State v. Johnson

• Decision Date: 16 November 2004
• Docket Number: No. WD 63756.,WD 63756.
• Citation: 148 S.W.3d 338
• Parties: STATE of Missouri, Appellant, v. Tyron E. JOHNSON, Respondent.
• Court: Missouri Court of Appeals

148 S.W.3d 338

STATE of Missouri, Appellant, v. Tyron E. JOHNSON, Respondent.

No. WD 63756.

Missouri Court of Appeals, Western District.

November 16, 2004.

Randall M. England, Jefferson City, MO, Arguing on behalf of Appellant.

Shane Lee Farrow, Jefferson City, MO, Arguing on behalf of Respondent.

Before JAMES M. SMART, JR., P.J., JOSEPH M. ELLIS, and LISA WHITE HARDWICK, JJ.

JAMES M. SMART, JR., Judge.

The State of Missouri appeals the trial court's judgment and order suppressing evidence obtained after a traffic stop. The judgment is affirmed.

Statement of Facts

On the evening of July 20, 2003, at approximately 9:30 p.m., a Jefferson City police officer and his partner were traveling northbound in the 200 block of Cherry Street when the officer observed a red Oldsmobile traveling southbound. The Oldsmobile pulled over to the curb and parked. A passenger exited the vehicle and walked across the street. The officer recognized the passenger as a convicted felon.

The officer then observed the Oldsmobile pull away from the curb and proceed southbound on Cherry Street. Based on the driver's failure to signal when he pulled away from the curb, the officer activated his lights and stopped the Oldsmobile. Cherry Street at that part of the city is a residential street wide enough to accommodate parallel parking on both sides. It does not have marked lanes or marked parking spaces. There was no other traffic in the area at the time Johnson pulled away from the curb.

Johnson, who was driving the Oldsmobile, identified himself to the officers and advised them that he was on parole "for distribution."¹ The officers confirmed that he was on parole and found that he did not have any outstanding warrants. Without discussing the asserted traffic violation, one of the officers asked Johnson to exit the vehicle and asked for consent to search the vehicle. Johnson gave consent to search the car, which belonged to his brother. The officer found a piece of plastic containing a substance he believed to be cocaine. As a result, Johnson was charged with possession of a controlled substance, a class C felony.

Johnson moved to suppress the evidence recovered from the vehicle. He contended, inter alia, that the traffic stop was executed without reasonable suspicion that the defendant had committed any crime and was, therefore, illegal. At the suppression hearing, the officer who conducted the stop presented the only testimony. He stated that he observed Johnson fail to signal before Johnson pulled away from the curb. He stated that he had no reason to suspect that Johnson was not driving safely. Johnson did not endanger any other vehicles when he pulled away from the curb. The officer testified that had he not uncovered the drugs, he intended to give Johnson only a warning. Although the officer testified that he had often given warnings and sometimes given tickets for failure to signal a lane change, the officer was unclear about how many times he had stopped a driver for pulling away from a curb without signaling.

Because there was no indication that Johnson drove in an unsafe manner, the only issue was whether Johnson committed a technical violation. The motion court believed that the legality of the stop turned on whether Johnson, who was parked on a residential street with parking on both sides and no lane or centerline markers on the roadway, could be stopped for pulling away from the curb without signaling when there was no traffic affected by his movement. After considering the language of section 304.019.1, RSMo 2000, upon which the state relied, the court answered that question in the negative. Accordingly, the court ordered that the evidence be suppressed.

The State appeals.

The Legality of the Traffic Stop

The State argues that the motion court erred in suppressing the evidence based upon the illegality of the traffic stop.

The applicable standard of review requires this court to defer to the trial court's factual findings and credibility determinations but to examine questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). On a motion to suppress, where review involves only a question of law, review is de novo. State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000).

The parties agree that this appeal involves resolution of a question of law, i.e., whether the traffic stop for failure to signal when pulling away from the curb was a "legal detention." "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." State v. Mendoza, 75 S.W.3d 842, 845 (Mo.App.2002) (quoting Whren v. United States, 517 U.S. 806, 809, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). Where a driver's actions are not proscribed by law and would not justify the issuance of a warning, however, there is no probable cause or reasonable suspicion to stop the vehicle. See id. at 846.

