State v. Slavin

• Decision Date: 29 April 1997
• Docket Number: No. WD,WD
• Citation: 944 S.W.2d 314
• Parties: STATE of Missouri, Respondent, v. Warren J. SLAVIN, Appellant. 50624.
• Court: Missouri Court of Appeals

Page 314

944 S.W.2d 314

STATE of Missouri, Respondent, v. Warren J. SLAVIN, Appellant.

No. WD 50624.

Missouri Court of Appeals Western District.

April 29, 1997.

Danieal H. Miller, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Jefferson City, Philip M. Koppe, Assistant Attorney General, Kansas City, for respondent.

Before BRECKENRIDGE, P.J., and HANNA and LAURA DENVIR STITH, JJ.

PER CURIAM.

Warren Slavin appeals from his conviction of possession of a controlled substance with intent to deliver in violation of § 195.211, RSMo 1994. As a result of his conviction, Mr. Slavin was sentenced to eight years imprisonment. Mr. Slavin raises two points on appeal. First, he contends that the trial court erred in denying his motion to suppress the marijuana seized from his car because that evidence was discovered during a search based on probable cause obtained at a time when he was being illegally detained. Mr. Slavin also appeals from the motion court's denial, after an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. Mr. Slavin contends that the motion court erred in its denial because the trial court sentenced him to a longer prison term to punish him for requesting a trial by jury.

The judgment of conviction is reversed. As a result, Mr. Slavin's appeal from the denial of his post-conviction motion is moot.

On review, this court views the evidence and reasonable inferences therefrom in the light most favorable to the verdict. State v. McNaughton, 924 S.W.2d 517, 521 (Mo.App.1996). On the afternoon of November 10, 1993, Trooper Marty Chitwood of the Missouri Highway Patrol observed Mr. Slavin's vehicle traveling on Interstate 70. Trooper Chitwood followed Mr. Slavin's car for about a quarter of a mile, using his speedometer to pace Mr. Slavin's vehicle at 71 miles per hour. Because the legal speed limit on that portion of Interstate 70 was 65 miles per hour, and because Mr. Slavin was driving in the passing lane while not passing, Trooper Chitwood activated his lights and pulled the vehicle over to the side of the interstate.

Trooper Chitwood called in the stop at 1:50 p.m., and then approached Mr. Slavin's car. He observed luggage and several fishing poles in the back seat of the car. Upon request, Mr. Slavin provided Trooper Chitwood with his driver's license and vehicle registration. According to normal procedure, Trooper Chitwood escorted Mr. Slavin back to his patrol car. He advised Mr. Slavin that he had been stopped for speeding and driving in the passing lane while not passing. While Trooper Chitwood ran the computerized information check, he engaged Mr. Slavin in conversation about where he was going. Mr. Slavin informed Trooper Chitwood that he was traveling from Colorado to New York to take his sick parents to Florida. Trooper Chitwood asked him about the ownership of the car, a maroon Ford Taurus. Mr. Slavin told him that the car was his. He also told Trooper Chitwood that he had not worked full time in two years, implying that he had worked part-time during that period.

After he completed the computer check, which revealed no irregularities, Trooper Chitwood informed Mr. Slavin that he would receive only a warning. At that point the traffic stop ended. Nonetheless, Trooper Chitwood then asked Mr. Slavin for consent to search his vehicle. Mr. Slavin asked what he was looking for and Trooper Chitwood told him "[a]nything illegal." Mr. Slavin responded that his brother, an attorney, had advised him that he should never consent to a search of his vehicle unless there was a reason for it. Because of the officer's interpretation of Mr. Slavin's expressed apprehension concerning the search, Trooper Chitwood did not search the car, but called for a canine unit. This occurred at 1:58 p.m., eight minutes after the stop began. He then read Mr. Slavin his Miranda rights. ¹ After he was informed that the drug dog was on its way, Trooper Chitwood offered to take Mr. Slavin to a nearby truckstop until the dog unit arrived, but Mr. Slavin declined.

At 2:50 p.m., the canine dog unit arrived. When asked by the dog's trooper handler why he had called for the dog, Trooper Chitwood responded that Mr. Slavin had answered all his questions and had been very cooperative until he was asked to give permission to search, but then he declined to consent to search. Trooper Chitwood advised the officer in control of the dog that this was a "non-consent search" which meant that they could not enter the car. The dog circled the car once without result, but Trooper Chitwood asked to have him circle the car again. This time the dog pawed on the trunk, indicating the presence of drugs. Because the dog alerted to drugs, Trooper Chitwood placed Mr. Slavin under arrest and began searching the trunk of the car. Inside a piece of luggage in the trunk, Trooper Chitwood found a sleeping bag containing several wrapped packages of marijuana. He also found several packages of marijuana in a black travel bag. The total amount of the marijuana discovered in the trunk of Mr. Slavin's car was between 80 and 100 pounds.

