State v. Petrone, 17658
| Decision Date | 08 July 1992 |
| Docket Number | No. 17658,17658 |
| Citation | 836 S.W.2d 484 |
| Parties | STATE of Missouri, Respondent, v. Daniel A. PETRONE, Appellant. |
| Court | Missouri Court of Appeals |
William J. Fleischaker, Roberts, Fleischaker & Williams, Joplin, for appellant.
William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant, Daniel A. Petrone, waived trial by jury, was tried by the court, and found guilty of the class B felony of trafficking drugs (marijuana) in the second degree, § 195.223, RSMo Cum.Supp.1989, and the class A misdemeanor of resisting arrest, § 575.150, RSMo 1986. The trial court sentenced Appellant to imprisonment for eight years on the felony and one year on the misdemeanor, to run concurrently.
Appellant brings this appeal from the felony conviction; he does not appeal the misdemeanor. Because he does not question the sufficiency of the proof of guilt, we set forth only the evidence pertinent to his lone claim of error, which reads:
The trial court erred in admitting ... the suitcases containing marijuana ... into evidence because said items were unlawfully seized from Appellant without a warrant and ... Appellant's purported consent to search his vehicle was obtained while he was unlawfully detained without any probable cause or articulable suspicion that he had committed a crime other than following another vehicle too closely and while he was detained beyond that period of time necessary to complete the investigation of the infraction of following too closely.
Appellant filed a pretrial motion to suppress the marijuana. The trial court conducted an evidentiary hearing at which one witness testified, Trooper Roger D. Whittler of the Missouri State Highway Patrol. After the hearing, the trial court filed comprehensive findings of fact and conclusions of law, and denied the motion. Appellant preserved the admissibility issue by timely, but unavailing, objection at trial.
In reviewing the trial court's ruling, we decide only whether there was adequate evidence to support it. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). The weight of the evidence and the credibility of Trooper Whittler was for the trial court's determination. Id.
Whittler testified that about 11:30 a.m., November 11, 1990, he was eastbound in a patrol car on Interstate Highway 44 in Jasper County. He observed a Mercury automobile following another automobile "at a distance less than two car lengths." Whittler followed the Mercury about a half mile at 60 miles per hour, noting it displayed an Arizona license with "grease pencil writings" on the first letter of the license number.
Whittler radioed his dispatcher for a "license check," and was told the license number was not in the files of the issuing state.
Whittler activated his vehicle's emergency lights. The Mercury "pulled to the shoulder" and stopped. Whittler parked behind it, exited his vehicle, and approached the Mercury on foot. Appellant was the driver and sole occupant.
Whittler told Appellant he was following too closely, and asked for identification. Appellant identified himself as Guy Paterra and produced an Ohio driver's license bearing that name. Appellant's picture was on the license.
Whittler asked Appellant if he owned the Mercury. Appellant said he didn't, and presented a "rental car ... contract" to Whittler. The contract showed the Mercury was rented to Guy Paterra. Whittler noticed a map in the front seat.
Whittler asked Appellant to accompany him to the patrol car. Appellant complied.
Whittler initiated an inquiry about the driver's license by radio and examined the rental contract. It showed the renter was "self-employed." Whittler asked Appellant if he had been on a business or personal trip. Appellant replied he was on a business trip and was employed as a salesman by "Jumping Bean Shoe Company."
Whittler observed Appellant appeared nervous in that his speech was quick and he manifested "overrelaxation" in an attempt to mask the nervousness.
Whittler's dispatcher informed him the State of Ohio confirmed the driver's license was issued to Guy Paterra.
Whittler became suspicious the Mercury was carrying drugs. Explaining why, Whittler testified, "I felt the overall situation, his nervousness, the fact that the rental agreement didn't go along with what he was telling me about his employment."
Whittler told Appellant there "was a lot of drugs on Interstate 44." Whittler asked Appellant if he would mind if Whittler searched the Mercury for drugs. Appellant responded, "[N]o, sir, I don't mind." Whittler filled out a "Consent to Search Form" and asked Appellant to "formalize his consent" by signing it. Whittler handed the form to Appellant at 11:42 a.m. Appellant looked at it and signed it. We infer from Whittler's testimony that Appellant signed the name Guy Paterra. 1
Whittler and Appellant exited the patrol car. Appellant removed the Mercury's keys from the ignition and opened the trunk, revealing garment bags and suitcases. Whittler smelled "what appeared to be marijuana." He testified, "I felt the garment bag on top and I felt a dry, pressed, vegetative substance, which felt what was marijuana to me."
Whittler told Appellant he was under arrest for transporting marijuana. Whittler reached for Appellant to handcuff him. Appellant pulled the keys from the trunk and shoved Whittler from the shoulder of the road to the grass.
As Whittler drew his revolver, Appellant ran to the front of the Mercury, entered, and started the engine. Whittler moved to the passenger side and, through an open window, ordered Appellant to stop.
