State v. McKeehan

Citation894 S.W.2d 216
Decision Date28 February 1995
Docket Number19557,Nos. 19197,s. 19197
PartiesSTATE of Missouri, Plaintiff-Respondent, v. Charles F. McKEEHAN, Defendant-Appellant. Charles F. McKEEHAN, Movant-Appellant, v. STATE of Missouri, Respondent.
CourtCourt of Appeal of Missouri (US)

Rosalynn Koch, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.

GARRISON, Presiding Judge.

Appellant was convicted of the class C felony of possession of more than 35 grams of marijuana, § 195.202, 1 and was sentenced,

                as a prior and persistent offender, to ten years' imprisonment.  His appeal from that conviction is Case No. 19197.   After he was sentenced, Appellant filed a pro se motion seeking to have the conviction and sentence set aside pursuant to Rule 29.15.  In Case No. 19557, he appeals the trial court's dismissal of that motion.  These appeals have been duly consolidated
                
FACTS

Officer Gary Arias of the Joplin, Missouri Police Department was dispatched to investigate a disturbance at the Red Lion Bar at 12:30 a.m. on April 30, 1993. When the officer arrived he saw Appellant "walking away towards the parking lot," and called to him. Appellant turned around and walked to the officer who said that he then started his "investigation of the disturbance." According to Officer Arias, he intended to interview Appellant to find out what was going on because there did not seem to be a disturbance outside the bar. He noticed, however, that Appellant did not seem to be paying attention to what he was saying but instead was looking around the parking lot. As the officer was in the process of getting Appellant's name, date of birth, and social security number, two backup officers (Officers Hobson and Gilbert) arrived in another police vehicle. Upon their arrival, Appellant "took off running north through the parking lot." He was chased and caught by Officer Arias who took hold of his shoulder and turned him around. They apparently lost their balance and as they were falling to the ground Appellant took a cellophane bag from his pants, containing what appeared to be marijuana, and threw it.

As Officer Arias was handcuffing Appellant, he pointed and told Officer Hobson, "He threw something over there." Officer Hobson then located, five to ten yards away from Appellant, a bag containing what was later identified as more than 40 grams of marijuana. Appellant's motion to suppress the marijuana was overruled and it was admitted in evidence over his objection.

The original information charged Appellant with the class B felony of possession of a controlled substance with intent to distribute in violation of § 195.211. Appellant was convicted under an amended information, filed over his objection, charging him with the class C felony of possession of a controlled substance under § 195.202.

In his direct appeal, Appellant contends that the trial court erred in overruling his motion to suppress the marijuana and in permitting the filing of the amended information.

POINT I

In his first point, Appellant contends that the trial court erred in overruling his motion to suppress and in admitting the marijuana over his objection. He argues that the marijuana was seized in violation of his right to be free from an unreasonable search and seizure under the Fourth and Fourteenth Amendments to the United States Constitution and Art. 1, § 15 of the Missouri Constitution "in that it was seized as the result of an illegal arrest without probable cause since the sole basis of the arrest was appellant's flight from the arresting officer who had no reason to suspect appellant of committing any crime."

We will not reverse the trial court's decision on a motion to suppress unless it is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). Review of a trial court's order denying a motion to suppress is limited to a determination of whether there was sufficient evidence to support that order. State v. Rodriguez, 877 S.W.2d 106, 110 (Mo. banc 1994); State v. Perrone, 872 S.W.2d 519, 521 (Mo.App.S.D.1994). The evidence and reasonable inferences therefrom are to be viewed in the light most favorable to the order challenged on appeal. State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985); State v. Bunts, 867 S.W.2d 277, 278 (Mo.App.S.D.1993). The weight and credibility of the witnesses are matters for the trial court's determination. State v. Villa-Perez, 835 S.W.2d 897, 901 (Mo. banc 1992). We may not substitute our discretion for that of the trial court and may not reverse even if we believe we would have weighed the evidence differently. State v Both the Fourth Amendment to the United States Constitution and Art. 1, § 15 of the Missouri Constitution prohibit "unreasonable searches and seizures." It is apparent that there was no search of Appellant's person which resulted in seizure of the marijuana. Rather, Appellant contends that his act of throwing the bag of marijuana was the result of an unlawful seizure of his person. In support, Appellant cites California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d. 690 (1991).

