State v. Norfolk

• Decision Date: 15 November 2011
• Docket Number: No. ED95468,ED95468
• Parties: STATE OF MISSOURI, Respondent, v. ELTON J. NORFOLK, Appellant.
• Court: Missouri Court of Appeals

STATE OF MISSOURI, Respondent, v. ELTON J. NORFOLK, Appellant.

No. ED95468

Missouri Court of Appeals Eastern District DIVISION FOUR

Filed: November 15, 2011

Appeal from the Circuit Court of

the City of St. Louis

Honorable Donald L. McCullin

Elton Norfolk (hereinafter, "Norfolk") appeals from the trial court's judgment finding him guilty of one count of unlawful use of a weapon, Section 571.030 RSMo (2000),¹ and one count of possession of a controlled substance, Section 195.202, after a bench trial. The trial court sentenced Norfolk to concurrent terms of three years' imprisonment on the unlawful use of a weapon charge and one year in jail on the possession charge, suspending the execution of his sentences. Norfolk raises one point on appeal, arguing the trial court clearly erred in overruling his motion to suppress and his objections to the admission of evidence seized during the search because the police officer lacked reasonable suspicion to detain him. We affirm.

On August 19, 2009, Officer Julie Reynolds (hereinafter, "Officer Reynolds") was on routine patrol in a marked police car near the 3900 block of Lexington and Vandeventer in the City of St. Louis. Officer Reynolds was patrolling that particular areabecause there had been several armed robberies there in the past. While traveling southbound on Vandeventer, Officer Reynolds observed a black male, later identified as Norfolk, standing alone on the corner. After making eye contact with Norfolk, Officer Reynolds stated he adjusted his pants in a manner which she believed he was concealing a weapon, but no bulge or weapon was visible to her. After observing this adjustment, Officer Reynolds turned her patrol car around and parked in front of a convenience store.

As Officer Reynolds exited the vehicle, Norfolk walked into the store. Officer Reynolds followed Norfolk into the store, approached him, and asked, "Will you come outside and speak with me?" to which Norfolk replied, "F--- you. I don't need to speak to you." Officer Reynolds told Norfolk, "If you're not doing anything wrong, then you'll come outside and you'll speak to me." They both exited the store. Officer Reynolds told Norfolk to turn around and place his hands on the wall of the store so that she could check him for weapons; Norfolk complied. While raising his arms, his shirt came up, and the butt of a gun became visible. Officer Reynolds put her hand against the back of Norfolk's head and called for assistance. Norfolk was arrested. While conducting a search incident to arrest, Officer Reynolds retrieved the gun she saw in Norfolk's waistband, a magazine, live cartridges, and marijuana.

Norfolk was charged with one count of unlawful use of a weapon, one count of possession of a controlled substance under thirty-five grams, and third degree assault of a law enforcement officer.² Norfolk filed a motion to suppress all of the items seized, arguing the search was unlawful because it was conducted pursuant to an illegal stop. The trial court denied Norfolk's motion to suppress after a hearing.

Norfolk waived his right to a jury trial pursuant to Rule 27.01 and requested a bench trial, where Officer Reynolds and Norfolk testified. Norfolk testified Officer Reynolds approached him while he was inside the convenience store, had a taser gun in her hand, and ordered him to go outside and stand up against the wall for a search. Norfolk admitted on cross-examination that he possessed the items that were seized. The trial court found Norfolk guilty of unlawful use of a weapon and possession of a controlled substance. This appeal follows.

In his sole point on appeal, Norfolk argues the trial court clearly erred in overruling his motion to suppress and overruling his objections to the admission of evidence seized during the search because Officer Reynolds lacked reasonable suspicion to detain him. Norfolk claims any evidence obtained during the illegal search is fruit of the poisonous tree and should have been excluded at trial.

