STATE OF MISSOURI,
)
)
Appellant,
)
)
vs.
)
No. WD78413
)
CHRISTOPHER P. HUMBLE,
)
)
Respondent.
)
__________________________________________________________________
APPEAL TO THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
FROM THE CIRCUIT COURT OF CALLAWAY COUNTY, MISSOURI
13TH JUDICIAL CIRCUIT, DIVISION 2
THE HONORABLE GARY M. OXENHANDLER, JUDGE
__________________________________________________________________
RESPONDENT’S BRIEF
__________________________________________________________________
Margaret M. Johnston, MOBar #45913
Attorney for Respondent
Woodrail Centre
1000 West Nifong
Building 7, Suite 100
Columbia, Missouri 65203
Telephone (573) 777-9977
FAX (573) 777-9974
maggie.johnston@mspd.mo.gov
Electronically Filed - WESTERN DISTRICT CT OF APPEALS - August 10, 2015 - 02:12 PM
IN THE
MISSOURI COURT OF APPEALS
WESTERN DISTRICT
__________________________________________________________________
Page
TABLE OF AUTHORITIES .................................................................................. 2
FACTS ..................................................................................................................... 3
ARGUMENT .......................................................................................................... 5
CONCLUSION .................................................................................................... 13
CERTIFICATE OF COMPLIANCE AND SERVICE ...................................... 14
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INDEX
Page
CASES:
Arizona v. Gant, 556 U.S. 332 (2009) ........................................................ 5, 6, 11
Burkett v. State, 607 S.W.2d 399 (1980) .............................................................. 9
Commonwealth v. Pacheco, 985 N.E.2d 839 (Mass. 2012) ........................ 9, 10
Illinois v. Gates, 462 U.S. 213 (1983) .............................................................. 8, 9
State v. Deaton, 395 S.W.3d 50 (Mo. App. S.D. 2013) ...................................... 6
State v. Farris, 849 N.E.2d 985 (Ohio 2006) ....................................................... 9
State v. Irvin, 210 S.W.3d 360 (Mo. App. W.D. 2006) ........................ 10, 11, 12
State v. Lane, 937 S.W.2d 721 (Mo. banc 1997) ................................................. 6
State v. Schmadeka, 38 P.3d 633 (Idaho App. 2001) ........................................ 8
U.S. v. Downs, 151 F.3d 1301 (10th Cir. 1998) .................................................... 9
U.S. v. Ross, 456 U.S. 798 (1982) ...................................................................... 6, 7
U.S. v. Wald, 215 F.3d 1222 (10th Cir. 2000) ....................................................... 9
Wyoming v. Houghton, 526 U.S. 295 (1999) ....................................................... 7
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TABLE OF AUTHORITIES
In addition to the facts presented at the hearing on the motion to
suppress, the trial court viewed Defendant’s Exhibit A, a video and sound
recording of the traffic stop (Tr. 40-42). Within one minute of calling in
Mr. Humble’s driver’s license, Trooper Fouch was told it was valid (Def.
Ex. A at 2:44:15 – 2:45:19). He immediately asked Mr. Humble, “What kind
of drugs you on today?” (Ex. A at 2:45). When Mr. Humble responded
that he was not on anything, Tpr. Fouch asked permission to search his
vehicle, and then asked him what he had “up there” in his car (Ex. A 2:452:45:50). He told Mr. Humble that it would go easier for him if he “worked
with” the trooper (Ex. A at 2:45:50). When Mr. Humble said there was
nothing up in the car, the officer asked, “so, when the dog comes, he won’t
find anything?” (Ex. A at 2:46). Mr. Humble said he might have a ceboxin
(Ex. A at 2:46:18). Tpr. Fouch radioed for a backup deputy (Ex. A at
2:49:10).
The dispatcher told Tpr. Fouch that the car had a valid registration
(Ex. A. 2:51:50). Tpr. Fouch read Mr. Humble his rights and told him that
he was not under arrest; he asked where the ceboxin was, and Mr. Humble
told him it was in the console (Ex. A at 2:51:50-2:53).
