Opinion
No. 25205
December 4, 2003
Appeal from the Circuit Court of Wayne County Honorable William C. Seay, Circuit Judge.
Reversed; Defendant Ordered Discharged.
John M. Albright, Stephen E. Walsh, Appellant's attorney.
Jeremiah W. (Jay) Nixon, Andrea Mazza, Follett, Respondent's attorney.
Randy T. Barks (defendant) was convicted, following a jury trial, of the class C felony of possession of methamphetamine, a controlled substance. § 195.202, RSMo 1994. This court reverses and orders defendant discharged.
Defendant was also tried for the class D felony of unlawful use of a weapon, for which he was found not guilty. § 571.030.1(1), RSMo Cum. Supp. 1999.
Defendant was driving a Dodge pickup westbound on Highway 34 in Wayne County the morning of June 30, 2002. Highway Patrol Cpl. Michael Carson was driving eastbound in his patrol car. At approximately 8:00 a.m., Cpl. Carson observed defendant's pickup. He was a short distance west of Clubb, Missouri, when he observed defendant. Radar equipment in Cpl. Carson's vehicle recorded defendant's speed at 74 miles per hour as defendant's vehicle approached Cpl. Carson's vehicle. The speed limit was 55 miles per hour.
Cpl. Carson made a U-turn, activated the emergency equipment on his patrol car, and pursued defendant. Defendant pulled off the highway into a driveway and got out of his pickup. Cpl. Carson drove his patrol car onto the shoulder of the highway near the driveway where defendant was stopped. By the time Cpl. Carson stopped and got out of his patrol car, defendant was outside his pickup at the rear of the patrol car.
Cpl. Carson told defendant the reason he had stopped him and asked defendant for his driver's license and proof of insurance. Defendant produced his driver's license and told Cpl. Carson he thought the insurance card was in the pickup. Cpl. Carson followed defendant back to defendant's vehicle where he retrieved his insurance card. Cpl. Carson told defendant he was going to issue defendant a citation. Cpl. Carson asked defendant to stay in his vehicle while Cpl. Carson returned to the patrol car.
When he got in his patrol car, Cpl. Carson "[r]an an operator check" to determine if defendant's license was valid and wrote defendant a speeding ticket. After writing the ticket, Cpl. Carson returned to defendant's vehicle. Cpl. Carson explained, "I gave the citation and a — I believe a copy of the mail-in and the driver's license back to [defendant]. I explained to him the different options he had on taking care of the citations [sic] where he could either take care of it through the mail or he could appear in person if he wanted to plead not guilty."
Cpl. Carson was asked if defendant had any questions for him. He answered, "Not that I recall." Cpl. Carson observed that defendant appeared nervous. He commented on defendant's nervousness and asked if there was a problem or if there was a reason for his nervousness. Cpl. Carson testified that defendant said his wife had called him or he had contacted his wife; that a small child was sick and he was in a hurry to get home.
Cpl. Carson asked defendant if he had anything illegal, such as weapons, drugs, or contraband in his vehicle. Defendant replied that he did not. Cpl. Carson thought defendant appeared uncomfortable when he asked him whether he had anything illegal. He asked the same question again. Cpl. Carson was asked what response defendant made. He answered, "At that time, like I said, again, I could visually see him getting more nervous. I could see his heart beating inside of his shirt. He was beginning to act fidgety and he did reply yes, that he did have a weapon in the vehicle."
Although defendant did not testify at trial, he testified immediately before trial in support of a motion to suppress evidence filed on his behalf. He testified that Cpl. Carson asked him if he could search his pickup four times; that he refused the first three times he was asked and when asked the fourth time, told Cpl. Carson he would not give him consent to search but told Cpl. Carson he had an unloaded pistol in the back seat.
Cpl. Carson asked permission to retrieve the weapon from where he had been told it was located, in the back seat area of defendant's pickup. Defendant gave Cpl. Carson permission to get the weapon. Cpl. Carson asked defendant to get out of his vehicle, then reached behind the driver's seat and located a pistol between the two seats underneath some newspapers. He then asked defendant to sit in the patrol car while he checked to see if the gun was stolen. He learned it was not.
