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State v. Galazin

Missouri Court of Appeals, Western District
Jan 23, 2001
No. 57900 (Mo. Ct. App. Jan. 23, 2001)

Opinion

No. 57900

Filed: January 23, 2001

APPEAL FROM THE CIRCUIT COURT OF MILLER COUNTY, THE HONORABLE MARY A. DICKERSON, JUDGE

Timothy R. Cisar, Ozark, MO, counsel for appellant.

John M. Morris, III, Andrea Mazza-Follett, Asst. Attorney General, Jefferson City, MO, counsel for respondent.

Before Ronald R. Holliger, P.J., Harold L. Lowenstein and Thomas H. Newton, JJ.


FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of June 21, 1998, Officer Scott Patrick of the Lake Ozark Police Department was on routine patrol when he received a radio call informing him that a person was driving in an erratic manner. Officer Patrick subsequently saw the vehicle he was radioed about at the corner of Business 54 and W Highway in Lakeview, Missouri. As the officer followed the car, he observed the car cross the center line several times into the oncoming lane. Officer Patrick immediately pulled the car over, and he found Mark Galazin behind the wheel.

When asked, Mr. Galazin told the officer that he did not have a driver's license. Officer Patrick at once noticed that the driver had watery and bloodshot eyes, that his speech was slurred, that he had tobacco on the front of his shirt, and that he had tobacco spit approximately three-quarters of the way down his shirt. Officer Patrick also saw empty beer bottles in the floor and back of the vehicle.

The officer then asked Mr. Galazin to step out of the car. Officer Patrick noticed that Mr. Galazin reeked of beer and staggered when he walked, so he asked Mr. Galazin to take some field sobriety tests. Mr. Galazin failed each of the tests miserably. The officer concluded that Mr. Galazin was under the influence of alcohol and placed him under arrest. At the station, the officer informed Mr. Galazin of his Miranda rights, explained the Missouri Implied Consent form, and told him that he would lose his license for one year if he refused to submit to a chemical test. Mr. Galazin refused a breath test.

Mr. Galazin was charged with driving while intoxicated, a misdemeanor under Section 577.010, RSMo 1994; failure to drive on the right half of the roadway when of sufficient width, a misdemeanor under Section 304.015, RSMo Cum.Supp. 1996; and driving while license was suspended, a misdemeanor under Section 302.321, Cum.Supp. 1997. Mr. Galazin pled guilty to driving while license was suspended, and a jury found him guilty on the other two counts.

Mr. Galazin had pled guilty to driving with excessive blood alcohol content twice before in the previous two years. Accordingly, when found guilty of driving while intoxicated, Section 577.023, RSMo (Supp. 1998), required that he be sentenced as a persistent offender under the penalty enhancing statute. See infra note 23.

When Officer Patrick began to testify at trial regarding his observations of Mr. Galazin's vehicle, defense counsel objected and the trial transcript stated in pertinent part:

Mr. Cisar: I have a foundation objection and I guess a relevancy question objection. He's testified he's a Lake Ozark police officer. He's testified he's essentially outside the city limits of Lake Ozark in the City of Lakeland at the corner of Business 54 and W at the Route C mart there. Lakeland may or may not have had a mutual aid compact or contract with Lake Ozark. They've now become a part of Lake Ozark this past election, but they weren't at the time. He's not inside the city limits of Lake Ozark. He's not indicated any necessity to come outside the city limits of Lake Ozark. He's about ready to testify about matters leading up to an arrest of Mr. Galazin outside the city limits of Lake Ozark, and I would object on the basis of foundation and relevancy.

The Court: Mr. Rives?

Mr. Rives: Well, Your Honor, this is a Miller County case, and the witness does operate in Lake Ozark which is within the confines of Miller County, and there is a mutual aid contract between the area where the defendant was arrested and Lake Ozark.

Mr. Cisar: There's been no evidence of that though.

Mr. Rives: If you want to voir dire the witness, voir dire the witness.