Statutory Construction

The State does not argue that there was any traffic in the area or any reason to signal from a safety standpoint. Rather, the State bases its argument of a legal stop strictly on the text of section 304.019.1. That statute provides in pertinent part:

No person shall stop or suddenly decrease the speed of or turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided herein. (Emphasis added.)

In construing a statute, we apply the plain meaning of the words used in the statute, understood in the context that they appear, unless there is clear warrant to depart from the plain meaning of the words employed. See Lewis v. Gibbons, 80 S.W.3d 461, 465 (Mo. banc 2002); Wolff Shoe Co. v. Dir. of Rev., 762 S.W.2d 29, 31 (Mo. banc 1988); Robbins v. Dir. of Rev., 893 S.W.2d 894, 897 (Mo.App.1995).

Here, we have a statute designed to require hand and mechanical signals in connection with stopping a vehicle, turning a vehicle, or suddenly decreasing its speed. The statute also clearly is intended to require signals in connection with lane changes upon a roadway. The statute provides that these movements should only be made if it is reasonably safe to do so and then only after "the giving of an appropriate signal." The statute does not define the terms employed therein, and the parties do not refer us to any other statute defining these terms.

Nor does the statute ever use the phrase "lane changes" or similar wording. Instead, it uses the phrase "move right or left upon a roadway." The question, then, is whether the statute was intended to require a signal, even if there is no affected traffic, when a driver pulls a parked car away from the curb and proceeds down the street.

The Missouri statute appears to be patterned generally after the laws of certain states. See, e.g., Alabama: ALA.CODE § 32-5A-133; California: CAL. VEH.CODE § 22107; Kansas: KAN. STAT. ANN. § 8-1548; Kentucky: KY.REV.STAT. ANN. § 189.380; Montana: MONT.CODE ANN. § 61-8-336; Nebraska: NEB.REV.STAT. § 60-6, 161; North Dakota: N.D. CENT.CODE § 39-10-38; South Carolina: S.C.CODE ANN. § 56-5-2150; Utah: UTAH CODE ANN. § 41-6-69; Washington: WASH. REV.CODE ANN. § 46.61.305; Wyoming WYO. STAT. ANN. § 31-5-217. These jurisdictions, and Missouri as well, do not explicitly require such a signal when starting from a parked position.²

The major thrust of the driver's duty, in most states, is to keep a proper lookout, yield the right of way, and proceed only when it can be done safely. See 7A AM.JUR.2D Automobiles & Highway Traffic § 334 (1997). It is obvious that safe driving also requires that a signal be given to any traffic that may be affected. Id. "A motorist moving a motor vehicle from a parked or standing position also has the duty, which is usually imposed by statute or ordinance, to give pedestrians or other motorists who may be affected by his or her movement a signal or warning of his or her intention." Id. (emphasis added).

The trial court concluded that if the General Assembly had intended to always require a turn signal before leaving a parallel parking space, it could have easily and clearly said so, as other states have done in their statutes. The court determined, based on the above statutes and the cases provided by the parties,³ that Johnson's action of "proceeding from his parallel parking space under the circumstances described at the hearing" was not illegal. Thus, the court concluded that the traffic stop was not authorized, and the evidence obtained subsequent to the stop was ordered suppressed.⁴

The State disagrees with the trial court's ruling, considering it to be a suggestion that every circumstance requiring a signal must be spelled out in the statute.⁵ Citing Thomas v. Fitch, 435 S.W.2d 703, 710 (Mo.App.1968), and McDaniels v. Hall, 426 S.W.2d 751, 758 (Mo.App.1968), the State contends that Missouri courts have interpreted section 304.019.1 as "applying to any left or right movement on a roadway."

In Thomas, however, the driver had crossed the centerline without signaling, which contributed to the collision. 435 S.W.2d at 709. The court rejected the argument that the signal statute only applies to a turn at an intersecting highway:

We do not believe the statute is to be so narrowly interpreted, otherwise why would it also specify application to turning from a direct course or moving left or right? The requirement for an appropriate signal has been applied in numerous cases which involved left turns and movements upon roadways where no intersecting highway was involved.

Id. at 710. The State relies on this language to supports its interpretation of section 304.019. While the language does seem to do so, it must be remembered that in Thomas, the court was talking about the fact that the driver crossed the centerline without signaling his intention to do so. Here, Johnson merely moved left...