Stevens, 845 S.W.2d 124, 128 (Mo.App.E.D.1993). We do, however, consider the trial court's ruling in light of the proper application of the Fourth Amendment. Id.

In Hodari several youths who had been huddled around a parked car ran as officers approached. The officers gave chase and just before they tackled him, defendant tossed away a substance later identified as crack cocaine. The issue as framed by the Supreme Court was "whether, at the time he dropped the drugs, Hodari had been 'seized' within the meaning of the Fourth Amendment." Id. at 623, 111 S.Ct. at 1549. If not, the court said "the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted." Id. Noting that the Fourth Amendment protects against unreasonable seizures of the person as well as property, the United States Supreme Court held that a seizure occurs when either physical force is applied to restrain a suspect or the suspect submits to an officer's show of authority. Id. at 626-27, 111 S.Ct. at 1551. In that case the court concluded that Hodari had not yet been physically restrained and since he had not submitted to the instructions to halt, he had not been seized until he was tackled. Id. at 629, 111 S.Ct. at 1552. It said, "[t]he cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied." Id.

Courts have excluded evidence abandoned by a defendant on the theory that the seizure was unlawful and the subsequent or contemporaneous dropping or throwing of the evidence was a consequence thereof resulting in exclusion. See State v. Tucker, 136 N.J. 158, 642 A.2d 401, 409 (1994); Motley v. Commonwealth, 17 Va.App. 439, 437 S.E.2d 232, 235 (1993); U.S. v. Wilson, 953 F.2d 116, 127 (4th Cir.1991). See also 4 Wayne R. LaFave, Search and Seizure, § 11.4(j) at 459-60 (2d Ed.1987).

The issue in the instant case, therefore, is whether Appellant's act in throwing the bag of marijuana was the product of an unlawful seizure of his person and therefore offensive under a Fourth Amendment analysis, or constituted an abandonment, thereby depriving him of a constitutional objection to its admission.

Officer Arias described his chase and apprehension of Appellant by saying:

Q. And what happened after Mr. McKeehan took off running?

A. I took, chased after him and caught him about 30 yards away.

Q. What happened after you caught Mr. McKeehan?

A. Well, I caught up to Mr. McKeehan, I reached out and put my left hand top of his shoulder to turn him around. When he turned around, we got, kind of like lost our balance, and he, he grabbed ahold of my shirt. My pocket of my shirt ripped, and we both went to the ground. At that time when we were both going to the ground, I seen him reach in the front of his pants and pull out a bag.

....

Q. Could you tell what was inside the bag?

A. It appeared to be marijuana at the time.

....

Q. After he pulled this zip-lock bag, or this bag, out of his pants, what did he do with it?

A. Then he threw it.

Appellant does not contend that a seizure occurred prior to his running and being caught by the officer. 2 It is apparent The Appellant was seized, however, when Officer Arias caught him and took hold of his shoulder in the process of turning him around to restrain him. California v. Hodari D., 499 U.S. at 624-628, 111 S.Ct. at 1550-1552. See also Sibron v. State of New York, 392 U.S. 40, 69, 88 S.Ct. 1889, 1905, 20 L.Ed.2d 917 (1968). Appellant argues that Officer Arias did not have probable cause to arrest him with the result that the abandonment or throwing of the marijuana was the product or consequence of that unlawful event.

from Hodari that the pursuit of Appellant, itself, did not constitute a seizure. See also State v. Johnson, 863 S.W.2d 361, 362-363 (Mo.App.E.D.1993); State v. Nicholson, 839 S.W.2d 593, 596 (Mo.App.W.D.1992); State v. Shahid, 813 S.W.2d 38, 40 (Mo.App.E.D.1991); State v. Qualls, 810 S.W.2d 649, 653 (Mo.App.E.D.1991).

Appellant characterizes his seizure as an arrest based solely on his having fled from the officers and therefore as being without probable cause. In support, he cites United States v. Green, 670 F.2d 1148, 1152 (D.C.Cir.1981); State v. Johnson, 670 S.W.2d 882, 885 (Mo.App.E.D.1984); and United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.1976). Those cases, together with State v. Trimble, 654 S.W.2d 245, 258 (Mo.App.S.D.1983), all stand for the proposition that flight alone will not provide probable cause for an arrest, but may be a consideration, and in some cases may provide the key ingredient, justifying a decision to take action.

Appellant does not cite or refer to Terry v. Ohio, 392 U.S. 1, 21, 88...

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