State v. Jackson
| Decision Date | 28 March 2006 |
| Docket Number | No. WD 65321.,WD 65321. |
| Citation | 186 S.W.3d 873 |
| Parties | STATE of Missouri, Respondent, v. Gary M. JACKSON, Appellant. |
| Court | Missouri Court of Appeals |
Irene C. Karns, Columbia, MO, for Appellant.
Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
Before: JAMES M. SMART, P.J., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.
Gary M. Jackson appeals his convictions for possession of a controlled substance, § 195.202, RSMo 2000, and possession of a controlled substance within a county jail, § 221.111, RSMo 2000. He was sentenced respectively to three years imprisonment and a concurrent sentence of one year imprisonment. Mr. Jackson has two points on appeal. First, he argues the trial court erred in overruling his motion to suppress and thereafter admitting evidence of controlled substances found on his person and in his clothing after he was taken into custody. Second, he argues the trial court erred in allowing two police officers to testify that the substance found in a baggie in his clothing was marijuana. Both points are denied, and the judgment of convictions is affirmed.
Lafayette County Deputy Sheriff Jerry Poese was patrolling in Lexington, Lafayette County, on the night of January 8, 2004. He was patrolling as part of his additional duties as a road patrol reserve officer for the city of Lexington. He observed a pickup truck turn left onto Main Street without signaling. Deputy Poese decided to stop the truck and, as he advanced closer to the truck, he noticed it did not appear to have a license plate. Deputy Poese activated his emergency lights, and the truck stopped. As Deputy Poese approached the truck, he observed it did have a license plate, but it was covered with dirt. Deputy Poese asked the driver, Mr. Jackson, for his driver's license and proof-of-insurance. Mr. Jackson handed Deputy Poese his license and an insurance card. The license indicated Mr. Jackson lived in Mayview, a town less than ten miles from Lexington. The insurance card had expired, and Mr. Jackson stated he could not find a current proof-of-insurance card.
Deputy Poese instructed Mr. Jackson to keep looking for a current insurance card and took identification from Mr. Jackson and his two passengers. He returned to his patrol car and checked for existing wants or warrants for the three men. Deputy Poese, learning none existed, returned to the pickup truck. Mr. Jackson still had not found a current insurance card and appeared nervous. Deputy Poese asked Mr. Jackson if he had anything illegal in the truck and if he could search the pickup truck. Mr. Jackson stated he felt harassed, but consented to Deputy Poese searching the vehicle.
Deputy Poese opened the door of the truck so Mr. Jackson could exit the vehicle and saw the butt of a rifle. He picked up the rifle, which was not loaded, and asked Mr. Jackson why he was carrying it in his truck. As they were talking, the dispatcher advised Deputy Poese that Mr. Jackson was on probation for assault. Deputy Poese inquired whether the assault was a felony, and the dispatch stated it was. Deputy Poese then arrested Mr. Jackson for being a felon in possession of a firearm, which he understood to be a violation of federal law and the conditions of Mr. Jackson's probation. Deputy Poese also arrested Mr. Jackson for the traffic violations of failure to signal a turn and failure to have proof-of-insurance. Other than ammunition for the rifle, which was found sitting in a recessed area near the speedometer, there was nothing of interest found during the search of the pickup truck. While en route to the jail, Deputy Poese informed Mr. Jackson that if he had anything illegal in his possession, he should disclose this before entering the jail, as he could face additional charges if anything illegal was found once they arrived at the jail.
When a person is processed for custody, he or she must change into a jail uniform. The inmate's clothing and personal property are inventoried, placed in a paper bag with his or her name written on it, and the bag is placed in the locker facility. While Mr. Jackson was being processed, he suffered a "panic attack" or shortness of breath from a physical condition. An officer provided Mr. Jackson with an inhaler. Mr. Jackson was lying on the floor and appeared to have lost consciousness. An officer observed something in Mr. Jackson's pants pockets and asked Deputy Poese if Mr. Jackson had been patted down for weapons. Deputy Poese replied that he had done a cursory quick pat-down search on the outside of Mr. Jackson's clothes. Concerned he might have a weapon in his pants pocket, an officer rolled Mr. Jackson over and pulled two Carmex1 containers from his pocket. The officer discovered one of the containers contained Carmex and the other contained two bags of a substance the officer suspected was methamphetamine. A narcotics officer was contacted and arrived at the jail to field-test the substances. The test indicated the substances were methamphetamine. A Missouri Highway Patrol chemist later determined the substance from both small bags was methamphetamine with a combined weight of 1.74 grams. Due to all of the commotion from Mr. Jackson's apparent panic attack, Mr. Jackson's refusal to change into a jail uniform, and finding methamphetamine on his person, the officer who was booking Mr. Jackson placed Mr. Jackson's belongings into a sack and placed the sack into a locker without searching Mr. Jackson's shirt pockets.
