State v. Peery

• Decision Date: 02 February 2010
• Docket Number: No. WD 71070.,WD 71070.
• Citation: 303 S.W.3d 150
• Parties: STATE of Missouri, Appellant, v. Michael Lee PEERY, Respondent.
• Court: Missouri Court of Appeals

303 S.W.3d 150

STATE of Missouri, Appellant, v. Michael Lee PEERY, Respondent.

No. WD 71070.

Missouri Court of Appeals, Western District.

February 2, 2010.

Mike Fusselman, Prosecuting Attorney, Moberly, MO, for Appellant.

Kirk S. Zwink, Macon, MO, for Respondent.

Before Division III: MARK D. PFEIFFER, Presiding Judge, and JAMES E. WELSH and KAREN KING MITCHELL, Judges.

MARK D. PFEIFFER, Presiding Judge.

This is an interlocutory appeal filed by the State of Missouri (State) pursuant to section 547.200.1,¹ appealing the Circuit Court of Randolph County's (motion court) order sustaining Michael Peery's (Peery) motion to suppress evidence recovered during the police's search of his vehicle on the basis that the search violated the Fourth Amendment to the United States Constitution. On appeal, the State presents one point in which it claims that the police's search did not violate the Fourth Amendment because it fell within the Terry² stop exception to the Fourth Amendment. We reverse.

Factual and Procedural Background

On the evening of February 21, 2009, Moberly police officers staked out a parking lot located at 1600 N. Morley Street, in Moberly, Missouri, based on information they had received from a confidential informant that a drug transaction was scheduled to take place there. The officers were informed that the confidential informant was going to purchase marijuana from Dustin Peery (Dustin) and that Dustin would be driving a green Plymouth Neon.

Detective Arnsperger was responsible for monitoring the activities of the confidential informant on the parking lot. After placing a wire on the confidential informant, Arnsperger began hidden surveillance. Around 6:00 p.m., Arnsperger saw the green Plymouth Neon pull onto the lot and it was followed by a teal Ford Contour. The Ford Contour pulled past the Plymouth Neon and stopped near the confidential informant's vehicle. The confidential informant walked over to the driver of the Ford and said, "Hi." After this brief exchange, the Ford pulled to the corner of the lot and stopped. The confidential informant then completed the drug transaction with Dustin. After the transaction, the officers moved in to arrest Dustin. As the police approached Dustin's vehicle, the Ford began to leave the parking lot, and Detective Arnsperger ordered other officers to stop it. Officers stopped the Ford. As they approached the vehicle, they smelled marijuana. Based on this smell, the officers conducted a search of the vehicle. The officers observed a large baggie of marijuana between the center console and the passenger seat. The driver of the vehicle identified himself as Peery. Based upon the marijuana found in the vehicle, the police officers arrested Peery.

The State charged Peery with one count of possession of more than five grams of a controlled substance with an intent to distribute, in violation of section 195.211. Peery filed a motion to suppress the evidence found in the Ford in which he argued that the officers lacked reasonable suspicion to make the initial stop of his vehicle. After a hearing on the motion, the motion court found the facts as stated above and entered an order sustaining Peery's motion to suppress. This interlocutory appeal follows.

The State argues that the motion court erred in sustaining Peery's motion to suppress because the motion court incorrectly concluded that the officers lacked reasonable suspicion to stop Peery's vehicle. In support of its position, the State argues that the totality of the circumstances surrounding the controlled buy raises a fair inference that criminal activity was afoot, and therefore, the officers had reasonable suspicion to stop Peery's vehicle. Consequently, the sole issue on appeal is whether the investigating officers had reasonable suspicion to make an initial stop of Peery's vehicle.

Standard of Review

Our review of the motion court's order sustaining a defendant's motion to suppress is limited to the determination of whether substantial evidence existed to support the suppression order. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). The reviewing court must give deference to the trial court's factual findings and credibility determinations and must "consider[] all evidence and reasonable inferences in the light most favorable to the trial court's ruling." State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). We will reverse a motion court's ruling on a motion to suppress only if the ruling is clearly erroneous. State v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). That said, while we review the motion court's conclusions as to the historical facts under a clearly erroneous standard, whether the Fourth Amendment has been violated is an issue of law that we review de novo. Sund, 215 S.W.3d at 723; see also, State v. Schmutz, 100 S.W.3d 876, 878 (Mo.App. S.D.2003) ("Whether the historical facts as found by the trial court add up to reasonable suspicion is a question of law that we review de novo."). As our United States Supreme Court has stated in Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996):³

We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court's determination. See, e.g., Brinegar, supra (rejecting District Court's conclusion that the police lacked probable cause); Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (conducting independent review and finding reasonable suspicion). A policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts," "the Fourth Amendment's incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause." Brinegar [v. United States], supra, [338 U.S. 160] at 171, 69 S.Ct. [1302] at 1308 [93 L.Ed. 1879 (1949)]. Such varied results would be inconsistent with the idea of a unitary system of law. This, if a matter-of-course, would be unacceptable.

In addition, the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify, the legal principles. ...

Finally, de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined "`set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.'"

Reasonable Suspicion

The Fourth Amendment to the U.S. Constitution, which is enforceable against the states through the Due Process Clause of the Fourteenth Amendment, guarantees the right of the people to be secure from unreasonable searches and seizures. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). Article I, section 15 of the Missouri Constitution guarantees this same right. Id. Because of these constitutional guarantees, warrantless searches and seizures are deemed per se unreasonable unless the search and seizure fits into a well-established exception. State v. Martin, 79 S.W.3d 912, 916 (Mo. App. E.D.2002).

One exception to the warrant requirement is known as a "Terry stop." Id.⁴ Pursuant to this exception, police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. Terry, 392 U.S. at 30, 88 S.Ct. 1868; State v. Daniels, 221 S.W.3d 438, 442 (Mo.App. S.D.2007) (citing United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)).

While no exact formula exists defining reasonable suspicion, Schmutz, 100 S.W.3d at 880; State v. Cain, 287 S.W.3d 699, 706 (Mo.App. S.D.2009), it is clear that the Fourth Amendment requires only "some minimal level of objective justification" for a Terry stop. I.N.S. v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984). Furthermore, the facts and inferences on which the officer acts need not exclude every possible interpretation other than criminal activity. State v. Lanear, 805 S.W.2d 713, 716 (Mo. App. W.D.1991). "The standard is whether the facts available to the officer at the moment of the seizure warrant a person of reasonable caution in the belief that the action taken was appropriate." Id. (citing State v. Lasley, 583 S.W.2d 511, 518 (Mo. banc 1979)).

When reviewing an officer's determination of reasonable suspicion, the trial court must look at the totality of the circumstances — the whole picture. United States v. Arvizu, 534 U.S. 266, 273-74, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (trial court's evaluation and rejection of certain factors in isolation from each other does not take into account the totality of the circumstances); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); State v. Hawkins, 137 S.W.3d 549, 558 (Mo.App. W.D.2004). "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.'" Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690). Our determination of reasonable suspicion is based on commonsense judgments and inferences about human behavior. Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citing Cortez, 449 U.S. at 418, 101 S.Ct. 690).

Courts recognize that the totality-of-the-circumstances approach allows officers to make Terry stops even when some circumstances may be consistent with innocent behavior. Wardlow, 528 U.S. at 125, 120 S.Ct. 673. However, the...