State v. Wells

Decision Date21 December 2000
Citation33 S.W.3d 202
Parties(Mo.App. S.D. 2000) State of Missouri, Plaintiff-Appellant, v. Michael J. Wells, Defendant-Respondent. 23519
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Carter County, Hon. William R. Hass

Counsel for Appellant: Paul R. Boyd

Counsel for Respondent: Daniel T. Moore

Opinion Summary: None

Crow, J., and Barney, C.J., concur.

Phillip R. Garrison, Judge

The sole issue on this appeal is the propriety of the trial court's order suppressing contraband seized following the search of an automobile operated by Michael J. Wells ("Defendant"). The State appeals pursuant to section 547.200.1(3), RSMo Cum. Supp. 1999, contending that suppression of that evidence was erroneous because it was properly seized pursuant to Terry v. Ohio, 392 U.S.1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); the officer had probable cause to search the remainder of the vehicle under the "automobile exception" after having found weapons in the car; and the evidence would have inevitably been discovered when an inventory was made of the car.

The State has the burden of showing by a preponderance of the evidence that a motion to suppress should be denied. Section 542.296.61; State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992). Appellate review of a motion to suppress is limited to determining whether sufficient evidence exists to sustain the trial court's holding. State v. Wise, 879 S.W.2d 494, 503 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995). If the trial court's ruling is plausible in light of the record viewed in its entirety, the appellate court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. State v. Milliorn, 794 S.W.2d 181, 184 (Mo. banc 1990). We defer to the trial court's evaluation of the credibility of the witnesses and the weight of the evidence. State v. Villa-Perez, 835 S.W.2d 897, 902 (Mo. banc 1992).

On September 16, 1997, Donnie Elder ("Elder") reported that a male with long brown hair, driving a small, shiny, red sports car with hidden headlights had shot at him on Highway 21 in Grandin, Missouri. Carter County Deputy Sheriff Clifford Cumins ("Deputy Cumins") talked with Elder who told him that as he was pulling out of Grandin heading south, a red car came up behind him and the occupant shot at him. Deputy Cumins then went to Highway 21 and, with the assistance of another deputy, stopped a car matching Elder's description, which was driven by Defendant. When Deputy Cumins approached the car he asked Defendant if he had any guns in the car, to which Defendant replied that he had a black long barrel rifle that was leaning against the front of the passenger seat, and a pistol located on the right floorboard. After having Defendant put his hands on the steering wheel, Deputy Cumins went to the passenger side of the car and removed a loaded .22 caliber pistol in a holster from under some motorcycle parts in the passenger floorboard. Deputy Cumins had not been able to observe the pistol from either the driver or passenger's side of the car, although he had been able to see the rifle when he first approached the car. Deputy Cumins then instructed Defendant to get out of the car and asked him if there were other weapons in the car. Defendant said that there were none. According to Deputy Cumins, he asked for and received permission from Defendant to search the car. According to Defendant, however, he was never asked to consent to a search of the car, and he gave none.

When Deputy Cumins searched the rest of the car, he found a shop towel with two syringes rolled up in it behind the driver's seat. The syringes had a small amount of liquid in them which, according to Deputy Cumins, Defendant said he used to give shots to the fighting chickens that he raised. Defendant was then placed under arrest for possession of a concealed weapon and for "investigation of illegal drugs," and was taken to the Carter County Sheriff's Office.2 Another deputy drove Defendant's car to the police station in Van Buren where its contents were inventoried. According to Deputy Cumins, it was department policy to inventory any impounded vehicle for identification and safekeeping of property contained in it, and he identified a document containing the inventory done on Defendant's car. Another witness employed with the SEMO Drug Task Force testified that it is a customary practice to do an inventory search of a vehicle after it is stopped if the subject is arrested or if the vehicle is seized. Other drug-related items were apparently found when the car's contents were inventoried, but the identity and extent of those items is not apparent from the record before us.3