Mr. Cisar: It's not my burden.

The Court: He's making the objection, so you have to establish it.

[By the State]

Q: Officer Patrick, you previously testified that you were an officer with the Lake Ozark Police Department; correct?

A. Yes, sir.

Q: And you were so on or about June 21, 1998?

A: Yes, sir.

Q: And you made contact with Mr. Galazin's vehicle in what area?

A: Lakeview.

Q: Lakeview, and that's Lakeview, Missouri?

A: Yes, sir.

Q: And did — at or about June 21, 1998, to the best of your knowledge and belief, did Lake Ozark have a mutual aid contract with the City of Lakeview?

A: Yes.

* * *

[By the Defense]

Q: Officer Patrick, the duties that you were — your area of operation that Mr. Rives was about ready to ask you about, you were told those by someone else?

A: Yes, sir, I was, by my training supervisor.

Q: And you've not read any specific contract that between Lakeview and the City of Lake Ozark regarding mutual aid; is that correct?

A: That would be correct.

Q: So everything you have knowledge of regarding your area of operation is someone else telling you that; is that correct?

A: That is correct.

Mr. Cisar: I would renew my objection, Your Honor.

The Court: If he is going to relate what someone told him, the objection is sustained. If he's going to testify based upon his carrying on of his duties, the objection is overruled.

Mr. Cisar: May I voir dire one more?

The Court: You may.

Q: Officer Patrick, your duties and your area of operation were — how did you acquire this information?

A: I was told this by my training officer at the time in which I was trained in the City of Lake Ozark.

[At the Bench]

Mr. Cisar: Your Honor, everything he then is going to testify to is going to be something he was told by his training officer.

The Court: Where he works out of would not be hearsay.

Mr. Cisar: He was told he's allowed to work out of these areas, and that's how he got his information Your Honor.

The Court: That's a different issue of what authority there is for him to do that. If the question is what area he worked out of, the objection is overruled. You may continue, Mr. Rives.

Mr. Galazin was sentenced to a term of four years imprisonment for driving while intoxicated and a term of two days in the county jail and a $500 fine for failure to drive on the right half of the highway.

In his sole point on appeal, Mark Galazin contends that the circuit court erred in allowing Officer Scott Patrick, a police officer for the City of Lake Ozark, Missouri, to testify as to the arrest of Mr. Galazin in Lakeview, Missouri. Mr. Galazin states that there was no evidence of the police officer's authority to operate outside the city limits of Lake Ozark. He alleges that, absent a mutual aid agreement between Lake Ozark and Lakeview, fresh pursuit, or a valid citizen's arrest, all evidence collected by the officer came after the improper stop and arrest of Mr. Galazin. He claims that the trial court erred in allowing this evidence to be heard over objection.

STANDARD OF REVIEW

Initially, the State submits that the issue is not before the court for the reason that no timely motion to suppress was filed. It refers us to State v. Hardiman and State v. Henderson which discuss the procedure for challenging evidence contended to be illegally obtained. Those two cases explain that "[t]he procedural rules of this state, . . . require that the contention of an unlawful search and seizure be made by motion to suppress the evidence in advance of trial."

943 S.W.2d 348 (Mo.App.S.D. 1997).

954 S.W.2d 581 (Mo.App.S.D. 1997).

Hardiman, 943 S.W.2d at 349-50 (emphasis added) (omission in original); Henderson, 954 S.W.2d at 585 (emphasis added) (omission in original).

Mr. Galazin responds that he falls within the only exception under this rule, which is where the defendant "had no reason to anticipate the evidence would be introduced and was surprised." In this case, Mr. Galazin argues that he had no reason to anticipate that evidence of his arrest would be introduced without a proper evidentiary foundation of the officer's authority to effect arrests beyond his territorial jurisdiction. The record reflects that Mr. Galazin was surprised to find that there was no foundation of that authority because he promptly objected.

State v. O'Brien, 252 S.W.2d 357, 359 (Mo. 1952); § 542.296.3, RSMo 1994.

