State v. Scott

• Decision Date: 21 June 1996
• Docket Number: No. 20471,20471
• Citation: 926 S.W.2d 864
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael Anthony SCOTT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 864

926 S.W.2d 864

STATE of Missouri, Plaintiff-Respondent, v. Michael Anthony SCOTT, Defendant-Appellant.

No. 20471.

Missouri Court of Appeals,

Southern District,

Division Two.

June 21, 1996.

Motion for Rehearing or Transfer

Denied July 15, 1996.

Thomas Patrick Deaton, Springfield, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Christine M. Kocot, Asst. Atty. Gen., Jefferson City, for respondent.

SHRUM, Chief Judge.

After waiving a jury trial, Defendant was convicted of trafficking drugs in the second degree (cocaine, 450 grams or more, class A felony), § 195.223.2(2), RSMo 1994, and possession of more than thirty-five grams of marijuana (class B felony), ¹ § 195.202, RSMo 1994. He appeals these convictions, presenting two points relied on.

First, he contends that the trial court erred when it overruled his motion to suppress and admitted into evidence drugs seized during a warrantless search of his pickup truck as well as certain incriminating statements Defendant made to highway patrolmen after his arrest. He argues that the patrolmen did not have probable cause to search his truck, and that his alleged consent to search was involuntary, being "the product of the officer's unlawful detention of Defendant beyond the time reasonably necessary to check Defendant's license and registration and issue a warning for a minor traffic violation."

Defendant's second point maintains that the trial court abused its discretion in denying his discovery request for copies of the traffic ticket books of the patrolman who stopped Defendant. He argues that the information to be gleaned from these books was essential to establish that the patrolman stopped Defendant's truck as a pretext to search for illegal drugs.

We affirm the judgment of the trial court.

FACTS

On June 18, 1994, at approximately 3:10 p.m., Missouri Highway Patrol Corporal Jack McMullin was on Interstate 44 in Greene County, Missouri, when he stopped an eastbound pickup truck because it was following too closely behind another vehicle. His testimony concerning this encounter included the following.

Defendant was the sole occupant of the pickup. When McMullin first talked to Defendant at the truck, he explained his reason for stopping Defendant. He also asked to see Defendant's driver's license and vehicle registration.

After Defendant produced the requested documents, McMullin and Defendant went back and sat in the patrol car. While there, McMullin ran radio checks on Defendant's driver's license and the vehicle registration, after which he wrote Defendant a warning ticket. McMullin completed these activities within "five minutes or less."

When the checks on the license and truck came back clear, McMullin "gave everything back [to Defendant], and ... ask[ed] him for permission to search the truck." McMullin's testimony about his search request and Defendant's response includes the following:

"Q. Did you indicate to [Defendant] what you intended to search for?

A. Well, I asked him if there were any drugs or guns, anything illegal, in the truck, and he indicated no.

Q. [W]hat did you do at that point?

A. After asking to search, he told me that I could.

Q. About how much time had elapsed since you first stopped the car and brought [Defendant] back to your vehicle?

A. Probably ... in the neighborhood of five to seven minutes.... It was very, very brief."

Defendant and McMullin then walked to the truck, whereupon McMullin "dropped down beneath the truck on the right side and looked across at the gas tank of the truck." He explained that he wanted "to see if the tank had been altered ... [or] messed with, because pickup trucks are notorious for drugs being hauled in the gas tank.... I've had several." McMullin concluded from his initial inspection that the gas tank "ha[d] been recently down." He drew that conclusion from the "shininess ... and ... scarring" of the bolt threads and heads, from the "straps" that were "not tightly secured up," i.e., "[t]here's looseness in them."

Based on his observations of the truck's gasoline tank and the conclusions he drew therefrom, McMullin wanted to "make a closer check ... to determine if there were narcotics ... or ... contraband inside the tank, which I suspected due to the scratches and scarring and so forth." Accordingly, McMullin asked Defendant to accompany him to Troop D highway patrol headquarters, which Defendant agreed to do.

