State v. Woolfolk

• Decision Date: 17 August 1999
• Parties: (Mo.App. W.D. 1999) State of Misouri, Respondent, v. Carl A. Woolfolk, Appellant. WD55803 0
• Court: Missouri Court of Appeals

3 S.W.3d 823 (Mo.App. W.D. 1999)

Missouri Court of Appeals Western District

State of Misouri, Respondent, v. Carl A. Woolfolk, Appellant.

WD55803

08/17/99

Appeal From: Circuit Court of Boone County, Hon. Sanford Francis Conley, IV

Counsel for Appellant: Earl F. Seitz

Counsel for Respondent: Philip M. Koppe

Opinion Summary: Defendant Carl Allan Woolfolk appeals his conviction of possession of a controlled substance, in violation of section 195.202 RSMo. 1994, for which he was sentenced to three years imprisonment. Execution of sentence was suspended, and Mr. Woolfolk was placed on five years supervised probation. On appeal, Mr. Woolfolk asserts error in denial of his motion to suppress marijuana seized subsequent to a routine traffic stop.

Division One holds: 1. The marijuana was seized in violation of the Fourth Amendment. The Fourth Amendment to the United States Constitution guarantees the right of all citizens to be free from unreasonable searches and seizures, and evidence obtained in violation of the Fourth Amendment is tainted and inadmissible. Here, the police seized marijuana from Mr. Woolfolk following a routine traffic stop and introduced the marijuana at trial on charges of possession of a controlled substance. The record shows there was no reasonable suspicion or other basis to support the search and seizure of the marijuana. Although the police may detain a person for a routine traffic stop, they may not detain an individual for more time than necessary for the officer to conduct a reasonable investigation of the traffic violation. Once an officer has taken steps to complete the traffic investigation, the officer must allow the driver to proceed without further questioning unless specific, articulable facts create an objectively reasonable suspicion that the individual is involved in criminal activity. Such facts did not exist here at the time the traffic stop was completed. The only facts cited by the officer in arousing his suspicion during the traffic stop were Mr. Woolfolk's nervousness and the presence of a Kentucky Fried Chicken bag in an otherwise clean car. This was insufficient to create a reasonable suspicion.

2. The officer claims that after the traffic investigation was complete, he simply engaged in voluntary conversation with Mr. Woolfolk that revealed suspicious activity creating a reasonable suspicion. However, the officer struck up a conversation with Mr. Woolfolk asking whether he had ever been arrested. This is not a topic most drivers voluntarily talk to police about. And, if the conversation was truly voluntary, then Mr. Woolfolk had no legal obligation to reveal his prior arrest on marijuana charges, later dismissed, and his failure to do so thus failed to provide the previously lacking basis for reasonable suspicion.

3. Mr. Woolfolk did not voluntarily consent to the search of his car. The officer told Mr. Woolfolk he could either allow him to search the car or he could wait for the canine unit to search. While an officer does not have an obligation to affirmatively tell a driver he is free to go, where, as here, he tells the driver that his only two options are to allow a search or to wait for a canine unit, he has effectively told the driver he is not free to go. As a result, a reasonable person in Mr. Woolfolk's position would not have felt free to leave. For these reasons, Mr. Woolfolk's consent to search his car was merely a submission to lawful authority and, as such, could not support the search in the absence of a basis for reasonable suspicion. Therefore the court should have granted the motion to suppress and should not have considered the evidence seized during the search. In the absence of the seized evidence, there was insufficient evidence to support the conviction.

Lowenstein and Smart, Jr., JJ., concur.

Laura Denvir Stith, Presiding

Defendant Carl Allan Woolfolk appeals his conviction of Possession of a Controlled Substance, in violation of section 195.202 RSMo 1994, for which he was sentenced to three years imprisonment in the Missouri Department of Corrections. Execution of sentence was suspended, and Mr. Woolfolk was placed on five years supervised probation. On appeal, Mr. Woolfolk asserts error in denial of his motion to suppress the marijuana because: 1) the circumstances surrounding the traffic stop did not give rise to specific, articulable facts creating a reasonable suspicion that Defendant was engaged in criminal activity; 2) the trooper's questioning of Mr. Woolfolk subsequent to the completion of the traffic stop constituted an unreasonable seizure of Mr. Woolfolk in violation of his Fourth Amendment rights; and 3) Mr. Woolfolk did not voluntarily consent to the search.

