State v. Long

• Decision Date: 01 May 2020
• Docket Number: No. SD 35759,SD 35759
• Citation: 599 S.W.3d 908
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Justin Keith LONG, Defendant-Appellant.
• Court: Missouri Court of Appeals

599 S.W.3d 908

STATE of Missouri, Plaintiff-Respondent,

v.Justin Keith LONG, Defendant-Appellant.

No. SD 35759

Missouri Court of Appeals, Southern District, Division Two.

Filed: May 1, 2020

Motion for Rehearing and/or Transfer to Supreme Court Denied May 19, 2020

Application for Transfer to Supreme Court Denied September 1, 2020

Mandate Issued September 3, 2020

Attorney for Appellant: Stacie R. Calhoun Bilyeu of Springfield, MO.

Attorney for Respondent: John M. Peacock of Ozark, MO.

JEFFREY W. BATES, C.J.

Following a bench trial, Justin Long (Defendant) was convicted of the class B misdemeanor of driving while intoxicated (DWI). See § 577.010.¹ Prior to trial, Defendant filed motions in limine and to suppress evidence and statements. Defense counsel was permitted to make continuing objections at trial, which were taken with the case. Ultimately, the trial court denied the motions in limine, overruled the objections and admitted the challenged evidence and statements.

Presenting five points on appeal, Defendant contends the trial court erred by failing to suppress evidence and statements because: (1) the arresting officer had "no reasonable suspicion to detain" Defendant; (2) the arresting officer had "no reasonable suspicion to extend his nonconsensual detention" of Defendant; (3) there was "no probable cause to arrest" Defendant; (4) the Horizontal Gaze Nystagmus (HGN) test "should not have [been] admitted" because "the test was not performed properly"; and (5) the Portable Breath Test (PBT) "should not have [been] considered" because "law enforcement had wrongly assured [Defendant] the PBT would not be used against him[.]" Finding no merit in any of these points, we affirm.

Factual and Procedural Background

In reviewing the trial court's ruling on a motion to suppress, "[t]his Court defers to the trial court's factual findings and credibility determinations and considers all evidence and reasonable inferences in the light most favorable to the trial court's ruling." State v. Lammers , 479 S.W.3d 624, 630 (Mo. banc 2016). The following summary of facts has been prepared in accordance with these principles.

Around 2:40 a.m. on February 10, 2017, Ozark Police Officer Trevor Spencer was parked in his patrol vehicle on the shoulder of the on-ramp to 65 Highway. Officer Spencer saw an Acura SUV drive past him, park on the shoulder of the road, and turn on its emergency flashers. Two passengers exited the passenger side of the vehicle and began walking towards his patrol vehicle. Officer Spencer then activated his emergency lights and contacted the two passengers, later identified as Jeremy Rice (Rice) and Angel Fulton (Fulton), as they were walking toward his patrol vehicle. As the officer was exiting his vehicle, he heard Fulton tell Rice to get back into the vehicle, saying: "We're both drunk, and we want to go home." Officer Spencer instructed the two passengers to re-enter the vehicle. The officer was concerned for everyone's safety at the side of the road and about the possibility of an escalating domestic situation. After both were in the vehicle, Officer Spencer then contacted the driver, whom he identified as Defendant.

When the officer asked Defendant why the passengers had exited the vehicle, Defendant said they had been in an argument and that they had been at Wise Guys, a local bar. Officer Spencer observed: (1) an immediate smell of intoxicants on Defendant's breath; (2) Defendant's eyes were glassy and bloodshot; and (3) Defendant's "speech was a little bit slurred." Defendant said that he was "the most sober" and planned to bring everyone home. When asked if he had consumed any alcoholic beverages, Defendant said he had consumed three or four drinks of Crown Royal. At this point, Officer Spencer thought Defendant might be impaired. Officer Spencer asked Defendant if he believed that he was impaired. Defendant said he believed that he was over the legal limit. Officer Spencer asked Defendant to take a PBT, but Defendant asked if he could take a field sobriety test instead. As Defendant exited his vehicle, Officer Spencer observed Defendant sway back and forth.

Officer Spencer then conducted three field sobriety tests on Defendant. First, Officer Spencer performed the HGN test. Defendant exhibited all six clues of impairment, indicating intoxication. Defendant even exhibited what was referred to as vertical gaze nystagmus

, which, according to Officer Spencer, indicated a high level of intoxication. Next, Defendant performed the walk-and-turn test. He showed one indicator of intoxication out of a possible nine by using his arms for balance. Third, Defendant performed the one-leg-stand test. He showed one indicator of intoxication out of a possible four by similarly using his arms for balance.

