State v. Stillman, WD

• Citation: 938 S.W.2d 287
• Decision Date: 21 January 1997
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. James D. STILLMAN, Appellant. 50227.
• Court: Court of Appeal of Missouri (US)

Page 287

938 S.W.2d 287

STATE of Missouri, Respondent, v. James D. STILLMAN, Appellant.

No. WD 50227.

Missouri Court of Appeals Western District.

Jan. 21, 1997.

John Munson Morris, Asst. Attorney General, Jefferson City, for Respondent.

David Simpson, Public Defender, Columbia, for Appellant.

Before ELLIS, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

LOWENSTEIN, Judge.

James Stillman (Stillman) was bench tried and found guilty of trafficking drugs in the second degree in violation of § 195.223.3(1), RSMo 1994. Stillman was sentenced as a prior offender to fifteen years in prison. On appeal, Stillman maintains that the trial court erred in (1) overruling his motion to suppress evidence including a rock of cocaine and (2) overruling his motions for judgment of acquittal.

Stillman's jurisdictional statement indicates that his is a consolidated appeal pursuant to Rule 29.15, however, the court must dismiss the purported appeal of the motion court's denial of appellant's 29.15 motion because no issues regarding the motion are presented in Appellant's brief. Rule 30.06(d) requires that "the points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous." The Rule 29.15 appeal is therefore dismissed.

The incident which led to Stillman's arrest was prompted by a tip to the Buchanan County Police Strike Force by a paid confidential informant. The informant indicated that two black men in a white Mustang convertible with Kansas plates # ISY 541 parked in the 1800 block of Charles in St. Joseph were in possession of crack cocaine. The informant further indicated he had personally observed the men engaging in drug deals.

Responding to the tip shortly thereafter, a Buchanan County police officer spotted the described Mustang being driven by a black man as indicated by the informant. The officer contacted a nearby St. Joseph patrol car to stop the Mustang. The St. Joseph police officer pulled behind the vehicle, confirmed the license plate number, and turned on her lights to pull the car over. The officer then saw Stillman moving his right arm and hand up and down between the front seats to such an extent that "it was almost lifting his whole body out of the seat." Stillman proceeded to roll through a stop sign before finally pulling over into a parking lot.

The officer asked appellant to get out of the car. He did so, automatically placing his hands on the trunk of the car and assuming the position to be searched. Another officer conducted a pat down search of appellant and found, in his pocket, $168.00 (in mostly $20.00 bills) and six small zip lock bags ¹. Police then initiated a warrantless search of the Mustang and found, between the front seats, a single rock of what was later confirmed to be cocaine. During this search, a man arrived on the scene claiming ownership of the vehicle, explaining Stillman borrowed the car from him. Police later confirmed this person was the owner of the vehicle and released it into his custody. Stillman moved to suppress the evidence taken from the Mustang.

Stillman's first point on appeal is that the trial court erred in denying his motion to suppress and admitting evidence found during the search. Stillman argues that the police did not have probable cause or reasonable suspicion to conduct a stop and search of the vehicle. As a general rule, a pre-trial motion to suppress evidence is interlocutory. State v. Herrington, 890 S.W.2d 5, 7 n.1 (Mo.App.1994); State v. Henderson, 826 S.W.2d 371, 374 (Mo.App.1992). This case presents an unusual scenario in that defendant's counsel made a pre-trial motion to suppress and renewed his objections and his pretrial motion on the record during the officers' testimony, but when the state sought to admit the evidence, defense counsel stated "no objection."

The state argues that defendant's response of "no objection" to the offer of the cocaine is an affirmative waiver of any right to appellate review on this issue. State v. Scott, 858 S.W.2d 282, 285 (Mo.App.1993); Rule 30.20; State v. Ealey, 727 S.W.2d 165, 167 (Mo.App.1987). "The established rule in Missouri holds that stating 'no objection' when evidence is introduced constitutes an affirmative waiver of appellate review of the issue." State v. Zelinger, 873 S.W.2d 656, 660 (Mo.App.1994) (citing State v. Daly, 798 S.W.2d 725, 729 (Mo.App.1990)). In addition, where counsel states that he has no objection to the admission of evidence, this court will not generally grant plain error review because a statement by defendant's counsel that there is no objection to the mention of a particular piece of evidence, as opposed to the mere failure to object, "precludes a finding that the failure to object was negligent or inadvertent and renders the evidence admissible." Scott, 858 S.W.2d at 285.

