State v. Witte, 22862

• Decision Date: 31 January 2001
• Docket Number: No. 22862,22862
• Citation: 37 S.W.3d 378
• Parties: (Mo.App. S.D. 2001) State of Missouri, Plaintiff/Respondent v. Justin E. Witte, Defendant/Appellant. 0
• Court: Missouri Court of Appeals

37 S.W.3d 378 (Mo.App. S.D. 2001)

State of Missouri, Plaintiff/Respondent v. Justin E. Witte, Defendant/Appellant.

No. 22862

Missouri Court of Appeals Southern District

01/31/2001

Appeal From: Circuit Court of Laclede County, Hon. James A. Franklin, Jr.

Counsel for Appellant: Ellen H. Flottman

Counsel for Respondent: Adriane D. Crouse

Opinion Summary: None

Barney, C.J., and Darnold, S.J., concur.

Phillip R. Garrison, Judge

Justin E. Witte ("Defendant") was convicted by a jury of armed criminal action, Section 571.015, RSMo 1994, and robbery in the first degree, Section 569.020, RSMo 1994. He was sentenced as a prior and persistent offender to thirty years on the robbery charge and fifteen years on the armed criminal action charge, with the sentences to be served consecutively. On this appeal, he contends that the trial court erred in overruling his motion to suppress evidence found in a search of his truck following his arrest. He also contends that the trial court erred in not granting his request for a mistrial when a witness made reference to his "past." We affirm.

In August 1996, Defendant was living with his girlfriend, Cindy Kennedy ("Cindy") in Lebanon, Missouri. They had been having financial problems as a result of his having been laid off and her not being employed. On August 8, 1996, they cashed his unemployment check at the Citizen's Bank of the Ozarks in Greenview, Missouri.

The next day, August 9, 1996, Defendant told Cindy that he was going for a ride, and drove off in his pickup with his motorcycle in the back, covered with a blue tarp. Cindy then called Greg Sellers ("Sellers"), an undercover narcotics officer with whom she had worked as an informant. During the conversation, she told him about Defendant leaving with his motorcycle covered in the back of his truck, and the fact that he would not have been taking it for repairs because they had recently been riding it. She made the statement, "I hope he's not going to rob a bank." When Sellers asked her why she would say that, she said that they had been having financial problems. She also said that she did not know if Defendant was going to rob a bank, but said that it was weird that he would lay the motorcycle down in the back of the truck and cover it up. Sellers was familiar with Defendant's motorcycle, describing it as a "bright color like an orange" Honda, and also knew that Defendant had previously been convicted of bank robbery during which he used a motorcycle. Sellers reported his conversation with Cindy to his supervisor who, in turn, contacted the Lebanon, Missouri police department and told them that there might be a bank robbery in the area.

Later that morning, a person wearing a motorcycle helmet with goggles and a mouth guard, what appeared to be a dark ski mask, dark jeans, a dark T-shirt covered with a plaid flannel shirt or jacket, and dark lace-up boots robbed the Citizen's Bank of the Ozarks in Greenview. The person left the scene on a bright red-orange motorcycle with no license plate on it.

Sellers was told of the robbery by a person who heard it on a police scanner. He then contacted the sheriff's office and told them of his conversation with Cindy, and gave them a description of Defendant's truck and motorcycle. He also later showed a deputy where Cindy and Defendant lived. Officers arrested Defendant when he returned to his home driving his pickup. A subsequent search of the truck produced an Illinois motorcycle license plate lying on the floorboard along with a wrench, screwdrivers, and nuts and bolts.¹ Also discovered in the search was a duffle bag containing a pair of dark colored jeans and a dark T-shirt. A pair of black boots was later retrieved from a locker at the jail where Defendant's personal items were placed following his arrest.

Several months after the robbery, Steve Dredge reported finding a motorcycle, helmet, gloves, goggles, a plaid winter shirt, a ski mask, and a brown leather holster with 12 rounds of .357 magnum ammunition in a field behind his house near Greenview. The items found on Mr. Dredge's property and in Defendant's truck were later identified by witnesses as being similar to those worn or used by the person who robbed the bank. The Missouri State Water Patrol later recovered a .357 magnum revolver from a pond on Mr. Dredge's property near where the motorcycle and other items were discovered. The gun and holster were identified by Defendant's landlord as items that were stolen from him in early August before the robbery. Cindy identified the motorcycle, helmet and goggles found at Mr. Dredge's as belonging to Defendant.

