Opinion
No. WD 61497
July 22, 2003
Appeal from the Circuit Court of Clay County, Missouri, Honorable Larry D. Harman, Judge.
John M. Morris, III, Linda Lemke, Jefferson City, MO, for Respondent.
Kent Denzel, Columbia, MO, for Appellant.
Before: Lowenstein, P.J., Smart and Smith, JJ.
Marvin Goff appeals from his conviction for stealing, third offense, Section 570.040. Goff was sentenced as a prior and persistent offender to fifteen years imprisonment. Goff asserts three points on appeal. He first claims that there was not sufficient evidence to prove beyond a reasonable doubt that a theft had occurred. Second, he argues that the court erred in overruling his motion to suppress evidence because the evidence was seized pursuant to an illegal stop and search of himself and his vehicle. Finally, he claims that the trial court abused its discretion in denying his request for a mistrial when an officer made a statement that indicated to the jury that Goff had prior convictions. Because this court finds that the stop of Goff's vehicle was effectuated without reasonable suspicion, the judgment is reversed.
All statutory references are to the Revised Statutes of Missouri 2000, unless otherwise indicated.
Factual and Procedural History
The reader is advised that, although the facts are presented in chronological order, the facts and knowledge of the second officer involved, Easley, who actually made the stop, is at the heart of the decision as to whether the evidence obtained should be suppressed.
At around 2:50 a.m. on July 24, 2001, Goff and another man, Patrick Trent, were observed by a police officer, Mitzi Boydston, driving into the parking lot of Wal-Mart in Gladstone. Goff and Trent parked in front of the vending machines just to the south of the south entrance of the store. Although this Wal-Mart is open 24 hours a day, at this time of night, the south doors were looked. Goff and Trent were out of the car, but as Boydston's patrol car approached, Trent got into the driver's side of the car and Goff walked to the south doors and pulled on them. Because they were locked, he was not able to get in.
While continuing to drive through the parking lot, Boydston requested a check on this car's license plates. In checking the license, the dispatcher also ran the address of the registered owner and found "that something [sic] living at that address known to operate that car had several outstanding warrants." When Boydston returned to where Goff and Trent had parked, they were gone. When this information was broadcast, other officers in the area began looking for the car.
The record does not reflect the name or names of the owner(s) of the car.
Shortly thereafter, Officer Wayne Easley located this car across the street from the Wal-Mart store in the Hy-Vee parking lot. The car was parked in front of the vending machines at the south entrance. Goff and Trent were standing in front of the vending machines. When Easley drove past, Trent got into the driver's side of the car and Goff went into Hy-Vee. Trent pulled the car into a parking space in front of the store. Easley parked his patrol car to observe Trent without being seen.
After having parked in a parking stall, Trent got out of the car, opened the hood and placed something in the engine compartment. He closed the hood and got back into the car. Then the defendant returned to the car, having bought a soda at Hy-Vee, they started to leave. Easley pulled behind them and activated his lights. Easley asked both men for identification. Easley ran their information for outstanding warrants and learned that Trent had a warrant for his arrest. Trent was then placed under arrest.
Easley asked Goff to get out of the car and patted him down for weapons. Easley felt a large object in Goff's right front pants pocket and asked him what it was. Goff responded "I don't know." Easley asked if he could remove the object and Goff agreed. The object was a universal key for vending machines. Easley took the key to one of the vending machine in front of Hy-Vee and placed the key into the lock. The key fit. He also noticed that the door to the machine was not closed all the way, as if it had been pried open, and a lock was missing. Goff was then placed under arrest.
Easley looked into the vehicle and saw a large amount of quarters on the floorboard near where Goff had been sitting. He then searched the rest of the car.
He found a bag containing one dollar bills, quarters, and other coins, totaling about sixty dollars. He searched under the hood of the car and found a makeup bag containing two more universal vending machine keys and a considerable number of other vending machine keys. In the backseat, Easley discovered a wire cutter/plier, vice grips, and screwdrivers. In the trunk, he found bank money bags and rolling papers for coins. He also found a notebook containing numbers, some of which corresponded to numbers printed on the keys that were found.
Later, the Hy-Vee store manager, Steven Binseil, was contacted by the police. He checked the vending machines. While the Coke and Pepsi machines had money in them, the 7-Up machine had money gone and the lock was broken.
I.
While Goff makes several points on appeal, this court will first address Point II. In Point II Goff claims that the trial court erred in overruling his motion to suppress the evidence seized from the search of himself and the car. In this point, he claims that the evidence was seized based upon an illegal stop and search in that (1) the police officers did not have reasonable suspicion of criminal activity on which to base the stop of his car; (2) a computer check revealed no warrants for Goff or his car and the police could not rely on a report that a person with outstanding warrants who lived at the same address "was known to drive the car"; and (3) the officers did not believe that Goff was armed or dangerous when they conducted the pat-down search of him.