Mr. Slavin was arrested and charged with possession of a controlled substance with intent to deliver. He pleaded not guilty. Prior to trial, Mr. Slavin filed a motion to suppress the marijuana because he claimed it was illegally seized. His motion was overruled, and the evidence allowed at trial. He was found guilty by a jury, and sentenced to eight years in prison. Mr. Slavin filed a timely Rule 29.15 post-conviction motion, which the motion court denied after an evidentiary hearing. Mr. Slavin appeals both his conviction and the denial of his Rule 29.15 motion.

Mr. Slavin claims as his first point on appeal that the trial court erred in denying his motion to suppress the marijuana found in the trunk of his vehicle. He contends that the State failed to prove that Trooper Chitwood had a reasonable suspicion based on specific, articulable facts that criminal activity was occurring before the time required for the traffic stop elapsed.

Review of the trial court's ruling on a motion to suppress evidence is limited to a determination of whether there is sufficient evidence to support the court's ruling based on the complete record before the trial court. State v. Preston, 861 S.W.2d 627, 630 (Mo.App.1993). The trial court's ruling on a motion to suppress is reversed only if it is clearly erroneous. State v. Stevens, 845 S.W.2d 124, 128 (Mo.App.1993). The facts are viewed in a light most favorable to the trial court's ruling. McNaughton, 924 S.W.2d at 523. Although we review the facts under a clearly erroneous standard, the issue of whether the Fourth Amendment has been violated is a legal question we review de novo. United States v. Green, 52 F.3d 194, 197 (8th Cir.1995); United States v. Hogan, 25 F.3d 690, 692 (8th Cir.1994).

"Once a motion to suppress has been filed, the state bears the burden of going forward with the evidence and the risk of nonpersuasion to show by a preponderance of the evidence that the motion should be overruled." § 542.296.6; Stevens, 845 S.W.2d at 128. Mr. Slavin, in his motion to suppress, alleged that the marijuana discovered in his car was tainted and must be excluded because he was "detained well beyond the time reasonably necessary for the officer to conclude the traffic stop," and there was no reasonable and articulable suspicion of criminal activity to support the continuation of the stop beyond the issuance of the warning. Therefore, according to Mr. Slavin, the fruits of the search, the marijuana, were illegally obtained and should have been suppressed under the exclusionary rule.

The Fourth Amendment of the United States Constitution preserves the right of the people to be secure from unreasonable searches and seizures. State v. Franklin, 841 S.W.2d 639, 641 (Mo. banc 1992). The Fourth Amendment is not violated, however, when a law enforcement officer briefly stops or detains an individual or a moving vehicle to investigate whether the officer has a reasonable suspicion, based upon specific and articulable facts, that criminal activity is afoot. United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607, 617 (1975); Franklin, 841 S.W.2d at 641. It is this principle that we apply to determine the merits of Mr. Slavin's claim that his Fourth Amendment rights were violated.

Mr. Slavin was initially stopped for traffic violations and the validity of the initial stop is not at issue. A police officer is authorized to stop a vehicle observed violating the traffic laws of the state. See State v. Smith, 926 S.W.2d 689, 692 (Mo.App.1996). Trooper Chitwood testified that he observed Mr. Slavin speeding and driving in the passing lane without passing. Trooper Chitwood had probable cause to stop Mr. Slavin for violating the traffic laws of Missouri, so the initial stop was valid. Id. "[S]o long as the police are doing no more than they are legally permitted and objectively authorized to do, [the resulting stop or] arrest is constitutional." State v. Malaney, 871 S.W.2d 634, 637 (Mo.App.1994) (quoting United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir.1989)).

Regardless of its initial validity, "[a] vehicle stop to issue a written traffic warning for speeding is a seizure within the meaning of the Fourth and Fourteenth Amendments." Stevens, 845 S.W.2d at 128. "If the detention extends beyond the time reasonably necessary to effect its initial purpose, the seizure may lose its lawful character unless a new factual predicate for reasonable suspicion is found during the period of lawful seizure." Id. Reasonable suspicion must be based upon a specific, articulable set of facts indicating that criminal activity is afoot. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1584, 104 L.Ed.2d 1, 10 (1989). The law enforcement authorities must be able to articulate more than just an "inchoate and unparticularized...