The relevant statute, Section 542.296, RSMo 1994, provides in pertinent part:

1. A person aggrieved by an unlawful seizure made by an officer and against whom there is a pending criminal proceeding growing out of the subject matter of the seizure may file a motion to suppress the use in evidence. . . .

* * *

3. The motion shall be made before the commencement of the trial of the moving party on the charge arising out of the seizure unless he was unaware of the grounds or had no opportunity to do so before the trial. In that event the motion may be made during the trial. However, the trial judge may in his discretion entertain a motion any time during trial.

See §§ 542.296.1, 542.296.3, RSMo 1994 (emphasis added).

Whether the statute makes pretrial motions mandatory as the State suggests or permissive as Mr. Galazin contends, it is clear from the plain text of the statute that the trial judge may still entertain such a motion at any time during the trial. As the quoted portion of the trial transcript illustrates, the trial judge here did in fact entertain a motion to suppress the officer's testimony. It is this ruling that was properly preserved for review.

In State v. Cross, No. WD 57145, 2000 WL 1692297 (Nov. 14, 2000), there was no motion to suppress for the trial court to entertain, either pretrial or during trial, so the argument that the officer's testimony was inadmissible came too late. In the present case, however, the issue is directly before us.

The circuit court found that Officer Patrick's testimony was admissible. When a defendant moves to suppress on the grounds of illegal search or seizure, the State has the burden of showing that the motion should be denied. We are limited to determining whether there is sufficient evidence to support the court's ruling based on the whole record before the trial court. We will reverse the trial court's ruling on a motion to suppress only if it is clearly erroneous. The trial court's ruling is clearly erroneous if we are left with a definite and firm belief a mistake has been made. The facts are viewed in the light most favorable to the trial court's ruling. Although the facts are reviewed under a clearly erroneous standard, the issue of whether the Fourth Amendment has been violated is a legal question we review de novo.

State v. Hernandez, 954 S.W.2d 639, 642 (Mo.App.W.D. 1997); § 542.296.6, RSMo 1994.

State v. Slavin, 944 S.W.2d 314, 317 (Mo.App.W.D. 1997).

Id.

State v. Johnson, 901 S.W.2d 60, 62 (Mo.App.W.D. 1995).

Id.; State v. Rousan, 961 S.W.2d 831, 845 (Mo.banc 1998).

LEGAL ANALYSIS

In this case, Mr. Galazin contends that Officer Patrick had no authority to effectuate arrests outside of the City of Lake Ozark. Reviewing Mr. Galazin's sole point of error, he does not contest the fact that he was driving while intoxicated. Instead, he asserts that there was no evidence of any mutual aid agreement between Lake Ozark and Lakeview, no evidence of any hot or fresh pursuit by Officer Patrick out of the City of Lake Ozark, nor any evidence of any other authority allowing Officer Patrick to effectuate arrests beyond the territorial limits of the City of Lake Ozark. He claims that the only evidence on this issue was the bare assertions made by the officer, and, therefore, that the State failed to lay a foundation as to Officer Patrick's authority to effectuate an arrest in Lakeview.

The record of Mr. Galazin's jury trial confirms his allegations. We fail to see how the testimony of Officer Patrick, whose understanding was based wholly on information provided to him by others, established his authority to act in the City of Lakeview. Once Mr. Galazin objected to the officer's testimony, the State had the burden of proving that Mr. Galazin was in an area where Officer Patrick had jurisdiction to arrest him, and the evidence failed to provide that Officer Patrick acted within his own jurisdiction or an extension of his jurisdiction when he arrested Mr. Galazin. Mr. Galazin filed no motion to suppress the evidence, but his objections during trial were clearly based on the officer's authority to effect the arrest, i.e. the constitutionality of the seizure. The burden of establishing that his constitutional rights were violated lies with the proponent of a motion to suppress, but the burden is then on the state to demonstrate that it acted lawfully. By coming forward with only Officer Patrick's testimony as to his authority in Lakeview, the State did not meet its burden.