Appellant drove off eastbound at high speed. Whittler did not shoot because he did not believe deadly force was warranted. Instead, Whittler pursued in his patrol car.
The chase continued into Lawrence County at speeds reaching 110 miles per hour and constantly above 95. Three deputy sheriffs established a roadblock, but Appellant evaded it by driving in the median. He then exited Interstate 44 onto Highway 174 and continued east into Greene County, Whittler in pursuit.
Appellant stopped the Mercury in a rural area and fled on foot. Whittler ran after him and eventually caught him. Appellant pulled free and ran until overtaken again by Whittler. This time, Whittler held Appellant in a "neck restraint hold" until another officer arrived. After handcuffing Appellant, the officers and Appellant returned on foot to the site where the Mercury and the patrol car were parked. In the Mercury's trunk, Whittler found nine pieces of luggage, each containing plastic wrapped bundles of marijuana.
Appellant was taken to Troop D headquarters in Springfield, advised of his rights and fingerprinted. During fingerprinting, he informed Whittler and another officer he was not Guy Paterra and his true identity was Daniel Petrone.
The trial court's findings of fact were consistent with Whittler's testimony. The trial court's conclusions of law were:
1. Trooper Whittler had legal justification to stop the ... Mercury for the reason that he observed the violation of a traffic law being committed in his presence, namely, the offense described as "following too closely,["] proscribed by Section 304.017 RSMo.
2. The stop was not a pretextual stop as the evidence ... indicated that there was probable cause to believe the Defendant was operating the ... Mercury in violation of Missouri law. Trooper Whittler observed the violation.
3. The Defendant was lawfully detained by Trooper Whittler in the patrol vehicle while computer checks were being conducted on the operator's license the Defendant had given him and on the license plate affixed to the vehicle. Trooper Whittler lawfully observed the demeanor of the Defendant, the inconsistent stories of the Defendant, the documents (i.e. the rental agreement and map) and the fact that the Defendant was making an effort to appear casual to mask his nervousness. Trooper Whittler lawfully took notice and informed the Defendant that I-44 is a route used in drug trafficking. State v. Burkardt, 795 S.W.2d 399, 405 (Mo. banc 1990).
4. The consent to search was voluntary and not the product of duress or coercion, express or implied. The totality of the circumstances demonstrate a total lack of duress or coercion. The evidence demonstates [sic] that this was a roadside stop by one officer, no weapons were displayed at or before the Defendant consented, the Defendant was being detained for a traffic investigation, there was no fraud on the part of Trooper Whittler, and the acts and statements of the Defendant indicated that he was in no way intimidated. State v. Stolzman, 799 S.W.2d 927, 936 (Mo.App.1990).
....
Appellant's hypothesis of error, as we grasp it, is that he was being unlawfully detained by Whittler when he consented to the search of the Mercury. Appellant concedes Whittler had lawful authority to detain him long enough to decide whether to issue a citation for following too closely. 2 However, maintains Appellant, once Whittler determined Appellant had a valid driver's license, all Whittler could lawfully do was write the traffic ticket or release Appellant. Appellant argues that when Whittler detained him past the time it would have taken to prepare the summons, the detention became unlawful. Consequently, says Appellant, his consent to the search was the fruit of unlawful detention, thereby rendering the consent involuntary and invalid.
Appellant reminds us Whittler admitted that at the time Appellant signed the consent form, he was not free to go. However, in context Whittler's testimony was:
Q. ... at the time you asked Mr. Petrone if you could search the vehicle, it is true that he was not free to leave; isn't that correct?
A. Yes, sir.
Q. Isn't it true that at that point in time you hadn't decided whether or not you were going to write a ticket for following too closely or not; isn't that correct?
A. He...
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State v. Dowdy, SD 30381.
...the product of duress or coercion “is a question of fact to be determined from the totality of the circumstances.” State v. Petrone, 836 S.W.2d 484, 488 (Mo.App. S.D.1992). The following factors are among those commonly used to determine if consent was voluntarily given: “(1) the number of ......
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State v. Woolfolk
...1996). On the other hand, consent is invalid if it is the product of duress or coercion, either express or implied. State v. Petrone, 836 S.W.2d 484, 487 (Mo. App. S.D. 1992). Voluntariness of the consent is determined by looking at the totality of the circumstances. State v. Riddle, 843 S.......
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State v. Scott
...the subsequent search is not prohibited by the Fourth and Fourteenth Amendments. Bunts, 867 S.W.2d at 281. See also State v. Petrone, 836 S.W.2d 484, 489 (Mo.App.1992). Here, Cpl. McMullin testified that Defendant gave consent to search his truck, although Defendant denied this. The trial c......
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State v. Valdez, s. 18745
...detention was longer than necessarily required by reason of the traffic offense. State v. Bunts, 867 S.W.2d at 281; State v. Petrone, 836 S.W.2d 484, 488 (Mo.App.S.D.1992). This conclusion is also supported by State v. Hyland, 840 S.W.2d 219. In that case a highway patrol trooper stopped a ......