Cpl. Carson was asked what occurred while he and defendant were in his patrol car. He was asked the following questions and gave the following answers:
Q. Okay. And what happened then?
A. While running the wanted check on the pistol I had conversation with [defendant] and at that time asked him for consent to search the vehicle.
Q. Okay. Consent to search the vehicle — the truck?
A. Correct.
Q. Okay. Did [defendant] reply?
A. At that time he mumbled something, but I was unable to understand what his mumble was.
Q. So did you inquire again?
A. Yes, I asked a second time.
Q. And what did [defendant] say?
A. [Defendant] advised he would if the vehicle was his; however, the vehicle did not belong to him, I believe it belonged to his father, and he didn't think he had the right to let me search something that wasn't his.
Q. Okay. So did you inquire further?
A. I asked if I could search his person and he replied yes, that I could.
. . .
Q. And what did you do then?
A. I asked [defendant] to exit my patrol car and step in front of my patrol car between my patrol car and his Dodge pickup.
Q. Okay. And did you make a request of [defendant] after you had him outside of the patrol car?
A. Yes, sir.
Q. And what was that request?
A. I asked [defendant] if he'd empty his pockets for me.
Q. Okay. In fact, did [defendant] comply with that request?
A. To some sort, yes.
Q. Okay. What do you mean by to some sort?
A. He emptied all his pockets except for his shirt pocket.
Q. Okay. And how do you know that he didn't empty his shirt pocket?
A. I could visually see an item inside of his shirt pocket.
Q. So what did you do then?
A. I'm sorry — I could visually see an item protruding through the shirt pocket.
Q. Okay. So what did you do then?
A. I asked [defendant] what the item was.
Q. Did he reply?
A. Yes. He replied something to the fact that it was, like, a cigarette pack or empty cigarette pack.
Q. So what did you do?
A. I reached in his pocket and removed the item.
Cpl. Carson said the item he removed was a cigarette pack and some tin foil. Cpl. Carson said his experience was that tin foil like that he removed was commonly used in the smoking of methamphetamine. Defendant was arrested for possession of drug paraphernalia. Laboratory analysis revealed that the tin foil had traces of methamphetamine on it.
Defendant was handcuffed, placed in Cpl. Carson's patrol car, and read his Miranda rights. Cpl. Carson asked defendant if he was hiding anything in the vehicle. Defendant told Cpl. Carson there was a glass bowl in the truck. Cpl. Carson found a "glass smoking bowl" in the center console of the pickup. He also found several more pieces of burned tin foil, a second cigarette pack containing burned tin foil, and a rolled bill (Cpl. Carson thought it was a dollar bill) with tin outside the bill. He found a coffee filter in the center console. There were two plastic bags in the rear seat of the pickup that contained pseudoephedrine tablets. The items seized by Cpl. Carson were admitted in evidence as State's Exhibits 1 through 6.
See Miranda v. Arizona , 384 U.S. 436 (1966).
Ex. 1 was a black pistol case with Ruger pistol. Ex. 2 was two ammunition magazines and a speed loader. Ex. 3 was ammunition. Ex. 4 was a bag with tin foil, 2 cigarette packages, a coffee filter and glass bowl. Ex. 5 was a bag with pseudoephedrine tablets. Ex. 6 was a bag with pseudoephedrine tablets.
Defendant asserts one point on appeal. He contends the trial court erred in overruling his objection to the introduction in evidence of exhibits taken after Cpl. Carson wrote and delivered the speeding citation to defendant and returned defendant's driver's license. He contends the admission in evidence of the items Cpl. Carson seized was error because he was detained "after the lawful purpose of the traffic stop had concluded." He further contends that the seizure of the item from defendant's shirt pocket and subsequent search of his truck exceeded the scope of consent defendant had given to search his person. The first issue is dispositive.
The Fourth Amendment to the United States Constitution guarantees the right of all citizens to be free from unreasonable searches and seizures. U.S. Const. amend. IV. A routine traffic stop based on the violation of state traffic laws is a justifiable seizure under the Fourth Amendment. State v. Slavin, 944 S.W.2d 314, 317 (Mo.App.W.D. 1997). "[S]o long as the police are doing no more than they are legally permitted and objectively authorized to do, [the resulting stop or] arrest is constitutional." Id. Accord, State v. Malaney, 871 S.W.2d 634, 637 (Mo.App.S.D. 1994), quoting, United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir. 1989).
