State v. Mosby

• Decision Date: 21 January 2003
• Docket Number: No. WD 61592.,WD 61592.
• Parties: STATE of Missouri, Appellant, v. Cordell L. MOSBY, Respondent.
• Court: Missouri Court of Appeals

Page 410

94 S.W.3d 410

STATE of Missouri, Appellant, v. Cordell L. MOSBY, Respondent.

No. WD 61592.

Missouri Court of Appeals, Western District.

January 21, 2003.

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Paul T. Sullivan, Kansas City, MO, for appellant.

Michael J. Gunter, Kansas City, MO, for respondent.

Before JOSEPH M. ELLIS, Chief Judge, HAROLD L. LOWENSTEIN, Judge and VICTOR C. HOWARD, Judge.

JOSEPH M. ELLIS, Chief Judge.

On January 31, 2002, the Jackson County Prosecuting Attorney charged Respondent Cordell Mosby with one count of possession of a controlled substance, § 195.202,¹ and one count of the unlawful use of a weapon, § 571.030.1. On May 13, 2002, Mosby filed a motion to suppress all of the evidence that had been seized on the night of his arrest. Subsequently, the trial court conducted a hearing on Mosby's motion to suppress, and thereafter, on June 13, 2002, entered an order sustaining Mosby's motion and suppressing the evidence. The State of Missouri now prosecutes this appeal of that order.²

In its order granting the motion to suppress, the trial court set forth its factual findings and legal reasoning. The order states, in relevant part:

On September 2, 2001, Officer C. Barbosa of the Kansas City Missouri Police Department was on patrol in the area of Armour Boulevard and Locust Street in Kansas City, Missouri. Officer Barbosa first observed the defendant while the defendant was sitting on the steps in front of a dwelling at 500 E. Armour. Officer Barbosa testified that there was a no trespassing sign posted on the dwelling. The steps on which the defendant was sitting were near the public sidewalk abutting the public street. The area in which the defendant was sitting was not near the posted area.

Officer Barbosa exited his police vehicle and approached the defendant who then attempted to walk away. The officer observed the defendant drop a beige rock-like substance on the ground between two cars. The defendant was thereafter placed under arrest for trespassing. The beige rock-like substance was recovered. It was later field tested with positive results for cocaine. The officer recovered a .38 caliber loaded handgun from the area where the defendant had been seated. During the postarrest search, two .38 caliber rounds were found on the defendant's person. He was later charged with the two pending offenses.

A search conducted without a warrant is presumed to be unreasonable and thus violative of the Fourth Amendment. The burden of demonstrating that the search was justified rests with the State.

State v. Deck, 994 S.W.2d 527 (Mo.1999); State v. Davis, 13 S.W.3d 657 (Mo.App. E.D.2000). The Fourth Amendment is not violated when a law officer stops a person if the officer has reasonable suspicion based on specific and articulable facts that the person was or is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such a stop must be justified from the start. In this case, the Court finds that the officer had no specific articulable reason to stop the defendant. The arrest for trespassing was pretextual. Since there was no justification to suspect that a person sitting on the steps is involved in a criminal activity, there is no justification for the search. Accordingly, the fruit of the search must be suppressed.

Upon the evidence the Court finds that the search of the defendant was unreasonable and violative of the rights secured to the defendant under the Fourth Amendment of the Constitution of the United States. The Court finds that the evidence seized was fruit of an unreasonable and illegal search. The defendant's motion to suppress is hereby SUSTAINED. The Court hereby orders suppression of the evidence as to the cocaine and the handgun seized.

On appeal, the State claims that the trial court clearly erred in suppressing the cocaine and the handgun because Mosby did not have standing to challenge the seizure of those items after he abandoned them. In addition, the State argues that the seizure of those two items were not the result of an unconstitutional seizure of Mosby.

Our review of a trial court's ruling on a motion to suppress evidence is limited to determining whether the decision is supported by substantial evidence, and we will not reverse the trial court's ruling unless it is clearly erroneous. State v. Hoyt, 75 S.W.3d 879, 882 (Mo.App. W.D.2002). The trial court's ruling will be found to be clearly erroneous only "if we are left with a definite and firm belief that a mistake has been made." State v. Watkins, 73 S.W.3d 881, 883 (Mo.App. E.D.2002). In reviewing the trial court's decision, we view the evidence presented and all reasonable inferences drawn therefrom in the light most favorable to the trial court's order and disregard all evidence and inferences to the contrary. Hoyt, 75 S.W.3d at 882.

