State v. West

• Decision Date: 17 April 2018
• Docket Number: WD 80879
• Citation: 548 S.W.3d 406
• Parties: STATE of Missouri, Appellant, v. Anthony WEST, Respondent.
• Court: Missouri Court of Appeals

548 S.W.3d 406

STATE of Missouri, Appellant,

v.Anthony WEST, Respondent.

WD 80879

Missouri Court of Appeals, Western District.

OPINION FILED: April 17, 2018

Gregory L. Barnes, Jefferson City, MO, for appellant.

John W. Rogers and Andrew D. Popplewell, Columbia, MO, for respondent.

Before Division Four: Mark D. Pfeiffer, Chief Judge, Presiding, Cynthia L. Martin, Judge and James E. Welsh, Senior Judge¹

Cynthia L. Martin, Judge

The State appeals from the trial court's interlocutory order granting Anthony West's ("West") motion to suppress all evidence collected from or as a result of the warrantless search and seizure of a semi-truck's electronic control module ("ECM"). The State asserts that the trial court clearly erred in granting West's motion to suppress because there was no evidence that West had a subjective expectation of privacy in the ECM to afford him standing to assert a violation of the Fourth Amendment; a warrant was not required because the automobile exception applied; a warrant was not required because exigent circumstances were present; downloading data from the ECM was neither a search nor a seizure because the data collected was merely a proxy for data which was visible to the public; a warrant was not required under the highly regulated industry exception; and a warrant was not required because there was probable cause to believe the semi-truck was an instrumentality of a crime. We affirm.

Factual and Procedural Background²

The State charged West with one count of involuntary manslaughter in the first degree in violation of section 565.024.³ The State alleged that, on July 1, 2015, West was driving a semi-truck owned by his employer on Interstate 70 in Boone County when he recklessly failed to yield to stopped traffic and collided with a pickup truck operated by Mary Haile, causing her death.⁴

West filed a motion to suppress ("Motion to Suppress") "all evidence collected in this case, either directly, or as a result of the collection of initial evidence and data, from the warrantless search and seizure of the defendant's vehicle's Electronic Control Module and/or Electronic Control Unit ... data." West's motion argued that West was in lawful possession of the semi-truck (though he did not own same), and thus had a reasonable expectation of privacy in the truck affording him standing to challenge a warrantless search and seizure; that he thus had a reasonable expectation of privacy in the data stored in the ECM requiring a warrant to search and seize the data; that search and seizure of the ECM data without a warrant was analogous to the warrantless GPS search deemed to violate the Fourth Amendment in United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) ; and that no exigent circumstances supported a warrantless search and seizure of the ECM data. The State did not file a written response to West's Motion to Suppress.

At a hearing on the Motion to Suppress, two officers testified. Missouri State Highway Patrol Corporal Devin Foust ("Corporal Foust") performed the initial investigation of the accident, and arrived at the scene between 9:10 and 9:20 a.m., shortly after the accident occurred. Corporal Foust testified that he spoke with West at the scene and that West indicated that the semi-truck's brakes did not work. Approximately three hours later, Corporal Foust went to the hospital where West had been transported, and asked West to consent to a blood draw to test for evidence of impairment. West consented to the blood draw.

Corporal Foust testified during the suppression hearing that while he was at the hospital, he was contacted by Missouri State Highway Patrol Sergeant Paul Meyers ("Sergeant Meyers") who asked Corporal Foust to see if West would consent to the download of data from the ECM in the semi-truck. Corporal Foust testified that West consented to the download of the data. However, Corporal Foust's contemporaneously prepared incident report did not include any reference to West consenting to a search of the ECM data from his semi-truck. In June 2017, nearly two years after the accident, Corporal Foust wrote a supplemental report at the request of the prosecutor which indicated that West consented to a search of the semi-truck's ECM at 12:15 p.m.

Sergeant Meyers, a major crash investigator who is certified in crash data retrieval, also testified at the suppression hearing. Sergeant Meyers testified that in July 2015, the Missouri State Highway Patrol's policy was that if an accident scene has not been disrupted and remains "pristine," and if the officers had reason to believe data existed in a vehicle's ECM, the officers would seize that data in order to investigate the accident. In other words, it was "standard practice" to download ECM data if possible without a warrant. Sergeant Meyers testified that he asked Corporal Foust to obtain West's consent to search the semi-truck's ECM because, while standard practice at that time did not require consent, "it's always better to get consent."

