State v. McNaughton, WD

• Decision Date: 14 May 1996
• Docket Number: No. WD,WD
• Citation: 924 S.W.2d 517
• Parties: STATE of Missouri, Respondent, v. Sean K. McNAUGHTON, Appellant. 49936.
• Court: Missouri Court of Appeals

Page 517

924 S.W.2d 517

STATE of Missouri, Respondent, v. Sean K. McNAUGHTON, Appellant.

No. WD 49936.

Missouri Court of Appeals,

Western District.

May 14, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 2, 1996.

Barbara Hoppe, Asst. Public Defender, Columbia, for appellant.

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

Before ULRICH, P.J., and BRECKENRIDGE and EDWIN H. SMITH, JJ.

ULRICH, Judge.

Sean McNaughton appeals his conviction and resulting sentences for drug trafficking in the first degree, section 195.222.7(1), RSMo 1994 (Count I), and possession of methamphetamine, section 195.202.1, RSMo 1994 (Count II). He was sentenced to twenty-five years imprisonment on the trafficking charge and five years for possession, to be served concurrently. Mr. McNaughton raises eight issues on appeal: 1) the trial court erred in denying his motion to suppress in that there was no probable cause to search his car, and he did not consent to the trooper searching the vehicle; 2) the trial court erred in not granting his motion for production or alternative motion for dismissal in that the clothing items recovered from the van were destroyed by Sergeant Ripley knowing them to have exculpatory value; 3) the trial court erred in sustaining the jury's verdict in that the crime submitted to the jury was in variance with the crime charged; 4) the trial court erred in overruling Mr. McNaughton's motion for judgment of acquittal in that the state failed to prove beyond a reasonable doubt that appellant committed the crime; 5) the trial court erred in failing to submit to the jury an instruction on the lesser included offense of possession of marijuana; 6) the trial court erred and abused its discretion in not severing counts I and II for separate trials; 7) the trial court erred in allowing documents from Mexico attached to the motor vehicle records from California to be admitted in that the records constituted inadmissible hearsay; and 8) the motion court erred in denying his Rule 29.15 motion for postconviction relief without an evidentiary hearing.

On review, the evidence is viewed in the light most favorable to the verdict; no consideration is given to contrary or adverse evidence. State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995). On June 19, 1993, at approximately 3:40 a.m., Sergeant James Ripley, Missouri Highway Patrol, was traveling east on Interstate 70 when a van exceeding the speed limit passed him. After two attempts to check the license number of the vehicle, he received information that the vehicle was registered to Sean McNaughton and Claudia Martinez.

Sergeant Ripley paced Mr. McNaughton's vehicle at 75 miles per hour, in excess of the posted speed limit, using radar and speedometer to gauge the speed. Sergeant Ripley activated his emergency equipment. The van drove to the side of the road. As the trooper approached the van, Mr. McNaughton rolled down the window on the driver's side. The passenger, who had been sleeping in the middle seat, sat up, apparently to hear Sergeant Ripley and Mr. McNaughton's conversation. Sergeant Ripley smelled the odor of raw marijuana emanating from the vehicle.

Mr. McNaughton could not produce his driver's license when Sergeant Ripley asked to see it, and Mr. McNaughton exited the van to look for it in the rear of the van. Sergeant Ripley followed him. When Mr. McNaughton opened the rear of the van, Sergeant Ripley saw inside the back portion of the van. He noticed that the floor carpeting was a different color than the rest of the upholstery. He also noticed that the screw heads and the molding strips were scratched, and the floor appeared to be raised. He concluded from his observation that the van had been customized and that it contained a false compartment. Mr. McNaughton then opened the sliding door at the side of the vehicle. Sergeant Ripley noticed that the molding strip along the floorboard wasn't level and "stood up" at one end. As Sergeant Ripley observed the rear of the van Mr. McNaughton looked through loose clothes for his driver's license until he found it.

Sergeant Ripley asked Mr. McNaughton to accompany him to the patrol car. While Sergeant Ripley was attempting to acquire, by computer, information regarding the license plate number on Mr. McNaughton's vehicle, he questioned Mr. McNaughton about his destination, occupation, and the co-owner of the vehicle. He also tried to glean information from Mr. McNaughton regarding the passenger, since the passenger did not produce any form of identification. Mr. McNaughton stated that he was going to Ohio to see relatives whom he had not seen before and was planning to stay in Ohio a few weeks. He told Sergeant Ripley that his passenger was Miguel Rico, and he had known him about a year. Sergeant Ripley then left Mr. McNaughton in the patrol car and went to the exterior of the van to talk with the passenger.

