State v. Lanear, WD

• Decision Date: 19 March 1991
• Docket Number: No. WD,WD
• Citation: 805 S.W.2d 713
• Parties: STATE of Missouri, Appellant, v. Raymond LANEAR, Respondent. 43168.
• Court: Missouri Court of Appeals

Page 713

805 S.W.2d 713

STATE of Missouri, Appellant, v. Raymond LANEAR, Respondent.

No. WD 43168.

Missouri Court of Appeals Western District.

March 19, 1991.

Albert A. Riederer, Pros. Atty., Robert Frager, Asst. Pros. Atty., Kansas City, for appellant.

William T. Bernard, Kansas City, for respondent.

Before GAITAN, P.J., and TURNAGE and KENNEDY, JJ.

PER CURIAM:

The State filed this interlocutory appeal pursuant to § 547.200.1(2), RSMo 1986, ¹ to review the action of the trial court in granting defendant Raymond Lanear's motion to suppress evidence. Defendant was charged with possession of cocaine, a controlled substance, in violation of § 195.020. Defendant's motion sought to suppress evidence of cocaine found on defendant's person during a search conducted at the police station.

Review here is to determine if the evidence supports the trial court's order of suppression. State v. Johns, 679 S.W.2d 253, 261 (Mo. banc 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985). The correctness of the trial court's decision is measured by whether the evidence is sufficient to sustain the findings. State v. Cross, 757 S.W.2d 613, 614 (Mo.App.1988); State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985), cert. dismissed, 480 U.S. 698, 107 S.Ct. 1596, 94 L.Ed.2d 678 (1987). The weight of the evidence and the credibility of witnesses are questions for the trial court's resolution. State v. Trimble, 654 S.W.2d 245, 254 (Mo.App.1983); State v. Boggs, 634 S.W.2d 447, 453 (Mo. banc 1982).

At the hearing on the motion to suppress, the State presented Police Officer Mark Johnson as its sole witness. Defendant did not offer any evidence and Officer Johnson's testimony was the only evidence offered. It revealed the following.

At approximately 5 p.m. on April 12, 1989, Officer Johnson was patrolling in the area of Armour Boulevard and Tracy in Kansas City, Missouri. Officer Johnson testified that the police had been having a large problem with drug sales in the area. Proceeding east on Armour from Forest towards Tracy, he saw a brown Buick automobile parked along the west curb, just south of the intersection. At this point, Tracy is a one-way street that runs north.

Officer Johnson testified that what drew his attention to the car was that it was parked more than 12 inches from the curb with three black males inside and several more black males leaning into the car on the driver's side. As Officer Johnson's patrol car got closer to the car and was about 25 yards away, the men that had been leaning into the car took off running in various directions. The three men inside the car appeared nervous and the two in the front seat "went down in a leaning forward type motion, as if they were hiding something or going to get something." Officer Johnson, believing a drug deal was in progress, or that the occupants might have been hiding guns or drugs, pulled head to head with the car, got out of his patrol car, and drew his service revolver, pointing it at the three subjects. He stated that he drew his service revolver because of the possibility of violence and the connection of drugs and guns, and his desire not to be shot. He stated that at the time he was about 20 feet away from the individuals in the car.

Officer Johnson ordered them to put their hands up above the dash where he could see them. Initially all three occupants brought their hands up. Officer Johnson then called on his portable walkie talkie for back-up. During the time he called for back-up the individual in the front passenger seat dropped his right hand down below the dash. Officer Johnson yelled at him to bring his hand back up. Before the back-up arrived approximately one minute later, the individual in the front passenger seat dropped his hand down two or three more times.

When the back-up car arrived, Officer Johnson ordered the three men to exit the car. He then conducted a limited search of the car and immediately discovered a loaded .357 caliber revolver under the passenger side of the front seat. Officer Johnson testified that the seat was a bench seat. Officer Johnson then searched the entire interior of the car. He questioned the three occupants about who owned the gun and none of them said he knew anything about it. Unable to determine whose weapon it was, Officer Johnson then placed all three men under arrest for carrying a concealed weapon.

Officer Johnson asked the three men their names. The driver was identified as the defendant, Raymond Lanear. The front passenger, who initially lied about his name, was later identified as Norman Jones. The passenger in the back seat was identified as Marcellius Clayton. In addition to being placed under arrest for carrying a concealed weapon, Norman Jones was arrested on warrants.

While Norman Jones was being booked in he discovered that he was being arrested on warrants and for carrying a concealed weapon, but his companions, the defendant and Marcellius Clayton, were only being arrested on the weapon charge. Norman Jones asked Officer Johnson, "How come the other guys aren't getting arrested for any more?" Jones then told Officer Johnson that the defendant had placed an amount of crack in his underwear while in the patrol wagon while being driven downtown. Officer Johnson searched defendant at the police station and discovered the cocaine in his underwear. Defendant was subsequently charged with possession of a controlled substance.

Defendant argues that the police did not have the reasonable suspicion required to make an investigatory stop of the vehicle. Because of this, defendant argues, the subsequent search of the vehicle was illegal, thereby tainting the gun found during the search of the car as well as the cocaine found on defendant's person during the search at the police station. Defendant also argues that even if the police did have reasonable suspicion that illegal drug activity was occurring, and the subsequent search of the vehicle was therefore legal, the police did not have probable cause to arrest defendant for possession of a concealed weapon. The argument continues that the arrest on the weapon charge was a pretext to enable the police to search defendant for drugs. This, defendant concludes, invalidates the arrest and mandates suppression of the cocaine, which defendant argues is tainted by the allegedly illegal arrest.

I.

The first issue to resolve is whether Officer Johnson had any legal justification to stop the vehicle. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court first recognized the right of police officers to make an investigatory stop. The Court held in Terry that the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity "may be afoot and that the persons with whom he is dealing may be armed and presently dangerous," even if the officer lacks probable cause. Id. at 30, 88 S.Ct. at 1884. To justify the particular intrusion, however, the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam), the Court held that police may order persons out of an automobile during a stop for a traffic violation and may frisk the occupants for weapons if there is a reasonable belief that they are armed and dangerous. Then, in Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Terry principle was extended to the search of the interior of the vehicle "if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Id. at 1049, 103 S.Ct. at 3481.

The Fourth Amendment requires "some minimal level of objective justification" for making the stop. I.N.S. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). The reasonable suspicion which is needed to justify a Terry stop need not rise to the level of probable cause to arrest. It is not necessary that the articulable facts and rational inferences on which the officer acts exclude every possible interpretation other than criminal activity. The standard is whether the facts available to the officer at the moment of the seizure warrant a person of reasonable caution in the belief that the action taken was appropriate. State v. Lasley, 583 S.W.2d 511, 518 (Mo. banc 1979) (citing Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-80). In judging on-the-street encounters, it is proper "to take into account a police officer's trained instinctive judgment operating on a multitude of small gestures and actions impossible to reconstruct." Sibron v. New York, 392 U.S. 40, 78, 88 S.Ct. 1889, 1910, 20 L.Ed.2d 917 (1968) (Harlan, J., concurring).

Defendant concedes that...