Officer Spencer again asked Defendant to submit to the PBT, and this time Defendant complied. The PBT was positive for the presence of alcohol. Defendant asked what he blew, and the officer responded that it was a .197. Based on the "totality of the whole entire event[,]" Officer Spencer believed that Defendant was operating a motor vehicle in an intoxicated condition and placed him under arrest. Officer Spencer then transported Defendant to the Ozark Police Department. As Defendant exited the vehicle, Defendant stumbled and almost fell out of the patrol car. Apparently referring to the PBT result, Defendant said, "I guess I am a one nine."

Once at the station, Officer Spencer read Defendant his Miranda warning and an implied-consent statement. Officer Spencer then completed the AIR interview with Defendant. During that interview, Defendant agreed that he was operating a vehicle when he stopped his vehicle in front of the patrol car, and that he had been drinking. He said he had "four shots in about an hour" and was under the influence of an alcoholic beverage. Defendant blew into the breathalyzer machine, which yielded a blood-alcohol content of .139.

Defendant was charged with DWI. Prior to trial, Defendant filed motions to suppress all evidence and statements obtained after an "unlawful detention" or arrest with "no probable cause" in violation of his constitutional rights to be free from unreasonable search and seizures under, inter alia , the Fourth Amendment of the United States Constitution. The motions were taken with the case, and defense counsel was permitted to make continuing objections at trial. Officer Spencer testified to the aforementioned facts at trial. Exhibits included the dash cam video, which confirmed much of Officer Spencer's testimony. Exhibits also included the blood-alcohol test report, which was admitted to show Defendant's blood-alcohol level was above the legal limit. Testimony concerning the result of the PBT was admitted to establish probable cause to arrest Defendant. Thereafter, the court: (1) denied the motions in limine and objections at trial; (2) admitted the challenged testimony and evidence; and (3) found Defendant guilty of DWI. This appeal followed. Additional facts will be included below as we address Defendant's five points on appeal.

Standard of Review

We review the denial of a motion to suppress to determine whether there was substantial evidence to support the decision, and we will only reverse where the trial court's ruling is clearly erroneous. State v. Gaw , 285 S.W.3d 318, 319-20 (Mo. banc 2009) ; State v. Johnson , 427 S.W.3d 867, 871 (Mo. App. E.D. 2014). A ruling is clearly erroneous when we are left with a definite and firm impression that a mistake has been made. Johnson , 427 S.W.3d at 871. "Whether conduct violates the Fourth Amendment is a question of law, which we review de novo. " Id . at 871-72 ; see Lammers , 479 S.W.3d at 630 ; State v. Bruce , 503 S.W.3d 354, 357 (Mo. App. S.D. 2016).

In reviewing an appellant's claim that the trial court erred in admitting evidence, our review is for abuse of discretion. State v. Winfrey , 337 S.W.3d 1, 5 (Mo. banc 2011). "The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration." Id . (citation omitted); see State v. Smith , 330 S.W.3d 548, 553 (Mo. App. S.D. 2010).

Discussion and Decision

Point 1 – Consensual Encounter

Defendant's first point contends the trial court clearly erred "in denying [his] motions in limine and to suppress evidence and statements because Officer Spencer had no reasonable suspicion to detain [Defendant.]"² According to Defendant, the officer "had no reason to believe [Defendant] or any other person had committed a crime and said encounter was not a consensual one." We disagree.

Generally, there are three categories of police-citizen encounters: (1) a consensual encounter; (2) an investigative detention requiring only reasonable suspicion based upon specific articulable facts; and (3) an arrest requiring probable cause. See Johnson , 427 S.W.3d at 872. "A consensual encounter does not implicate the Fourth Amendment until the officer restrains the individual's liberty to the extent that a reasonable person would feel that he or she was not free to leave or decline the officer's questions." Id . If the encounter is consensual, "police officers are free to question an individual, even without reasonable suspicion of criminal activity[.]" State v. Sund , 215 S.W.3d 719, 723 (Mo. banc 2007) ; see also Lammers , 479 S.W.3d at 631 ("for purposes of the Fourth Amendment, a seizure does not occur simply because a police officer approaches an individual and asks a few questions"). Further, "[u]nder the Fourth Amendment, a law enforcement officer may approach a vehicle for safety reasons, or if a motorist needs assistance, so long as the officer can point to reasonable, articulable facts upon which to base his actions." State v. Schroeder , 330 S.W.3d 468, 473 (Mo. banc 2011) ; see State v. Galen , 554 S.W.3d 550, 554 (Mo. App. E.D. 2018). "Motorists typically require assistance while stranded on...