In the
Missouri Court of Appeals
Western District
__________________________________
STATE OF MISSOURI,
Appellant,
v.
CHRISTOPHER P. HUMBLE,
Respondent.
__________________________________
Appeal from the Callaway County Circuit Court
Thirteenth Judicial Circuit
The Honorable Gary M. Oxenhandler, Judge
__________________________________
APPELLANT’S BRIEF
__________________________________
CHRIS KOSTER
Attorney General
ANDREW C. HOOPER
Assistant Attorney General
Missouri Bar No. 64917
P.O. Box 899
Jefferson City, Missouri 65102
Phone: (573) 751-6757
Fax: (573) 751-5391
Andrew.Hooper@ago.mo.gov
ATTORNEYS FOR APPELLANT
STATE OF MISSOURI
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No. WD78413
TABLE OF AUTHORITIES ................................................................................ 2
JURISDICTIONAL STATEMENT ..................................................................... 4
STATEMENT OF FACTS ................................................................................... 5
POINT RELIED ON .......................................................................................... 14
ARGUMENT ...................................................................................................... 15
A. Standard of review. ............................................................................. 15
B. Analysis. ............................................................................................... 16
CONCLUSION ................................................................................................... 27
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TABLE OF CONTENTS
Cases
Arizona v. Gant, 556 U.S. 332 (2009) ................................................... 17, 18, 24
Atwater v. Lago Vista, 532 U.S. 318 (2001) ...................................................... 17
Chimel v. California, 395 U.S. 752 (1969) ........................................................ 17
Knowles v. Iowa, 525 U.S. 113 (1998) ............................................................... 18
State v. Berry, 801 S.W.2d 64 (Mo. 1990) ......................................................... 19
State v. Breese, 250 S.W.3d 413 (Mo. App. S.D. 2008) ......................... 15, 16, 19
State v. Deaton, 395 S.W.3d 50 (Mo. App. S.D. 2013) .................... 15, 16, 18, 19
State v. Gambow, 306 S.W.3d 163 (Mo. App. S.D. 2010) ........................... 19, 23
State v. Irvin, 210 S.W.3d 360 (Mo. App. W.D. 2006) ...................................... 19
State v. Lane, 937 S.W.2d 721 (Mo. 1997) .................................................. 19, 23
State v. Lovelady, 432 S.W.3d 187 (Mo. 2014) ................................................. 16
State v. McDonald, 170 S.W.3d 535 (Mo. App. W.D. 2005) ............................. 16
State v. McLaughlin, 272 S.W.3d 506 (Mo. App. E.D. 2008) ........................... 16
State v. Meyers, 992 S.W.2d 246 (Mo. App. E.D. 1999) .................................... 19
State v. Middleton, 995 S.W.2d 443 (Mo. 1999) ............................................... 19
State v. Milliorn, 794 S.W.2d 181 (Mo. 1990)................................................... 19
State v. Walker, WD77869 (Mo. App. W.D. May 5, 2015) .......................... 24, 25
State v. Woodrome, 407 S.W.3d 702 (Mo. App. W.D. 2013) ............................. 16
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TABLE OF AUTHORITIES
United States v. Clark, 559 F.2d 420 (5th Cir. 1977) ...................................... 19
United States v. Robinson, 414 U.S. 218 (1973) ............................................... 17
United States v. Ross, 456 U.S. 798 (1982)........................................... 19, 23, 25
Weeks v. United States, 232 U.S. 383 (1914) .................................................... 17
Wyoming v. Houghton, 526 U.S. 295 (1999) ............................................... 19, 23
Constitutional Provisions
MO. CONST. ART. I, § 15 ................................................................................. 16
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Thornton v. United States, 541 U.S. 615 (2004) ............................................... 17
This is an interlocutory appeal from the Circuit Court of Callaway
County’s judgment granting Defendant’s motion to suppress evidence.
Missouri law authorizes the State to appeal orders suppressing evidence in
criminal cases. § 547.200.1(3).
This appeal does not involve any of the
categories reserved for the exclusive jurisdiction of the Missouri Supreme
Court. Therefore, jurisdiction lies in the Missouri Court of Appeals, Western
District. Mo. Const. art. V, § 3; § 477.070; see also § 547.200.3.
