State v. Weddle

• Decision Date: 14 March 2000
• Citation: 18 S.W.3d 389
• Parties: (Mo.App. E.D. 2000) . State of Missouri, Respondent, v. Richard Weddle, Appellant. Case Number: ED76146 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

18 S.W.3d 389 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri, Respondent, v. Richard Weddle, Appellant.

Case Number: ED76146

Missouri Court of Appeals Eastern District

Handdown Date: 03/14/2000

Appeal From: Circuit Court of Franklin County, Hon. Randolph Puchta

Counsel for Appellant: Arthur G. Muegler, Jr.

Counsel for Respondent: John M. Morris, III and Shaun J. Mackelprang

Opinion Summary: Richard Weddle appeals his convictions for carrying a concealed weapon, possession of methamphetamine with intent to distribute, and misdemeanor possession of marijuana.

REVERSED.

Division Five holds: The trial court erred in denying Weddle's motion to suppress and allowing the admission of State's exhibits 1 through 25 because the exhibits were the illegal fruits of an unreasonable search and seizure of Weddle in violation of his Fourth Amendment rights. The police officer's detention of Weddle to investigate a possible intoxicated driver had ended when the officer concluded Weddle was not intoxicated; yet, the officer continued to illegally detain and question him further about unrelated topics without any further articulable reasonable suspicion that he had committed a crime. In addition, Weddle's consent to the search of his van during this illegal detention was not voluntary and did not have sufficient independence from the illegal detention to purge the taint of that illegality.

Opinion Author: Robert E. Crist, Senior Judge

Opinion Vote: REVERSED. Rhodes Russell, C.J., and Crahan, J., concur.

Opinion:

Richard Weddle (Defendant) appeals his convictions for carrying a concealed weapon, possession of methamphetamine with intent to distribute, and misdemeanor possession of marijuana, in violation of section 571.031, RSMo 1994, section 195.211, RSMo Cum. Supp. 1999, and section 195.202, RSMo 1994, respectively. On his appeal, Defendant contends: (1) he was unreasonably seized without reasonable suspicion in violation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968); (2) the search of his automobile was conducted without probable cause; and (3) there was insufficient evidence to support his convictions for carrying a concealed weapon, possession of methamphetamine with intent to distribute, and possession of marijuana. We reverse and order the Defendant discharged.

We find Defendant's first point dispositive. In Point I, Defendant contends the trial court erred in denying his motion to suppress and allowing the admission of exhibits 1 through 25 because the exhibits were the illegal fruits of an unreasonable search and seizure of Defendant in violation of his Fourth Amendment rights.

At a suppression hearing, the State bears both the burden of producing evidence and the risk of nonpersuasion to show by a preponderance of the evidence that the motion to suppress should be overruled. Section 542.296.6, RSMo 1994; State v. Milliorn, 794 S.W.2d 181, 184 (Mo. banc 1990). When reviewing a motion to suppress, we examine the record made at the motion to suppress hearing as well as the trial record. State v. Collins, 816 S.W.2d 257, 258 (Mo. App. E.D. 1991). In so reviewing, we view the facts in the light most favorable to the order challenged on appeal. State v. Riddle, 843 S.W.2d 385, 386 (Mo. App. E.D. 1992). An appellate court gives deference to the trial court's factual findings and credibility determinations reviewing only to determine if they are clearly erroneous, but reviews questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). However, the question of whether the historical facts as found by the trial court add up to reasonable suspicion requires de novo review. See, Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662 (1996); State v. Werner, No. SC81663, slip op. at 6, (Mo. banc, filed January 11, 2000).

Applying this standard of review, the following facts were presented at the motion to suppress and the trial: On February 13, 1998, at about 9:20 a.m., Officer Michael L. Wirt was on duty for the City of St. Clair Police Department in Franklin County when he received a dispatch for a possible intoxicated driver on the Hardee's lot. An anonymous call had been placed about the driver who was occupying a blue-gray van on the north end of the Hardee's lot. Wirt admitted that the anonymous call provided information that was not reliable. Wirt arrived at the Hardee's about 9:25 a.m. and saw a blue-gray Ford Econoline parked on the north end of the lot. He saw a lone white male, who was Defendant, seated in the driver's seat. Defendant was "kind of slumped over the wheel like he was resting his head on the wheel." At this time, Wirt did not suspect Defendant was committing a crime and Defendant was not doing anything wrong. Still, Wirt approached the van and tapped on the window. Defendant did not respond, so Wirt tapped slightly harder on the window. At this time, Defendant woke up. He was startled and his eyes were wide. He had a surprised look on his face. Wirt testified that he did not regard Defendant's reaction as unusual, but rather it was a normal reaction. At this time, Wirt had no articulable facts that led him to believe Defendant was intoxicated or had committed a crime. Yet, to ensure Defendant was not intoxicated, Wirt motioned him out of the van.

