State v. Milliorn

Decision Date31 July 1990
Docket NumberNo. 72270,72270
Citation794 S.W.2d 181
PartiesSTATE of Missouri, Appellant, v. Patrick M. MILLIORN, Respondent.
CourtMissouri Supreme Court

Weldon W. Perry, Jr., Pros. Atty., Lexington, for appellant.

James D. Worthington, Lexington, for respondent.

William L. Webster, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for amicus curiae.


This case began as a routine traffic stop. During its course, Trooper James Wingo of the Missouri Highway Patrol discovered fifteen plastic bags of unprocessed, raw marijuana in the camper shell of a pickup truck operated by respondent, Patrick Milliorn. In the criminal proceeding that followed, Milliorn moved to suppress the marijuana, a sum certain of money in United States currency, and the prescription medications found on his person; the trial court sustained the motion to suppress the marijuana, but overruled the motion to suppress the currency and the prescription medication. The State filed its interlocutory appeal. Section 547.200.1, RSMo 1986. The Court of Appeals, Western District, affirmed. We granted transfer to consider the applicability of the inevitable discovery exception to the Fourth Amendment warrant requirement in the context of an inventory search. We have jurisdiction. Mo. Const. art. V, § 10. Affirmed.


On March 21, 1989, Trooper Wingo patrolled Interstate 70 near the Lafayette-Saline County line. He testified that as he proceeded west on the interstate, his radar equipment detected an eastbound pickup truck travelling sixty-nine miles per hour, in violation of the posted sixty-five mile per hour speed limit.

The trooper reversed his direction, stopped Milliorn and asked to see Milliorn's operator's license. In the process of issuing Milliorn a warning for violating the speed limit, Wingo conducted a routine computer check of Milliorn's Colorado operator's license via radio and discovered that Colorado had suspended Milliorn's operator's license. Wingo arrested Milliorn for driving without a valid operator's license; registration papers for the vehicle showed that a Texas resident, not Milliorn, owned the truck and that a different license plate number than that displayed on the truck had been assigned to the truck.

Incident to this arrest, the trooper conducted a pat down search of Milliorn's person. This search uncovered an unmarked, brown bottle containing various controlled medications. Wingo informed Milliorn of his arrest for carrying a controlled substance outside its original container. 1 Milliorn volunteered that the prescriptions for the pills could be found in the passenger compartment of the pickup.

Wingo began a search of the pickup cab. While in the truck, out of the wind, Wingo testified that he smelled the odor of raw marijuana for the first time. The cab of the pickup and the camper shell were separated by an air space; each bore a sealed window preventing access from the cab to the pickup bed. The camper shell windows were virtually opaque and prevented visual inspection of any cargo. Taking keys from the ignition, Trooper Wingo unlocked the camper shell and discovered the marijuana.

Milliorn moved to suppress a sum certain of money in United States currency, the prescription medications found on his person and the marijuana found in the enclosed camper shell. The trial court granted that portion of the motion to suppress referring to the marijuana, but denied the other relief requested in the motion.


The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

One broad exception to the warrant requirement focuses on searches of automobiles. Generally, law enforcement personnel may conduct a warrantless search of a vehicle and seize contraband found if (1) there is probable cause to believe that the vehicle contains contraband and (2) exigent circumstances necessitate the search. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct.1975, 1981, 26 L.Ed.2d 419 (1970). As a practical matter, exigent circumstances exist whenever an automobile is involved; the mere possibility that the vehicle can be moved is generally sufficient justification for a warrantless search. Cady v. Dombrowski, 413 U.S. 433, 441-42, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); United States v. Hall, 716 F.2d 826, 829-30 (11th Cir.1983); cert. denied, 467 U.S. 1251, 104 S.Ct. 3534, 82 L.Ed.2d 840 (1984); United States v. Bagley, 772 F.2d 482, 491 (9th Cir.1985), cert. denied, 475 U.S. 1023, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986).

Thus, the critical inquiry here is whether, under the totality of circumstances, Trooper Wingo had probable cause to believe the vehicle contained contraband. Said another way, the relevant question is: if Trooper Wingo had presented this factual scenario to a neutral magistrate, would these facts have been sufficient to support the issuance of a search warrant?

In an automobile context, probable cause to search exists "when the facts and circumstances would lead a reasonably prudent [person] to believe that the vehicle contains contraband." United States v. Clark, 559 F.2d 420, 424 (5th Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457 (1977). Reduced to its simplest formulation, probable cause requires no more than a reasonable belief that it is more probable than not that the vehicle contains illegal property. See Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983) (probable cause does not require a showing that an officer's belief as to the existence of contraband is correct, only a practical, nontechnical probability that contraband may be found).


The meaning of "probable cause" is a legal issue; its existence is a factual question, determined here by the trial court upon a presentation of the facts apparent to the trooper at the time he made the decision to search the camper shell. "[T]he probable-cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate and not merely on the subjective good faith of the police officers." United States v. Ross, 456 U.S. 798, 808, 102 S.Ct. 2157, 2164, 72 L.Ed.2d 572 (1982).

The trial court is afforded the luxury of cool deliberation--an advantage generally unavailable to persons charged with actual enforcement of the law. Nevertheless, we review the trial court's decision on appeal under an abuse of discretion standard. Only if the trial court's judgment is clearly erroneous will an appellate court reverse. This standard of review gives appropriate deference to the trial court's ability to weigh the credibility of the witnesses, and acknowledges the inability of an appellate court to determine credibility from the lifeless pages of a record. Thus, if the trial court's ruling is plausible in light of the record viewed in its entirety, this Court "may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988), quoting Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1984).


In this case, the trial court entered neither findings of fact nor conclusions of law. The record and order show that the trial court apparently did not believe the trooper's testimony on the discovery of the marijuana. "Well, Officer," the judge said, "your credibility on this entire case rests on your ability to smell marijuana when you put your head or body back into the cab looking for the prescriptive medicine." Because Wingo testified that he did not "have the words to explain exactly what it smells like, but I know ... it when I smell it," the trial court ostensibly found the trooper's testimony incredible.

Based on its apparent disbelief of Wingo's testimony on the discovery of the marijuana, the trial court apparently believed that the State failed to offer persuasive evidence of the reasonableness of Trooper Wingo's belief that the camper shell contained, more probably than not, contraband. Although the members of this Court might very well have reached a different result in considering this evidence, that is of little consequence. On this record, and considering the ability of the trial court--and our inability--to assess the credibility of Trooper Wingo's testimony, we do not find the trial court's ruling clearly erroneous.


The State urges that State v. Yowell, 513 S.W.2d 397, 402 (Mo. banc 1974), requires that a criminal defendant bear the burden of producing probative evidence in support of his motion to suppress. Because Milliorn failed to produce such probative evidence here, the State argues that the trial court erred in suppressing the evidence. In response to the State's argument on this issue, we limit our discussion to warrantless searches.

Yowell does not control this case. Subsequent to this Court's decision in Yowell, Section 542.296, RSMo 1986, took effect. Section 542.296 created new law; it did not have a statutory antecedent. 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." The language of Section 542.296.6 is therefore consistent with cases holding that warrantless searches are presumptively unreasonable and the burden of placing the search within an exception to the warrant requirement falls on the State. State v. Olds, 603...

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