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JURISDICTIONAL STATEMENT
This is an appeal from a Callaway County Circuit Court judgment
granting Christopher P. Humble’s (Defendant) motion to suppress physical
evidence. (L.F. 21). Viewed in the light most favorable to the judgment, the
evidence presented showed the following:
On November 5, 2014, Defendant was charged by information with one
count of the class B felony of possession of a controlled substance with intent
to distribute for possessing more than five grams of marijuana; two counts of
the class C felony of possession of a controlled substance for possessing
buprenorphine and oxycodone; one count of the class A misdemeanor of
possession of drug paraphernalia with intent to use for possessing syringes;
and one count of the Class C misdemeanor of following too close. (L.F. 9-10).
On February 3, 2015, Defendant filed a motion to suppress evidence of
controlled substances and drug paraphernalia that were seized from
Appellant’s car during a traffic stop that occurred on January 20, 2014.
(L.F. 11-16). On February 3, 2015, a hearing was held in regard to
Defendant’s motion to suppress. (Tr. 1-2).
At the suppression hearing, Trooper David Fouch of the Missouri
Highway Patrol testified that on January 20, 2014, he received a dispatch of
a black Chevrolet Malibu driving eastbound on I-70 in a careless and
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STATEMENT OF FACTS
Fouch observed a car matching the description he had received pass by him
traveling eastbound on I-70 and following a Ford pickup dangerously close.
(Tr. 4-5). When Trooper Fouch drove his patrol car onto the eastbound lane of
I-70, the Chevrolet quickly exited at the 144 mile marker, turned north onto
County Road 223, and then turned west onto Route HH. (Tr. 5). Trooper
Fouch was able to catch up and initiate a traffic stop of the black Chevrolet
Malibu. (Tr. 6).
Trooper Fouch approached the driver’s side of the car and spoke with
Defendant, the car’s only occupant. (Tr. 6-7). Trooper Fouch identified
himself, told Defendant the reason for the stop, and upon request was
provided a Kansas driver’s license by Defendant. (Tr. 7). When Trooper Fouch
asked Defendant where he was driving, Defendant told him he was going to
Wright City. (Tr. 7). When Trooper Fouch asked Defendant why he exited
and went back westbound if he was heading to Wright City, Defendant told
him that he was trying to find a gas station to get some rest. (Tr. 7-8).
However, Trooper Fouch later testified that the signs posted did not indicate
that there were any services at that exit from the interstate. (Tr. 37-38).
Trooper Fouch observed that Defendant’s eyes were very watery and
that he continually rubbed them while they talked. (Tr. 8). Defendant’s
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imprudent manner. (Tr. 3-4). Approximately ten minutes later, Trooper
and Trooper Fouch had to ask Defendant to repeat himself because he could
not understand what he was saying. (Tr. 8). Trooper Fouch also observed
three air fresheners hanging in the car, the odor of which was overwhelming
when Defendant rolled the window down. (Tr. 8). Based on his training and
experience, Trooper Fouch knew that the existence of the three air fresheners
was significant in light of the totality of the circumstances. (Tr. 8).
Trooper Fouch requested that Defendant accompany him back to his
patrol car and asked him to sit in the front passenger seat. (Tr. 9). Trooper
Fouch observed that Defendant stepped slowly and his balance was
uncertain. (Tr. 9). Initially, Defendant walked to the front driver’s side door
of the patrol car before he realized that he would have to walk back around to
the passenger door. (Tr. 9).
Inside the patrol car, Trooper Fouch began running Defendant’s name
and registration, and called dispatch on the radio. (Tr. 25). At this point,
Trooper Fouch suspected that Defendant had been driving while intoxicated.
(Tr. 10). Trooper Fouch suspected that Defendant had been using drugs
rather than alcohol because he could not detect any odor of alcohol. (Tr. 11).
When he asked Defendant what drugs he was on, Defendant responded that
he was not on any drugs. (Tr. 11). When Trooper Fouch asked Defendant if he
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speech was very mumbled and slurred to the point that it was incoherent,
11). When he asked again, Defendant told him no. (Tr. 11). While he was
typing Defendant’s citation into the computer, Trooper Fouch asked
Defendant if a K-9 sniff of the car would reveal anything, to which Defendant
responded there was probably a strip of suboxone, an opiate and a controlled
substance that Defendant said he would place under his tongue. (Tr. 11-13).
At this point the traffic stop had lasted less than five minutes. (Tr. 12).
Normally a traffic stop would take ten to thirteen minutes, but a traffic stop
of an out of state driver and registration would normally take longer. (Tr. 12).
