State v. Nimmo
| Citation | 563 S.W.3d 822 |
| Decision Date | 13 November 2018 |
| Docket Number | No. SD 35313,SD 35313 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Chadwick L. NIMMO, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Attorney for Appellant: Ellen H. Flottman, Columbia, Missouri.
Attorneys for Respondent: Joshua D. Hawley, Attorney General, and Garrick Aplin, Assistant Attorney General, Jefferson City, Missouri.
Chadwick L. Nimmo ("Defendant") appeals the trial court’s judgment convicting him as a persistent drug offender on the charge of possession of a controlled substance, in violation of section 195.202, RSMo Supp. 2014 (now section 579.015). Defendant claims the trial court committed error in denying his motion to suppress and in admitting certain evidence over his objection that the evidence was obtained following his unlawful seizure and the unlawful search of his vehicle. Finding no merit in Defendant’s claim, we affirm.
On December 30, 2015, Officer Scott Bolin with the City of Buffalo police department responded to Carl’s Package Store ("Carl’s") in Buffalo, after receiving a texted request from the store’s employee Jessica Hamilton regarding "some suspicious activity." When he arrived, Hamilton reported that a subject had entered the store multiple times, used the restroom each time, left without purchasing anything, and repeatedly moved his vehicle and parked in different locations outside the store. Officer Bolin reviewed the store’s surveillance video and recognized Defendant as someone whom Officer Bolin had stopped previously for a non-working brake light and had then learned that Defendant was on probation. The video revealed that one of the brake lights on Defendant’s vehicle was still not working. In the video, Officer Bolin observed Defendant enter and leave the store twice without purchasing anything, and on one occasion, exit the bathroom "pulling his left sleeve down." Officer Bolin saw in the video that Defendant moved his vehicle to different places in the parking lot, then exited the vehicle with an object in his hand, opened the hood, and placed the object under the hood before re-entering the vehicle. When Officer Bolin was then advised that Defendant had just been seen across the street at Sonic, he left the store to make contact with Defendant.
Officer Bolin observed and then followed Defendant, who was driving northbound on Highway 65, and pulled him over north of the Highway 32 intersection "for a non-working brake light." After he informed Defendant of the reason for the stop, Defendant provided his identification and insurance card as Officer Bolin requested, and Officer Bolin returned to his vehicle and "ran" Defendant’s information through the database, which revealed only that Defendant was on probation or parole. When Officer Bolin returned, he asked Defendant to exit the vehicle and move to the rear of the vehicle so he could question him. Defendant complied, and Officer Bolin proceeded to question Defendant about what he had observed on the store’s surveillance video and asked Defendant if he had anything illegal in his vehicle, to which Defendant responded, "[T]here shouldn't be." Officer Bolin requested Defendant’s consent to allow a search of the vehicle, which Defendant gave.
Officer Bolin began the search under the hood of the vehicle, "near the air box ... [a]bove the fender well." He retrieved a black nylon bag. When he asked Defendant what he would find inside the bag, Defendant stated, "[A] point and a spoon." The bag contained "a silver spoon with a small crystal like rock stuck to it" and a "denture [adhesive] box that had tissue with a syringe wrapped in it." Defendant identified the substance as "crystal" and methamphetamine, and admitted using it in the syringe. Upon further search of Defendant’s vehicle, Officer Bolin recovered "a small purple women’s style compact, with a mirror ... that had residue on it." Defendant, who had been calm, cooperative, and did not appear nervous throughout the encounter, also consented to a search of his person and allowed Officer Bolin to inspect his left arm, upon which Officer Bolin "saw a needle injection mark ... above the vein."
Officer Bolin placed Defendant under arrest, advised Defendant of his rights under Miranda ,1 and transported Defendant to the Dallas County Sheriff’s Office. Defendant was subsequently charged as a prior and persistent offender with committing the class C felony of possession of a controlled substance (methamphetamine), in violation of section 195.202, RSMo Supp. 2014, "knowing of its presence and illegal nature."
Defendant moved to suppress a "metal spoon with alleged methamphetamine residue, a syringe, and a black bag." A hearing on Defendant’s motion was held, wherein Officer Bolin was the only witness to testify. Related to the reason he pulled over Defendant, Officer Bolin testified that his "goal was to initially address the traffic violation and then further do the investigation of the activity at Carl’s." Officer Bolin estimated that his questioning of Defendant after returning to Defendant’s vehicle took "probably around five [minutes]." He further testified that "approximately 10 to 20 minutes" had passed between the time he first made contact with Defendant until he discovered the contraband, which included the time he spent checking Defendant’s record and insurance information.
The trial court overruled Defendant’s motion to suppress and issued written findings and conclusions, finding that As to the latter, the trial court concluded that Officer Bolin "had reasonable suspicion that criminal activity was afoot because of his previous observations of the defendant from the video surveillance[,]" and "that the articulable suspicion of criminal activity was established before the personal encounter with the defendant." In addition, the trial court concluded that "the period of the lawful seizure of the defendant that encompassed the moment of the stop, removing the driver from the vehicle, inquiries of driver’s license and insurance and the suspicious drug related investigation was not an unreasonably long seizure of the defendant and therefore not unconstitutional."
Defendant waived a jury trial. At Defendant’s bench trial, statements and evidence collected as a result of the traffic stop were admitted over Defendant’s continuing objection. Defendant presented no evidence. The trial court found Defendant guilty, and, thereafter, sentenced Defendant, as a persistent drug offender, to serve 12 years' imprisonment. Defendant timely appeals.
State v. Norfolk , 366 S.W.3d 528, 531 (Mo. banc 2012) (internal quotation marks and citations omitted).
In a single point relied on, Defendant contends that the trial court erred in...
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