State v. Sullivan

• Decision Date: 17 July 2001
• Citation: 49 S.W.3d 800
• Parties: (Mo.App. S.D. 2001) State of Missouri, Respondent v. Somer Sullivan, Appellant. WD58537 0
• Court: Missouri Court of Appeals

49 S.W.3d 800 (Mo.App. S.D. 2001)

State of Missouri, Respondent v. Somer Sullivan, Appellant.

WD58537

Missouri Court of Appeals Western District

07/17/2001

Appeal From: Circuit Court of Jackson County, Hon. William A. Ely

Counsel for Appellant: James L. McMullin

Counsel for Respondent: Assistant Attorney General

Opinion Summary: Somer Sullivan was convicted by a jury of one count of the class B felony of possession of a controlled substance with intent to distribute, section 195.211, RSMo Cum. Supp. 1998, three counts the class C felony of possession of a controlled substance, section 195.202, RSMo 1994, and one count of the class A misdemeanor of possession of drug paraphernalia with intent to use, section 195.233, RSMo Cum. Supp. 1998. She was sentenced, concurrently, to eight years in prison for possession of a controlled substance with intent to distribute, five years in prison on each of the three counts of possession of a controlled substance, and one year in jail for possession of drug paraphernalia. On appeal, Ms. Sullivan challenges the trial court's denial of her motion to suppress her statements to police and all evidence seized after the police stopped her vehicle and later searched her home, generally on three grounds. First, she contends that the stop of her vehicle was made without probable cause and was pretextual. Second, she argues that she was questioned by officers without being informed of her Miranda rights. Third, she challenges the voluntariness of the consents to search her home given by herself and her mother. In her final point, she contends that the trial court erred in refusing to submit an instruction to the jury concerning the voluntariness of the consents to search her home.

Division One holds: (1) The trial court did not err in denying Ms. Sullivan's motion to suppress. First, the stop of Ms. Sullivan's vehicle was valid since officers participating in the stop had probable cause to arrest an occupant of Ms. Sullivan's car at the time it was stopped. Second, Ms. Sullivan has failed to properly preserve the issue of whether her Miranda rights were violated, having failed to object to the statements when first presented at trial. Finally, based upon the totality of the circumstances, the consents to search Ms. Sullivan's home given by herself and her mother were voluntarily and freely given.

(2) The trial court did not err in failing to submit an instruction to the jury concerning the voluntariness of the consents to search. The issue of whether a consent to search is voluntarily and freely given is a question of law to be decided by the trial court and not the jury.

Ellis, P.J., and Lowenstein, J., concur.

Patricia Breckenridge, Judge

Somer Sullivan was convicted by a jury of one count of the class B felony of possession of a controlled substance with intent to distribute, Section 195.211, RSMo Cum. Supp. 1998, three counts of the class C felony of possession of a controlled substance, Section 195.202, RSMo 1994, and one count of the class A misdemeanor of possession of drug paraphernalia with intent to use, Section 195.233, RSMo Cum. Supp. 1998. She was sentenced, concurrently, to eight years in prison for possession of a controlled substance with intent to distribute, five years in prison on each of the three counts of possession of a controlled substance, and one year in jail for possession of drug paraphernalia. On appeal, Ms. Sullivan challenges the trial court's denial of her motion to suppress her statements to police and all evidence seized after the police stopped her vehicle and later searched her home, generally on three grounds. First, she contends that the stop of her vehicle was made without reasonable suspicion and was pretextual. Second, she argues that she was questioned by officers without being informed of her Miranda¹ rights. Third, she challenges the voluntariness of the consents to search her home given by herself and her mother. Finally, she contends that the trial court erred in refusing to submit an instruction to the jury concerning the voluntariness of the consents to search her home.

Factual and Procedural Background

On December 4, 1998, Detectives Steven Grubb and Chris Depue of the Jackson County Drug Task Force were conducting surveillance on a house at 11009 East 74th Street in Raytown, Jackson County, Missouri, while awaiting the arrival of a search warrant. While other officers were en route to the residence to execute the warrant, Detective Depue observed three individuals leave the residence and approach a car parked on the street. He notified Detective Grubb, who came around the corner from where he was conducting surveillance. Detective Grubb saw the three individuals, including Brandon McCombs, a resident of 11009 East 74th Street and the primary target of the investigation, get into the car. Mr. McCombs got into the front passenger's seat of the car. Ms. Sullivan got into the driver's seat of the car and another male, Mr. McCombs' cousin, William Clark, got into the back of the car. As the car left the residence, Detective Grubb began following it. Because he was in an unmarked car without a siren or lights, Detective Grubb contacted the Raytown Police Department and requested that the car be stopped. Ms. Sullivan's car was stopped at 62nd and Woodson, "[a]pproximately eight blocks north and 2 blocks over" from where it left Mr. McCombs' residence.

