State v. Stover

• Decision Date: 25 September 2012
• Docket Number: No. SC 91760.,SC 91760.
• Parties: STATE of Missouri, Respondent, v. Melvin STOVER, Jr., Appellant.
• Court: Missouri Supreme Court

388 S.W.3d 138

STATE of Missouri, Respondent,
v.
Melvin STOVER, Jr., Appellant.

No. SC 91760.

Supreme Court of Missouri,
En Banc.

Sept. 25, 2012.

[388 S.W.3d 142]

Daniel L. Viets, Columbia, MO, for Appellant.

Evan J. Buchheim, Attorney General's Office, Jefferson City, MO, for Respondent.

PATRICIA BRECKENRIDGE, Judge.

Melvin Stover, Jr., appeals his conviction and sentence of 12 years without probation or parole for the class A felony of trafficking drugs in the first degree, section 195.222.5.¹ On appeal, Mr. Stover claims that the trial court erred in overruling his motion for acquittal because there was insufficient evidence to prove he knowingly possessed the illegal drugs, overruling his motion to suppress evidence because he was detained without reasonable suspicion of criminal activity, and in overruling his objections to evidence of the incriminating statements he made before he received Miranda warnings.² He further claims that the trial court erred in overruling his objection to the verdict-directing instruction. Because the submission of the verdict director was plain error, the judgment is reversed and the cause remanded.

Facts and Procedural Background

Missouri State Highway Patrol Corporal Brian Hagerty has worked in drug interdiction with the highway patrol since 1998 and has been the supervisor of his troop's “Criminal Interdiction Unit” since 2001. By November 2003, the veteran trooper had made “hundreds, if not thousands, of drug interdiction arrests” during his career. Most of the significant drug seizures he has made occurred on eastbound Interstate 70.

The morning of November 25, 2003, Corporal Hagerty and another trooper were patrolling Interstate 70 in Lafayette County. During the patrol, Corporal Hagerty noticed a 2004 Mercury Grand Marquis traveling eastbound on Interstate 70 in front of his patrol car. Corporal Hagerty observed the Grand Marquis, which was occupied by two males, move from the left lane into the right lane between two tractor-trailers. Corporal Hagerty noted that the vehicle was traveling at 65 miles per hour and following fewer than two car lengths behind the first tractor-trailer. Corporal Hagerty pulled his patrol car in front of the second tractor-trailer and behind the Grand Marquis. From behind the Grand Marquis, Corporal Hagerty could see that the vehicle had California license plates. The Grand Marquis then slowed to an approximate 55 miles per hour in the 70–mile–per–hour zone. His observation of the vehicle and its occupants and the driver's reaction to the patrol car caused Corporal Hagerty to suspect the two men were engaged in illegal activity.

Corporal Hagerty activated his emergency lights to stop the vehicle for following the tractor-trailer too closely. The stop occurred shortly after 10:54 a.m. near an exit ramp to a rest area in Lafayette County. Corporal Hagerty and his fellow trooper approached the vehicle to speak with the two male occupants. During his approach, Corporal Hagerty suspected that the vehicle was a rental car based of

[388 S.W.3d 143]

the tint of the windows, its clean condition, and the lack of dealership markers or license plate brackets that are typically present on other vehicles. As Corporal Hagerty continued to approach the vehicle, he looked into the window and noticed several gift bags and pieces of art work in the passenger compartment, some of which appeared to be newly purchased with price tags still attached. He saw no evidence of any luggage, toiletries, or any other items that might indicate vacation travel. Corporal Hagerty contacted the driver and passenger, explained the reason for the stop, and requested the license of the driver, Mr. Stover.

After receiving Mr. Stover's Washington, D.C., license, Corporal Hagerty asked Mr. Stover to sit in the patrol car. Mr. Stover agreed, exited the Grand Marquis, and entered the patrol car with Corporal Hagerty and the other trooper. Mr. Stover's traveling companion, Oris Butler, remained in the Grand Marquis. Corporal Hagerty obtained the information from Mr. Stover necessary to process the traffic stop and also engaged in general conversation with Mr. Stover. Their conversation, which was recorded by a video camera in the patrol car, caused him to become increasingly suspicious that Mr. Stover and Mr. Butler were trafficking narcotics.

During the conversation in the patrol car, Mr. Stover told Corporal Hagerty that he was returning from Las Vegas, Nevada, to his home in Washington, D.C. He said he and Mr. Butler had flown to Las Vegas for a single day of gambling on Saturday, November 22, which was three days before the traffic stop. Mr. Stover told Corporal Hagerty that each man purchased his own one-way airplane tickets for approximately $900. When Corporal Hagerty asked Mr. Stover why no luggage was visible in the vehicle, Mr. Stover said he had not brought any luggage because he and Mr. Butler only planned to be in Las Vegas for one day. During their conversation, Corporal Hagerty said that D.C. had unusual licenses and that he was slow to get a response in the car on his laptop computer.