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FACTS
console (Ex. A at 2:58). While he was doing so, Tpr. Fouch reached his arm
and leaned his head and shoulders into the car behind Mr. Humble (Ex. A
at 2:58:25). After Mr. Humble gave the ceboxin to the officer, he was
handcuffed and put back into the patrol car (Ex. A 2:59:15). Tpr. Fouch
asked Mr. Humble what else he would find in the car, and Mr. Humble
immediately responded, “there’s some syringes in the middle console”
(Ex. A at 3:02:30).
After the syringes were retrieved by the officer, he asked Mr.
Humble what was the “green stuff,” and Mr. Humble said it was “roxy,”
for which he did not have a prescription (Ex. A at 3:04:05-3:05:10). The
video camera is directed on Mr. Humble’s face as the rest of the car is
searched, including the trunk. After Tpr. Fouch discovered marijuana in a
bag in the trunk, he returned to the patrol car and told Mr. Humble, “Now
you’re under arrest” (Ex. A at 3:07:40). He read Mr. Humble his rights and
asked, “Who you taking weed to?” and Mr. Humble responded, “I didn’t
even know it was in there.” (Ex. A at 3:07:40).
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Mr. Humble was permitted to retrieve the ceboxin strip from the
The trial court did not err in granting Mr. Humble’s motion to
suppress the physical evidence found in the trunk.
The trial court ruled that the search of Mr. Humble’s trunk was
unlawful under Arizona v. Gant, 556 U.S. 332 (2009) (LF 21). Appellant
argues that the search was justified as a search incident to Mr. Humble’s
arrest because he was arrested for possession of controlled substances, and
it was reasonable for Trooper Fouch to believe that other controlled
substances might be found in the vehicle. Appellant also argues that the
search was justified because there was probable cause for Tpr. Fouch to
believe the vehicle contained contraband or evidence of a crime based on
the drugs already found inside the vehicle.
Appellant’s argument that the search of the trunk was justified as a
search incident to arrest should fail because as demonstrated by the video
recording of the incident, Mr. Humble was not placed under arrest until
after the marijuana was found (Ex. A).
The question presented here is: When does an officer’s warrantless
search, based on probable cause to believe a vehicle contains contraband or
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ARGUMENT
vehicle to its trunk?
The Gant Court noted that in many cases, “the offense of arrest will
supply a basis for searching the passenger compartment of an arrestee’s
vehicle and any containers therein.” 556 U.S. at 344 (emphasis added).
The scope of such a search is defined by the object of the search and the
places in which there is probable cause to believe that it may be found.
U.S. v. Ross, 456 U.S. 798, 824 (1982). Probable cause to search a vehicle
exists when objective facts, under the totality of the circumstances at the
time of the search, would lead a reasonably prudent individual to believe
that contraband was located in the automobile. State v. Deaton, 395
S.W.3d 50, 54 (Mo. App. S.D. 2013). If probable cause justifies the search of
a vehicle, it justifies only the search of the parts of the vehicle and its
contents that may contain the object of the search. State v. Lane, 937
S.W.2d 721, 722 (Mo. banc 1997). The Ross Court noted, “Probable cause
to believe that a container placed in the trunk of a taxi contains contraband
or evidence does not justify a search of the entire cab.” Id.
Mr. Humble confessed possession of both the ceboxin and the
syringes, and told Tpr. Fouch where they were located (Defendant’s Ex. A
at 2:53, 3:02:30). Mr. Humble’s license was valid (Ex. A at 2:45:33), and he
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evidence of a crime, extend beyond the passenger compartment of a
vehicle’s registration was valid (Def. Ex. A at 2:51:50). There was no
testimony by Tpr. Fouch that the contraband Mr. Humble admitted to
possessing that was in the passenger compartment of the vehicle, supported
a probable cause belief that there was additional contraband in the trunk.
