State v. Olson, 72079

• Decision Date: 14 April 1998
• Docket Number: No. 72079,72079
• Citation: 972 S.W.2d 359
• Parties: STATE of Missouri, Respondent, v. William Kent OLSON, Appellant.
• Court: Missouri Court of Appeals

Page 359

972 S.W.2d 359

STATE of Missouri, Respondent, v. William Kent OLSON, Appellant.

No. 72079.

Missouri Court of Appeals,

Eastern District,

Division Four.

April 14, 1998.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 4, 1998.

Application for Transfer Denied

Aug. 25, 1998.

Frank K. Carlson, Carlson & Hellman, Union, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Cristi A. Ingalsbe, Asst. Atty. Gen., Jefferson City, for Respondent.

SIMON, Judge.

William Olson, defendant, appeals the judgment entered on his conviction for possession of a controlled substance with intent to distribute or deliver or sell pursuant to Section 195.211 RSMo 1994 (all further references shall be to RSMo 1994 unless otherwise noted), for which he was sentenced to ten years imprisonment. On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence and admitting any evidence against defendant, in that defendant was subjected to a warrantless seizure not supported by a reasonable suspicion of criminal activity. We affirm.

At a hearing on a motion to suppress, the State has the burden of showing by a preponderance of the evidence that the motion to suppress should have been overruled. State v. Franklin, 841 S.W.2d 639, 644 (Mo.banc 1992). Our review is limited to a determination of sufficiency of the evidence to sustain the trial court's conclusion about whether the stop violated defendant's rights. State v. Johnson, 907 S.W.2d 311, 312 (Mo.App.1995). The trial court's decision on a motion to suppress is reviewed on appeal under an abuse of discretion standard. State v. Milliorn, 794 S.W.2d 181, 183 (Mo.banc 1990). We will reverse only if the trial court's judgment is clearly erroneous. Id. If the trial court's ruling is plausible in light of the record viewed in its entirety, this court may not reverse the ruling even though convinced that had it been sitting as trier of fact, it would have weighed the evidence differently. Id. at 184.

The underlying case was submitted pursuant to a stipulation for disposition, which preserved defendant's issues raised in his motion to suppress and stipulated to the evidence adduced at a preliminary hearing and a hearing on defendant's motions to suppress. The record reveals that on April 13, 1995, the Franklin County Sheriff's Department set up a drug enforcement checkpoint (checkpoint) at the eastbound Exit 242 ramp on Interstate 44, where Highway AH crosses the interstate. Two signs were placed along Interstate 44, approximately one-quarter mile before the checkpoint area, which read "Drug Enforcement Checkpoint 1 Mile Ahead." No services, food, gas or lodging were located at the exit. Contrary to the two signs, the actual checkpoint took place at the top of the eastbound Exit 242 ramp.

The checkpoint was operated pursuant to a written plan, which provided, in pertinent part:

Method of Operation

The AH overpass was selected because of its remote location. Eastbound travelers having passed the rest area and two St. Clair exits which offer gas, food, and lodging have little reason to exit at AH. In an attempt to establish reasonable suspicion/probable cause two signs will be placed approximately 1/4 mile west of the AH overpass on both sides of the eastbound lanes of Interstate 44. The signs will state:

"DRUG ENFORCEMENT CHECKPOINT 1 MILE AHEAD."

The signs are placed prior to the exit ramp in an attempt to divert suspected drug traffickers to the actual checkpoint locate[d] at the top of the overpass. Only vehicles which exit the eastbound lanes will be involved in the checkpoint as the vehicles may be exiting to avoid going thru the checkpoint "1 mile ahead." The exception of those which attempt to exit then return to the eastbound lanes, a chase car will be sent to stop them ... Cross traffic and westbound traffic are excluded from the checkpoint, barring any violation of Missouri State Law in which case they will be stopped. All officers will remain out of sight from east bound traffic. A uniform officer(s) will approach vehicles and stop them at the top of the exit ramp. Another uniformed officer will maintain a log containing the State and license number of every vehicle stopped at the checkpoint ...

Officers will check the driver for a valid drivers license. Drivers and/or passengers maybe interviewed separately by the officer/officers. The occupants will be informed of the following:

Officers name:

Reason for stop-Drug Enforcement Checkpoint

The driver/occupants will be asked why they exited at this location. The officers will look for signs of suspected drug trafficking. If the officer believes he has "reasonable suspicion" he will ask the driver for permission to search the vehicle and its contents * * *

In instances where the officer had "reasonable suspicion" and the driver refuses to give permission to search one or both of the departments canines will be utilized to sniff the exterior of the vehicle. If no alert is given by the canine no other investigation will be conducted. If the canine alerts thus establishing probable cause a search will be conducted of the vehicle and its contents.

