State v. Kovach

• Citation: 839 S.W.2d 303
• Decision Date: 04 September 1992
• Docket Number: No. 17749,17749
• Parties: STATE of Missouri, Respondent, v. Frank James KOVACH, Appellant.
• Court: Court of Appeal of Missouri (US)

Page 303

839 S.W.2d 303

STATE of Missouri, Respondent, v. Frank James KOVACH, Appellant.

No. 17749.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 4, 1992.

Motion for Rehearing or to Transfer

Denied Sept. 28, 1992.

Robert G. Duncan, Kansas City, for appellant.

Thomas E. Mountjoy, Pros. Atty., Susan F. Colburn, Asst. Pros. Atty., Springfield, for respondent.

FLANIGAN, Chief Judge.

The trial court, sitting without a jury, found defendant guilty of possessing marijuana, a class A misdemeanor, § 195.202.3, ¹ as amended 1989, and he was sentenced to a term of 30 days in the county jail. Execution of the sentence was suspended and defendant was placed on two years' probation. Defendant appeals.

In general, defendant contends that the trial court erred: (1) in denying his motion to suppress evidence consisting of "the alleged marijuana" and his oral statements; and (2) in denying his motion for judgment of acquittal.

The state's two witnesses were Trooper Leslie Crowe and Trooper Timothy Russett of the Missouri State Highway Patrol. Crowe testified that at approximately 1:30 a.m. on July 10, 1990, he was on duty and observed a 1990 Ford van traveling west on Interstate 44 at a speed of 79 miles per hour in a 65-mile-per-hour speed zone. The van did not stop immediately upon Crowe's activation of his emergency lights. It went to the shoulder and continued for 100 yards at a slow pace before stopping. "He was very hesitant to stop."

Crowe stopped his patrol car and talked to the driver of the van, Warfield, who was its owner. Warfield was unusually nervous, his hands were shaking uncontrollably, he had a stutter in his voice, and he would not maintain eye-to-eye contact with Crowe. Defendant was lying on a bunk in the back of the van.

Crowe had Warfield step out of the van and patted him down for weapons. The reason Crowe did that was "an accumulation of all the things, the fact that he was hesitant about pulling off on the shoulder." Crowe looked at the odometer because Warfield appeared to be unusually nervous and "the fact that the van was brand new." The odometer showed 28,000 miles, "an excessive amount for that model." On cross-examination, Crowe testified he "was very suspicious of and concerned of the possible presence of weapons in the vehicle."

Crowe stepped into the van and felt around the driver's seat for weapons. Crowe testified that on every traffic stop he made a visual search for weapons "but as far as a physical search under the seats, as I did here, I don't do that on every stop. I did it here because of an accumulation of all the things, the driver being nervous, the odometer reading." He looked under the seat and behind it. Crowe asked defendant where he was headed and defendant's response was, "to visit friends in Texas."

Crowe then took Warfield to the patrol car where Crowe issued a summons for speeding. He asked Warfield what his destination was and Warfield replied, "to look for work in Texas." Crowe testified: "I felt I was in a very unsafe position, especially with the driver being back in the patrol car and the passenger being in the van where there were numerous items of clothing."

Crowe went back to the van and talked with defendant. Crowe asked defendant if there were any weapons or contraband in the vehicle and he said "no." Crowe asked defendant for permission to search the van and a suitcase which was lying between the end of the bunk and the front seats. Defendant's response was "Go ahead." Defendant said, "Let me open [the suitcase] for you." Defendant opened the snaps on the suitcase. Crowe asked defendant to step back because Crowe thought there might be a weapon in there.

Crowe opened the suitcase and found several items of clothing and a brown paper bag which contained $40,500 in cash. Crowe said defendant was not under arrest at that time. He asked defendant what the money was for and defendant said, "You never know, when you are traveling." Crowe asked defendant why he needed that amount of money and defendant "changed his story a little bit." Defendant told Crowe they were going to buy used cars in Texas. Crowe asked defendant about the ownership of the money and defendant said half of it was his and half of it was Warfield's.