An officer’s probable cause to justify a vehicle search only extends to
the parts of the vehicle that may conceal the object of the search. Ross.
Tpr. Fouch failed to articulate specific facts supporting probable cause to
believe that Mr. Humble was concealing anything in the trunk. The critical
element in a reasonable vehicle search is not that the driver of the vehicle
is suspected of crime, but that there is reasonable cause to believe that the
specific things to be searched for and seized are located in places in the
vehicle to which entry is sought. Wyoming v. Houghton, 526 U.S. 295, 302
(1999). Mr. Humble admitted possessing suboxone, syringes, and later a
container of roxycodone found with the syringes (D’s Ex. A at 2:53, 3:02:30,
3:04:05-3:05:10). He told Tpr. Fouch where all items could be found. But
Mr. Humble was not the owner of the vehicle. While Tpr. Fouch had
probable cause to search the rest of the passenger compartment of the
vehicle based on Mr. Humble’s drugs and paraphernalia found in the
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told the officer that the car belonged to a friend (Def. Ex. A at 2:49:20). The
well.
In State v. Schmadeka, the defendant was pulled over for a cracked
windshield and not wearing his seatbelt. 38 P.3d 633, 634 (Idaho App.
2001). When the trooper reached the driver’s window, he smelled burnt
marijuana and observed inside the vehicle a “M-800” firecracker, a large
explosive type of firework that he believed to be illegal in Idaho. Id. After
running a license check, the officer ordered the defendant out of his
vehicle and conducted a pat-down search before engaging in a prolonged
search of the passenger compartment and trunk of the car. Id. at 634-635.
In the trunk, the officer discovered evidence of an active
methamphetamine laboratory. Id. at 635.
The court of appeals held that the presence of the single firecracker
in the passenger compartment did not justify a search of the trunk under
the automobile exception to the warrant requirement. Id. at 636. The
Schmadeka court stated that a court “must apply common sense,
considering the totality of the circumstances to determine whether there is
a fair probability that contraband will be discovered in a particular place.”
Id. at 637, citing Illinois v. Gates, 462 U.S. 213 (1983). The court held that
even if the M-800 were an illegal firework, its lone presence in the
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console, these facts do not support probable cause to search the trunk as
was not a fair probability that more of the same contraband would be
found in the trunk. Id.
The court also held that the slight odor of burnt marijuana in the
passenger compartment of the car was insufficient to give rise to probable
cause to believe that contraband or evidence was concealed in the trunk.
Id. at 637-638, citing U.S. v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998)
(smell of burnt marijuana in passenger portion of vehicle did not give
probable cause to search the trunk); U.S. v. Wald, 215 F.3d 1222 (10th Cir.
2000) (odor of burnt methamphetamine in passenger compartment of
vehicle did not give probable cause to search the trunk); Burkett v. State,
607 S.W.2d 399 (1980) (roach clip and marijuana cigarette butt in ashtray
did not extend scope of probable cause to the trunk). Also see State v.
Farris, 849 N.E.2d 985 (Ohio 2006) (“A trunk and a passenger
compartment of an automobile are subject to different standards of
probable cause to conduct searches.” The odor of burnt marijuana in the
passenger compartment of a vehicle does not, standing alone, establish
probable cause for a warrantless search of the trunk.).
In Commonwealth v. Pacheco, a state trooper approached a vehicle
parked in a handicapped parking space without a handicapped
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passenger compartment did not justify a search of the trunk because there
lowered the vehicle windows, the trooper smelled a strong odor of freshly
burnt marijuana emanating from inside the vehicle. Id. He searched each
occupant, one of whom directed him to a bag of marijuana on the floor mat
behind the front passenger seat that contained less than one ounce. Id. at
841-842. The trooper found nothing else during a search of the interior of
the vehicle, but opened the trunk and found a backpack containing a
semiautomatic handgun. Id. at 842.
The officer’s search of the trunk was reversed on appeal. Id. at 843.