Compare Cooley v. Director of Revenue, State of Mo., 896 S.W.2d 468, 470 (Mo.banc 1995) ("the best evidence rule does not exclude evidence based on personal knowledge even if documents or other writings would provide some of the same information"); with § 432.080, RSMo 1994 ("In every case of contract entered into by any . . . municipal corporation . . ., duplicate copies of the same shall be executed . . ., one of which shall be filed in the office of the clerk of the county commission of the proper county, or in such office . . . as may be charged with the keeping of contracts thereof, and shall not be taken thence except to be used for the purposes of evidence in some legal matter or cause. . . .") (emphasis added).

See State v. Stillman, 938 S.W.2d 287, 290 (Mo.App.W.D. 1997); § 542.296.6, RSMo 1994.

See generally § 544.157, RSMo Cum.Supp. 1995 (vehicular pursuits).

State v. Stillman, 938 S.W.2d 287, 290 (Mo.App.W.D. 1997) (quoting State v. Burkhardt, 795 S.W.2d 399, 404 (Mo.banc 1990)); § 542.296.6, RSMo 1994.

It has long been held that the law of Missouri does not allow extra-jurisdictional arrests. "The law in Missouri is conclusive that an officer of a fourth class city may not effectuate an arrest beyond the territorial boundaries of the city." In fact, "with limited exception, when a law enforcement officer leaves his territorial jurisdiction, his status is transformed into that of a private citizen."

City of Fredericktown v. Bell, 761 S.W.2d 715, 717 (Mo.App.E.D. 1988); see Settle v. State, 679 S.W.2d 310, 317 (Mo.App.W.D. 1984), cert. denied 472 U.S. 1007, 105 S.Ct. 2701, 86 L.Ed.2d 717 (1985).

Kimber v. Director of Revenue, 817 S.W.2d 627, 631 (Mo.App.W.D. 1991) (citing City of Advance v. Maryland Casualty Co., 302 S.W.2d 28, 32 (Mo. 1957) and Bell, 761 S.W.2d at 716-17).

State v. Devlin, 745 S.W.2d 850, 851 (Mo.App.E.D. 1988).

Because the State failed to establish Officer Patrick's authority to arrest in Lakeview, he could only be considered a private citizen when acting in Lakeview. "A private citizen may arrest on a showing of the commission of a felony and reasonable grounds to suspect the arrested party, to prevent an affray or breach of the peace, and for a misdemeanor if authorized by statute." Officer Patrick had no authority to arrest Mr. Galazin because none of these circumstances were present. The charge of driving while intoxicated is a misdemeanor; there has been no allegations of "an affray or breach of the peace;" and there is no statute authorizing private citizens to arrest for DWI violations. In other words, "[n]o authority can be found granting private citizens the privilege to stop and detain persons believed to have committed ordinance violations or traffic offenses, and the wisdom of recognizing such a privilege is seriously doubted. Delegating to private citizens the authority to investigate and arrest for such offense would invite more breaches of the peace than the number hoped to be prevented."

Id. at 851-52 (citations omitted).

See id.

Mr. Galazin was sentenced as a persistent offender under Section 577.023, RSMo Cum.Supp. 1998, a class D felony, because he had pled guilty to driving with excessive blood alcohol content twice in the previous two years. Section 577.023 acts as a penalty enhancement provision, and it does not create a separate crime. State v. Hatton, 918 S.W.2d 790, 794 (Mo.banc 1996). The crime, then, that Mr. Galazin committed was "only" the misdemeanor of driving while intoxicated, even though the penalty enhancement statute required that he be punished as a felonious persistent offender. Accordingly, any argument that the officer effectuated a valid citizen arrest because Mr. Galazin was committing a felony must fail. Furthermore, the officer used the powers of his office to stop and arrest Mr. Galazin, the same powers which would not be available to a private citizen. See People v. Kirvelaitis, 734 N.E.2d 524, 528-29 (Ill.App. 2000).

