State v. Wood, No. 27372 (Mo. App. 4/4/2007)
| Decision Date | 04 April 2007 |
| Docket Number | No. 27372,27372 |
| Parties | State of Missouri, Plaintiff/Respondent v. Larry E. Wood, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
Appeal From the Circuit Court of Greene County, Hon. Thomas E. Mountjoy.
Kent Denzel, Counsel for Appellant.
Victor Joseph Melenbrink, Counsel for Respondent.
Before: Barney, J. and Lynch, J.
After a bench trial, Larry E. Wood (Defendant) was convicted of the class C felony of possessing a controlled substance in violation of Section 195.202 and sentenced to seven years imprisonment.1 Defendant was found guilty of possessing methamphetamine, which is a class II controlled substance. Section 195.017.4(3)(b). On appeal, Defendant claims the trial court erred in denying a motion to suppress and in admitting evidence that police found a pipe and seven baggies of methamphetamine during a warrantless search of Defendant's person. Defendant contends this evidence should have been excluded as the poisonous fruit of an illegal seizure and search. The trial court decided that Defendant freely consented to the search during a consensual encounter with police. Because the trial court's decision is not clearly erroneous, we affirm.
At a suppression hearing, "[t]he burden of going forward with the evidence and the risk of nonpersuasion shall be upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled." Section 542.296.6; State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992). Therefore, the State bore the burden of production and burden of persuasion to show that the warrantless search of Defendant was valid. State v. Hampton, 959 S.W.2d 444, 450 (Mo. banc 1997).
On appeal, our inquiry is limited to determining whether the trial court's decision to deny the motion to suppress is supported by substantial evidence. State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). "In reviewing the trial court's ruling on the matter, this Court considers the record made at the suppression hearing as well as the evidence introduced at trial." State v. Deck, 994 S.W.2d 527, 534 (Mo. banc 1999). The complete record before the trial court is viewed in a light most favorable to the ruling on the motion to suppress. State v. Jackson, 186 S.W.3d 873, 879 (Mo. App. 2006). Therefore, we consider only those facts, as well as the reasonable inferences derived therefrom, that are favorable to the ruling. State v. Galazin, 58 S.W.3d 500, 507 (Mo. banc 2001). We disregard all contrary evidence and inferences. State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998).
We will not reverse the trial court's ruling unless the decision is clearly erroneous, leaving this Court with a definite and firm impression that a mistake has been made. State v. Williams, 97 S.W.3d 462, 469 (Mo. banc 2003);State v. Newberry, 157 S.W.3d 387, 397-98 (Mo. App. 2005). We review issues of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). We give deference, however, to the trial court's factual findings and credibility determinations. Id. For this reason, "[t]he trial court may not be reversed if its decision is plausible, even if we are convinced that we would have weighed the evidence differently if sitting as the trier of fact." State v. Davalos, 128 S.W.3d 143, 147 (Mo. App. 2004). The evidence and inferences contained in the complete trial record, viewed in the light most favorable to the trial court's ruling on the motion to suppress, are summarized below.
On the night of July 27, 2003, Springfield police officer Harold Millirons (Millirons) was on patrol in the northeast part of the city. This was Millirons' assigned patrol area, and a large amount of drug activity took place there. At approximately 9:55 p.m., Millirons received a call on his radio concerning a vehicle that had failed to stop for another officer attempting to initiate a traffic stop. Millirons responded to the call so he could serve as backup.
At 10:00 p.m., Millirons arrived at a used car lot located at 928 E. Kearney. The pursued vehicle was stopped on the lot. Fellow Springfield police officer Gordon (Gordon) was standing beside the driver's side window of the stopped vehicle, talking to the driver. In addition to Millirons, two other officers had arrived at the car lot to assist Gordon. The car lot was closed, and the lights were off. Defendant was sitting on the front steps of the lot's business office. He was looking at Gordon, who was about 10 to 20 feet away. Millirons became concerned that Defendant had been a passenger in the stopped vehicle whom Gordon had not seen or that Defendant might pose a threat to the safety of the officers on the scene.
