State v. Page
| Decision Date | 15 March 1995 |
| Docket Number | Nos. 18929,19620,s. 18929 |
| Citation | 895 S.W.2d 269 |
| Parties | STATE of Missouri, Respondent, v. Kenneth PAGE, Appellant. Kenneth PAGE, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., David G. Brown, Asst. Atty. Gen., Jefferson City, for respondent.
After a jury waived trial, Kenneth Page (Defendant) was convicted of trafficking drugs in the second degree, § 195.223, RSMo Supp.1993, and sentenced to ten years' imprisonment. He appeals that conviction. Later, Defendant filed a Rule 29.15 motion to vacate the conviction and sentence. After that motion was denied Defendant appealed. Here, the appeals were consolidated pursuant to Rule 29.15(l ).
Defendant presents one point relied on which claims error in his criminal case, No. 18929. Since no claim of error relates to defendant's Rule 29.15 motion, the appeal from the denial of the motion is abandoned. State v. Oplinger, 847 S.W.2d 156, 157 (Mo.App.1993).
Defendant's sole point is that the trial court erred in overruling his motion to suppress his statements because the statements were the fruit of an unlawful detention of Defendant in violation of his right to be free from unreasonable searches and seizures as guaranteed by the United States and Missouri Constitutions, in that, "the detention of [Defendant] extended beyond the time reasonably necessary to effect its initial purpose since no new facts justifying reasonable suspicion to detain [Defendant] arose in the interim."
Appellate review of a ruling on a motion to suppress is limited to determining the sufficiency of the evidence to sustain the trial court's finding. State v. Villa-Perez, 835 S.W.2d 897, 902 (Mo. banc 1992). The weight of the evidence and the credibility of the witnesses are matters for the trial court's determination. Id. The appellate court considers the facts and the reasonable inferences of those facts in the light most favorable to the trial court's ruling. State v. Rodriguez, 877 S.W.2d 106, 110 (Mo. banc 1994).
The appellate court will reverse only if the trial court's judgment is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). "[I]f 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.' " Id. at 184 (). With these principles in mind, this Court holds that the trial court committed no error in overruling Defendant's motion to suppress.
The events which arose on February 1, 1993, at the Greyhound Bus Terminal in Springfield provide the basis for the charge against Defendant. On that date Carl Hicks, a special agent with the Drug Enforcement Administration, and Springfield Police Officer Dana Carrington were working a drug operation and watching for drug shipments via Greyhound buses. They were concentrating on eastbound buses. The officers routinely watched the 11:15 a.m. bus which stopped in Springfield on its way from Los Angeles to St. Louis because they had made numerous prior arrests and seizures of drugs on that bus. Hicks knew from experience that Los Angeles is a source area for drug trafficking operations.
After the bus arrived, the officers watched the passengers disembark and walk into the terminal. The officers then boarded the bus and talked to several passengers who remained on board. Next, the officers looked at the checked luggage in the compartment of the bus. They found five pieces of luggage which had been checked in consecutive order under three different names from Los Angeles to St. Louis. Finding that circumstance "unusual" the officers began interviewing the passengers to determine who was traveling from Los Angeles to St. Louis. One of those persons interviewed was Defendant while he was standing in the parking area next to the bus.
Upon approaching Defendant the officers noticed he was wearing a pager. Hicks identified himself, showed Defendant his badge, and indicated his desire to talk with him. Responding to Hicks, Defendant said he was traveling from San Bernardino, California, to St. Louis to visit his mother although he did not know her address or phone number. Defendant produced his bus ticket, which had been paid for in cash, but could produce no form of identification. From experience, Hicks knew that drug couriers commonly paid for tickets in cash because they have no credit cards or checking accounts. Upon Defendant's failure to show any identification, Hicks noticed that he became extremely nervous and uncomfortable. Defendant's hands were shaking, his voice was breaking, and his breathing was very rapid.
Hicks then asked Defendant if he had any luggage on board and he replied "No." Because of Defendant's long journey, Hicks found that answer to be "unusual." Hicks asked Defendant to board the bus and show him the location of his seat. Defendant complied with the request and pointed out his portable stereo in the overhead rack above his seat. Hicks asked Defendant for permission to search the stereo and pat Defendant down for contraband drugs. Defendant consented but Hicks found no drugs. At that point, Hicks thanked Defendant for his cooperation and left him in the bus.
When all the passengers had reboarded the bus, the officers requested them to identify their carry-on luggage. The only unclaimed bag was a black travel bag located in the overhead rack across the aisle from Defendant's seat. No passengers were sitting underneath the bag. Responding to the officer's question, Defendant denied ownership of the bag and said that he thought the bag belonged to "a couple of white dudes" who had been sitting underneath it. Hicks checked with the bus driver and found that all passengers were on board, yet no one had taken the seats underneath the bag. The officers then asked Defendant for permission to search the bag. Defendant said that it was not his bag so he did not care. Upon searching the bag the officers found a controlled substance which later proved to be 123.35 ounces of cocaine base. 1
After their discovery, the officers asked Defendant to step off the bus for further questioning. When outside, Carrington requested Defendant's permission to search his person. Defendant agreed to the search, and the officer found marijuana in his pockets. At that point Carrington arrested Defendant.
Defendant was escorted inside the bus terminal where his Miranda rights were read to him. The officers told Defendant that it was possible to determine if the hair in the hair brush inside the bag was his. Defendant then admitted the bag belonged to him and said he was delivering the cocaine base, worth $6,000, to a man in St. Louis.
At trial, Defendant testified that the bag did not belong to him and denied that he told the officers it did. He also denied that he possessed the cocaine base.
In overruling Defendant's motion to suppress, the trial court concluded that Defendant was arrested on the bus immediately after the officers discovered cocaine base in the travel bag. The trial court's order contains the following well-reasoned findings:
During the delayed departure, all passengers were interrogated on the bus about the carryon bags on the bus. The bus departure was delayed to accommodate the Officers desire to determine if Defendant had a carryon bag. After the interrogation, one carryon bag in the bus was left unclaimed and Defendant had not claimed any bag. At that point an Officer placed the unclaimed bag near Defendant and asked him for permission to search the bag. The Defendant answered, "go ahead, it is not my bag."
A search of the bag produced what appeared to the Officers to be "crack cocaine base", a controlled substance. Although, the Officers told Defendant he was not under arrest, Defendant was asked to step off the bus, which was then already delaying its departure with all on board. The Defendant complied and stepped off the bus.
Again, the Officer's request, coming immediately after the discovery of contraband in a bag placed near Defendant, can only be interpreted by reasonable persons in the position of Defendant as a direction of law enforcement officers and not as something that could be resisted or refused. The Court concludes the Defendant was taken into custody at that point and was under custodial arrest thereafter.
The facts known to the Officers at that time were general facts applicable to...
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