State v. Lee

• Decision Date: 03 May 2016
• Docket Number: WD 78404
• Parties: State of Missouri, Respondent, v. James Earl Lee, Appellant.
• Court: Missouri Court of Appeals

498 S.W.3d 442

State of Missouri, Respondent,
v.
James Earl Lee, Appellant.

WD 78404

Missouri Court of Appeals, Western District.

OPINION FILED: May 3, 2016
Motion for Rehearing and/or Transfer to Supreme Court Denied July 5, 2016.
Application for Transfer Denied September 20, 2016

Gregory L. Barnes, Jefferson City, MO, for respondent.

Samuel E. Buffaloe, Columbia, MO, for appellant.

Before Division Three: Gary D. Witt, Presiding Judge, James E. Welsh, Judge and Anthony Rex Gabbert, Judge

Gary D. Witt, Judge

James Earl Lee (“Lee”) was charged with felony possession of a controlled

498 S.W.3d 446

substance (cocaine), misdemeanor possession of a controlled substance (less than thirty-five grams of marijuana), felony resisting arrest, and misdemeanor failure to properly maintain a vehicle license plate, all arising out of a 2014 traffic stop. Following a bench trial, the Circuit Court of Saline County, Missouri, found him guilty of all counts and sentenced him as a prior and persistent drug offender. Lee appeals the judgment, alleging the circuit court erred in failing to suppress all evidence of the drugs found because the search which set in motion the discovery of the drugs violated his Fourth Amendment rights. Lee also argues that there was insufficient evidence to convict him of felony resisting arrest. We agree and reverse the court's judgment of conviction as to all counts except for Lee's conviction for failure to properly maintain a vehicle license plate and remand for execution of that sentence.

Procedural and Factual Background¹

On May 2, 2014, Lee was traveling on I–70 when he was stopped by Missouri State Highway Patrol Trooper Duvall for driving without a front license plate. When Trooper Duvall approached Lee's vehicle, he observed the license plate on the dashboard of the vehicle instead of properly affixed to the front of the vehicle. Trooper Duvall also smelled a “very strong” order of raw marijuana coming from inside the car. Lee was unable to produce a driver's license or other identification, and Trooper Duvall escorted Lee to his patrol car for further investigation.

While in the patrol car, Trooper Duvall performed a computer check of the license plate and the name and identifying information that Lee had given him. Trooper Duvall was able to obtain Lee's photograph from the Department of Revenue and confirmed Lee's identity and that there were no warrants for his arrest. Trooper Duvall continued to smell raw marijuana and asked Lee for an explanation. Lee stated that he was on “parole and probation” for marijuana use but stated that his girlfriend, who was recently a passenger in the vehicle, had used a vaporizer to ingest marijuana and that she had a “license” for the vaporizer. Lee gave Trooper Duvall permission to search his vehicle, and Trooper Duvall called for another officer, Trooper Dancy, to come and supervise Lee while he conducted the search.

Trooper Duvall searched Lee's vehicle and found no illegal contraband but seized a box of Swisher Sweet cigarillos.² Trooper Duvall noted that, without Lee present, the vehicle no longer smelled of marijuana. Finding no marijuana or other contraband in the vehicle, he decided to search Lee for drugs. Trooper Duvall returned to the patrol car and ordered Lee to exit the vehicle and put his hands on top of it. Trooper Duvall then conducted what he characterized as a pat down, searching both the outside of Lee's clothing and inside his pockets. Trooper Duvall had obtained neither a warrant nor Lee's consent for this search of Lee's person. Trooper Duvall testified that he had no reason to believe that Lee possessed a weapon or was otherwise dangerous. During the search, Trooper Duvall felt a small, hard, round object behind Lee's right knee.

Upon feeling the object, Trooper Duvall said, “Okay. Go ahead and put your hands behind your back.” Trooper Duvall could

498 S.W.3d 447

not identify the object but testified that at that point he was concerned “for both our safety” and planned to “detain” Lee. Instead of complying with Trooper Duvall's command, Lee fled on foot.

