State v. Miller

Decision Date21 February 1995
Docket NumberNo. 76803,76803
Citation894 S.W.2d 649
PartiesSTATE of Missouri, Respondent, v. Ralph L. MILLER, Appellant.
CourtMissouri Supreme Court

Raymond L. Legg, Janet M. Thompson, Office of the State Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

THOMAS, Judge.

I.

Ralph L. Miller appeals his conviction for possession of cocaine. Appellant claims (1) the stop of the vehicle in which he was a passenger was constitutionally impermissible; and (2) the consent of the driver of the vehicle to a search of her person and the car did not purge the taint of the initial illegality and, therefore, evidence of the cocaine found on appellant's person and appellant's post-arrest statements must be suppressed.

Once again we must determine the appropriateness of police and prosecutorial behavior in light of a citizen's right to be free from unreasonable searches and seizures and society's need for effective law enforcement. Our safety and freedom are at odds in the field of the Fourth Amendment to the United States Constitution and Article I, Section 15 of the Missouri Constitution. This is a difficult line to draw, and it is not made any easier by the fact that we must again do so in the factual context of an individual who has violated the law. We reverse appellant's conviction and order the trial court to sustain his motions to suppress because the initial police stop was illegal and the subsequent search activity was not sufficiently attenuated to purge the initial taint.

II. FACTS

On December 27, 1991, Detective Himmel called Officer Thomas on his portable telephone in regard to narcotics being transported in the area of the Rainbow Village Trailer Court in Columbia, Missouri. Officer Thomas later relayed the information in person to Officer Robinson. Officer Robinson was told that a red Nissan Sentra, belonging to Ramona Tope, with Missouri license plate No. VJS976, would be transporting controlled substances and that the car would be located in the vicinity of the Rainbow Village Trailer Court because appellant lived in that area. Officer Robinson, Officer Thomas, and Detective Himmel all were members of a special unit of the Columbia Police Department charged with suppression of street level drug trafficking. Because Detective Himmel did not testify at the suppression hearing, it is not known how Himmel knew or suspected the car would be transporting narcotics.

Officer Robinson asked for and received assistance from Officer McDonald, who also was a member of the special drug unit. Officers Robinson and McDonald met in the vicinity of Rainbow Village and, just northeast of the trailer court at around 7:15 p.m., stopped a vehicle matching Himmel's description. Tope was the driver and appellant was a passenger in the right front seat.

Officer Robinson approached the driver's side of the vehicle, asked Tope to exit the vehicle, explained to her the reason for the stop, and, after Tope exited the vehicle, asked for her consent for a search of her person and the car. Tope asked if she would be arrested if she refused to consent and Officer Robinson answered that she would not. Contemporaneously, Officer McDonald

approached the passenger side of the vehicle and explained to appellant that he and Robinson were going to search the car for narcotics. McDonald then asked appellant for identification. Sometime during the following activity between McDonald and appellant, Robinson received consent from Tope to search the car and communicated that consent via a previously arranged for nod to McDonald

Appellant did not respond to the initial request for identification, became very agitated, and kept asking McDonald what was going on. When appellant continued to refuse to produce identification, he was asked to step out of the car. Appellant acted as though he had not heard McDonald's request and curiously placed his left hand in the left pocket of his jeans. His hand remained in his pocket for 15 to 20 seconds until he finally stepped out of the car. McDonald then noticed that appellant slipped his hand out of his pocket in an attempt to keep McDonald from seeing what was in his hand. McDonald saw a small yellow object partially concealed in appellant's fist. Appellant initially said that he had nothing in his hand and then, after being told by McDonald not to throw it on the ground, placed the object in his left coat pocket. McDonald reached into the pocket and retrieved a small yellow bowl containing cocaine residue.

Appellant was arrested. While on the way to the police station, he denied that the container contained cocaine, but later said, "Well, what if it is coke? I thought you had to have a lot more than that to get in trouble." Appellant then asked about the source of the police's information regarding the drugs. McDonald answered that he did not know who provided the information. Appellant then volunteered, "I know who it was, an old girlfriend. She's jealous, she said she would get me busted.... She's a whore. She works in a massage parlor as a prostitute, she's just jealous."

Appellant filed dual motions to suppress the admission of both the post-arrest statements and the evidence of the cocaine found on his person. At the suppression hearing, the State only offered testimony from Officers Robinson and McDonald. Neither Officer Thomas nor Detective Himmel testified. The trial court denied appellant's motions to suppress. At trial, the State and the defense stipulated to the admission of the testimony of the two officers subject to appellant's objection that the search and seizure were illegal. Appellant was convicted, the conviction was upheld by the Court of Appeals, Western District, and this Court accepted transfer.

This Court is to affirm the trial court's decision if the evidence is sufficient to sustain its finding. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). Likewise, this Court will defer to the trial court's evaluation of the credibility of the witnesses and the weight of the evidence. State v. Villa-Perez, 835 S.W.2d 897, 902 (Mo. banc 1992). We find the trial court erred in overruling appellant's motions to suppress and, therefore, we reverse and remand.

III. THE VALIDITY OF THE STOP

The Fourth Amendment of the United States Constitution preserves the right of the people to be secure against unreasonable searches and seizures. Generally, a search or seizure is allowed only if the police have probable cause to believe the person has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). The Fourth Amendment allows, however, a so-called Terry stop, which is a minimally intrusive form of seizure or "semi-arrest" that is lawful if the police officer has a reasonable suspicion supported by articulable facts that those stopped are engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). 1 Police are allowed to conduct Terry stops of moving vehicles upon a reasonable suspicion that the occupants are involved in criminal activity. United States

v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). 2 The permissible scope of a Terry automobile stop includes a "search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden...." Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201 (1983)

When a law enforcement officer effectuates a Terry stop, he need not have personally observed facts amounting to reasonable suspicion provided he acted on information provided by another officer who is shown to have had reasonable suspicion to make the stop. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). In Hensley, the Supreme Court created a three-part test that requires the following: (1) that the communication objectively supported the action taken by the officer; (2) that the communication was issued on the basis of a reasonable suspicion that the occupant of the vehicle had been involved in a crime; and (3) that the stop that in fact occurred was no more intrusive than would have been permitted the officer that originally communicated the information. Id. at 232, 233, 105 S.Ct. at 682, 682.

In State v. Franklin, 841 S.W.2d 639 (Mo. banc 1992), this Court had occasion to apply the Hensley test in a factually similar case. 3 In Franklin, a Kansas City police officer received a radio dispatch stating that an armed party was occupying a black 1984 Pontiac Fiero in the area of 4200 East 60th Terrace. The officer saw the black Fiero being driven westbound on 61st Street and pulled the car over. The officer ordered the driver out of the vehicle, handcuffed him, patted him down, and, finding no weapon, felt under the seats of the vehicle and checked the console for a weapon. Still unable to unearth a weapon, the officer asked the driver for his driver's license. When the driver was unable to produce the license, the officer placed the driver under custodial arrest and searched him. The search produced a marijuana cigarette, or "joint," and the officer eventually found two more "joints" and over $37,000 in cash in a brown paper sack upon a more complete search of the car.

In Franklin, this Court found it necessary to apply only the second prong of the Hensley analysis because there was no evidence that the dispatch was issued on the basis of a reasonable suspicion.

In addressing the second Hensley requirement, it becomes clear that the state failed to meet its burden. At a suppression hearing 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. § 542.296.6, RSMo 1986; State v. Milliorn, 794 S.W.2d 181, 184 (Mo. banc 1990). The record...

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