State v. Ramires, WD 62863.

• Citation: 152 S.W.3d 385
• Decision Date: 21 December 2004
• Docket Number: No. WD 62863.,WD 62863.
• Parties: STATE of Missouri, Respondent, v. Louiso V. RAMIRES, Appellant.
• Court: Court of Appeal of Missouri (US)

152 S.W.3d 385

STATE of Missouri, Respondent, v. Louiso V. RAMIRES, Appellant.

No. WD 62863.

Missouri Court of Appeals, Western District.

December 21, 2004.

Michael Joseph Gunter, Kansas City, MO, for Appellant.

Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before EDWIN H. SMITH, P.J., LOWENSTEIN and SPINDEN, JJ.

EDWIN H. SMITH, Chief Judge.

Louiso Ramires appeals the judgment of his convictions, after a jury trial in the Circuit Court of Platte County, of one count of trafficking in the second degree, § 195.223,¹ and one count of unlawful use of a weapon, § 571.030. As a result of his convictions, the appellant was sentenced to consecutive terms in the Missouri Department of Corrections of fifteen years for trafficking and three years for unlawful use of a weapon, and fined $300 on the conviction for unlawful use of a weapon.

The appellant raises two points on appeal. In Point I, he challenges his drug conviction, and in Point II, he challenges his conviction for unlawful use of a weapon. In Point I, he claims that the trial court erred in overruling his pre-trial motion to suppress and in admitting at trial, over his objection, the methamphetamine seized from the vehicle he was driving when he was arrested for driving without a valid driver's license because the seizure was illegal under the Fourth Amendment of the U.S. Constitution. In Point II, he claims that the trial court erred in overruling his motion for judgment of acquittal, at the close of all the evidence, on the charge of unlawful use of a weapon, because the State failed to prove, as required by due process, each and every element of the offense beyond a reasonable doubt, in that it failed to prove that the handgun with which he was charged as possessing was functional.

We affirm the appellant's conviction for unlawful use of a weapon, and reverse and remand his conviction for trafficking.

Facts

At approximately 2:00 a.m. on August 13, 2002, Officer Brian Bradley of the Parkville, Missouri Police Department, while on patrol in the area of East Street and Fourth Street, noticed that a vehicle backing out of a driveway was missing a front license plate and had a cracked taillight. He stopped the vehicle and asked the driver, who turned out to be the appellant, for his driver's license and proof of insurance. The appellant produced only a Mexican identification card, and, when asked whether he had a driver's license, replied that he did not.

Officer Bradley placed the appellant under arrest for driving without a valid driver's license, handcuffed him, and conducted a search of his person. Officer Bradley found $6,000 in cash in the appellant's pants pocket, consisting of $20, $50, and $100 bills. After placing the appellant in his patrol car, Officer Bradley searched the interior of the appellant's vehicle around the driver's seat. During the search, he found, underneath the seat, a silver .32 caliber Beretta handgun, which he seized.

At some point, Officer Bradley radioed for backup. At about the same time he found the handgun, Officers David Winship and Eric Sligar arrived at the scene to provide backup. Officer Bradley decided to have the vehicle that the appellant was driving towed and impounded, which required the completion of a "Missouri Department of Revenue Authorization to Tow Form," which called for an inventory search of the vehicle prior to its being released to the tow company. Officer Bradley called a tow company and then transported the appellant to the police station in his patrol car, while Officers Winship and Sligar stayed at the scene to conduct the required inventory search of the vehicle. During the search, an opaque white plastic bag containing the methamphetamine was found and seized.

On October 10, 2002, the appellant was charged, by information, in the Circuit Court of Platte County with one count of trafficking in the second degree and one count of unlawful use of a weapon. On January 16, 2003, the appellant filed, pursuant to Rule 24.05,² Rule 34.01, and § 542.296, a motion to suppress the methamphetamine and handgun, alleging that they were seized in violation of the Fourth Amendment. The motion was heard on January 22, 2003 and overruled.

Officer Bradley testified at the appellant's suppression hearing on behalf of the State, explaining why he had the vehicle towed and impounded following the seizure of the handgun and the arrest of the appellant, and describing the inventory search conducted of the vehicle:

A. My next step with the defendant, after I found the handgun, I ordered a Good Times Company tow company [sic] to the scene to tow the vehicle.