After learning about the suboxone, Trooper Fouch called for backup to
assist him with the traffic stop. (Tr. 13). While waiting for backup, Trooper
Fouch performed several sobriety tests on Defendant. (Tr. 13). After
performing the tests, Trooper Fouch read Defendant his Miranda rights so
that he could question him about the suboxone. (Tr. 13). After confirming
that he understood his rights, Defendant said that he had gotten the
suboxone on the street from a friend and that he had last taken it at 9:00
A.M., prior to leaving Kansas City. (Tr. 14). At this point the stop had lasted
for approximately ten minutes. (Tr. 26).
Trooper Fouch informed Defendant that he was going to conduct a
search of his vehicle after determining that there was probable cause that it
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could search his car, he could not understand Defendant’s first response. (Tr.
Defendant then offered to retrieve the suboxone from his car. (Tr. 14). When
backup arrived, Trooper Fouch approached Defendant’s car and opened the
passenger door, at which point Defendant rolled down the window of the
patrol car and yelled to the trooper that he did not have consent to search the
car. (Tr. 14-15). The trooper went back and explained to Defendant that he
had just admitted to him that there was an opiate in the car. (Tr. 15).
Defendant responded that he had told the trooper that he would retrieve the
drugs from his car for the trooper. (Tr. 15). Trooper Fouch opened the door
and allowed Defendant to retrieve the contraband; a small tan square labeled
as suboxone and stamped with the letters N-8. (Tr. 15). While Defendant was
searching his car, Trooper Fouch noticed that he was using his body to shield
the center console. (Tr. 15). However, Trooper Fouch and the deputy that had
arrived on the scene also noticed several syringes in the area that Defendant
was searching. (Tr. 15).
Trooper Fouch escorted Defendant back to his patrol car and placed
him in handcuffs. (Tr. 15). After conducting a search of the center console,
Trooper Fouch discovered three syringes inside an insulin syringe package,
four Q tips, and a little plastic container containing a green, powdery, watery
substance. (Tr. 16). Based on his training and experience, Trooper Fouch
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contained a controlled substance based on Defendant’s confession. (Tr. 14).
take the form of the substance found in the plastic container. (Tr. 16). When
Trooper Fouch asked Defendant about the items he had found, Defendant
told him that he used the syringes to inject the green substance, which was
“roxycodone.”1 (Tr. 16). The trooper then placed these items in a paper bag to
be analyzed later at the station. (Tr. 17).
Trooper Fouch conducted a further search of the vehicle, specifically of
the passenger compartment, the back seat, and the trunk. (Tr. 17). In the
trunk the trooper found a brownish green duffle bag that had a strong smell
of marijuana emanating from it. (Tr. 17). Inside the duffle bag he found
multiple packages of a green, leafy substance, which he immediately
recognized as marijuana. (Tr. 18). The total amount of marijuana found was
approximately eighteen pounds. (Tr. 19). After finding the marijuana inside
the trunk, Trooper Fouch also seized two cell phones that he had discovered
in the passenger compartment and later got a warrant to search their
contents. (Tr. 19).
1
“Roxycodone” is a common misspelling of roxicodone (oxycodone). See
http://www.drugs.com/misspellings/roxicodone.html
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knew that syringes were often used to inject illegal drugs, which can often
Fouch, the court asked the witness the following:
THE COURT: I have some questions for you, Trooper.
THE WITNESS: Yes, sir.
THE COURT: So at the time that you put [Defendant] in
your patrol car, was there any indication that there were drugs in
the car? Any -- had you seen the syringes? Had you -- there was
nothing there to indicate there were drugs in the car at that time
-THE WITNESS: Correct.
THE COURT: -- correct? And is it also true that
[Defendant] repeated in many different ways you can't search my
car?
THE WITNESS: Yes, sir; twice.
THE COURT: And that was sustained throughout? He
never said you can search my car?
THE WITNESS: Correct.
THE COURT: And so once he was placed in your car, did he
ever get out of your car again?
THE WITNESS: No.
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After both the State and Defendant had finished examining Trooper
car, was he not?
THE WITNESS: He was.
THE COURT: And so he's secured in your car. There is no
consent to -- for you to search the vehicle, correct?
THE WITNESS: That's correct.
THE COURT: I have no further questions.
(Tr. 38-39).
After the State rested, Defendant entered Exhibit A, a recording of the
traffic stop, which was admitted by the court without objection by the State.