The next morning, Deputy Poese learned Mr. Jackson was on probation for a misdemeanor, not a felony, and, thus, he was not a felon in possession of a firearm.2 That evening, Mr. Jackson requested a container of lubricant for his glass eye. He indicated the container was located with his property that was confiscated upon his arrival at the jail. Deputy Jared Dillon opened the bag containing Mr. Jackson's clothing and property and smelled marijuana. He found a green leafy substance in a baggie in Mr. Jackson's shirt. Deputy Dillon recognized the substance as marijuana, based on his training and experience. He showed it to Deputy Harold Schoonover, who also recognized the substance as marijuana based on his experience as a law enforcement officer.
Mr. Jackson was indicted for possession of a controlled substance (methamphetamine), § 195.202,3 possession of a controlled substance (marijuana) in a county jail, § 221.111, and possession of a weapon in a county jail, § 221.111. Mr. Jackson filed a motion to suppress evidence relating to controlled substances found on his person and in his clothing. His motion contended, inter alia, that the detention following the traffic stop extended longer than reasonably necessary to effectuate its initial purpose and the subsequent seizure of Mr. Jackson violated the Fourth Amendment and Article I, Section 15 of the Missouri Constitution. The motion also argued any consent given was not voluntary. The trial court overruled the motion to suppress, and made the following findings on the record:
The court finds that the original traffic stop by the officer was a lawful stop on viewing the vehicle make a left turn without properly signaling.
The officer was under the impression there was no license plate on the vehicle. Turned out there was. Section 301.130 requires license plate shall be clearly visible at night.
The officer testified that it was the policy of the Lexington Police Department where he's a reserve officer that they require persons who do not reside within the city limits of Lexington to post a bond.
The original stop was lawful. The subsequent investigation was lawful. The motion to suppress is considered, evidence is received, and the motion is denied.
A jury found Mr. Jackson guilty of possessing methamphetamine and possessing marijuana in a county jail. Mr. Jackson was acquitted of the charge of possession of a weapon in a county jail. The jury recommended imprisonment for a term of three years for possession of methamphetamine and one year for possession of marijuana in a county jail. The judge sentenced Mr. Jackson in accordance with the jury recommendation and ordered the terms to be served concurrently.
Mr. Jackson's timely appeal followed.
In his first point on appeal, Mr. Jackson argues the trial court erred in overruling his motion to suppress and thereafter admitting evidence of controlled substances found on his person and in his clothing after he was taken into custody. He argues the ruling violated his right to be free from unlawful search and seizure. He claims the evidence should have been excluded as fruit of the poisonous tree because Deputy Poese's lawful seizure ended when he returned to Mr. Jackson's truck after determining no warrants for Mr. Jackson's arrest existed, intending to write a citation or citations, before his request to search the vehicle. Mr. Jackson further asserts that Deputy Poese's request to search the vehicle was not supported by a reasonable suspicion of criminal activity, and his consent was not voluntary considering the totality of the circumstances.
Mr. Jackson's motion to suppress claimed, inter alia, that the detention following the traffic stop extended longer than reasonably necessary to effectuate its initial purpose and the subsequent seizure of his person violated the Fourth Amendment and Article I, Section 15 of the Missouri Constitution. It also claimed any consent given was not voluntary. The motion was overruled. He also objected at trial to the admission of the controlled substances and a chemist's report identifying them as methamphetamine. These objections were also overruled. Finally, Mr. Jackson included the issue as an allegation of error in his motion for a new trial. Thus, this issue was properly preserved for appellate review.
"In reviewing a trial court's ruling on a motion to suppress, our inquiry is...
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