When McMullin and Defendant arrived at the offices of Troop D, they were met by a canine unit. The canine immediately "alerted" to the presence of drugs in Defendant's truck. The search that followed revealed that the gas tank had two hidden compartments in which there were twenty-eight bundles of marijuana and three bundles of cocaine. Thereupon, McMullin placed Defendant under arrest and read the Miranda warnings to him.

Later, during further questioning, Defendant admitted that he knew the drugs were in the truck and that his cousin, Anthony Tharp, was paying him to transport the drugs to Chicago, Illinois.

Following his indictment by a grand jury, Defendant filed motions to suppress physical evidence and to suppress statements. In support of these motions, Defendant contended that law officers "detained [Defendant] and searched his truck along Interstate 44 and at Troop D headquarters without a warrant, without authority, without probable cause to believe that [Defendant] had committed a felony or that there was contraband in the truck, and without reasonable suspicion that criminal activity was afoot." Continuing, Defendant alleged that:

"McMullin's actions in detaining [Defendant] were unreasonable in scope in relation to the initial stop. Nothing occurred during the initial stop to give the officer reasonable suspicion of any wrongdoing that justified continued detention of the truck beyond the time necessary to check [Defendant's] driver's license and issue a warning or citation."

Defendant asserted that his alleged permission to search was not based upon a knowing and voluntary consent, but rather was tainted by his invalid detention beyond the time required to check on licenses and write the warning ticket.

On May 24, 1995, the trial court overruled Defendant's motion to suppress. Among other observations, the trial judge wrote: "Though Defendant argues that whatever consent might have been expressed was coerced, I find no indicia of coercion."

On July 25, 1995, Defendant waived his right to a jury trial. In part, the docket entry for that date reads:

"Parties agree for court to consider the evidence and exhibits submitted at suppression hearing and State's exhibit "A" (Mo state highway patrol lab report) admitted over objection of [Defendant] this date. Court finds [Defendant] guilty as charged in counts I and II."

This appeal followed.

ANALYSIS

Point I: Validity of the Search

In his first point, Defendant contends that the trial court erred in overruling his motion to suppress evidence and admitting the cocaine, marijuana, and statements into evidence because:

"A state highway patrol trooper obtained [such evidence] as direct and indirect results of a seizure and search in violation of Defendant's [constitutional and statutory] protection from unreasonable, unlawful, and warrantless searches of his person and pickup truck ... in that the officer detained defendant and searched his truck without probable cause to arrest or search or reasonable suspicion of criminal activity and any purported consent or justification for the warrantless seizure and search was a product of the officer's unlawful detention of defendant beyond the time reasonably necessary to check defendant's license and registration and issue a warning for a minor traffic violation."

In State v. Burkhardt, 795 S.W.2d 399 (Mo.banc 1990), the court outlined what is required of both the state and the accused regarding a motion to suppress:

"The proponent of [a motion to suppress] has the burden of establishing that his constitutional rights were violated by the challenged search or seizure; however the burden is on the State to justify a warrantless search and to demonstrate that such falls within an exception to the warrant requirement...."

Id. at 404 (citations omitted).

"Among the exceptions [to the warrant requirement] are ... searches with consent...." State v. Epperson, 571 S.W.2d 260, 263 (Mo.banc 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979). See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh'g denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). Where consent to search is lawfully obtained, law enforcement officers may conduct a search commensurate with the permission given. State v. Hyland, 840 S.W.2d 219, 221 (Mo.banc 1992). This is true even though the search was not otherwise supported by probable cause or reasonable suspicion of criminal activity. Id.

Moreover, it is not necessary for there to be probable cause to believe that a vehicle contains contraband before an officer is authorized to request permission to search. State v. Bunts, 867 S.W.2d 277, 281 (Mo.App.1993). Police may at any time ask a citizen if he has contraband on his person or in his car and may ask for permission to search. Id. The citizen may deny consent; if he does, the police may not conduct the search. State v. Morr, 811 S.W.2d 794, 798 (Mo.App.1991). If consent is not coerced, 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 court, after observing that McMullin's testimony on this issue was credible, concluded that Defendant had consented to the search. This court necessarily must defer to the trial court's superior opportunity to determine the credibility of witnesses. State v. Beck, 687...