State v. Wykert

• Decision Date: 18 January 2022
• Docket Number: WD 84272
• Citation: 639 S.W.3d 547
• Parties: STATE of Missouri, Respondent, v. Kenneth L. WYKERT, Appellant.
• Court: Missouri Court of Appeals

639 S.W.3d 547

STATE of Missouri, Respondent,

v.Kenneth L. WYKERT, Appellant.

WD 84272

Missouri Court of Appeals, Western District.

OPINION FILED: January 18, 2022

Nathan Jeremy Aquino, Jefferson City, MO, for respondent.

Christian Lehmberg, Columbia, MO, for appellant.

Before Division Three: Lisa White Hardwick, Presiding Judge, Gary D. Witt, Judge and Edward R. Ardini, Jr., Judge

Gary D. Witt, Judge

Kenneth Wykert ("Wykert") was charged with felony possession of a controlled substance, section 579.015¹ , and misdemeanor unlawful possession of drug paraphernalia, section 579.074. Following a bench trial, the Circuit Court of Clinton County ("trial court") found Wykert guilty on both counts and sentenced him as a persistent offender to ten years’ imprisonment on the felony offense and to a fine on the misdemeanor offense. Prior to trial, Wykert filed a motion to suppress, and the parties stipulated it could be taken with the case and ruled on after the trial court heard the evidence at the bench trial. On appeal, Wykert argues: (1) the trial court erred in admitting at trial statements and evidence obtained during the pat-down of Wykert because Officer Ward ("Officer Ward") lacked consent or reasonable suspicion to pat-down Wykert; and (2) the trial court erred in admitting statements and evidence obtained following Wykert's interview with Officer Ward in his patrol car because Wykert was subjected to custodial interrogation without first being warned of his Miranda² rights. Finding no error, we affirm.

Factual Background³

Officer Ward was dispatched to 506 South Chestnut in Clinton County, Missouri as part of an effort to locate a missing person, L.D. Officer Ward went to the location to speak to Wykert and gather information that could be useful in the search effort. When Officer Ward arrived, he found Wykert in the parking lot with his hands and pockets full of various items. Wykert was speaking with L.D.’s mother and grandmother in the parking lot, and Officer Ward observed that they were visibly upset with Wykert. Officer Ward asked Wykert if he would be willing to speak with him about L.D., and Wykert agreed. To separate Wykert from L.D.’s mother and grandmother, Officer Ward asked Wykert if he would like to speak in Officer Ward's patrol car instead of the parking lot, and Wykert agreed. Before getting into the patrol car, Officer Ward asked Wykert if he could pat him down to ensure he did not have any weapons on him because Wykert had his hands full of items and was wearing cargo shorts with bulky items in the pockets. Wykert agreed that Officer Ward could pat him down. During the pat-down, Officer Ward placed his hand over the left pocket of Wykert's cargo shorts and felt a bulge in his pocket that Officer Ward believed could be a gun in a holster. Officer Ward asked Wykert if he had a gun in his pocket. Wykert reached his hand toward the pocket and "wrenched" his hand into the pocket. Officer Ward grabbed Wykert's wrist and removed it from the pocket, which exposed a digital scale and a black zipper bag located in the pocket. Officer Ward did not confiscate the items or ask Wykert about them at the time.

Officer Ward and Wykert then sat in Officer Ward's patrol car to discuss L.D.’s possible whereabouts. Wykert entered the car willingly and sat in the front seat next to Officer Ward. The vehicle remained unlocked as they spoke. By this point, another officer, Officer White, had arrived at the scene and was conversing with L.D.’s family members in the parking lot. During the conversation in the patrol vehicle, Officer Ward asked Wykert about the scale he saw in his pocket. Wykert initially responded by saying the scale was used to measure jewelry or coins, but Officer Ward indicated he did not believe Wykert. Officer Ward asked Wykert if he had any drugs on him. Wykert acknowledged he "had a quarter gram of meth." Officer Ward asked Wykert to hand it to him, and Wykert pulled out a zippered bag from his pocket and handed it to Officer Ward. The zippered bag contained a broken pipe and clear plastic baggies containing a substance resembling methamphetamine. Officer Ward confiscated the items and later transported them to Missouri State Highway Patrol lab for analysis, which revealed the substance in the baggies to be methamphetamine.

A short time later, Deputy Patterson of Dekalb County arrived and continued questioning Wykert about L.D. in the parking lot of the residence. Officer Ward then arrested Wykert for the controlled substances and transported him to the Cameron Police Department for further questioning. In the interview room, Officer Ward read Wykert his Miranda rights and spoke to Wykert about L.D. and the confiscated items from Wykert's pocket. Wykert again admitted to having possessed methamphetamine and smoking it earlier that day.

