State v. Kempa

• Citation: 235 S.W.3d 54
• Decision Date: 05 October 2007
• Docket Number: No. 28014.,28014.
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Luke A. KEMPA, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

235 S.W.3d 54

STATE of Missouri, Plaintiff-Respondent, v. Luke A. KEMPA, Defendant-Appellant.

No. 28014.

Missouri Court of Appeals, Southern District, Division One.

October 5, 2007.

Ellen H. Flottman, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JEFFREY W. BATES, Judge.

Luke Kempa (Defendant) was charged by information with committing the class A felony of trafficking in the first degree by transporting 180 pounds of marijuana with the intent to distribute same. See § 195.222.7.¹ Following a bench trial, he was convicted and sentenced to serve 22 years in prison. On appeal, Defendant contends the trial court erred in denying a motion to suppress and in admitting evidence that, during a warrantless search of Defendant's vehicle, a highway patrol officer found five large duffel bags containing 178 pounds of marijuana. Defendant argues this evidence should have been excluded because the officer used a drug dog to sniff the exterior of Defendant's vehicle after the initial traffic stop had concluded. We affirm.

I. Standard of Review

At a suppression hearing, "[t]he burden of going forward with the evidence and the risk of nonpersuasion shall be upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled." § 542.296.6; State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992). Therefore, the State bore the burden of production and burden of persuasion to show that the warrantless search of Defendant's vehicle was valid. State v. Hampton, 959 S.W.2d 444, 450 (Mo. banc 1997).

On appeal, our inquiry is limited to determining whether there is substantial evidentiary support for the trial court's decision to deny the motion to suppress. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). In making that determination, we consider both the evidence presented at the suppression hearing and the evidence introduced at trial. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). The complete record before the trial court is viewed in a light most favorable to its ruling. State v. Jackson, 186 S.W.3d 873, 879 (Mo.App.2006). All contrary evidence and inferences are disregarded. State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001); State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998).

We will not reverse the trial court's ruling unless the decision is clearly erroneous, leaving this Court with a definite and firm impression that a mistake has been made. State v. Williams, 97 S.W.3d 462, 469 (Mo. banc 2003); State v. Newberry, 157 S.W.3d 387, 397-98 (Mo. App.2005). We review issues of law de novo. State v. Rousan, 961 S.W.2d 831 845 (Mo. banc 1998). We give deference, however, to the trial court's factual findings and credibility determinations. Id. For this reason, "[t]he trial court may not be reversed if its decision is plausible, even if we are convinced that we would have weighed the evidence differently if sitting as the trier of fact." State v. Davalos, 128 S.W.3d 143, 147 (Mo.App.2004). The evidence and inferences contained in the complete trial record, viewed in the light most favorable to the trial court's ruling on the motion to suppress, are summarized below.

II. Factual and Procedural Background

On December 31, 2004, Corporal Gary Braden (Braden), a road and canine officer with the Missouri State Highway Patrol, was on duty near the 51-mile marker on Interstate 44 (I-44) in Lawrence County. Braden was accompanied in the patrol car by his drug dog, Or. The dog had been trained to detect marijuana, methamphetamine, heroin and cocaine by smell.

At approximately 10:00 a.m., Braden was running stationary radar checks on eastbound traffic. The speed limit at that location was 70 m.p.h. Braden observed a 1991 Lincoln Town Car, which was being operated by Defendant, crest a hill in the passing lane. The vehicle was traveling 76 m.p.h. As the car passed by Braden, he noted that it had Arizona license plates. When Defendant re-entered the right-hand lane, the Lincoln's right tires crossed the fog line and traveled approximately one foot onto the shoulder two times within a few seconds.²

Braden pulled out and began following the Lincoln. While doing so, he ran a license plate check via radio and learned that the vehicle was owned by a Tucson, Arizona car rental agency. At around the 56½mile marker, Braden activated his emergency lights. Most motorists would react immediately and pull over within one-fourth of a mile when that occurred, but Defendant did not do so. Braden could see Defendant watching the patrol car in his rear view mirror. Without slowing down, he drove completely onto the shoulder, pulled back into the driving lane and kept going. He then repeated this same maneuver. Because Defendant's conduct was so unusual, Braden contacted his superior officer and requested back-up because it did not appear that Defendant was going to stop.