Prior to trial, Defendant filed a motion to suppress the items of evidence found in Defendant's truck, which he described as a duffel bag containing a black T-shirt and black pants, a blue tarp, Illinois motorcycle license plates, assorted nuts and bolts, a wrench, a Phillips screwdriver, and a standard screwdriver. One of the grounds for the motion to suppress was that the search of the truck was not incident to a lawful arrest. At the hearing on the motion to suppress, evidence was presented about the conversation between Sellers and Cindy on the morning of the robbery, including the fact that Cindy had said they were having financial problems, it was weird that Defendant had loaded his motorcycle in the truck and covered it with a tarp before leaving, and that she hoped he was not going to rob a bank. Sellers also testified at that hearing about his familiarity with Defendant's motorcycle as well as his knowledge that Defendant had previously used a motorcycle to rob a bank. As indicated earlier, Sellers reported this information to his superior, who in turn reported it to the Lebanon police.

The evidence at the hearing also revealed that when Sellers heard of the bank robbery and called the sheriff's office, he was told that they were looking for a man on a motorcycle that had robbed the bank in Greenview. Sellers went to the area of Defendant's home and talked with some of the officers before Defendant appeared and was arrested. He told at least one of the officers who was involved in the subsequent arrest that Defendant had left home that morning with his motorcycle in the back of his pickup covered with a tarp, and that he had been involved in a previous bank robbery involving a motorcycle. The trial court overruled the motion to suppress and the evidence eventually seized from the truck was introduced in evidence at trial.

Defendant's first point on appeal is:

The trial court erred in overruling defense counsel's motion to suppress the evidence found in [Defendant's] truck and in admitting that evidence at trial over defense counsel's objections, because these rulings violated [Defendant's] rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10, 15 and 18(a) of the Missouri Constitution, in that there was no probable cause to arrest [Defendant] based only on [Defendant's] previously having robbed a bank on a motorcycle, the fact that this robbery was committed by someone on a motorcycle, and [Defendant's] girlfriend's joking remark that "maybe he's going to go rob a bank." Neither the initial search of the truck nor the subsequent inventory search of the truck would have occurred but for the illegal arrest of [Defendant] and the items found in the truck were incriminating, therefore, [Defendant] was prejudiced by the trial court's error.

The trial court's ruling will be affirmed if sufficient evidence exists in the record to support its finding. State v. Thompson, 826 S.W.2d 17, 19 (Mo.App. W.D. 1992), cert. denied, 506 U.S. 884, 113 S.Ct. 242, 121 L.Ed.2d 176 (1992). On review, we consider the facts and the reasonable inferences from those facts in the light most favorable to the trial court's ruling. State v. Rodriguez, 877 S.W.2d 106, 110 (Mo. banc 1994).

Defendant attacks the search of his truck based on the lack of probable cause to make the arrest. He explains that "[t]he search of the truck was based solely on the illegal arrest of [Defendant], which was based on insufficient probable cause to support the arrest." Therefore, to determine whether the trial court properly overruled the motion to suppress, we must determine whether the arrest was made with probable cause, since the arrest was made without a warrant. In support of this point, Defendant cites Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145 (1964), for the proposition that the constitutionality of an arrest "depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it -- whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." There is no precise test to determine whether probable cause to arrest existed, but rather, it is based on the particular facts and circumstances of the individual case. State v. Clayton, 995 S.W.2d 468, 477 (Mo.banc 1999), cert. denied, 528 U.S. 1027, 120 S.Ct. 543, 145 L.Ed.2d 421 (1999). Probable cause is determined by the collective knowledge and facts available to all of the officers participating in the arrest; the arresting officer does not need to possess all of the available information. Id. The practical considerations of everyday life on which a reasonably prudent person acts, not the hindsight of legal technicians, governs the probable cause determination. State v. Stokes, 710 S.W.2d 424, 426 (Mo.App. E.D. 1986). Defendant correctly points out, however, that the requirement of probable cause can never be satisfied with a bare suspicion of guilt. See State v. Hicks, 515 S.W.2d 518, 521 (Mo. 1974).

Defendant relies on Hicks, in arguing that probable cause did not exist to support his arrest. In that case, the Missouri...