* * *

At the checkpoint, Reserve Deputy Harry Tongay (Tongay) was standing in full uniform, along with another deputy, just east of Highway AH, on the oncoming ramp from Highway AH to eastbound Highway 44. At approximately 10:00 a.m., Tongay observed a two-tone, black and gray Ford pickup truck with a camper shell (truck) traveling east on Interstate 44, approaching Exit 242 with its right turn signal on. The truck entered two-thirds of the way into the exit lane before reentering, just before the exit, the flow of traffic on Interstate 44. In reentering the flow of traffic on Interstate 44, the truck briefly proceeded off the traveled portion of the highway, crossing a "white line ... that marks the eastern-most edge of the exit ramp." Having observed the truck attempting to exit and then return to the eastbound lanes, Tongay called for a pursuit car to stop the truck, as per the plan. Tongay gave Deputy Kenneth Hotsenpiller (Hotsenpiller) a description of the truck.

Hotsenpiller stopped the truck approximately one-half mile east of the checkpoint area. Defendant was driving the truck, and Thomas Heyer (Heyer) was the passenger. Hotsenpiller asked defendant for his driver's license and to step out of the truck. Defendant produced a Pennsylvania driver's license and stepped to the rear of the truck. Hotsenpiller asked defendant why he attempted to exit the interstate and then veered back onto the interstate. Defendant did not answer. Hotsenpiller asked defendant if he saw the two signs, and defendant answered that he did. Hotsenpiller again asked defendant why he attempted to exit and then veered back onto the interstate and defendant stated that he did not know. Hotsenpiller then took defendant to his patrol vehicle to run a record check. While waiting for the record check, Hotsenpiller informed defendant that the sheriff's department was operating a drug checkpoint and defendant had been stopped because he veered back onto Highway 44. Hotsenpiller asked defendant if he had any firearms, alcohol, or illegal drugs in his truck. Defendant did not respond, and Hotsenpiller noticed that defendant's hands began shaking, his lips started quivering, and eyes began to "kind of roll." Hotsenpiller again asked defendant if he had any drugs or firearms in the truck. Defendant did not respond. Hotsenpiller explained to defendant if he had a misdemeanor amount of drugs in his possession the evidence would be seized and he would be issued a summons to appear at a later date. Defendant did not respond. Hotsenpiller asked defendant if he had a misdemeanor amount. Defendant responded that he did not, he had eight pounds of marijuana in his possession. At that point, Hotsenpiller called for Deputy Pracht and Detective Guenther to come to his location. When they arrived, Pracht and Guenther took defendant into custody and transported him back to the checkpoint area.

Hotsenpiller drove the truck back to the checkpoint area. Defendant refused to give his consent to search the truck, and a drug dog was used to sniff the outside of the truck for the presence of illegal drugs. The drug dog alerted the officers by scratching the tail gate of the pickup. The officers conducted a search of the bed of the truck, recovering three duffle bags containing thirteen bundles of marijuana, weighing 128.80 pounds. Deputy Pracht read defendant his rights, and defendant indicated he understood his rights. Subsequently, Russell Rost, the chief of detectives, and special DEA agent Renfro arrived at the checkpoint. With Rost present, Renfro asked defendant if he had been read his rights and if he agreed to talk. Defendant responded affirmatively. Defendant then stated that Heyer and he had gone to California to pick up a hundred pounds of marijuana that was destined for Pennsylvania. Renfro inquired regarding details of where the marijuana was destined to, asking defendant if he was interested in a controlled delivery in Pennsylvania. Defendant responded that he was not capable of arranging such and at that point, requested an attorney.

On July 6, 1995, a joint preliminary hearing was conducted for Heyer and defendant. Tongay testified, in pertinent part, that the morning of April 13, 1995:(1) he was doing drug interdiction on the overpass at Interstate 44 and State Highway AH, dressed in his uniform and trooper's hat; (2) he observed a "Ford pickup truck with his right turn signal on start to make the exit, then change his mind and [go] back out on the interstate;" (3) he "called to the deputy that was in charge of the drug interdiction and told him that we...