Trooper Duvall and Trooper Dancy pursued Lee on foot and were able to recapture him after Lee and Trooper Duvall tumbled down an embankment. Lee escaped again, however, and, as they ran, Trooper Dancy informed Lee to stop and that he was under arrest. Lee was again captured and subdued.

After handcuffing Lee, Trooper Dancy searched Lee and found a clear plastic bag of marijuana around his left ankle and a clear plastic bag of cocaine around his right ankle.

Prior to trial, Lee moved that the evidence of the drugs be suppressed because Trooper Duvall violated Lee's Fourth Amendment rights against unreasonable search and seizure by failing to get a warrant or Lee's consent prior to the first “pat down” search of his person. Following a suppression hearing, the court denied Lee's motion. Lee renewed his objection to the evidence at the bench trial.

The court found Lee guilty of all counts and sentenced him as a prior and persistent offender. This appeal followed.

I.

Lee's first point on appeal alleges that the circuit court erred in admitting evidence regarding the controlled substances found on Lee's person because they were found as a result of an illegal search. Lee alleges that, although the drugs were not found until the second search, had the first “pat down” search not been conducted, the drugs would never have been located. Thus, if the first pat down was illegal, the evidence should have been suppressed.

As a preliminary matter, the State challenges the preservation of Lee's claim for appeal. “In order to attack the validity of a search and the admissibility of the fruits of that search on appeal, the defendant must have filed a motion with the trial court to suppress the evidence.” State v. Anderson, 698 S.W.2d 849, 851 (Mo. banc 1985). Additionally, to keep the challenge preserved for appeal, the defendant must assert timely objections throughout trial and raise the issue in a motion for new trial.³ Id. ; State v. Turner, 471 S.W.3d 405, 412 (Mo.App.E.D. 2015) ; State v. Ruff, 360 S.W.3d 880, 884 (Mo.App.S.D. 2012). The record clearly indicates that Lee properly raised his challenges to the seizure of the evidence in a motion to suppress, objected prior to testimony regarding the second pat down that led to the seizure of the evidence, objected prior to the admission of the evidence seized. The State, however, argues that Lee's failure to object to testimony regarding the first pat down waived his claim and preserved nothing for appeal. We disagree.

A defendant's objection is “kept alive” at trial “by timely objection to the introduction [of evidence] at trial....” State v. Taylor, 538 S.W.2d 761, 764 (Mo.App. 1976) (emphasis added). Although testimony regarding what led to the pat down is relevant to determine the legality of the search, Lee's objection is to the evidence yielded as a result of the illegal search—the drugs. Thus, his objection to the evidence being introduced at trial was timely and preserved the issue for appeal.

498 S.W.3d 448

Standard of Review

At a hearing on a motion to suppress, “the state bears both the burden of producing evidence and the risk of nonpersuasion to show by a preponderance of the evidence that the motion to suppress should be overruled.” State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992). “When reviewing the trial court's overruling of a motion to suppress, this Court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling.” State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). “The Court defers to the trial court's determination of credibility and factual findings, inquiring only ‘whether the decision is supported by substantial evidence, and it will be reversed only if clearly erroneous.’ ” State v. Goff, 129 S.W.3d 857, 862 (Mo. banc 2004), quoting State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). By contrast, legal “determinations of reasonable suspicion and probable cause” are reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

State v. Grayson, 336 S.W.3d 138, 142 (Mo. banc 2011).

Discussion

Missouri's constitutional guarantee against unreasonable searches and seizures is co-extensive with that of the Fourth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment. State v. Rushing, 935 S.W.2d 30, 34 (Mo. banc 1996). The Fourth Amendment protects “[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” U.S. CONST. amend IV ; Rushing, 935 S.W.2d at 34.

“Searches conducted outside of the judicial process, without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (internal citations omitted). A “warrantless search of the...