When Defendant exited the van, Wirt smelled no alcohol and realized Defendant was not intoxicated. Wirt explained why he was questioning Defendant, who said he did not drink and was fine. Wirt did notice that Defendant seemed extremely nervous and was rubbing his head and body and bouncing around. At this time, Wirt did not think this was unusual. Defendant was polite to Wirt and non-threatening. Wirt did not pat Defendant down for any weapons and testified that he was not in fear for his personal safety. After talking with Defendant, Wirt concluded he was not intoxicated. Wirt testified that at this time he finished his investigation about a possible intoxicated driver. At this point, Wirt's reasons for approaching and detaining Defendant were complete.

Even so, Wirt continued to detain Defendant and asked him for his driver's license. Defendant became increasingly nervous. Wirt testified that Defendant asked "numerous" times to get a cigarette from the van, and each time Wirt denied his request. Wirt ran a warrant check on Defendant. While Wirt was running the warrant check, he observed Defendant was acting extremely nervous and upset, rubbing his head and fidgeting. Defendant asked if he could get a coat because he was cold, but Wirt refused his request. However, Wirt admitted that it was cold and Defendant had reason to ask for a coat. The temperature was between 28 and 30 degrees.

The warrant check came back negative. At this time, acting on a "hunch" that something was wrong, Wirt asked Defendant if he had anything illegal in his van and Defendant replied in the negative. Wirt then asked him if he had any weapons and Defendant replied in the negative. Wirt asked him if he could search the interior of the van and its contents. According to Wirt, Defendant said, "sure, sure, sure, search anything in there. Go ahead. Go ahead." At this time, Wirt patted Defendant down and found nothing. He then handcuffed Defendant and secured him in his patrol car.

Wirt then searched the van. He began his search of the van on the driver's side. He noticed that in between the driver's seat and passenger seat there was a brown bathroom-size wastebasket. Sticking out of the wastebasket was a 7-inch hunting knife in its sheath. The knife was standing on end, leaning against the side of the wastebasket. The wastebasket also contained a cigar box that contained 72 empty clear plastic baggies. He also found a briefcase on the floorboard behind the passenger seat. The briefcase was unlocked and slightly open. Inside, he found a box of CCI .25 automatic pistol ammunition, a gray metal box, an adult magazine, a nylon pouch with assorted folding pocketknives, and a small caliber pistol. He used a key found inside the briefcase to open the gray metal box. Inside the gray metal box, he found a small baggie of marijuana, two cellophane bags with a white powdery residue, a plastic scale with white powder residue, three glass vials with white powder residue, a black vinyl pouch with 16 empty glass vials in it, a gold tear-drop container with white powder residue and assorted knives and razor blades. Wirt seized all of the evidence and arrested Defendant. Laboratory tests showed the white powder residue amounted to .12 grams of methamphetamine, less than one hit and not marketable on the street.

Prior to trial, Defendant moved for suppression of the evidence seized from his van. The trial court held a hearing on the motion and denied it without issuing findings of fact. Defendant preserved his objections to the evidence by objecting at trial and including his objection in his motion for judgment of acquittal or new trial.

The Fourth Amendment to the United States Constitution preserves the right of citizens to be free from unreasonable searches and seizures. U.S. Const. Amend. IV. The State does not dispute that Defendant was "seized" for purposes of the Fourth Amendment when Wirt ordered him out of the van, but instead argues the seizure was reasonable.

Generally, a search or seizure is only permissible if there is probable cause to believe a person has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 (1964). However, the United States Supreme Court has held that the Fourth Amendment allows a brief investigative detention if the officer has a reasonable suspicion, based on specific and articulable facts, that the person is involved in criminal activity. Terry, 392 U.S. at 21, 88 S.Ct. at 1880; State v. Franklin, 841 S.W.2d 639, 641 (Mo. banc 1992). In determining whether the seizure and search were...