Braden followed Defendant for about one and one-half miles. At mile marker 58, Defendant took the Halltown exit and stopped his vehicle on the right-hand shoulder midway up the ramp. Braden stopped his patrol car behind the Lincoln. Defendant immediately got out of his car and began walking toward Braden. This behavior was unusual because most drivers remain in their vehicles when stopped. In Braden's experience, exiting a vehicle indicates that the driver does not want the officer to closely approach the car because he might see or smell something in the vehicle.

Braden and Defendant met about halfway between their vehicles. The officer identified himself and explained the reason for the stop. He intended to give Defendant warnings for speeding and the lane violations. The weather was not very cold, and Defendant was wearing a long-sleeved shirt and shorts. He appeared to be very nervous. Braden noticed that Defendant's arms, hands and legs were visibly shaking. He also looked down at the ground and avoided eye contact with the officer. When Braden asked Defendant why it took him so long to pull over, he said there was debris on the shoulder of the road. Braden had not seen any such debris. Upon request, Defendant produced an Arizona driver's license and said the Lincoln was a rental.

Braden asked to see the rental agreement, and they walked up to Defendant's vehicle. While Defendant obtained the agreement from the glove box, Braden looked in the vehicle to make sure there was no one else inside. In the area of the front passenger seat, he saw a cell phone and a map of the United States. In the right-rear floorboard, he saw two unopened containers of beer. On the rear passenger seat, he observed a small, unzipped duffel bag with wadded-up blue jeans, shorts and t-shirts hanging out of it. Upon reviewing the rental agreement, Braden learned that the Lincoln had been rented in Tucson, Arizona, on December 28th and was due to be returned on January 4th. Braden asked Defendant to sit in the patrol car. As they were walking back, Braden inquired where Defendant was headed. He said he was going to St. Louis to attend a party and a wedding.

Upon entering the car, Defendant sat in the front passenger seat of the patrol car. The car was not cold, but Defendant's arms, hands and legs continued to shake. His voice was shaky, and he did not make eye contact. He continued to appear to be very nervous. Braden entered Defendant's license information into the computer to do a routine record check. Such a check would reveal whether Defendant had a valid driver's license, and if there were any warrants for his arrest, etc. While awaiting a response, Braden asked Defendant whose wedding he was attending. Defendant hesitated before answering and then said "he was going to his brother's girlfriend's wedding." This response was so odd that Braden could not understand what it meant. When he asked who the girl was marrying, Defendant said the person was "some friend" that he didn't know. Defendant also disclosed that he was only staying in St. Louis a couple of days. At this point, Braden's suspicions were aroused. It seemed strange that Defendant would be driving such a long distance for such a short stay, particularly to attend the wedding of persons he did not appear to know very well. Furthermore, Braden had not seen any clothing in the car that would be appropriate to wear to such an event. Finally, from prior training and experience, he was aware that illegal contraband such as drugs often were transported from Tucson to St. Louis on I-44.³ Coupled with Defendant's other unusual behavior and statements from the outset of the traffic stop, Braden began to suspect that criminal activity was afoot. He continued to converse with Defendant. When Braden asked Defendant if there was any clothing in the trunk, he did not respond at all. Braden then asked if there was anything illegal in the trunk. Again, Defendant said nothing. Braden asked for permission to search the Lincoln. Defendant said, "you can look around in my vehicle." Braden did not treat Defendant's response as consent because it was not clear that he understood Braden intended to search the trunk. When Braden specifically asked for consent to search the trunk area, Defendant said he did not have a key. That response was unusual because rental companies always issue their customers keys to the trunk, and one key operates both the ignition and the trunk on most vehicles manufactured in 1991.

Braden then received a response to the license check. It revealed that Defendant had a valid Arizona license and a prior drug conviction. Because Defendant had not consented to a search of the trunk, Braden decided to conduct a canine sniff of the Lincoln. Approximately ten minutes had elapsed since the traffic stop began. At that point, Braden had not yet issued any warnings to Defendant or completed the entries necessary to enter the warnings into the Highway Patrol computer system.⁴ Braden started at...