When reviewing a trial court's ruling on a motion to suppress, we must determine whether the decision is supported by substantial evidence. State v. Waldrup, 331 S.W.3d 668, 672 (Mo. banc 2011); State v. Dienstbach, 313 S.W.3d 201, 203 (Mo. App. E.D. 2010). We will consider all evidence and reasonable inferences therefrom in the light most favorable to the trial court's ruling. Id. We defer to the trial court's factual findings and credibility determinations. State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007); State v. Dixon, 332 S.W.3d 214, 217 (Mo. App. E.D. 2010). We will reverse a trial court's ruling on a motion to suppress only if the decision is clearly erroneous and leaves us with a definite and firm impression that a mistake has been made. Dienstbach, 313 S.W.3d at 204.

The Fourth Amendment to the United States Constitution preserves the right of citizens to be free from unreasonable searches and seizures. U.S. Const. Amend. IV. Generally, a search or seizure is only permissible if there is probable cause to believe a 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). For Fourth Amendment purposes, a "seizure" occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968). Not all "personal intercourse" between the police and individuals involves "seizures" of persons. Id. at 19 n.16. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Id. In other words, "[a] seizure occurs when the totality of the circumstances surrounding the incident indicates that 'a reasonable person would have believed that he was not free to leave.'" Sund, 215 S.W.3d at 723.

As a general rule, warrantless seizures are unreasonable and unconstitutional. State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). However, the United States Supreme Court has held that the Fourth Amendment allows a brief investigative detention if the officer has a reasonable suspicion, based on specific and articulable facts that illegal activity has occurred or is occurring. Terry, 392 U.S. at 21; Pike, supra. In determining whether the seizure and search were unreasonable, a court must determine "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20. "In evaluating reasonable suspicion, courts must 'determine if the content of the information possessed by the police and its degree of reliability issufficient to create a 'reasonable suspicion' of criminal activity.'" State v. Grayson, 336 S.W.3d 138, 143 (Mo. banc 2011)(quoting State v. Berry, 54 S.W.3d 668, 673 (Mo. App. E.D. 2001)). "[W]e are mindful that police officers are permitted to make use of all of the information available to them" when forming a particularized and objective basis for suspecting criminal activity. State v. Johnson, 316 S.W.3d 390, 396 (Mo. App. W.D. 2010). "This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.'" State v. Hawkins, 137 S.W.3d 549, 558-59 (Mo. App. W.D. 2004)(quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)). Whether the facts amount to reasonable suspicion is a question of law that we review de novo. State v. Goff, 129 S.W.3d 857, 862 (Mo. banc 2004).

Officer Reynolds testified at the suppression hearing that her basis for approaching Norfolk was that she observed him grab the top of his waistband from the back and "adjust[] his pants in a manner which I believed he was concealing a weapon." When asked to differentiate between one merely pulling up his pants and doing so in such a way as to conceal a weapon, Officer Reynolds testified, "When they adjust their pants, they adjust in the front. They don't adjust in the back. That's what I commonly see."

Norfolk urges us to follow the holding in State v. Gabbert, 213 S.W.3d 713 (Mo. App. W.D. 2007) to overturn his conviction. In Gabbert, several police officers were called to assist other officers in a drug investigation and "well-being check" after the mother of a female juvenile reported her daughter fled their home to another residence after discovering drugs in her daughter's purse. Id. at 716. After arriving at theresidence, as a police officer approached the front door, another officer informed him that someone inside the residence had gone out the back door. The officer proceeded to the rear of the house where he observed Gabbert leaning against the outside of the house with his hands in his pocket. The police officer ordered Gabbert to remove his hands from his pockets and he complied. Then the officer asked Gabbert to consent to a pat down search. Gabbert consented, turned around, and put his hands on the house without being asked to do so. The officer recovered a knife from the inside of Gabbert's sock, which was not discovered during the initial pat down search. Gabbert was charged with unlawful use of a weapon and filed a motion to suppress all evidence and statements made as a result of the stop. The trial court granted Gabbert's motion, and the State filed an interlocutory appeal. The Western District affirmed the trial court's ruling, finding the police officer failed to articulate any reasonable grounds for detaining Gabbert. Id. at 719.

Norfolk's reliance on Gabbert is misplaced. While we find Gabbert instructive because the officer had more indicia of reasonable suspicion than demonstrated here, and the Western District held it did not rise to the level to justify a Terry stop, the facts are distinguishable....