In reviewing a trial court's decision on a motion to suppress evidence, this court's determination is limited to whether there is substantial evidence to support its decision. State v. Sullivan , 49 S.W.3d 800, 805 (Mo.App. 2001). This court will reverse only if that decision is clearly erroneous and "this court is left with a definite and firm belief a mistake has been made." Id. (internal quotations and citations omitted). The record of the suppression hearing and the evidence presented at trial will be considered, and all evidence and any reasonable inferences are viewed in the light most favorable to the ruling of the trial court. Id. at 806 "While deference is given to the trial court's determination of the credibility of witnesses, the ultimate issue of whether the Fourth Amendment was violated is a question of law which this court reviews de novo." Id. (internal quotations and citations omitted). "`At a suppression hearing, the State bears both the burden of producing evidence and the risk of nonpersuasion to show by a preponderance of the evidence that the motion to suppress should be overruled.'" Id. (quoting State v. Weddle , 18 S.W.3d 389, 391 (Mo.App. 2000); Section 542.296.6, RSMo 1994).
"The Fourth Amendment of the United States Constitution preserves the right of the people to be secure against unreasonable searches and seizures." State v. Deck , 994 S.W.2d 527, 534 (Mo.banc 1999). "Missouri's constitutional `search and seizure' guarantee, article I, section 15, is co-extensive with the Fourth Amendment." Id. Generally, for a search or seizure to be valid there must be a warrant based upon probable cause. Id . An exception to the warrant requirements is the "so-called Terry stop, which is a minimally intrusive form of seizure or `semi-arrest' that is lawful if the police officer has a reasonable suspicion supported by articulable facts that those stopped are engaged in criminal activity." State v. Miller , 894 S.W.2d 649, 651 (Mo.banc 1995) (quoting Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Reasonable suspicion is determined by reference to the totality of the circumstances. Deck , 994 S.W.2d at 534 . Reasonable suspicion can be based upon information received from another officer through a dispatch, where "the collective information known to all officers involved in the stop amounted to reasonable suspicion." State v. Franklin , 841 S.W.2d 639, 644 n. 6 (Mo.banc 1992).
In determining whether the searches and seizures in this case are valid, this court must first address whether the initial stop was based upon reasonable suspicion. Sullivan , 49 S.W.3d at 806 . Here, Officer Boydston observed a vehicle parked at the curb of a 24-hour Wal-Mart at just before 3:00 o'clock in the morning. The car was parked in front of the vending machines near the south entrance of the building. As she drove by, one man got into the driver's side of the car and another man, Goff, pulling on the doors to the south entrance. The south entrance, however, was locked at this time of night. At this point, Boydston requested a check of the license plate and proceeded through the parking lot. The dispatcher informed Boydston that "something [sic] living at that address known to operate that car had several outstanding warrants." After hearing this report, Boydston returned to where the car had been parked, but it was gone. Boydston continued to look for the car as did other officers in the area who had heard the broadcast by the dispatcher.
As noted above, dispatch did indicate that a warrant existed for a person associated with the address to which the car was registered. Since there is no evidence concerning the name of the person for whom the warrant existed, nor that the person was in the car, and the evidence does not support that the stop was made to execute the known warrant, this analysis is based upon reasonable suspicion.
Officer Easley located the car in front of the 24-hour Hy-Vee across the street. The car was parked in front of the vending machines on the south side. Easley observed one man get into the driver's seat and park the vehicle in a parking place and the other man, Goff, enter the store. Easley parked his car where he could see the parked car, but did not believe the occupants could see him to observe the vehicle. The driver, Trent, "got out of the driver's side, opened the engine compartment, kinda looked around a little bit, put something in there" and got back in the car. Goff came out of the store, apparently having purchased a soda, and returned to the car. Easley then pulled behind the car, activated his lights, and beeped his siren.
While the State tries to argue otherwise, these facts are not enough to reasonably conclude that Trent or Goff was engaged in criminal activity. See Brown v. Texas , 443 U.S. 47, 52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). At most, there is one example of suspicious activity — Trent's placing of something under the hood of the car. The State argues in their brief that "their behavior at the WalMart and HyVee smacked of criminal activity." It supports this by stating that "they tried to avoid police, they made no attempt to enter the open doors of WalMart and made only nominal purchase at HyVee, they were standing around two different sets of vending machines at 3 a.m. at night, and Mr. Trent hid something under the hood of the car as soon as he thought the officer was gone." There are numerous flaws to the State's argument that these provide reasonable suspicion to stop the vehicle.
