State v. Valdez, s. 18745
| Decision Date | 25 October 1994 |
| Docket Number | Nos. 18745,19147,s. 18745 |
| Citation | 886 S.W.2d 182 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Facundo VALDEZ, Defendant-Appellant. Facundo VALDEZ, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Matthew J. O'Connor, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jennifer A. Glancy, Asst. Atty. Gen., Jefferson City, for respondent.
The trial court, sitting without a jury, found Defendant guilty of the Class B felony of trafficking drugs in the second degree, § 195.223, RSMo Cum.Supp.1991, and sentenced him to nine years' imprisonment. In his direct appeal (Case No. 18745), Defendant contends that the trial court erred in overruling his motion to suppress evidence.
Defendant also filed a pro se motion to vacate his conviction and sentence pursuant to Rule 29.15. 1 Defendant appeals the motion court's denial of that motion without an evidentiary hearing in Case No. 19147. These appeals have been duly consolidated.
Defendant's sole point relied on in his direct appeal is as follows:
The trial court erred in overruling Appellant's motion to suppress evidence because such ruling violated Appellant's right to be free from unreasonable search and seizure and his right to due process of law as guaranteed by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 15 of the Missouri Constitution in that Trooper Funderberg's [sic] search was not justified by reasonable suspicion that criminal activity was afoot and that Appellant's consent was the fruit of an unlawful seizure as the duration of the stop was both excessive and coercive.
Review of the trial court's order denying a motion to suppress is limited to a determination of whether there was sufficient evidence to support that order. State v. Rodriguez, 877 S.W.2d 106, 110 (Mo. banc 1994); State v. Perrone, 872 S.W.2d 519, 521 (Mo.App.S.D.1994). The weight and credibility of the witnesses are matters for the trial court's determination. State v. Villa-Perez, 835 S.W.2d 897, 901 (Mo. banc 1992); State v. Bunts, 867 S.W.2d 277, 278 (Mo.App.S.D.1993). We are to consider the facts and reasonable inferences arising therefrom in the light most favorable to the trial court's decision. State v. Rodriguez, 877 S.W.2d at 110. Only if the trial court's judgment is clearly erroneous will an appellate court reverse. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990).
The search referred to by Defendant occurred on December 29, 1992, when Defendant was stopped by Trooper Funderburk of the Missouri Highway Patrol. At that time, Defendant was eastbound, accompanied by a female companion (described as his girl friend) and three children. Funderburk, who was westbound, clocked Defendant's speed by radar at 71 miles per hour in a 55-mile-per-hour zone. The trooper crossed the median, stopped Defendant, and requested his driver's license and a vehicle registration. The registration indicated the vehicle belonged to a person identified by Defendant as his cousin. The trooper asked him to step back to the patrol car for the purpose of issuing a ticket for speeding. As Defendant was walking to the patrol car, the trooper was told by the female occupant that they were going to Michigan for a vacation; that she did not know whose vehicle it was; and that she did not know what was in the trunk because Defendant had packed it without her assistance.
The trooper then returned to the patrol car where Defendant was waiting and initiated a computer check of Defendant's driver's license and vehicle registration. While the trooper was writing the ticket, he inquired of Defendant about his destination and the purpose of his trip. Defendant told him they were going to Michigan "for work." Upon handing Defendant the ticket and his driver's license, the trooper asked for permission to search the vehicle for drugs and weapons. In response, Defendant said, "no problem," went to the car to retrieve the keys from the ignition, and opened the trunk. At that point, the trooper detected a strong odor of marijuana and found several bricks of what appeared to be marijuana under a blanket. A subsequent search and inventory of the car revealed 38 bricks of marijuana weighing a total of approximately 122 pounds.
Defendant first contends that his consent to the search was the result of an unlawful seizure because the duration of the stop was excessive. 2 In support, he cites State v. Riddle, 843 S.W.2d 385, 387 (Mo.App.E.D.1992), for the proposition that any detention beyond that required for a normal traffic stop is an unreasonable seizure, and that once a driver has produced a valid license and proof that he is entitled to operate the car, he should be allowed to proceed on his way without being subject to further delay unless reasonable suspicion of another crime arises. He argues that once the trooper gave him the ticket and returned his driver's license, the purpose for the traffic stop was accomplished and his continued detention constituted a Fourth Amendment violation.