(Tr. 40). Prior to adjourning, the court instructed the parties to file briefing
on the issues with the court and to be sure and address the fact that the
trooper had Defendant secured in his vehicle and didn't procure a search
warrant. (Tr. 41).
On February 27, 2015, the court issued an order sustaining Defendant’s
motion to suppress, which stated the following:
After
due
consideration,
notwithstanding
Defendant
repeatedly indicating that no consent was given to the search of
his vehicle, he did consent to the search of the passenger
compartment. At the time of the search of Defendant’s trunk,
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THE COURT: So he was forever -- he was secured in your
access to weapons, he couldn’t destroy any evidence. The Trooper
searched the trunk without consent and he had no authority to do
so – he should have gotten a warrant. Arizona v. Gant, 556 U.S.
332. The theory of inevitable discovery is not available as no
evidence was adduced that the vehicle would be impounded, that
an impoundment protocol was in place, and that the protocol
required an inventory of any property located in the trunk.
Motion to suppress granted as to the items seized in trunk, only.
(L.F. 21).
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Defendant was secured in the Trooper’s vehicle – he had no
The trial court erred in granting Defendant’s motion to
suppress the physical evidence because Trooper Fouch’s search
incident to lawful arrest of Defendant’s trunk for illegal drugs was
justified under Arizona v. Gant in that Defendant had just been
arrested for possession of suboxone and roxicodone, and it was
reasonable to believe further evidence relevant to the crime of arrest
might be found in the vehicle. Trooper Fouch’s search of Defendant’s
vehicle was further justified under the automobile exception
because under the totality of the circumstances, there was probable
cause that it contained contraband or evidence of a crime in light of
Defendant’s evasive behavior; Defendant’s admission that the illegal
drug
suboxone
was
probably
inside
the
car;
the
suboxone,
roxicodone, and syringes found inside the car; and Defendant’s
admission that he injected the roxicodone.
Arizona v. Gant, 556 U.S. 332 (2009).
State v. Deaton, 395 S.W.3d 50 (Mo. App. S.D. 2013).
State v. Gambow, 306 S.W.3d 163 (Mo. App. S.D. 2010).
State v. Rowland, 73 S.W.3d 818 (Mo. App. S.D. 2002).
State v. Woodrome, 407 S.W.3d 702 (Mo. App. W.D. 2013).
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POINT RELIED ON
The trial court erred in granting Defendant’s motion to
suppress the physical evidence because Trooper Fouch’s search
incident to lawful arrest of Defendant’s trunk for illegal drugs was
justified under Arizona v. Gant in that Defendant had just been
arrested for possession of suboxone and roxicodone, and it was
reasonable to believe further evidence relevant to the crime of arrest
might be found in the vehicle. Trooper Fouch’s search of Defendant’s
vehicle was further justified under the automobile exception
because under the totality of the circumstances, there was probable
cause that it contained contraband or evidence of a crime in light of
Defendant’s evasive behavior; Defendant’s admission that the illegal
drug
suboxone
was
probably
inside
the
car;
the
suboxone,
roxicodone, and syringes found inside the car; and Defendant’s
admission that he injected the roxicodone.
A.
Standard of review.
“We review a trial court's ruling on a motion to suppress in the light
most favorable to the ruling and defer to the trial court's determinations of
credibility.” State v. Deaton, 395 S.W.3d 50, 52 (Mo. App. S.D. 2013); citing
State v. Breese, 250 S.W.3d 413, 418 (Mo. App. S.D. 2008). “Our review of the
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ARGUMENT
evidence and we will reverse only if we find it to be clearly erroneous.” Id.
citing Breese, 250 S.W.3d at 418. “Finally, we will affirm the trial court's
decision with respect to a motion to suppress evidence if it is plausible under
any theory.” Id. citing State v. McDonald, 170 S.W.3d 535, 540 (Mo. App.
W.D. 2005); see also State v. McLaughlin, 272 S.W.3d 506, 509 (Mo. App.
E.D. 2008). Analysis of whether law enforcement conduct violated the Fourth
Amendment is a legal issue that is reviewed de novo. State v. Woodrome, 407
S.W.3d 702, 706 (Mo. App. W.D. 2013).
B.
Analysis.
“The Fourth Amendment protects citizens from unreasonable searches
and seizures.” Deaton, 395 S.W.3d at 54; citing Breese, 250 S.W.3d at 418.
