State v. Roark

• Decision Date: 12 June 2007
• Docket Number: No. WD 67135.,WD 67135.
• Citation: 229 S.W.3d 216
• Parties: STATE of Missouri, Respondent, v. Scotty Ray ROARK, Appellant.
• Court: Missouri Court of Appeals

229 S.W.3d 216

STATE of Missouri, Respondent, v. Scotty Ray ROARK, Appellant.

No. WD 67135.

Missouri Court of Appeals, Western District.

June 12, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 31, 2007.

Jeffrey Leon Dull, Windsor, for Appellant.

Jeff Mittelhauser, Sedalia, for Respondent.

RONALD R. HOLLIGER, Judge.

This is an appeal from a bench trial in which Scotty Ray Roark ("Roark") was convicted of driving while intoxicated. Roark raises two claims of error. We do not reach the first question about the sufficiency of the evidence because the arresting officer lacked reasonable suspicion to stop Roark and conduct field sobriety testing. The judgment of conviction is reversed.

Factual and Procedural Background

Roark was driving east on highway 50 toward Sedalia, Missouri, when Trooper Douglas Barklage ("Barklage") received a call from dispatch that a "possible intoxicated driver [was] traveling towards Sedalia on 50 Highway." The information that Barklage received from dispatch included a vehicle description and a license plate number, both of which matched Roark's car. Barklage positioned his patrol car so that he could see eastbound traffic on highway 50 and waited there until Roark passed him. At that point, Barklage pulled into traffic behind Roark. Because traffic on the highway was heavy, Barklage was not able to follow immediately behind Roark, but he did keep Roark in view while driving east. At this point, Barklage was driving in the passing lane, while Roark was in the right-hand lane, ahead of Barklage. Barklage testified at trial that he saw Roark's passenger-side tires cross the fog line twice, onto the paved shoulder of the highway, but that none of the surrounding traffic had to take "evasive action" as a result.

Roark then pulled off of the highway, into the parking lot of a Ramada Inn, parked his car, and walked into the Ramada Inn. Because he was in the passing lane and traffic was heavy, Barklage was unable to follow Roark off of the highway. He was able, however, to keep Roark in view as he took the next exit and pulled into the Ramada Inn parking lot himself. Barklage then parked and followed Roark inside. Once inside, Barklage proceeded to the hotel bar, where he found Roark sitting at the bar and asked him to come back outside. Roark asked why and Barklage said he would explain outside.

Roark and Barklage returned to the parking lot together, and Barklage explained that he had "received a call of a possible intoxicated driver," that Roark's car matched the description, and that Barklage "needed to conduct an investigation to determine if he was, indeed, intoxicated." Barklage then conducted a standard set of field sobriety tests and arrested Roark.

Prior to trial, Roark filed a motion to suppress, in which he asserted that "[t]he arresting officer did not have probable cause or reasonable grounds to stop or initiate contact with [Roark] or to initiate an investigation or field sobriety testing of [Roark]." That motion was denied, and Roark filed a timely motion to reconsider. The trial court did not rule on the latter motion prior to trial. At trial, the State's sole witness was Barklage, the arresting officer whose testimony Roark's motion sought to suppress. Roark raised no objection during Barklage's testimony. Following that testimony, the State rested, and the following exchange occurred:

THE COURT: Defendant's case in chief?

MR. DULL: We'd move for a judgment of acquittal, Judge. I don't believe that he's—I mean, he testified that he doesn't know whether he drank in the bar or not.¹ I also filed a Motion to Reconsider my Motion to Suppress, and I'll deal with it whenever you want to deal with it.

THE COURT: I'm comfortable with the Motion to Suppress ruling already. Does the State wish to argue?

MR. MITTLEHAUSER: No, Judge.

THE COURT: The case before me submits a submissible case. The motion is overruled for a judgment at the close of the State's evidence. Defendant wish to present any evidence?

MR. DULL: Yes Judge.

The trial court ultimately found Roark guilty, entered judgment, and sentenced him to 270 days. This appeal follows.

