State v. McDonald
| Decision Date | 04 October 2005 |
| Docket Number | No. WD 65123.,WD 65123. |
| Citation | 170 S.W.3d 535 |
| Parties | STATE of Missouri, Appellant, v. David L. McDONALD, Jr., Respondent. |
| Court | Missouri Supreme Court |
David A. Baird, Office of Prosecuting Attorney, Maryville, for Appellant.
Sydney F. Weybrew, Jr., Maryville, for Respondent.
The State of Missouri appeals a trial court decision sustaining David McDonald's motion to suppress evidence. The State argues that a campus police officer was justified under the fresh pursuit doctrine in pursuing and arresting McDonald outside of the officer's territorial jurisdiction. Finding no abuse of discretion by the motion court, we affirm.
In the early morning hours of November 13, 2004, David L. McDonald, Jr., was driving through the campus of Northwest Missouri State University (hereinafter Northwest) in Maryville, Missouri, traveling at a speed above the posted speed limit. A Northwest campus police officer, Doug Cummins, observed McDonald's vehicle and, after activating his vehicle's emergency lights and siren, began pursuing McDonald through campus. Officer Cummins pursued McDonald off Northwest's campus where he eventually stopped him beyond the geographic boundaries of Northwest on a Maryville city street. Subsequent to the stop, Officer Cummins cited McDonald for state offenses of driving while intoxicated and failure to comply with a traffic-control device.
McDonald filed a motion to suppress alleging that the arrest was unlawful, in that, Officer Cummins pursued and arrested him outside of Cummins' territorial jurisdiction. At the suppression hearing, Officer Cummins testified that based upon his training and experience, he determined that the vehicle driven by McDonald was exceeding the posted speed limit of twenty miles per hour. Officer Cummins also testified that the traffic-control device faced northbound towards McDonald, the street was well lit, and the signage was approximately the same height as other speed limit signs located within the City of Maryville. Officer Cummins was unable to testify as to who set the campus speed limit or who posted the campus speed limit sign and upon what authority.
After the hearing, the motion court sustained the motion to suppress. This appeal follows.
Despite that Rule 84.04(e) requires a recitation of the standard of review, neither party has favored us to mention it in their brief. Where a trial court has granted defendant's motion to suppress, "we review the trial court's decision on appeal under an abuse of discretion standard," State v. Pfleiderer, 8 S.W.3d 249, 253 (Mo.App.1999), that is, the decision will be affirmed unless it is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Whether evidence existed from which the trial court could have arrived at a contrary conclusion is immaterial. State v. Davalos, 128 S.W.3d 143, 147 (Mo.App.2004); State v. Kampschroeder, 985 S.W.2d 396, 398 (Mo.App.1999). The trial court may not be reversed if its decision is plausible, even if the reviewing court is convinced that it would have weighed the evidence differently sitting as the trier of fact. Davalos, 128 S.W.3d at 147. The issue of whether the Fourth Amendment and the state constitution have been violated, however, is a matter of law that is reviewed de novo. Id. The facts are viewed in a light favorable to the ruling of the trial court. State v. Costa, 11 S.W.3d 670, 679 (Mo.App.1999).
The government bears the burden of establishing that the defendant's motion to suppress should be overruled once the defendant makes a sufficient assertion of standing to raise a violation of Fourth Amendment Rights. Milliorn, 794 S.W.2d at 184. "By its clear language Section 542.296.6 places `the burden of going forward with the evidence and the risk of nonpersuasion' on the state `to show by a preponderance of the evidence that the motion to suppress should be overruled.'" Id. It is self evident that, if challenged, the State must allege and provide evidence at the suppression hearing that an actual violation of the law occurred.
The focus of the suppression hearing was whether Officer Cummins had the authority under the fresh pursuit doctrine to pursue and arrest McDonald outside of Cummins' territorial jurisdiction for alleged traffic violations on the campus. At the hearing, McDonald argued that the State had not produced any evidence that a violation of state, county, or municipal law had occurred within Officer Cummins' territorial jurisdiction. Thus, McDonald claimed, the State could not demonstrate that the off campus arrest by Officer Cummins was legal under the fresh pursuit doctrine.
The State argued in response, that Officer Cummins was authorized under the fresh pursuit doctrine to follow and arrest McDonald off campus since Cummins observed a speeding violation while on campus. The State alleged that failing to adhere to the speed limit sign on Northwest Missouri State's campus was a violation of state law pursuant to Section 304.2711 and, therefore, Officer Cummins was authorized in following McDonald outside of his territorial jurisdiction. Section 304.271 makes it a state law violation to fail to observe any "official traffic-control device." The State did not allege to the motion court that any municipal violation had occurred nor did it allege any other justification for the use of fresh pursuit other than the failure to obey a traffic-control device in violation of Section 304.271.2
We need not resolve the fresh pursuit issue because the State offered no evidence at the suppression hearing to support the alleged violation of Section 304.271 by McDonald. As mentioned above, an officer cannot justify an extra territorial arrest under the guise of fresh pursuit unless the officer reasonably believes that the individual committed a felony or if the individual has committed a misdemeanor or violated a municipal or county ordinance in the presence of the officer. Section 544.157, RSMo 2000. At the suppression hearing, the State's only allegation of illegality was that McDonald violated the laws of the State of Missouri, specifically Section 304.271, by failing to adhere to a posted speed limit sign. Section 304.271 creates a presumption that all appropriately placed "official traffic-control devices" are presumed to have been placed by lawful authority and in compliance with the Chapter 304 unless competent evidence shows otherwise. The plain language of the statute is clear in that McDonald could not have violated Section 304.271 in this case unless the campus speed limit sign at issue qualifies as an "official traffic-control device." McDonald raised this issue at the suppression hearing.
Pursuant to the Section 304.271, an "official traffic control device" must be one "placed in accordance with the provisions of the law." Section 304.271.1, RSMo, 2000. The State first appears to argue that Section 174.703, which empowers state universities to enact conduct regulations on campus, provides the authority underlying the campus speed limit sign. Contrary to Northwest's assertion, however, Section 174.703 does not purport to regulate speed and traffic on Northwest's campus. It merely gives Northwest the authority to promulgate regulations of its own to control campus traffic.
The State additionally argues that Northwest's traffic and parking policies provide such authority and attempts to introduce such evidence for the first time here on appeal,3 yet we cannot receive evidence that was not first put before the trial court and made part of the record. Winston v. Dir. of Revenue, 137 S.W.3d 502, 505 (Mo.App.2004). As a result, the record reveals no evidence that the traffic control device was placed pursuant to or authorized by any legal authority.
We cannot assume, nor could the motion court, that a street sign erected on Northwest's campus was "placed in accordance with the provisions of the law" without some evidence indicating that it was placed pursuant to law. The State would have us read ...
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