Sergeant Meyers testified that after Corporal Foust told him that West had given consent to search the ECM, he downloaded the ECM data from the semi-truck using the Missouri State Highway Patrol's computer and software. Sergeant Meyers testified that he extracted the ECM data on July 1, 2015, at 11:18 a.m.⁵ However, Sergeant Meyers testified that he was unsure whether the time was accurate because the "computer that has the software on it is not linked to the Patrol system so it doesn't get updated regularly." Sergeant Meyers testified that he downloaded additional ECM data on July 2, 2015, when the semi-truck was at the tow facility.

Sergeant Meyers explained at the suppression hearing what an ECM is and what kind of data it collects:

The ECM is like the brain of the truck. It controls all the functions of braking, throttle, transmission. Without an ECM on a diesel—modern diesel engine, they can't run. They need that ECM to operate.

....

As a part of their function, they store data. Based off the manufacturer determines what types of reports they run.

Ideally, they are a fleet management tool. It's something—if you own ten tractor-trailers and you're operating in Colorado, you can pull up these reports and you can modify the trucks to run in the mountains more efficiently; whereas, if you have a company in Colorado, you can pull up your ten trucks' reports, look at the PowerSpec downloads. You could—it's also a tattletale on your drivers, you know, to see who is doing what, how fast they are going, and, you know, what their trip summaries look like. So it's kind of a—for a lack of a better term, a snapshot or a look at how the trucks are operating and allows you the capabilities to modify them.

Sergeant Meyers testified that the ECM is standard operating equipment for a Cummins engine, like the one in the semi-truck driven by West.

Sergeant Meyers testified that a specialized computer and software is required to access ECM data, and that as a result, the ECM data cannot be accessed by the driver. He described the process for accessing ECM data as follows:

Every diesel engine manufacturer has their own software to read the ECMs on their engines. Cummins[, the manufacturer of the engine in West's semi-truck], uses a program called Insite or PowerSpec.

[The Missouri State Highway Patrol has] a license through Cummins to use the PowerSpec software.

....

We also use a Nexiq translator box. Basically it's a go-between the ECM to the software. It allows the data to transfer over to be read by the software. In a Cummins report, it's very simple. There is a nine-pin connector underneath the dash. You plug it in, put power to the Nexiq box, plug it into the laptop, turn the ignition to the on switch. It communicates with the software, says it recognizes, I see a truck or I see an ECM, and it tells you what reports are available.

Sergeant Meyers testified that there is a risk that data on the ECM can be lost if it is not downloaded at the scene because the ECM on a Cummins engine only stores three records on a rolling basis. When Sergeant Meyers arrived on the scene at approximately 10:30 a.m., the semi-truck "still had power," but Sergeant Meyers did not know whether it would have been able to be driven down the road.

West also testified at the suppression hearing. West testified that after the accident, he went to the hospital. While there, Corporal Foust asked West for consent to search his phone and to take a blood sample. West gave consent for both. When asked if he gave consent to retrieving the ECM data, West testified as follows: "I never heard nothing [sic] about ECM until the other day when you contacted me and told me that we had to come to court for this. I don't know nothing about ECM."

Following the presentation of evidence, the trial court consulted with counsel for the State and West to clarify the issues it needed to determine to rule on the Motion to Suppress. First, the State asserted that West failed to meet his burden to establish that he had standing to challenge the search and seizure of the ECM and its data because West did not have an expectation of privacy in the data collected by the ECM. West responded that he had standing to assert a Fourth Amendment violation because he had a reasonable expectation of privacy in the semi-truck as a permissive, lawful user of the semi-truck, which extended to the ECM recorder located in the truck. West also responded that, even if his expectation of privacy in the semi-truck did not extend to the ECM, he independently had a reasonable expectation of privacy in data stored in the ECM regarding his operation of the semi-truck. West added that the United States Supreme Court decision in United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), which involved a GPS device attached without a warrant, analogously applied to require suppression. Second, the State argued that, if West did have standing to assert a Fourth Amendment...