defendant, which was precipitated by a lawful search for personal safety during a traffic stop because the trooper's actions fell within those categories of searches which fall outside constitutional requirements for a search warrant." "The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case." Sibron v. State of New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 932 (1968); State v. Cotterman, 544 S.W.2d 322, 323-24 (Mo.App.1976). The "concrete factual context" is determined from the testimony of Officer McMullin, the sole witness, and the evidence can only be stated as it was presented. State v. Robinson, 789 S.W.2d 876, 880 (Mo.App.1990).
Officer McMullin was on a motel parking lot in Springfield, having completed an unrelated investigation, when he saw a black Lincoln motor vehicle start to pull onto the motel parking lot. The officer was in uniform. The Lincoln automobile suddenly "veered off" and "took off in another direction, towards Kearney Street, through other parking lots." The officer followed the Lincoln motor vehicle through the parking lots to where it exited onto Kearney Street and went east on Kearney. At that point, other than veering off the parking lot, the officer noticed nothing unusual in the movement of the car and did not know who was driving the vehicle. After the Lincoln started east on Kearney and approached a traffic light, the light changed and "the car nosed down severely ... in an abrupt halt." After the traffic light changed to green, the Lincoln continued east. The officer noted the car was moving what he considered After following the Lincoln 2-3 minutes, the officer stopped the vehicle, without any difficulty, with his emergency equipment. The officer said he stopped the vehicle to check the driver for the possibility of being intoxicated. The Lincoln pulled onto a private parking lot.
The officer approached the Lincoln and requested a driver's license and vehicle registration. The driver was the defendant. He was the sole occupant of the vehicle. The officer was familiar with, and knew, the defendant. The officer explained why he had stopped the defendant. The officer saw nothing unusual about the interior of the car at that time. Defendant was drinking a Taco Bell Coca-Cola and the officer saw no intoxicants in the car. Defendant produced a valid driver's license and a registration for the vehicle. The officer asked defendant to get out, "to get a closer view of him and to observe his reactions." Defendant complied with the request and then stood outside the car beside the officer. Nothing unusual was noted about the appearance of defendant's eyes, his speech, or his walk. The officer concluded defendant was not intoxicated.
As defendant exited his car, the door was left open. The officer looked in and saw a pair of handcuffs lying on the floor. Defendant was not under arrest at that time. The officer had no particular arrest in mind. Possession of handcuffs was not unlawful, defendant's license and the vehicle registration had been produced, and defendant was not intoxicated. As defendant stood outside his vehicle beside Officer McMullin, the officer saw a jacket lying in the back seat, directly behind the driver's seat, and he reached in defendant's vehicle and picked it up. The Lincoln was a two-door vehicle. The front seat was a full seat (as opposed to a console-type seat). This meant that a person would have to reach up and over the front seat to have access to the back seat and the jacket which was lying on the back seat. When asked on direct examination why he picked up the coat, the officer answered,
On cross-examination, Officer McMullin was again asked, "Why did you pick the coat up?"; he answered:
A. I was just--well, I don't really know the reason why I did. I was just--like I said, I looked in the floorboards, saw the handcuffs and so forth, making a sweep there, and looked into the back seat and there was a coat and I just reached and picked the coat up.
Q. Okay. You say you were making a sweep. Now, tell me about that. Why were you sweeping the car?
A. Well, I don't know whether my terminology would be correct, but it's more or less a protective sweep because--of that particular area that the driver would have been in.
Q. Right. Protective sweep ensuing what, an arrest of some kind? Was the man under arrest?
A. Not at that particular time, no, sir. Like I said, I had him out and looked into the car.
Q. Well, you were just--you were afraid for your life at that point, is that right?
A. Well, I was double checking to make sure there wasn't any weapons, you know, like under the seat and so forth there near him.
Q. Double checking because you were going to arrest him for something at that point?
A. Not at that particular time. I didn't have any particular arrest in mind at that particular time.
When the officer picked the jacket up, he could tell one side of it was heavy. He felt near the pocket and could feel the outline of what he believed to be a revolver. Reaching into the jacket pocket, the officer found a revolver with live rounds in the chambers. The officer did not see the revolver by looking into the motor vehicle. He had to pick up the coat and reach into the jacket to see the revolver. Officer McMullin noted that the jacket contained a package of Camel cigarettes which was the same brand defendant was smoking. Defendant told the officer the jacket and gun belonged to "Chico." 3 After finding the gun, Officer McMullin had defendant step to the front of the Lincoln to give him a "patdown" search. 4 The record is less than clear on the question of whether or not defendant was arrested before the "patdown" search of his person. On direct examination, Officer McMullin testified:
Q. Now, prior to the time you patted him down, were you arresting him?
A. Yes, for the weapons charge, yes.
On cross-examination, the officer testified:
Q. ... [Y]ou didn't arrest him for carrying a concealed weapon or possession [of] an illegal weapon of any kind, did you?
A. Yes, sir.
Q. At that time?
A. Okay. Now, when do you mean? At that time? What period are you--
Q. Whenever you saw the weapon, did you say, "Aha, you're placed under arrest for carrying a concealed weapon in violation of Missouri law?"
A. I don't remember if I--I know that there was conversation about the weapon because he told me that it belonged to Chico. He made the comment that the weapon, you know, belonged to Chico.
* * * * * *
Q. He was not arrested for anything until after the Chap Stick tube was found in his right front pocket?
A. I placed the charge on him for the weapon and the narcotics, what I believed to be narcotics at that time.
Q. Okay. You're shaking your head yes when you answered the question, that he was not arrested until after you searched in his right front pocket.
A. The best I remember, yes.
Officer McMullin further testified that after he found the weapon, defendant was not free to go at that point; he intended to arrest him for the weapons offense whether or not he found anything else inside the vehicle.
As Officer McMullin was performing the "patdown" search of defendant, he "felt an object in his right shirt pocket ... and [he] took it out and it was a lip balm container ... like a ... Chap Stick." The officer took the top off the lip balm container and found it contained a white powder which was later tested to be methamphetamine. When asked about the search of the lip balm container, Officer McMullin's testimony was:
Q. Well, when you saw it [the container] were you looking for drugs?
A. Not particularly. I mean not really. Like I said, I just took it out and opened it and there was powder in it.
Q. Why would you open a Chap Stick type container and look in it?
A. Because there are containers that can conceal other things besides what their intended purpose is.
Q. Okay. The fact is you were looking for evidence at this point, not weapons?
A. Well, I don't guess I was really looking for anything, other than I did check the contents of the Chap Stick at the time.
* * * * * *
Q. ... [Y]ou were just curious and that's why you opened it up, is that right?
A. Yes, based on what I just said earlier.
The container with the powder was seized by the officer. During a later inventory search of the Lincoln, a clear glass tube that had a white powder residue on it was found and seized. Officer McMullin testified that he was familiar with the practice of carrying illicit drugs in containers such as the one seized from defendant. While he was not "particularly" looking for drugs when he opened the container, he looked into the container because he was curious about its contents.
When reviewing a trial court's order suppressing evidence, the facts and reasonable inferences arising therefrom are to be...
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