Standard of Review

When reviewing a trial court's denial of a motion to suppress, appellate courts consider "the evidence presented both at the suppression hearing and at trial in determining whether the motion should have been granted." State v. Goff, 129 S.W.3d 857, 862 (Mo. banc 2004). This court defers to the trial court's findings of fact and credibility determinations, but reviews de novo "[t]he legal determination of whether reasonable suspicion existed" to make a stop. Id. Reasonable suspicion, in order to justify a stop, must be based upon "articulable facts [suggesting] that the person [stopped] was or is involved in criminal activity." State v. Franklin, 841 S.W.2d 639, 641 (Mo. banc 1992). In applying these standards, our review is limited to the question of whether the trial court ruling is "supported by substantial evidence, and it will be reversed only if clearly erroneous." State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003).

Discussion

Before turning to the merits of Roark's claim we must address the State's argument that any error in denying the motion to suppress is unpreserved and therefore reviewable only for plain error. Rulings on motions to suppress evidence are interlocutory only and preserve nothing for review. State v. Purlee, 839 S.W.2d 584, 592 (Mo. banc 1992). Generally when such a motion is overruled, an objection to the evidence must be made when it is offered at trial to preserve the issue raised in the motion to suppress. Id.

The instant case is procedurally comparable to State v. LaFlamme, 869 S.W.2d 183 (Mo.App. W.D.1993), in which this court was confronted with a similar set of trial facts. In that case, the actual trial consisted primarily of the submission of evidence heard at a pre-trial suppression hearing. Id. at 186. We there noted that:

The state argues that since the defendant did not object [at trial] to the admission of the evidence revealed by the search, he has waived review on that issue. However, an examination of the record shows that defense counsel intended that the submission of the suppression hearing evidence serve to preserve the issue for appellate review in the event that the defendant was convicted. While this is certainly not the preferable method of preservation, the intent was obvious. The trial court considered it as though a timely objection had been made, and we review the legality of the search on its merits.

Id. at 186; accord State v. Mendoza, 75 S.W.3d 842, 844 (Mo.App. S.D.2002).

In the instant case, Barklage testified at trial consistent with his pre-trial testimony, but Roark's motion to reconsider the suppression ruling was pending when Barklage testified at trial. At the close of that testimony, Roark drew the court's attention to the pending motion, and the court responded, "I'm comfortable with the motion to suppress ruling already." Neither the court nor the State raised any suggestion that Roark had waived his Fourth Amendment claim by allowing Barklage's testimony without objection. Indeed, rather than suggest that Roark's argument was waived by the admission of Barklage's testimony, the court affirmed its prior ruling, thereby denying the motion to reconsider. As was the case in LaFlamme, an examination of this record reveals the obvious intent of everyone involved: Roark felt that the suppression issue was still before the trial court at the close of the State's evidence, the court ruled on the merits of that claim after Barklage's testimony, and the State raised no objection to this course of action. We therefore turn to the merits of Roark's claim.

The claim raises the question of whether Barklage's stop of Roark comported with the Fourth Amendment of the United States Constitution. That Amendment, which is co-extensive with article I, section 15 of the Missouri Constitution, protects the right of the people to be secure against unreasonable searches and seizures. State v. Rushing, 935 S.W.2d 30, 34 (Mo. banc 1996). Generally, a warrant based upon probable cause is necessary to justify a search or seizure. State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). An exception to this rule exists for what is commonly referred to as a "Terry stop." Id. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized that the Fourth Amendment is not offended by a brief investigatory stop by a law enforcement officer who has a reasonable suspicion, based upon specific and articulable facts, that the person stopped is involved in criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. 1868.

Roark claims that the initial stop was improper because Barklage lacked the requisite reasonable suspicion to make an investigatory stop.² Roark does not, however identify the point at which Barklage "stopped" him for Fourth Amendment purposes. This court must identify that precise moment under the unique circumstances of this case, since we must assess "whether the officer's action was justified at its inception." Id. at 20, 88 S.Ct. 1868.

The State argues that no stop actually occurred, since Roark "exited his vehicle and entered the bar of his own volition" (i.e. no traffic stop occurred), and Barklage first encountered Roark in "a business establishment open to the general public." It is only at the point that a law enforcement officer, "by means of physical force or show of authority, has in some way restrained the liberty of a citizen" that a stop has occurred. Id. at 29, n. 16, 88 S.Ct. 1868. By suggesting that Roark then "voluntarily went outside" with Barklage, the State seeks to characterize the entire exchange, up until the moment of arrest, as a consensual encounter. From this characterization, the State concludes that no stop occurred and no quantum of suspicion was necessary to...