Crowe took the money and returned to the patrol car where he talked with Warfield. Crowe showed Warfield the money and Warfield's eyes "got rather large." Crowe asked Warfield who owned the money, and Warfield said he did not know the money was there. Warfield said it was not his money.

Crowe radioed for backup, and a county officer arrived. Crowe told the officer to keep an eye on Warfield and then went to the van "to conduct a more thorough search for weapons." Crowe found a clear plastic bag in the console area underneath the dashboard. The bag contained "what appeared and smelled to be marijuana plant material and a package of cigarette rolling papers, club rolling papers."

Crowe testified that he had specialized training in the detection and recognition of marijuana at the Highway Patrol Academy. As a patrolman, Crowe had been in contact with marijuana "on many occasions, between 75 and 100 occasions." Crowe testified that state's Exh. 1, a brown envelope, was the envelope in which he secured "the marijuana."

Warfield and defendant were taken to patrol headquarters where defendant was given the Miranda warnings and placed under arrest. Crowe asked defendant if the marijuana belonged to him, and defendant said that he had bought it from someone in Michigan. Defendant said the marijuana was his and for his personal use. Crowe testified that Interstate 44 has been routinely used to transport large quantities of marijuana or cocaine.

Trooper Russett was called to patrol headquarters to assist Trooper Crowe with the investigation. Defendant told Russett that the money was his and Warfield's. He wasn't sure of the exact amount but he thought it was about 50/50. He also said the money was to be used to purchase used cars once they got to Texas. Defendant told Russett that "the marijuana was his and was for his personal use and that he could not make any statement as to whether Warfield knew or did not know of the presence of the marijuana."

Prior to the trial, defendant filed a written "Motion to Suppress Evidence." The motion sought to suppress the marijuana taken from the van. There was no pretrial hearing on the motion, and defendant did not request one.

At the outset of the trial, defense counsel asked the court to take the motion to suppress "with the case." He also made an oral motion to suppress defendant's oral statements "as fruits of an illegal detention." The prosecutor agreed that both motions would be taken with the case.

At the end of the trial, the court overruled the motions. The court made no findings of fact or conclusions of law in its ruling on the motion to suppress, and none had been requested. Other than cross-examination of the state's two witnesses, defendant offered no evidence.

Defendant's first point is that the trial court erred in denying his written motion to suppress the marijuana and in denying his oral motion to suppress his oral statements, in violation of his Fourth Amendment rights, because: (a) the marijuana was seized after an unconstitutional warrantless search of the vehicle; (b) the statements were made in the absence of Miranda warnings to defendant; and (c) both the marijuana and the statements were the fruits of an illegal detention of defendant.

On review of the trial court's ruling on the motion to suppress, this court determines whether there was sufficient evidence to support the trial court's ruling. The weight of the evidence and the credibility of the witnesses are for the trial court's determination. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990); State v. Marshell, 825 S.W.2d 341, 346 (Mo.App.1992). "Only if the trial court's judgment is clearly erroneous will an appellate court reverse." State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). If the trial court's ruling "is plausible in light of the record viewed in its entirety," this court "may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 184. Where, as here, there is no factual dispute, determination of the reasonableness of a search, under the Fourth Amendment, is a question of law. U.S. v. Walker, 941 F.2d 1086, 1090 (10th Cir.1991); U.S. v. Pena, 920 F.2d 1509, 1513-1514 (10th Cir.1990); U.S. v. Arango, 912 F.2d 441, 444 (10th Cir.1990). Of prong (a)

In State v. Childress, 828 S.W.2d 935, 939-940 (Mo.App.1992), the court said:

The initial inquiry is whether defendant suffered violation of any Fourth Amendment right.

Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.

Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978) (emphasis added) (citations omitted). In Rakas, the Court rejected the so-called "target theory" under which any criminal defendant at whom a search was "directed" would have standing to contest the legality of that search and object to the admission at the trial of evidence obtained as a result of the search. In United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 2551, 65 L.Ed.2d 619 (1980), the Court said: "In Rakas, this Court discarded reliance on concepts of 'standing' in determining whether a defendant is entitled to claim the...