First, Easley made the stop based upon his knowledge of the existence of a warrant concerning some unidentified person that lived at the address to which the car was registered and to his observations at the Hy-Vee. The record in this case supports only that the information of the warrant and the presence of two "subjects" were transmitted over the broadcast. Officer Easley testified at trial that he heard the following:
Officer Boydston had stated on the radio that there was a vehicle and two subjects by the vending machines. She conducted a license check on the vehicle. It responded back to somebody that had warrants for their arrest.
. . . .
A moment later she advised the vehicle was gone. I searched the general area. Within a few minutes I found the vehicle at the Hy-Vee, which is right across the street . . . And I verified the license and that there might be warrants.
There is no evidence that Boydston imparted any information concerning the activity, suspicious or not, at Wal-Mart. Boydston did not participate in the initial stop of the car, but arrived after Easley had made the stop. While the collective knowledge of the officers should be considered in determining whether reasonable suspicion exists, see Miller , 894 S.W.2d at 653 , the facts do not support that Easley was informed of any other activity, and in particular any theft from vending machines. Had Easley obtained through the dispatch or over a radio bulletin additional information that provided reasonable suspicious of criminal activity, then that would certainly form a basis for him stopping the vehicle. See State v. Franklin , 841 S.W.2d 639, 641 (Mo.banc 1992). That is not the case here. Thus, this court considers only that which Easley observed or knew at the time of the stop.
Goff was observed, by Easley, in front of a 24-hour Hy-Vee, a place he undoubtedly had a right to be. See United States v. Nicholas , 104 F.3d 368 (table), 1996 WL 731605 at *2 (10th Cir. Dec. 20, 1996) (noting that time of day has little relevance in analysis where car was parked in the lot of an establishment that was open for business 24-hours and it is reasonable to infer that "the business maintained those hours because enough customers frequented it late at night and early in the morning to make its hours of operation appropriate."). While this could be a factor in some instances, its relevance under the facts in this case is highly diminished by the fact that the Hy-Vee was open for business. Furthermore, the mere fact that they were standing around vending machines provides little in the way of reasonable suspicion of criminal activity. Vending machines are meant to provide a person access to their contents at any time. In oral arguments, the State offered that the criminal activity suspected by the officers was tampering with or some other activity relating to the vending machines. Neither of the officers articulated this as the basis for the suspicion, and there is no evidence that either Trent or Goff touched or otherwise came in contact with the vending machines at the Hy-Vee.
Although the State asserts that they tried to avoid the police, the record does not support this assertion. After Easley passed them, Trent moved the car to a parking place and Goff went into the store. They attempted to leave only after Goff had made a purchase inside the Hy-Vee and returned to the car. Further, the
As noted above, reasonable suspicion for the stop is based upon Easley's observations. Nonetheless, the State asserts that after Boydston passed by Trent and Goff at the Wal-Mart, they "fled the scene." This is not a reasonable inference of their behavior. Goff tried to enter the Wal-Mart and found the doors to be locked. Their leaving the Wal-Mart can be just as easily and reasonably be explained as Goff thinking that the store was closed. Thus, they proceeded to the Hy-Vee across the street. If they were fleeing, one would not necessarily suspect them to go where they could be easily located.
fact that this purchase was only minimal does not suggest suspicious activity. The United States Supreme Court in United States v. Sokolow , 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989), stated that an officer conducting a stop based upon reasonable suspicion "must be able to articulate something more than an `inchoate and unparticularized suspicion or hunch.'" (quoting Terry v. Ohio , 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). Here, there is no question that the officers had a hunch that something was amiss. The fact that evidence was found during the subsequent search of Goff and of the car that supports the suspicion that he was engaged in illegal activity, i.e., stealing from or tampering with the vending machines, cannot be used to justify an unreasonable stop. See Miller , 894 S.W.2d at 653 . "Reasonable suspicion is measured by whether a person of reasonable caution would believe the action taken was appropriate in light of the facts known to the officer at the time." State v. Gage , 768 S.W.2d 174, 176 (Mo.App. 1989) (emphasis added). These facts do not support, nor does the totality of the circumstances suggest, reasonable suspicion for the stop.
They do support the fact that Easley had a generalized suspicion of criminal activity and attempted to further investigate. At trial, Easley testified that "I was waiting for the defendant, Mr. Goff, to return to the vehicle so I could conduct what we call a car check." When asked how the two men were acting when he approached the car, Easley testified as follows:
They were a little nervous. The driver eventually was arrested for an outstanding warrant. And I thought maybe that was why he was acting nervous.