In this case, defendant's counsel made a written motion in limine to suppress, made an oral motion to suppress, on the record, before opening statements, and renewed his objections during the testimony of the police officers. In each instance, the trial court overruled the motions and objections. Despite counsel's response of "no objection" to the admission of the three pieces of evidence at issue, this court finds the trial court and opposing counsel understood that defendant's counsel did not intend to waive the carefully made record on the motion to suppress the evidence. To now rule a waiver of this point and a denial of review would be a hypertechnical application of the requirement of renewing the objection at every stage. See State v. Curtis, 931 S.W.2d 493 (Mo.App.1996). Therefore, the court will review the denial of Stillman's motion to suppress the evidence on the merits.

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 it falls within an exception to the warrant requirement. State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990).

In order to conduct a valid investigatory stop of the automobile which does not violate the Fourth Amendment, the police must have reasonable suspicion, based on articulable facts, that criminal activity is occurring. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Reasonable suspicion can arise from information less reliable than that required to show probable cause. Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 2416, 110 L.Ed.2d 301, (1990). Though a lesser standard than probable cause, reasonable suspicion is similarly dependent on the content of the information possessed by the police and the degree of reliability because both factors are considered in the totality of the circumstances. Id.

Generally, a known informant who has provided reliable information in the past, and who provides information that is immediately verifiable at the scene carries "enough indicia of reliability to justify a forcible stop...." Adams v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612 (1972). According to Adams, a tip from a known informant who has provided information in the past provides a stronger case supporting reasonable suspicion than an anonymous tip. Id. In this case, the informant was known to police and had provided numerous tips in the past resulting in 60 arrests and 20 to 40 convictions at the time of trial. Also, the informant had personally observed the car and the individuals engaging in what he perceived to be drug deals, and he verified the license plates to the police. The tip was partially verified by the police when they located the described vehicle, driven by a black man. Further, when the police undertook to pull the car over, Stillman did not immediately pull to the side of the road but rather, violated a stop sign and began jamming his hand between the seats. These facts taken together with the informant's tip elevated the officer's suspicion to probable cause to stop, arrest, and search Stillman.

This court is cognizant of Stillman's point that the informant's tip was not entirely verified in that the car was not parked where the informant indicated and there was one, not two, black men in the car when it was located by the police. However, in this case, where time had elapsed between the tip and the officer's arrival on the scene and realizing that both cars and people are mobile, the inconsistencies do not obliterate the value of the informant's tip. Under the totality of the circumstances, given that the informant was known rather than anonymous, the information provided was partially verified, and Stillman's furtive actions when pulled over, the court rules the police did have probable cause necessary to arrest Stillman.

On appeal, Stillman does not challenge the admission of the small zip lock bags and the $168.00 cash found in his pocket during a police pat down search after he got out of the car. However, he does challenge the admission into evidence of a single rock of cocaine retrieved by police from the car Stillman was driving. In his brief, Stillman makes much of the fact that the car did not belong to him, and in fact, it was not his car. In State v. McCrary, 621 S.W.2d 266, 273 (Mo. banc 1981), the Supreme Court of Missouri held that, in order for the defendant's Fourth Amendment rights to be violated or for the defendant to have standing to assert a violation of the rights guaranteed by Art. I, sec 15 of the Missouri Constitution, defendant must have a legitimate expectation of privacy in the place or thing searched. The proponent of the motion to suppress has the burden of establishing that his constitutional rights were violated by the search and seizure. State v. McCabe, 708 S.W.2d 288 (Mo.App.1986); State v. Eidson, 701 S.W.2d 549, 553 (Mo.App.1985). Defendant has made no claim of...