Because we find that the officer did not have reasonable suspicion to detain Mr. Woolfolk once the traffic stop was complete, and that Mr. Woolfolk was not free to leave thereafter but rather was in custody, we find that the trial court erred in denying the motion to suppress and in considering the evidence obtained in the unlawful search. Without this evidence, there was insufficient evidence to sustain the conviction. Accordingly, we reverse the conviction.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to the testimony at the hearing on the motion to suppress and at trial, at about 4:20 p.m. on August 10, 1997, Trooper Russell F. Morlando was conducting routine traffic duties on southbound U.S. Highway 63 north of Ashland, Missouri, when he observed a Corvette with its top down approaching him from behind in the passing lane. The Corvette slowed down and pulled in behind the vehicle directly behind Trooper Morlando. Trooper Morlando pulled over onto the right shoulder of the highway and allowed the cars to pass him. As they passed, he noticed that the reverse lights on the Corvette were illuminated while it was moving forward, in violation of statute. Trooper Morlando pulled back onto the highway behind the Corvette and pulled it over.

Mr. Woolfolk's demeanor was typical upon Trooper Morlando's approach to the vehicle -- he was nervous, but not excessively so. Trooper Morlando informed Mr. Woolfolk of the problem, and stepped to the rear of Mr. Woolfolk's vehicle to see whether the backup lights were still on. They were, but once Mr. Woolfolk manipulated the gear selector lever the reverse lights went off, correcting the problem. The trooper informed Mr. Woolfolk that he would only get a warning. Mr. Woolfolk still seemed apprehensive, but not unusually so.

Trooper Morlando then requested Mr. Woolfolk's driver's license, and proof of insurance or registration. Mr. Woolfolk provided him with the appropriate documents, and the trooper returned to his patrol car to make inquiries regarding Mr. Woolfolk's driving status, warrants, and criminal history. The check confirmed that Mr. Woolfolk's driver's license was valid and that he had no outstanding warrants. The check also reported that Mr. Woolfolk had a lengthy traffic record and one prior criminal arrest involving possession and transportation of marijuana. The check did not report whether or not Mr. Woolfolk was convicted of those charges; in fact, he had not been convicted. Trooper Morlando later testified that, while he was in his squad car making the checks and filling out the required paperwork, Mr. Woolfolk seemed concerned about him, and his nervousness did not diminish during the course of the traffic stop.

Trooper Morlando again approached Mr. Woolfolk's vehicle, and advised him that he would only be issued a warning, and returned his driver's license and other paperwork. He asked Mr. Woolfolk whether he had any further questions, and Mr. Woolfolk said no. At that point, the traffic stop was complete. Nonetheless, Trooper Morlando went on to ask Mr. Woolfolk whether he had ever been arrested before. Mr. Woolfolk replied that he had only been stopped for traffic and "that sort of thing." When Trooper Morlando asked whether he was sure, Mr. Woolfolk replied that he received an excessive blood alcohol conviction but nothing else. When the trooper again asked whether he was sure, Mr. Woolfolk replied, "No, just traffic."

Because the top to the Corvette was down, Trooper Morlando was able to see clearly into the interior of the vehicle. It was clean, except for a crumpled Kentucky Fried Chicken bag. According to the trooper, the fact that Mr. Woolfolk was still nervous when asked about prior arrests, even though he had received only a warning, coupled with the presence of a crumpled Kentucky Fried Chicken bag on the seat, aroused the trooper's suspicions, so he asked Mr. Woolfolk whether he had anything illegal in his car. Mr. Woolfolk responded that he did not have any weapons in the vehicle. When the trooper asked whether he had any drugs in the car, Mr. Woolfolk "shifted in his seat" but said no. At that point, Trooper Morlando requested Mr. Woolfolk's permission to search his car. Mr. Woolfolk did not consent, stating that he did not want the trooper to "take [his] car apart." Trooper Morlando advised Mr. Woolfolk that he only wanted to search the car and asked him to exit the vehicle so he could explain the situation further.

Once Mr. Woolfolk got out of his car, Trooper Morlando then told him that if he did not consent to a search of the vehicle, that the trooper would "have [Defendant] remain at the scene and [the trooper] would contact the canine unit to come search the vehicle." He positioned Mr. Woolfolk between the two vehicles, and, with Mr. Woolfolk's back against his car, the trooper again requested permission to search the vehicle. Mr. Woolfolk asked whether he should call his attorney, and Trooper Morlando stated that he was free to call an attorney at any time. Mr. Woolfolk repeatedly asserted that he did not want Trooper Morlando taking his car apart, and the trooper repeatedly stated that he just wanted to search it. After several minutes of repeated requests and refusals or...