"We do, however, consider the ruling in the light of the proper application of the precepts of the Fourth Amendment." State v. Toolen, 945 S.W.2d 629, 631 (Mo. App. E.D.1997) (citing Florida v. Royer, 460 U.S. 491, 493, 103 S.Ct. 1319, 1321, 75 L.Ed.2d 229, 233 (1983)). "While this court gives deference to the trial court's factual findings and credibility determinations, ... [w]hether the Fourth Amendment has been violated is a legal question which this court reviews de novo." Hoyt, 75 S.W.3d at 882.

"The Fourth Amendment of the United States Constitution preserves the right of the people to be secure against unreasonable searches and seizures." State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). "Missouri's constitutional `search and seizure' guarantee, article I, section 15, is coextensive with the Fourth Amendment." Id.

"The Fourth Amendment's prohibition against unreasonable searches and seizures is enforceable against the states through the due process clause of the Fourteenth Amendment." Toolen, 945 S.W.2d at 631. "Assertions that evidence intended for use at trial is the product of an unlawful search and seizure should be raised by a motion to suppress under § 542.296 in order to determine as a matter of law whether items alleged to have been seized are inadmissible for that reason." Id. "`A person aggrieved by an unlawful seizure made by an officer and against whom there is a pending criminal proceeding growing out of the subject matter of the seizure may file a motion to suppress the use in evidence of the property.'" Id. (quoting § 542.296.1, RSMo 1994). "When a defendant moves to suppress evidence, the State has the burden to show by a preponderance of the evidence that the motion should be overruled." State v. Immekus, 28 S.W.3d 421, 429 (Mo.App. S.D.2000).

We first address the State's claim that Mosby lacked standing to challenge the seizure of the cocaine and the handgun because he did not have any legitimate expectation of privacy with regard to those items. "[I]n order for the defendant's Fourth Amendment rights to be violated or for the defendant to have standing to assert a violation of the rights guaranteed by Art. I, sec. 15 of the Missouri Constitution, defendant must have a legitimate expectation of privacy in the place or thing searched." State v. Stillman, 938 S.W.2d 287, 291 (Mo.App. W.D. 1997) (citing State v. McCrary, 621 S.W.2d 266, 273 (Mo. banc 1981)). "To determine whether a criminal defendant has a legitimate expectation of privacy in the place or thing searched, the defendant must have an actual subjective expectation of privacy in the place or thing searched and this expectation must be reasonable or legitimate." Toolen, 945 S.W.2d at 631. "The proponent of the motion to suppress has the burden of establishing that his constitutional rights were violated by the search and seizure." Stillman, 938 S.W.2d at 291.³ Accordingly, the "Defendant bears the burden of demonstrating that he had a `reasonable expectation of privacy' in the property searched." State v. Sweet, 796 S.W.2d 607, 611 (Mo. banc 1990).

None of Mosby's pleadings or arguments before the trial court or on appeal assert that he had a legitimate expectation of privacy in either the clear plastic bag containing cocaine found in the street or the white plastic bag containing the handgun found in the stairwell. Furthermore, the trial court made no specific finding that Mosby had such an expectation of privacy in those items. "Possession of a seized good is not a substitute for a factual finding that the possessor had a legitimate expectation of privacy in the area searched." Toolen, 945 S.W.2d at 631 (citing United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2552-53, 65 L.Ed.2d 619 (1980)).

Even if we assume that the trial court implicitly found that Mosby had a legitimate expectation of privacy in the two plastic bags and their contents, any such finding is not supported by the trial court's factual findings and is clearly erroneous and incorrect as a matter of law.

"The Fourth Amendment and Art. I, § 15, in protecting against `unreasonable searches and seizures,' do not give the courts general supervision over police practices and conduct." State v. Primm, 62 S.W.3d 463, 465 (Mo.App. E.D.2001). "Evidence is excludable under those provisions only if it has been obtained through an unreasonable search or seizure." Id. In order to have standing to complain of the search or seizure of property, a defendant must have a reasonable expectation of privacy related to that property at the time of the allegedly improper search or seizure. Immekus, 28 S.W.3d at 429 (emphasis added).

Mosby has never asserted that he had any legitimate expectation of privacy in the public street where the clear plastic bag was located or in the stairwell where the white plastic bag was located, nor would the record support any finding that he had an expectation of privacy in either place. Indeed, "there is no reasonable expectation of privacy subject to Fourth Amendment protection where the public at large is welcome." State v....