Opinion
No. 25378
June 29, 2004
Appeal from the Circuit Court of Pemiscot County, Honorable Fred W. Copeland, Judge.
H. Mark Preyer, Attorney for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General, and Richard A. Starnes, Assistant Attorney General, Attorney for Respondent.
Jose M. Granado ("Appellant") appeals his conviction, after trial by the court, of possession of a controlled substance with intent to deliver, in violation of Section 195.211, for which he was sentenced to seven years imprisonment in the Missouri Department of Corrections. In two points on appeal, Appellant asserts the trial court erred in denying his motion to suppress because: (1) the circumstances surrounding Appellant's initial traffic stop were pretextual in nature; and (2) the officer's continued questioning subsequent to the completion of the traffic stop constituted an unreasonable search and seizure in violation of Appellant's Fourth Amendment rights. In his third point, he argues that the trial court erred in overruling his motion for judgment of acquittal based on the fact that there was insufficient evidence to prove beyond a reasonable doubt that he knowingly possessed the marijuana which was seized from the vehicle he was driving. Finding that the officer did not have reasonable suspicion to further detain Appellant once the traffic stop was complete, we find that the trial court erred in denying the motion to suppress and in considering the evidence obtained in the search. Accordingly, we reverse the conviction.
All statutory references are to RSMo 2000 unless otherwise indicated.
Viewing the testimony in the light most favorable to the trial court's ruling, State v. Carter , 955 S.W.2d 548, 560 (Mo. banc 1997), the record reveals that on January 28, 2002, Missouri Highway Patrolman Jeremy Stewart ("Stewart") was parked on the shoulder of Interstate 55 observing traffic. At about 1:00 a.m. he observed a Ford Ranger pickup (the "truck"), driven by Appellant, "weave within its lane from the center line to the fog line" and then "cross over the center line." After Stewart stopped the truck, Appellant accompanied him to the patrol car.
Stewart testified that once they were seated in the patrol car, he noticed that Appellant's breathing was labored, he "was extremely nervous," he was shaking and stuttering, "his voice was cracking," and he seemed to have a hard time "sitting still." While Stewart was running a computer check of Appellant's driver's license, Appellant explained to Stewart that he and his cousin, Vincent Davalos ("Davalos"), a passenger in the truck, were en route from Dallas, Texas to Memphis, Michigan to work on a house owned by his father. Further, according to Stewart, Appellant told him that he had rented the truck in Michigan and would be driving it back to Texas alone, because his cousin was going to take the bus back to Texas. After sitting in the patrol car for several minutes, Stewart asked Appellant for the truck's registration information. When Appellant told Stewart the registration information was in the glove compartment, Stewart returned to the truck and requested the paperwork from Davalos. He spoke briefly with Davalos and Davalos stated that the pair were traveling to Capac, Michigan and that they would be returning to Texas later in the week.
Stewart then "finished [the] computer checks on both subjects, wrote [Appellant] out the warning [for crossing the center line], and informed [Appellant] he was free to go." Stewart testified that he handed Appellant his license and rental agreement, and at that point intended to release both Appellant and the truck. Appellant got out of the patrol car and started to walk back toward the truck, but just before he reached the truck, Stewart stepped out of his patrol car and "informed [Appellant] of the discrepancies in [his and Davalos's] statements and asked for permission to search the vehicle and its contents." Appellant responded by saying, "I don't think so." Stewart testified that he then "informed [Appellant] that was fine, that was his right, that the vehicle could not be moved, [he] would be calling the K-9 unit to come do a sniff of the vehicle." Stewart also said that although Appellant was still free to go, he told him that he could wait in the patrol car during the search and then summoned a K-9 unit. Stewart also asked Davalos if he could search the vehicle, and Davalos, who seemed nervous, deferred to Appellant as to whether Stewart could have permission for the search. Once Davalos was outside the vehicle, Stewart observed him pacing back and forth.
It was approximately 1:00 a.m. on January 28 when the events occurred. Additionally, the location where Stewart stopped the truck was not even an exit and there was nothing in the surrounding area to which Appellant could have walked. Stewart said there was really no place for Appellant and Davalos to go.