Arguments that driving while intoxicated constitutes a breach of the peace have been rejected. See Forste v. Benton, 792 S.W.2d 910, 915 (Mo.App.S.D. 1990).

Settle v. State, 679 S.W.2d 310, 318 (Mo.App.W.D. 1984), cert. denied 472 U.S. 1007, 105 S.Ct. 2701, 86 L.Ed.2d 717 (1985).

Where a police officer effects an arrest outside the territorial limit of his or her authority, the exclusionary rule, as a remedy designed to safeguard individuals from arbitrary invasions by the government and to deter law enforcement officials from conducting illegal searches and seizures, is available as a remedy. Accordingly, we must find the trial court's failure to suppress Officer Patrick's testimony was clearly erroneous because the evidence was obtained pursuant to an unauthorized and therefore illegal arrest. We simply cannot condone the officer's actions by allowing his testimony to be admitted: "The decision to extend police authority for extraterritorial stops and arrests in the context of drunk driving requires a balancing of social interests that is better addressed to the Legislature as a request to amend the relevant statutes."

State v. Kriley, 976 S.W.2d 16, 21 (Mo.App.W.D. 1998). "The rule is 'an extraordinary sanction, judicially imposed, to limit searches and seizures to those conducted in strict compliance with the Fourth Amendment. It is a judicially created remedy designed to safeguard Fourth Amendment rights. . . .'" Id. (citation omitted).

City of Ash Grove v. Christian, 949 S.W.2d 259, 264 (Mo.App.S.D. 1997) (citing State v. Vinzant, 716 S.W.2d 367, 370 (Mo.App.W.D. 1986); Settle, 679 S.W.2d at 319-20; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)); see Brown v. State, 752 A.2d 620, 626 (Md.App. 2000) (holding that "[a]lthough it is true that officers may, in some instances, act as private citizens in making an arrest outside of their jurisdiction, we agree with appellant that the [police] officers were not acting as private citizens . . . and that the protections of the Fourth Amendment apply to this case."); State v. Williamson, 965 P.2d 231, 234-39 (Mont. 1998) (holding that evidence obtained subsequent to an illegal stop must be suppressed).

City of Ash Grove, 949 S.W.2d at 264; State v. Pfleiderer, 8 S.W.3d 249, 256 (Mo.App.W.D. 1999); see also People v. Kirvelaitis, 734 N.E.2d 524, 528-29 (Ill.App. 2000) ("a police officer outside his jurisdiction may not use the powers of his office, such as [a patrol car], to make the arrest when those same powers are not available to the public."); Yeager v. State, 23 S.W.3d 566, 570-76 (Tex.App. 2000) (reversing and remanding with instructions to suppress evidence obtained where a DWI suspect was stopped by officers outside of their geographic jurisdiction); Commonwealth v. Savage, 719 N.E.2d 473, 476 (Mass. 1999) (quoting Commonwealth v. Morrissey: "the arrest was unlawful because it occurred outside the arresting officer's jurisdiction, and evidence which would not have been obtained but for the arrest should be suppressed. . . ."); State v. Cuny, 595 N.W.2d 899, 903 (Neb. 1999) ("Having concluded that the actions of the [extrajurisdictional] police officers were unlawful, we find the evidence obtained by [a local officer] was the fruit of an illegal search or seizure, . . . is inadmissible, and must be excluded.").

We therefore reverse the circuit court's judgment and remand for further proceedings.

Holliger and Lowenstein, JJ., concur.


Summaries of

State v. Galazin

Missouri Court of Appeals, Western District
Jan 23, 2001
No. 57900 (Mo. Ct. App. Jan. 23, 2001)
Case details for

State v. Galazin

Case Details

Full title:STATE OF MISSOURI, Respondent, v. MARK T. GALAZIN, Appellant

Court:Missouri Court of Appeals, Western District

Date published: Jan 23, 2001

Citations

No. 57900 (Mo. Ct. App. Jan. 23, 2001)