The fact that the police may detain a person for a routine traffic stop does not justify indefinite detention, however. The detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic violation. . . .
State v. Woolfolk , 3 S.W.3d 823, 828 (Mo.App. 1999).
A reasonable investigation of a traffic violation may include "asking for the driver's license and registration, requesting the driver to sit in the patrol car, and asking the driver about his destination and purpose." State v. McNaughton , 924 S.W.2d 517, 523 (Mo.App. 1996); U.S. v. Ramos , 42 F.3d 1160, 1163 (8th Cir. 1994). See also State v. Slavin , 944 S.W.2d 314, 318 (Mo.App. 1997). The circumstances that resulted in the charge for which defendant was convicted occurred after Cpl. Carson completed his investigation of the traffic stop and issued defendant a traffic citation for speeding. Defendant had remained in his pickup at the direction of Cpl. Carson while the patrolman checked the validity of defendant's driver's license. Cpl. Carson returned to the pickup and stood outside the driver's window looking down at defendant during the inquiry that followed issuance of the traffic citation. Once the issuance of the traffic citation was completed, defendant should have been permitted to go absent Cpl. Carson having had an objectively reasonable suspicion that defendant was involved in criminal activity based on specific, articulable facts. Slavin, supra. "[T]he basis for the reasonable suspicion must arise within the parameters of the traffic stop itself; suspicions based upon answers to questions asked after the stop is completed are irrelevant to the determination of whether specific, articulable facts supported a reasonable suspicion of criminal activity and provided a justification for further questioning once the traffic stop was completed." Woolfolk , 3 S.W.3d at 829.
Here, as in Woolfolk , the initial traffic stop was completed once the officer returned to the vehicle he had stopped and returned the driver's license and insurance card. There is no evidence that Cpl. Carson had developed articulable facts that would have supported a reasonable suspicion of criminal activity justifying detention of defendant for further inquiry. Although Cpl. Carson testified that defendant appeared nervous, that alone does not give rise to reasonable suspicion. Woolfolk, supra.
The state attempts to justify Cpl. Carson's actions on the basis that the conversation that followed the traffic stop was voluntary; that the mere fact that a law enforcement officer talks with someone or asks a question does not mean the person is seized or detained. Woolfolk explains, "So long as the person is free to leave, the officer can talk to him, and is free to ask whether he has contraband on his person, or in his car, or in his residence." 3 S.W.3d at 830. Woolfolk admonishes, nevertheless, that "[t]his does not mean . . . that an officer is free to involuntarily detain a driver without reasonable suspicion under the guise of simply engaging in a voluntary conversation." Id.
During the interrogation that occurred after Cpl. Carson had written the traffic citation, Cpl. Carson positioned himself by defendant's window on the driver's side of the pickup where defendant was seated, looking down at defendant. The emergency lights on Cpl. Carson's patrol car remained activated. Although Cpl. Carson testified that defendant could have driven away after he issued the traffic citation and began asking questions, that option was not apparent from the circumstances. Cpl. Carson did not tell defendant he was free to go. Defendant testified at the offer of proof in support of his motion to suppress evidence that he never felt like he could have driven away. The conversation Cpl. Carson maintained with defendant was constant. Considering the totality of the circumstances, a reasonable person in defendant's position would have understood the situation to be one of custody. See State v. Werner , 9 S.W.3d 590, 595 (Mo. banc 2000). Defendant's belief that he was in custody was warranted.
Defendant's claim that the trial court erred in admitting the evidence obtained following completion of the traffic stop is well taken. The evidence was obtained by exploitation of the illegality of defendant's detention. See State v. Mosby , 94 S.W.3d 410, 419n. 7 (Mo.App. 2003). The trial court's admission of the evidence was an abuse of discretion. See State v. Taylor , 61 S.W.3d 319, 322 (Mo.App. 2001). Without the illegally obtained evidence, there is insufficient evidence to convict defendant. The judgment is reversed and defendant is ordered discharged.
Shrum, J., and Rahmeyer, C.J., concur