Officer Rick Sanders ("Sanders") arrived with the K-9 unit. The bed of the truck was covered by a hard plastic cover that was split into a front section and a rear section with a hinge between the compartments. After the dog indicated that he smelled something in the bed cover, Sanders opened the unlocked rear compartment and found some clothing and luggage. By using the ignition key he obtained from Appellant, Sanders then unlocked the front compartment. In the front compartment the officers located a black duffel bag containing approximately thirty-six pounds of marijuana packaged in vacuum sealed bundles. Thereafter, both Appellant and Davalos were placed under arrest.
At trial, Appellant either disputed or explained the circumstances testified to by Stewart. Appellant said that he never told Stewart the truck had been rented in Michigan. He stated that it should have been obvious from the registration paperwork, rental agreement, and Texas license plates on the truck that it had been rented in Texas and not in Michigan. Appellant indicated that he was not nervous when he was being questioned by Stewart in the patrol car and that he thought the initial conversations between he and Stewart were just "small talk." Appellant also testified that there were never any plans for Davalos to return to Texas by bus and that Davalos had always planned on returning to Texas in the truck with Appellant. Additionally, Appellant testified that while Appellant stated they were driving to Memphis, Michigan and Davalos stated they were driving to Capac, Michigan the two towns are located very near each other and that both men had relatives living in that area. According to Appellant, after he denied Stewart's request to search the truck, Stewart "said, 'Well, here's the situation. We're going to detain the vehicle. You and your cousin are free to go. You all can walk down the highway. If we find anything wrong with it, we'll put a warrant out for your arrest. If we don't then you're free to come get the vehicle.'" Appellant stated that because it was in the middle of the night in January, they were surrounded by empty fields and he was without a jacket, he decided to wait in Stewart's patrol car "until [the police were] through with the vehicle."
During Davalos's testimony, he admitted that the marijuana found in the vehicle belonged to him. He testified at length regarding how he acquired the drugs, packaged them, and intended to sell them when he arrived in Michigan. He stated that he loaded the black duffel bag into the truck himself before they left Texas and that Appellant did not know anything about the drugs he was transporting.
The trial court overruled Appellant's motion to suppress and took his motion for judgment of acquittal under advisement until the conclusion of the evidence at which time it also denied that motion and convicted Appellant of violating Section 195.211.
We additionally note that Appellant and Davalos were tried together and were both convicted under Section 195.211. In his direct appeal, Davalos maintained a similar argument to that espoused by Appellant in the present matter. See State v. Davalos , 128 S.W.3d 143 (Mo.App.S.D. 2004). On appeal, this court found that "the trial court's decision to deny the motion to suppress is questionable," yet affirmed the conviction based on the fact that "the evidence of guilt sought to be suppressed was merely cumulative, because [Davalos] testified at trial that he alone knew about the marijuana and that he loaded the marijuana into the truck with the purpose of delivering it for sale in Michigan." Id. at 148.
In a motion to suppress evidence, the State bears both the burden of producing evidence, and the risk of non persuasion, to show by a preponderance of the evidence that the motion to suppress should be overruled. State v. Weddle , 18 S.W.3d 389, 391 (Mo.App.E.D. 2000); Section 542.296.6. Where a criminal defendant's pretrial motion to suppress evidence is denied, and the defendant objects to the admission of the evidence at trial, we will review the denial of the motion. State v. Williams , 9 S.W.3d 3, 11 (Mo.App.W.D. 1999). In reviewing a trial court's denial of a motion to suppress, we are limited to a determination of whether it is supported by substantial evidence. State v. Rousan , 961 S.W.2d 831, 845 (Mo. banc 1998). The trial court's ruling on a motion to suppress is reversed only if it is clearly erroneous. State v. Hunter , 43 S.W.3d 336, 340 (Mo.App.W.D. 2001). The trial court's ruling is clearly erroneous if we are left with a definite and firm belief a mistake has been made. Id. A reviewing court will give deference to the trial court's factual findings and credibility determinations, but will review questions of law de novo. Weddle , 18 S.W.3d at 391-92.