Q. And why would you do that?

A. Because of the defendant had no driver's license and was unable to produce any paperwork for the vehicle that showed it was his, and finding the loaded handgun and the large amount of cash, I just felt better towing the vehicle and impounding it.

Q. And there's nobody else to take possession of the car, at that point; is that correct?

A. That's correct.

Q. Okay. And at this point, do you have procedures that you follow through Parkville, as far as when you're gonna impound a vehicle?

A. Through the city and through the State, yes, sir.

Q. Okay. And are you familiar with those policies and procedures?

A. Yes, sir.

Q. Okay. And what are your normal steps that you have to take, when you make the decision to impound a vehicle?

A. The State of Missouri has a Department of Revenue Authorization to Tow Form, which requires a detailed inventory search of the vehicle, prior to being towed.

Q. And why is that inventory of the vehicle done?

A. To inventory any contents, damaged, or missing parts of the vehicle, prior to it being released to the tow company.

Q. And to your knowledge, was that inventory search done?

A. Yes, sir, it was.

Q. Okay, and who was it conducted by?

A. It was conducted by Officer Sligar conducted the inventory search and Officer Winship filled out the form while Officer Sligar conducted the search.

Officer Sligar also testified at the suppression hearing on behalf of the State. He testified that he conducted the inventory search, which he described as "a search of the vehicle for all of its contents to discover any valuable items and log every item that we find in the vehicle on the tow sheet, as protection for liability for the department." He testified that he began the inventory search "near the driver's seat in the driver's immediate reach area," including looking underneath the dashboard by kneeling on one knee. While looking in that area, he noticed that the dashboard around the steering wheel did not have a cover, partially exposing a white plastic bag, which fell to the floorboard when it pushed on it. He testified that although he could not see what was inside the bag, he opened it up and found another plastic bag, which was blue and was semi-transparent. He could see, without opening it, that it contained a grainy material, which he believed was methamphetamine. He then opened the blue plastic bag and found what was later determined to be 612.9 grams, or 1.35 pounds, of methamphetamine.

The appellant was tried in a two-day jury trial on March 3-4, 2003. During the trial, the appellant objected to the admission of the methamphetamine and the handgun, claiming that they were obtained through an illegal search. The appellant's objections were overruled, and the evidence was admitted.

The jury returned verdicts finding the appellant guilty of trafficking in the second degree and unlawful use of a weapon. On May 15, 2003, he was sentenced to consecutive terms in the Missouri Department of Corrections of fifteen years for trafficking, and three years for unlawful use of a weapon. In addition, he was fined $300 on his conviction for unlawful use of a weapon.

This appeal followed.

I.

In Point I, the appellant challenges his conviction for trafficking in methamphetamine. He claims that the trial court erred in overruling his pre-trial motion to suppress and in admitting at trial, over his objection, the methamphetamine seized from the vehicle he was driving when he was arrested for driving without a valid driver's license because the seizure was illegal under the Fourth Amendment of the U.S. Constitution. He claims that the seizure of the methamphetamine, which was found in a white plastic bag tucked up under the dashboard, violated the Fourth Amendment and was unlawful in that the opening of the bag, which was considered a closed container, revealing the methamphetamine, was not permitted as part of a valid inventory search of the vehicle and its contents, under the Fourth Amendment exception relied upon by the State for the seizure. Specifically, the appellant claims that the opening of the white plastic bag violated the Fourth Amendment in that there was no showing, as required, that the Parkville Police Department had adopted specific procedures for opening closed containers found during an inventory search.

Appellate review of the denial of a motion to suppress is limited to a determination of whether there is substantial evidence to support the ruling. State v Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). In making this determination, this court reviews both the record of the suppression hearing and the trial. State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). This court views the evidence and any reasonable inferences in the light most favorable to the trial court's ruling. State v. Carter, 955 S.W.2d 548, 560 (Mo. banc 1997). This court defers to the trial court's determination as to the credibility of witnesses. Rousan, 961 S.W.2d at 845. The ultimate issue of whether the Fourth Amendment was violated is a question of law, however, which this court reviews de novo. State v. Kimberley, 103 S.W.3d 850, 856 (Mo.App.2003).

The Fourth Amendment to the U.S. Constitution, enforceable against the states through the due process clause of the ...