The passenger identified himself as Miguel Angel Rico. His real identity was later discovered to be Carlos Ugalde. He was from Tijuana, Mexico. He stated that he had known Mr. McNaughton for approximately four years. Mr. Rico explained to Sergeant Ripley that he was going to Philadelphia and to the Hall of Fame. The passenger told Sergeant Ripley that Mr. McNaughton was going to visit family members. After his discussion with the passenger, Sergeant Ripley returned to his patrol car to inquire more of Mr. McNaughton.

Sergeant Ripley radioed for the canine unit to assist him. He asked Mr. McNaughton if he had anything in the vehicle that was illegal, such as drugs, or if he had large sums of money, either concealed or unconcealed. Sergeant Ripley then asked if Mr. McNaughton objected if he looked through the vehicle for those items. Mr. McNaughton said, "I don't have a problem with that." Sergeant Ripley asked Mr. McNaughton to remain in the patrol car. Sergeant Ripley then took a screwdriver from his car and went to the van.

After removing Mr. Rico from the van, Sergeant Ripley took off the molding strip from the side of the van. He went to the rear of the van and pulled the carpet up to try and find the hidden compartment. Finding the hidden compartment, he could see into it and, using his flashlight, observed brown packages. At this point, the drug dog arrived and was led through and around the van several times. He alerted at the side of the van by scratching and barking, indicating the presence of drugs.

Sergeant Ripley formally arrested Mr. McNaughton and informed him of his rights in compliance with Miranda. He then asked how to get into the hidden compartment. Mr. McNaughton said he did not know. Sergeant Ripley began removing the contents of the van in an attempt to gain access to the hidden compartment. He found two trap doors, and using a screwdriver found in the van, opened the doors. Each compartment contained packages of marijuana wrapped in brown contact paper and wet clothing.

Sergeant Ripley followed the van as it was driven by another Highway Patrol Trooper to the sheriff's garage in Lexington, Missouri. While in Lexington, a cigarette package containing a plastic bag of methamphetamine was found above the driver's sun visor by another law enforcement officer.

Following trial, the jury returned a verdict of guilty on both Counts I and II. The court sentenced Mr. McNaughton to concurrent sentences of twenty-five years incarceration on Count I and five years on Count II. He filed a Rule 29.15 pro se postconviction motion. The motion court denied his motion without an evidentiary hearing. Mr. McNaughton appeals both his conviction on both counts and the denial of his Rule 29.15 motion.

I. Search and Seizure

Mr. McNaughton claims as his first point on appeal that the trial court erred in denying his motion to suppress the contraband found within the vehicle, contending that probable cause did not exist for Sergeant Ripley to stop or search his vehicle, that his continued detention and questioning was unreasonable, and that he did not consent to the search of the vehicle. Appellate review of the trial court's ruling on a motion to suppress is limited to determining whether evidence is sufficient to support the trial court's ruling. State v. Hofmann, 895 S.W.2d 108, 113 (Mo.App.1995). The facts are viewed in light most favorable to the ruling. State v. Duncan, 879 S.W.2d 749, 751 (Mo.App.1994).

Mr. McNaughton, in his motion to suppress, alleged that no valid basis existed to justify the stop, and even if the stop was valid, Sergeant Ripley's conduct exceeded the bounds of a traffic stop because consent to search the vehicle was not given and probable cause did not exist to justify the extensive search of his van. Therefore, the fruits of the search should have been suppressed.

Sergeant Ripley testified that Mr. McNaughton's van passed him while he traveled East on Interstate 70. He then paced the van, using speedometer and radar equipment, at 75 miles per hour in a 65 mile per hour speed zone. Highway Patrol Sergeant Ripley was authorized to stop Mr. McNaughton for violating the speed limit. The trial court found Sergeant Ripley's account of what transpired to be credible. Decisions of credibility are left to the trial judge. State v. Milliorn, 794 S.W.2d 181, 183 (Mo.1990). The initial stop was therefore valid. Sergeant Ripley did what he was legally permitted and objectively authorized to do, and the stop was not precluded by the constitution. State v. Malaney, 871 S.W.2d 634 (Mo.App.1994).

Mr. McNaughton next argues that even if the stop was valid, the scope of the questioning was not reasonably related to the circumstances. A reasonable investigation of a traffic stop may include asking for the driver's license and registration, requesting the driver to sit in the patrol car, and asking the driver about his destination and purpose. U.S. v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994). Once a...