Though Appellant's first argument is that the initial traffic stop was pretextual, and therefore unlawful, we need not address it because the traffic stop was completed at the time the officer initiated the search. Therefore, we turn to Appellant's argument that once Stewart had run the computer check for outstanding warrants, had written the traffic warning, and had informed him he was free to go, the traffic stop was complete and any search thereafter required new and articulable suspicion that Appellant had committed a crime.
Because "the traffic stop transaction had been completed" and "[it] gave the officer no justification for the search," it "need not be examined to determine if it was 'pretextual.'" State v. Morr , 811 S.W.2d 794, 797 (Mo.App.W.D. 1991).
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. As a general rule, a search or seizure is only permissible if there is probable cause to believe a person has committed or is committing a crime. Weddle , 18 S.W.3d at 393. For Fourth Amendment purposes, a "seizure" occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." Terry v. Ohio , 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889, 903 (1968). "Not all 'personal intercourse' between the police and individuals involves 'seizures' of persons." State v. Werner , 9 S.W.3d 590, 600 (Mo. banc 2000). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Id. "In other words, a seizure occurs 'only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.'" Id. (quoting Michigan v. Chesternut , 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565, 572 (1988)). A person who reasonably assumes that he is not free to leave from the presence of the officer has been "seized" even if he has not been arrested. Morr , 811 S.W.2d at 798 n. 2 ( citing United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980)).
A routine traffic stop based upon 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. (quoting U.S. v. Trigg , 878 F.2d 1037, 1041 (7th Cir. 1989)). However, the fact that the police may detain a person for a routine traffic stop does not justify indefinite detention. State v. Woolfolk , 3 S.W.3d 823, 829 (Mo.App.W.D. 1999). The detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic violation. Id. "[A] traffic stop significantly curtails the 'freedom of action' of the driver and the passengers, if any, of the detained vehicle." Berkemer v. McCarty , 468 U.S. 420, 436, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317, 332 (1984). "[S]topping an automobile and detaining its occupants constitute a 'seizure' within the meaning of the [ Fourth Amendment], even though the purpose of the stop is limited and the resulting detention quite brief." Id. at 436-437. As stated in Berkemer :
[D]etention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist's expectations, when he sees a policeman's light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way.Berkemer , 468 U.S. at 437.
During a routine traffic stop investigation, an officer may request a driver's license and vehicle registration, run a computer check, and issue a citation. State v. Riddle , 843 S.W.2d 385, 387 (Mo.App.E.D. 1992). A reasonable investigation may also include requesting the driver to sit in the patrol car and asking the driver about his destination and purpose. Slavin , 944 S.W.2d at 318. "When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his [or her] way, without being subject to further delay by police for additional questioning." Riddle , 843 S.W.2d at 387. If "the detention extends beyond the time reasonably necessary to effect its initial purpose, the seizure may lose its lawful character unless a new factual predicate for reasonable suspicion is found during the period of lawful seizure." Slavin , 944 S.W.2d at 317-318. This new suspicion must come about during the time necessary to effect the purpose of the stop. Woolfolk , 3 S.W.3d at 828-29.
Here, the purpose of the traffic stop had been completed prior to the search. Appellant committed a traffic violation, was lawfully stopped by a police officer, and produced a valid license and registration. Stewart checked Appellant's record, gave him a written warning and informed Appellant that he "was free to go." The purpose of the stop, to investigate a traffic violation, was satisfied as soon as Appellant stepped out of Stewart's patrol car. Once these steps had been completed, Stewart was required to allow Appellant to proceed without further questioning unless "specific, articulable facts create[d] an objectively reasonable suspicion that the individual is involved in criminal activity." Slavin , 944 S.W.2d at 318.
In this case, there was nothing articulated in the record that would have given Stewart reasonable suspicion that Appellant was engaged in criminal activity beyond the traffic stop. Stewart testified that there was not "anything that [Appellant] did in walking back to the patrol car that caused [Stewart] to think that he was committing a crime," and other than the fact that Appellant was acting "irregular" there was nothing "that he did once he sat down in [Stewart's] patrol car that caused [Stewart] to think that [Appellant] was committing a crime." When asked by defense counsel if "[w]hen you told him he was free to go, was there anything else that you needed to do for the traffic stop[?]," Stewart replied, "No, sir." Stewart stated that Appellant "didn't do anything new" or commit any crimes when returning to his vehicle from the patrol car and did nothing else that "create[d] an articulable fact that he was involved in some criminal activity." Stewart acknowledged that his purpose was accomplished at the time he finished his investigation into the traffic stop." [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." State v. Barks , 128 S.W.3d 513, 517 (Mo. banc 2004) (quoting Woolfolk , 3 S.W.3d at 829).