But, you know, I was obviously curious what was underneath the engine compartment and why he'd done that.
After stopping the car, Easley asked for identification and then ran a check on the two individuals. Only after he learned of the existence of a warrant for Trent, did he then place Trent under arrest. After he conducted a pat-down search of Trent, he did the same with Goff. This led to the discovery of the vending machine key and ultimately to his arrest. Arguably, Trent's behavior with respect to placing something in the engine compartment could be considered suspicious activity. Yet, Easley testified on cross-examination that he did not remember Trent doing anything else that evening that seemed suspicious. Trent's placing of something in the engine compartment alone is insufficient to support a finding of reasonable suspicion.
Although the radio dispatch indicated the possibility of a warrant, the mere existence of a warrant for an unidentified individual does not provide a basis for the stop in this case. As a general rule, the existence of a valid warrant based upon probable cause would provide a basis for a stop. See Deck , 994 S.W.2d at 534. This presumes, however, that the warrant is actually for an occupant of the vehicle. There is simply no evidence concerning for whom the warrant was issued, the description of that person, or whether there was any reason to believe that the person was in the car. Easley testified that, after he found the vehicle, he verified the license and "that there might be warrants." This is clearly insufficient to provide a basis for the stop or to support a finding of reasonable suspicion. The fact that someone connected to Goff had outstanding warrants cannot be used to support an inference that Goff was engaged in criminal activity.
While this court finds that the activity involved in this case does not rise to the level of reasonable suspicion to warrant a stop of Goff's vehicle, this is not to say that instances may arise where "`a series of acts, each of them perhaps innocent' if viewed separately, `but which taken together warranted further investigation.'" Sokolow , 490 U.S. at 9, 109 S.Ct. at 1586 (quoting Terry , 392 U.S. at 22, 88 S.Ct. at 1881 ). Still, the officer involved in the stop must be "able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer[,]" but in the specific instance supports reasonable suspicion. Brown , 443 U.S. at 52, 99 S.Ct. at 2641 n. 2. Here, Easley did not provide testimony to support that in his experience this otherwise innocent behavior would support an inference that criminal activity was afoot. Nor did he specifically state the criminal activity that he suspected.
Also on cross-examination, when discussing the key found in Goff's pocket and how he knew what it was, Easley did testify that he had worked lots of break-ins of vending machines. He stated "well, seeings that they were next to the vending machines, I've worked lots of break-ins of vending machines and the tip . . . of this just kinda looked like one of those key locks on the vending machine." This seems to suggest that the suspicion of activity involving the vending machines only emerged after he searched Goff.
The facts of this case are not too dissimilar from those of Klare v. State , 76 S.W.3d 68 (Tex.Ct.App. 2002). There, a law enforcement officer driving down the highway observed a vehicle parked in a strip shopping center, facing a 24-hour convenient store, at around 2:30 a.m. Id. at 71. Because he found the parked vehicle "suspicious," he exited the highway and circled back to the parking lot to investigate. Id. During the short time that it took the officer to get back to the parking lot, the vehicle had left. Id. The officer "then proceeded onto the adjoining road, and within 15 to 20 seconds, came upon a vehicle that he believed to be the one previously parked at the shopping center." Id. The officer then stopped the vehicle. Id.
At the suppression hearing, the officer testified that "he had eight years of experience as a peace officer, and in his belief, it was unusual for a vehicle to be parked behind the shopping center at that time of the morning." Id. He stated that the time of day and location "raised [his] curiosity as far as suspicion goes." While he stated that there had been "`problems with burglary in the past,' . . . he did not claim that it was a high-crime area." Id. The officer on cross-examination admitted that the driver had committed no traffic violations, that there were no recent reports of any crimes committed in the area at or near the shopping center, and that he had no reason to believe a crime had been committed. Id. The court determined that the reasons set forth at the suppression hearing were "insufficient to support reasonable suspicion." Id. at 75. In so holding, the court considered the following: (1) time of day — noting that the "time of day is not suspicious in and of itself"; (2) the car parked in close proximity to a business that is closed — noting again that this is not suspicious in and of itself, but only a factor to consider; and (3) previous criminal activity at the location — noting that this is not sufficient to justify stop, but only a factor to consider. Id. at 73-74.
This court, too, finds that the reasons set forth by the State and the facts of this case do not support reasonable suspicion to stop the car in which Goff was riding. Thus, the trial court erred in denying Goff's motion to suppress evidence. Because this holds that the officer's lacked reasonable suspicion to stop the car, this court need not address the remaining points on appeal. The judgment of the trial court is reversed and this cause is remanded for proceedings consistent with this opinion.
All concur.