Defendant filed a motion to suppress all items of evidence taken in the search of his car. The trial court held that the stopping of Defendant was consistent with the reasoning in Terry, and that Deputy Cumins was justified in retrieving the loaded pistol concealed in the front floorboard of the car. It held, however, that that "was the boundary of the Terry stop and subsequent weapons search -- [Defendant] had been removed from his auto -- the auto and weapon (a pistol) matching the victims [sic] statement had been found." It continued, saying that " . . . the officer continued to search the vehicle relying on an 'oral' consent which [Defendant] vigorously denied giving -- under all the circumstances the burden is on the State to prove further search of the vehicle was by consent, this they failed to do." Consequently, the trial court struck Count I of the information (possession of methamphetamine, a controlled substance, section 195.202), and Count II (attempt to manufacture a controlled substance, section 195.211).4 This left Count III for trial (possession of a concealed weapon, section 571.030). The State appeals.

In its sole point on appeal, the State contends:

The trial court clearly erred in ruling that certain drug evidence seized by the State from a vehicle stop be suppressed because, A) the officers [sic] action of seizing the contraband from the passenger compartment of the car was proper under Terry v. Ohio and its progeny, B) the officer had probable cause to searh [sic] the rest of the passenger compartment of a motor vehicle for additional weapons or contraband after finding a concealed weapon in the passenger compartment under the automobile exception, and, C) the evidence suppressed by the court would have been inevitably discovered by the officer through an inventory of the vehicle or throgh [sic] the search incident to the [Defendant's] arrest from his vehicle.

The issue here apparently relates to the seizure of the syringes and other drug-related items. That portion of the motion to suppress relating to the guns was overruled and is not before us. What the State complains about is the suppression of items found after the guns were discovered and removed from the car.

The State first argues that the search of the vehicle and seizure of items, after the handgun was seized, was authorized under the theory of Terry. Terry stands for the proposition that an investigative detention, while a seizure, is authorized where specific and articulable facts and rational inferences from those facts give rise to a reasonable suspicion that a person has committed or is committing a crime. 392 U.S. at 15-20, 88 S.Ct. at 1877-80, 20 L.Ed.2d at 902-05; State v. Spurgeon, 907 S.W.2d 798, 799 (Mo.App. S.D. 1995). Probable cause to make an arrest is not necessary to make a stop authorized in Terry. State v. Fernandez, 691 S.W.2d 267, 269 (Mo. banc 1985). In this case, it is not the stop itself, which is in question, but whether the trial court erred in holding that the authorized search incident to that stop ended with the seizure of the pistol from the passenger floorboard of the car.

The State argues that the scope of the authorized Terry encounter extended beyond the seizure of the pistol and included the discovery and seizure of the drug-related items apparently found in the car as well as in the trunk and engine compartment. It cites Fernandez, 691 S.W.2d at 269-270, for the principle that a court should balance the need to locate criminals and protect the police officers against the invasion of the individual, considering the nature and quality of the intrusion. It also cites State v. Lanear, 805 S.W.2d 713, 716 (Mo.App. W.D. 1991), for the proposition that the Terry stop principle has been "extended to the search of the interior of the vehicle 'if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.'"

The State acknowledges that the trial court apparently believed that Defendant had complied with Deputy Cumins' direction to get out of the car before the search of the rest of the car during which the items in dispute were discovered. As indicated earlier, we defer to the trial court's determination of credibility. The fact that Defendant was out of the car does not alone, however, prevent the officers from proceeding with the search authorized by the Terry stop. In U.S. v. Gleason, 25 F.3d 605, 608 (8th Cir. 1994), cert. denied, 513 U.S. 911, 115 S.Ct. 283, 130 L.Ed.2d 199 (1994), the court said that the limited search of an automobile's interior authorized by Terry is "permissible even when the occupant has been removed from the automobile to deny the occupant further access to his weapons." The Gleason court described the area of the search authorized pursuant to an investigative stop to be that of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden. Id.

Deputy Cumins had stopped Defendant because of a report that...

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    ...articulable facts that criminal activity is afoot. State v. Martin, 79 S.W.3d 912, 916 (Mo.App. E.D. 2002); see also State v. Wells, 33 S.W.3d 202, 206-07 (Mo.App. S.D.2000) ("Terry stands for the proposition that an investigative detention, while a seizure, is authorized where specific and......
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