The trial court found that there was no extended detention after issuance of the ticket and that the request to search was made immediately after it was issued. There was evidence in the record from which the trial court could have made this finding. The evidence indicated that Defendant was in the patrol car approximately seven or eight minutes and that the request to search came within 10 to 15 minutes after the initial stop. This court has previously held that a 12-minute lapse between an initial traffic stop and a request for permission to search a vehicle does not require the conclusion that the detention was longer than necessarily required by reason of the traffic offense. State v. Bunts, 867 S.W.2d at 281; State v. Petrone, 836 S.W.2d 484, 488 (Mo.App.S.D.1992).
This conclusion is also supported by State v. Hyland, 840 S.W.2d 219. In that case a highway patrol trooper stopped a vehicle for speeding. In holding that the detention did not exceed the time reasonably necessary for the traffic stop, the court said:
The issue Hyland raises reaches in two directions. First, if the detention extends beyond the time reasonably necessary to effect its initial purpose, the seizure may lose its lawful character (assuming no new factual predicate for reasonable suspicion is found during the period of the lawful seizure.) ...
As to the first prong, the record reveals that Sergeant Brown's initial questions about Hyland's personal possessions occurred as, or immediately after, Hyland handed Brown the documentation necessary to complete the written traffic warning. Hyland's consent to the search of the trunk occurred during the time reasonably necessary to carry out the purposes of the traffic stop. Hyland's claims relating to the length of the stop are not supported by the record in this case and are thus devoid of merit.
Id. at 221. The same conclusion applies here.
In the instant case, Defendant also contends that his consent was not voluntary, but rather was the result of coercion because of the length of the detention. Consent to the search would not automatically be the product of coercion, however, even if the detention extended beyond the time reasonably necessary to accomplish the purpose of the initial stop. See State v. Riddle, 843 S.W.2d at 387. In the instant case, however, we have already determined that the record does not require a finding that the detention was coercive.
An officer may, at any time, ask a citizen if he has contraband in his car and ask for permission to search. See Dunaway v. New York, 442 U.S. 200, 211, n. 12, 99 S.Ct. 2248, 2255, n. 12, 60 L.Ed.2d 824 (1979); State v. Bunts, 867 S.W.2d at 281; State v. Petrone, 836 S.W.2d at 489; State v. Morr, 811 S.W.2d 794, 798 (Mo.App.W.D.1991). A consensual search following such a traffic stop is not prohibited by the Fourth and Fourteenth Amendments if the consent is given freely and voluntarily. State v. Bunts, 867 S.W.2d at 281; State v. Petrone, 836 S.W.2d at 489.
To be voluntary, a consent to a warrantless search must not be induced by fraud, duress or coercion. State v. Morr, 811 S.W.2d at 799. Where consent is relied on as the basis of a warrantless search, the State has the burden to prove that the consent was freely and voluntarily given. State v. Petrone, 836 S.W.2d at 488 (). Whether consent to a search was voluntary or the product of duress or coercion is a question of fact to be determined from the totality of the circumstances. Id.; State v. Bunts, 867 S.W.2d at 281.
In the instant case, the record is devoid of any indication of those elements. In particular, this was a stop by a single highway patrolman along a busy interstate highway; there is no indication that the stop was for any reason other than that explained by the trooper; there is no indication of any intimidation by the trooper, either by acts or language; and no weapon was displayed. In short, there is nothing in the record which would compel the conclusion that Defendant's consent to the search was other than freely and voluntarily given.
As indicated above, there is no evidence that the detention exceeded the time reasonably necessary to effectuate the purpose of the stop, or that the consent resulted from the length of the detention or the manner in which it was conducted by the trooper. The trial court was correct in concluding, as the court did in Hyland, that the consent to search was freely and voluntarily given. Because we affirm the trial court's finding that the consent to search was voluntary, we need not reach the issue about whether there was a reasonable suspicion of criminal activity,...
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State v. Heyer, 71452
...W.D.1996). Additionally, an officer may at any time ask a driver if he or she has contraband in the vehicle. State v. Valdez, 886 S.W.2d 182, 185 (Mo.App. S.D.1994). If the stop extends beyond the time reasonably necessary to achieve its original objective, it may lose its lawful character,......