Millirons walked over so he could ask Defendant who he was and why he was sitting in the parking lot of a closed business. None of the other officers were involved in the encounter. As Millirons approached, he observed that Defendant was wearing a t-shirt and sweat pants with the legs pulled up to his knees, so that he appeared to be wearing shorts. Defendant was very nervous, very fidgety, "animated," sweating profusely and moving his hands around. Based on Millirons' experience, Defendant's behavior was consistent with methamphetamine use.
Millirons asked Defendant for his identification. He had none, but he did voluntarily provide his name, date of birth and social security number. When Millirons asked what Defendant was doing at the lot, he responded that he was a part-time mechanic there. He was waiting for his boss, who was the driver of the vehicle that had been stopped. Millirons was concerned about his own safety, so he asked Defendant if he had any weapons or drugs on him. At that point, Defendant was not in custody. Millirons' gun was holstered, and he was not threatening or coercing Defendant in any way. Defendant said he had no weapons or drugs. Millirons then asked, "Would you mind if I search you for weapons or drugs?" Defendant answered by saying, "Sure."2
At Millirons' request, Defendant stood up. When Millirons initiated the search Defendant did not pull away or look confused. Moreover, Defendant did not verbally protest that he had not given consent or tell Millirons to halt the search. Instead, Defendant was "totally cooperative" the whole time. There was nothing about Defendant's statements, body language or demeanor which suggested to Millirons that Defendant "didn't want to be searched."
Millirons began searching Defendant's left pant leg and felt a couple of objects. Defendant said it was a package of cigarettes and a lighter. He voluntarily removed these items from his pants, handed them to Millirons and said, "that was it." When Millirons felt Defendant's right pant leg, though, the officer felt a small, hollow metal pipe. From past experience, Millirons immediately recognized the pipe as drug paraphernalia. When Millirons asked Defendant what it was, he said he didn't know. Defendant was placed in handcuffs so Millirons could safely retrieve the item. He removed the pipe and a wallet from Defendant's pants. Upon examination of the pipe, Millirons observed that it was blackened and had a little bit of powdery residue on it. Millirons asked what was in the wallet because, in his experience, people sometimes kept controlled substances in such an item. Defendant said, "I guess you should open it and find out." Millirons did so and found seven individually wrapped packages of a tan powder that looked like methamphetamine.3 Defendant was arrested for possession of a controlled substance.
In August 2004, Defendant was charged by felony information with committing the class B felony of possession of a controlled substance with intent to distribute in violation of Section 195.211. Subsequently, Defendant filed separate motions to suppress the pipe and methamphetamine that were seized by Millirons, as well as the statements Defendant made to the police, based on the Fourth and Fourteenth Amendments to the United States Constitution and art. I, Section 10 and Section 15 of the Missouri Constitution. Defendant contended the aforementioned evidence should be suppressed, pursuant to these constitutional provisions, because Millirons did not have reasonable suspicion to question him and Defendant did not voluntarily consent to the search.
In January 2005, the trial court conducted a hearing on the motions to suppress and received testimony on these issues from both Millirons and Defendant. After considering the evidence, the court concluded that: (1) the encounter between Millirons and Defendant was consensual; (2) Defendant freely consented to the search; and (3) "[i]f there was some miscommunication, the Court has not heard any evidence that there was any protest or any attempt to clarify that by Defendant."
After Defendant waived his right to a jury, a bench trial was conducted. The constitutional issues raised in the motions to suppress were properly preserved for review via appropriate evidentiary objections at trial. Defendant was acquitted of possession of methamphetamine with intent to deliver in violation of Section 195.211. The class C felony of possession of methamphetamine in violation of Section 195.202, however, is a lesser-included offense of the principal charge. See State v. Neher, 213 S.W.3d 44, 48 (Mo. banc 2007). The trial court convicted Defendant of the lesser offense, and this appeal followed.
In Defendant's sole point on appeal, he claims the trial court erred in denying his motions to suppress and admitting in evidence the pipe, the methamphetamine and Millirons' testimony concerning how he discovered these items. Defendant contends this evidence was the fruit of an illegal seizure and search for two reasons. First, Defendant argues that Millirons seized Defendant by questioning him without telling him he was free to leave and that the officer did not...
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