The court found that the smell of freshly burnt marijuana coupled with
such a small amount of marijuana did not, without more, support probable
cause to believe that a “criminal amount” of marijuana would be found in
the trunk. Id. In order to search the trunk, the trooper was required to
have articulable facts supporting a belief that one of the vehicle occupants
possessed a criminal amount of marijuana. Id. The court found that the
occupants’ use of the drug did not give the officer probable cause to
believe that they had a “distribution amount” that they might be hiding in
the trunk. Id.
In State v. Irvin, 210 S.W.3d 360, 361 (Mo. App. W.D. 2006), Mr.
Irvin was stopped for speeding and the sheriff detected a strong odor of
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registration plate. 985 N.E.2d 839, 841 (Mass. 2012). When the occupants
refused to do any others and was arrested. Id. A search of the passenger
compartment of his car revealed one small baggie of marijuana (7.9 grams)
in the pocket of a duffel bag on the passenger side, and another small
baggie of marijuana (3.0 grams) with rolling papers in the center console.
Id. A search of the trunk revealed a large bag of marijuana (113.2 grams),
and Mr. Irvin was charged with felony possession of a controlled
substance. Id. The trial court suppressed the marijuana found in the trunk
but not the marijuana found in the passenger compartment. Id.
On appeal, this Court reversed the trial court’s suppression of the
marijuana found in the trunk. The trunk was searched “incidental to
arrest,” and there was no constitutional violation. Id. at 362-363.
Here, Mr. Humble was not under arrest when the trunk of his car
was searched. It was not until after the marijuana in the trunk was found
that he was placed under arrest. Since Mr. Humble was not placed under
arrest until after the search of the trunk, the state’s argument that this was
a “search incident to arrest” under Arizona v. Gant is factually
inapplicable.
Mr. Humble was driving another person’s car and freely admitted to
Tpr. Fouch that he had used drugs earlier that day, that he had one dose of
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alcohol coming from the car. After failing one field sobriety test, Mr. Irvin
found by the officer near the syringes contained Roxicodone. Certainly
Tpr. Fouch had probable cause to search the rest of the passenger
compartment of the vehicle that Mr. Humble occupied while driving it, but
under the totality of the circumstances, the objective facts would not lead a
reasonably-prudent individual to believe that Mr. Humble had hidden any
contraband in the trunk of someone else’s car. The trial court concluded
that the trooper, “should have gotten a warrant.” (LF 21). The court’s
ruling is supported by substantial evidence and should be affirmed. Irvin,
210 S.W.3d at 361-362.
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suboxone in the car, that he had syringes in the car, and that a container
Respondent requests that this Court affirm the trial court’s ruling on
Mr. Humble’s motion to suppress physical evidence found in the trunk.
Respectfully submitted,
/s/ Margaret M. Johnston
_________________________________
Margaret M. Johnston, MOBar #45913
Attorney for Respondent
Office of State Public Defender
Woodrail Centre
1000 West Nifong
Building 7, Suite 100
Columbia, MO 65203
(573) 777-9977
FAX (573) 777-9974
maggie.johnston@mspd.mo.gov
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CONCLUSION
I, Margaret M. Johnston, hereby certify to the following. The
attached brief complies with the limitations contained in Rule 84.06(b) and
Special Rule XLI. The brief was completed using Microsoft Word, Office
2007, in Book Antiqua size 13 point font, which is no smaller than Times
New Roman size 13 point font. Excluding the cover page, the signature
block, and this certificate of compliance and service, the brief contains
2,310 words, which does not exceed the 13,950 words allowed for a
respondent’s brief.
On this 10th day of August, 2015, an electronic copy of Respondent’s
Brief was placed for delivery through the Missouri e-Filing System to
Andrew Hooper, Assistant Attorney General, at
Andrew.Hooper@ago.mo.gov.
/s/ Margaret M. Johnston
_________________________________
Margaret M. Johnston
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CERTIFICATE OF COMPLIANCE AND SERVICE