The trial court overruled the motion to suppress and found Wykert guilty of one count of felony possession of a controlled substance and one misdemeanor count of unlawful possession of drug paraphernalia. Wykert was sentenced as a prior and persistent offender to ten years’ imprisonment on the felony offense, and a fine was assessed on the misdemeanor offense. This appeal follows.

Wykert raises two points on appeal. Point I alleges error in the admission of all statements and evidence obtained as a result of the pat-down search as lacking consent or articulable suspicion. Point II alleges error in the admission of all statements and evidence obtained following the interview in the patrol car as a custodial interrogation without proper Miranda warnings.

Discussion

Standard of Review

Appellate courts review the trial court's ruling on a motion to suppress in the light most favorable to the trial court's ruling and defer to the trial court's determinations of credibility. State v. Schroeder , 330 S.W.3d 468, 472 (Mo. banc 2011). Review is limited to determining if the ruling is supported by substantial evidence. Id. Analysis of whether law enforcement conduct violates the Fourth Amendment is a legal issue that is reviewed de novo. Id.

"In reviewing the trial court's denial of a motion to suppress, we consider the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling."

State v. Woodrome , 407 S.W.3d 702, 706 (Mo. App. W.D. 2013). "The facts and inferences therefrom are reviewed in the light most favorable to the trial court's ruling, and all contrary inferences are disregarded." Id. "Our review is limited to a determination of whether there was sufficient evidence to support the trial court's findings." Id. "We defer to the trial court's superior opportunity to judge the credibility of the witnesses at the suppression motion hearing." Id.

Point One; Pat-down search

Wykert argues the trial court's ruling to admit evidence obtained as a result of Wykert's pat-down search was error because Officer Ward did not have consent or reasonable articulable suspicion to pat-down Wykert, and all evidence obtained therefrom was fruit of the poisonous tree. "The Fourth Amendment of the United States Constitution protects individuals’ right to be free from ‘unreasonable searches and seizures.’ " State v. Ledbetter , 599 S.W.3d 540, 544 (Mo. App. W.D. 2020) (quoting U.S. Const. amend. IV ). The protections of the Fourth Amendment have been extended via the Fourteenth Amendment to defendants in state court prosecutions. Id. "There are three categories of police-citizen encounters: (1) an arrest requiring probable cause, (2) an investigative detention requiring only reasonable suspicion based upon specific articulable facts, and (3) a consensual encounter." State v. Johnson , 427 S.W.3d 867, 872 (Mo. App. E.D. 2014).

"A consensual encounter does not implicate the Fourth Amendment until the officer restrains the individual's liberty to the extent that a reasonable person would feel that he or she was not free to leave or decline the officer's questions." Id. "If the encounter is consensual, police officers have liberty to question individuals, even without reasonable suspicion." Id. (internal quotations omitted). "For consent to be valid it must be freely and voluntarily given by a person with the authority to consent and the search must not exceed the scope of the consent given." State v. Leavitt , 993 S.W.2d 557, 563 (Mo. App. W.D. 1999). "Consent is freely and voluntarily given if, considering the totality of the circumstances, the objective observer would conclude that the person giving consent made a free and unconstrained choice to do so." Id.

As to Wykert's consent to the pat-down, Wykert does not suggest that the evidence showed a lack of consent to the search. Rather, Wykert argues "the facts do not support the credibility of [Officer Ward's] testimony[.]" Wykert argues, "[a]lthough the appellate court should generally defer to credibility findings of the trial court, credibility findings are ‘never conclusive, however,’ and they are still subject to the clearly erroneous standard." App. Br. 12 (citing United States v. U.S. Gypsum Co. , 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ). To support the contention the trial court clearly erred in finding Officer Ward credible, Wykert argues: (1) his own testimony that he did not consent to the search contradicted Officer Ward's testimony; (2) Wykert's hands being full of items would have prevented him from "wrenching" his own hand in his pocket to reveal the scale and pipe; and (3) if it were true Wykert had prior experience with law enforcement as the trial court found, Wykert would have known not to consent to a search that would have yielded incriminating evidence.

Wykert's arguments fail. As an initial matter, Wykert relies almost exclusively on evidence viewed contrary to our standard of review. On appeal, facts and inferences are reviewed in the light most favorable to the trial court's ruling, and all contrary inferences...