While waiting, Corporal Hagerty and Mr. Stover discussed the Las Vegas trip in more detail. Corporal Hagerty learned that the two men gambled at MGM Grand but that, instead of staying there, they stayed at a cheaper hotel down the street. Mr. Stover told Corporal Hagerty that he initially won $2,000 but that he then lost all but $600. As a result, Mr. Stover said that they were unable to purchase tickets for a return flight and instead rented the vehicle to drive back to Washington, D.C. Finally, when Corporal Hagerty asked if either he or Mr. Butler had been arrested in the past, Mr. Stover said he had not and, when asked about Mr. Butler, Mr. Stover said Mr. Butler had not been arrested “in the last four to five years.”

Corporal Hagerty then informed Mr. Stover that he was going to return to the Grand Marquis to retrieve the vehicle rental agreement from Mr. Butler. While doing so, Corporal Hagerty obtained Mr. Butler's Maryland identification. He also asked Mr. Butler some of the same questions he had asked Mr. Stover in the patrol car. When questioned, Mr. Butler's previously calm demeanor changed, and he became animated. In addition, Mr. Butler's answers to several questions were different than Mr. Stover's answers. For example, Mr. Butler told Corporal Hagerty that he and Mr. Stover left Washington, D.C., on Friday, when Mr. Stover said they flew out on Saturday. Mr. Butler told Corporal Hagerty the pair was driving back east because they got “hung up” in Las Vegas and wanted to see the country. In contrast, Mr. Stover said they were driving back due to lack of money. Furthermore, the rental agreement Corporal Hagerty

[388 S.W.3d 144]

obtained from the Grand Marquis showed Mr. Stover rented the car in Las Vegas on November 21, 2003, the day before Mr. Stover said he had arrived in Las Vegas. The vehicle was due in Washington, D.C., on November 24, 2003, making the vehicle one day overdue at the time of the stop. Corporal Hagerty then returned to the patrol car.

On his return, Corporal Hagerty initiated a radio check of Mr. Butler's identification and learned that Mr. Butler had been arrested several times for drug-related offenses. At this point, Corporal Hagerty asked Mr. Stover if the vehicle contained anything illegal. Mr. Stover replied that there was nothing illegal in the car and began asking why he had been stopped. At approximately 11:14 a.m., 20 minutes after the stop began, Corporal Hagerty asked for consent to search the vehicle. Mr. Stover firmly refused, and, according to Corporal Hagerty, his speech became strained and his demeanor became argumentative. Corporal Hagerty told Mr. Stover that he intended to call in a canine unit, and Mr. Stover asked why that was necessary. As Corporal Hagerty began to explain, Mr. Stover interrupted him, saying for the first time that he needed to get home as soon as possible because his mother soon would be admitted to a Washington, D.C., hospital. Mr. Stover continued talking to Corporal Hagerty, which prevented Corporal Hagerty from calling for the canine unit for approximately six minutes. At 11:20 a.m., approximately 26 minutes after initiating the stop, Corporal Hagerty successfully requested a canine unit by radio.

After the request for a canine unit, Mr. Stover asked if Corporal Hagerty would get him a cigarette from the rental car. Corporal Hagerty said he would and returned to the Grand Marquis. While there, Corporal Hagerty asked Mr. Butler about Mr. Stover's statement regarding his ill mother. Mr. Butler stated that he did not know of any illness in Mr. Stover's family. Mr. Butler also told Corporal Hagerty that there were no cigarettes in the vehicle and that Mr. Stover did not smoke.

Corporal Hagerty returned once more to the patrol car to confront Mr. Stover with what he believed were contradictions between the two men's statements. Mr. Stover suggested that everything he had told the officer made sense, and Corporal Hagerty said he disagreed. Mr. Stover then changed his story to say that Mr. Butler was correct that they flew out on November 21. He also stated for the first time that a third man was with them in Las Vegas, although he never identified that person. At 11:33 a.m., approximately 40 minutes after the stop, Corporal Hagerty called to check on the status of the canine unit.

At 11:39 a.m., 19 minutes after Corporal Hagerty radioed for the canine unit, it arrived at the scene. After the canine had acclimated to its surroundings, it performed a sniff test of the Grand Marquis and “alerted” at the trunk. Corporal Hagerty announced that he was going to conduct a search, and he opened the trunk. Corporal Hagerty found a large suitcase in the trunk, which was opened to reveal 11 plastic bottles containing a yellowish liquid that later was determined to be approximately 10 gallons of PCP, a controlled substance....