At oral argument, the State conceded that no new facts and circumstances arose between the time that Appellant's traffic stop was completed and the time that Stewart requested to search his vehicle such as to warrant an increase in Stewart's reasonable suspicion.
The State argues that Stewart had the right to search Appellant's vehicle based on his suspicious behavior during the traffic stop and the possible inconsistencies in he and his passenger's statements. We would agree if Stewart had requested to search the vehicle prior to handing Appellant the written warning and telling him that he was free to go; however, he did not do so. No specific, articulable facts developed between the time Appellant got out of Stewart's patrol car and returned to his truck that would justify Stewart in detaining Appellant to ask him further questions.
Nervousness alone does not give rise to reasonable suspicion, although, together with other factors, it can be relevant in determining whether reasonable suspicion exists under the totality of the circumstances. See State v. Stevens , 845 S.W.2d 124, 129 (Mo.App.E.D. 1993).
We acknowledge that the "mere fact that an officer talks with a citizen or asks the citizen a question does not mean that the citizen is being seized or detained." Woolfolk , 3 S.W.3d at 830. Police may at any time ask a citizen if he has contraband on his person or in his car and may ask for permission to search. State v. Bunts , 867 S.W.2d 277, 281 (Mo.App.S.D. 1993). The citizen may deny consent; if he does, the police may not conduct the search. Morr , 811 S.W.2d at 798. Even if a law enforcement officer does not have reasonable suspicion to further detain a driver at the completion of a traffic stop, the officer may question the driver if the encounter has turned into a consensual one. State v. Scott , 926 S.W.2d 864, 869 (Mo.App.S.D. 1996). "So long as a reasonable person would feel free 'to disregard the police and go about his business,' the encounter is consensual and no reasonable suspicion is required." Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991) (quoting California v. Hodari D. , 499 U.S. 621, 628, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690, 698 (1991)). "'[A] court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.'" State v. Solt , 48 S.W.3d 677, 680-81 (Mo.App.S.D. 2001) (quoting Bostick , 501 U.S. at 439-40). "'There is no litmus paper test for distinguishing a consensual encounter from a seizure or for ascertaining when a seizure has exceeded the bounds of an investigative stop.'" Id. at 680 (quoting Scott , 926 S.W.2d at 869).
In Woolfolk , following a traffic stop similar to the one here, the defendant repeatedly declined to give his consent for the officer to search his vehicle. Id. at 832. In response, the officer informed the defendant that he could either allow the officer to search his vehicle or he could wait for the K-9 unit to arrive. Id. On appeal, the western district of this court found that "where, as here, [an officer] 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 [the defendant's] position would not have felt free to leave." Id.
We find the instant case requires the same analysis. Though Stewart testified that when he requested to search Appellant's vehicle Appellant "was still free to go at that time," the record reveals that a reasonable person would not have felt free to leave. Appellant and his passenger, both from Texas, were pulled over by a police officer on the side of a rural Missouri highway in the middle of a cold January night. Neither party was wearing a jacket, and they were surrounded by nothing but open fields. They were informed that their truck and all of their personal possessions were being detained for an indefinite period of time. "Common sense tells us that, as a rule, a motorist who is involuntarily stopped by a law enforcement officer, for whatever reason, is going to be very reluctant to leave the scene until it is perfectly clear that he or she is free to do so." State v. Taber , 73 S.W.3d 699, 706 (Mo.App.W.D. 2002).
Accordingly, we find that there was simply nothing articulated in the record, after the traffic stop concluded, that would give Stewart reasonable suspicion that Appellant was engaged in criminal activity. 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. The judgment of conviction and sentence is hereby reversed, and Appellant is ordered discharged from any further incarceration with regard to this conviction.
Rahmeyer, C.J., and Barney, P.J., — concur.