After a Raytown police officer, Sergeant Michael McDonough, stopped the car, Sergeant McDonough asked the occupants to step out of the car. Detective Grubb then approached the occupants, identified himself, and indicated that the reason for the stop was a narcotics investigation at the house they had just left. Mr. McCombs became agitated following the stop, so Detective Grubb patted him down for weapons.² When Mr. McCombs became more confrontational, he was arrested at the scene for narcotics violations, handcuffed and placed in a police car. Detective Grubb then approached Ms. Sullivan, told her why she had been stopped and asked "if she knew anything about what was going on." Ms. Sullivan stated that neither she nor Mr. McCombs was involved in narcotics. She then offered to let Detective Grubb search her car. Before he began the search, Detective Grubb had Ms. Sullivan sign a consent to search form. During the search, Detective Grubb found a Black and Mild cigar band in the back floorboard. Detective Grubb had been informed that individuals at the McCombs residence were using this type of cigar to make "blunts," a hollowed-out cigar in which the tobacco is replaced with marijuana.

While Detective Grubb was searching Ms. Sullivan's car, Detectives Thurman and Iseman arrived on the scene of the car stop. These detectives had been at Mr. McCombs' residence just prior to the execution of the search warrant and were instructed to respond to the car stop to assist Detective Grubb. Detective Thurman spoke with Detective Grubb and then with Ms. Sullivan about the search of Mr. McCombs' residence. After that, he called officers at Mr. McCombs' residence to see how the search was progressing. Detective Stacey Edwards, the case agent,³ informed Detective Thurman that a call had been received from a confidential informant who had received information that Ms. Sullivan was storing drugs in her bedroom at her residence.

After talking with Detective Edwards, Detective Thurman informed Ms. Sullivan that information was received that she might have narcotics in her bedroom of her residence and he asked for consent to search her room. Ms. Sullivan responded that she might have a small bag of marijuana that would cost approximately twenty dollars and a pipe for smoking marijuana, and asked if she would be under arrest. Detective Thurman assured her that she would not be arrested for having a small amount of marijuana and a pipe. Ms. Sullivan then told Detective Thurman that she had to go to work. Ms. Sullivan used Detective Thurman's phone to call her employer. Detective Thurman suggested that she advise her employer that she would be a few minutes late, but Ms. Sullivan told her employer that she would not be in to work that day. When Detective Thurman again asked for consent to search her bedroom, Ms. Sullivan orally consented. Ms. Sullivan then drove her car to the house where she lived with her mother. Mr. Clark rode with her. Detectives Grubb, Thurman and Iseman and Sergeant McDonough followed in their vehicles, one marked police car and two unmarked undercover vehicles. When they reached Ms. Sullivan's home, the four officers followed her up to her front door. At the front door, they were met by her mother. The officers explained to Ms. Sullivan's mother what was going on. Once inside the house, Detective Grubb requested that Ms. Sullivan sign a written consent to search her bedroom and went over the form with her. Ms. Sullivan signed the consent form. Immediately after signing the consent, Ms. Sullivan ran up the stairs. Detective Thurman followed Ms. Sullivan up to her room. Once in her bedroom, Ms. Sullivan gave Detective Thurman the bag of marijuana she had mentioned, and another small bag of marijuana. While in her room, Detective Thurman noticed other items of contraband in plain view. After Ms. Sullivan gave Detective Thurman the bags of marijuana, they went back downstairs.

While Detective Thurman and Ms. Sullivan were upstairs in Ms. Sullivan's bedroom, Detective Iseman and Sergeant McDonough spoke with Ms. Sullivan's mother and requested her consent to search the areas in the home to which Ms. Sullivan had access. Their discussion occurred at the table in the kitchen and, during the discussion, Ms. Sullivan's mother asked many questions, which the two officers answered. At one point, Ms. Sullivan's mother indicated that she did not know if she should call her attorney. Detective Iseman told her that if she wanted to call her attorney, she could. Ms. Sullivan's mother...