The Fourth Amendment applies to state actors through the Fourteenth
Amendment. State v. Lovelady, 432 S.W.3d 187, 190 (Mo. 2014). Additionally,
the Missouri Constitution provides coextensive protection such that the same
analysis applies under both provisions. Lovelady, 432 S.W.3d at 190; MO.
CONST. ART. I, § 15. “Under most circumstances, a warrantless search is
presumptively unreasonable.” Deaton, 395 S.W.3d at 54. “However, a
warrantless search will not offend the Fourth Amendment if it was conducted
pursuant to a well-recognized exception.” Id.
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ruling is limited to determining whether it was supported by sufficient
to a lawful arrest.” Arizona v. Gant, 556 U.S. 332, 338 (2009) ; citing Weeks v.
United States, 232 U.S. 383, 392 (1914). “The exception derives from interests
in officer safety and evidence preservation that are typically implicated in
arrest situations.” Id., citing United States v. Robinson, 414 U.S. 218, 230–
234 (1973); Chimel v. California, 395 U.S. 752, 763 (1969). “Under Chimel,
police may search incident to arrest only the space within an arrestee's
‘immediate control,’ meaning ‘the area from within which he might gain
possession of a weapon or destructible evidence.’” Id. at 335; citing Chimel,
395 U.S. at 763. Under this rationale, police are authorized to search a
vehicle incident to a recent occupant's arrest “only when the arrestee is
unsecured and within reaching distance of the passenger compartment at the
time of the search.” Id. at, 343. “Although it does not follow from Chimel, we
also conclude that circumstances unique to the vehicle context justify a
search incident to a lawful arrest when it is ‘reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.’” Id., citing
Thornton v. United States, 541 U.S. 615, 632 (2004). “In many cases, as when
a recent occupant is arrested for a traffic violation, there will be no
reasonable basis to believe the vehicle contains relevant evidence. Id., citing
Atwater v. Lago Vista, 532 U.S. 318, 324 (2001); Knowles v. Iowa, 525 U.S.
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“Among the exceptions to the warrant requirement is a search incident
basis for searching the passenger compartment of an arrestee's vehicle and
any containers therein.” Id. at 344.
In the instant case, Trooper Fouch was authorized to conduct a search
incident to lawful arrest of Defendant’s vehicle because it was reasonable to
believe further evidence relevant to the crime of possession of a controlled
substance might be found inside the vehicle. Trooper Fouch placed Defendant
under arrest and secured him inside his patrol vehicle after Defendant
retrieved a small square of suboxone from Defendant’s automobile. (Tr. 15).
In light of this evidence, it was reasonable to believe that there were more
drugs in Defendant’s vehicle. While a search incident to lawful arrest of this
area may not normally have been permissible under Chimel, the U.S.
Supreme Court specifically authorized such a search in Arizona v. Gant
because of the circumstances unique to the vehicle context. Gant, 556 U.S. at
343.
Even if a search incident to lawful arrest of Defendant’s vehicle was not
permitted under Arizona v. Gant, the search was still justified under the
automobile exception. “The automobile exception to the warrant requirement
allows an officer to search a vehicle and seize contraband when probable
cause exists.” Deaton, 395 S.W.3d at 54. citing State v. Middleton, 995 S.W.2d
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113, 118 (1998). However, in other cases, “the offense of arrest will supply a
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.” Id. citing Breese, 250 S.W.3d at
419; State v. Irvin, 210 S.W.3d 360, 362 (Mo. App. W.D. 2006); see also State
v. Milliorn, 794 S.W.2d 181, 183 (Mo. 1990), quoting United States v. Clark,
559 F.2d 420, 424 (5th Cir. 1977). “This does not demand certainty, only a
fair probability that contraband or evidence of a crime will be found.” Id.
citing State v. Meyers, 992 S.W.2d 246, 248 (Mo. App. E.D. 1999); State v.
Berry, 801 S.W.2d 64, 66 (Mo. 1990). Essentially, probable cause requires a
reasonable belief that it is more probable than not that the vehicle contains
illegal items. Milliorn, 794 S.W.2d at 183.
“If probable cause justifies the search of a lawfully stopped vehicle, it
justifies the search of every part of the vehicle and its contents that may
conceal the object of the search.” State v. Gambow, 306 S.W.3d 163, 164 (Mo.
App. S.D. 2010); citing United States v. Ross, 456 U.S. 798, 825 (1982); see
also State v. Lane, 937 S.W.2d 721, 722 (Mo. 1997). Probable cause to search
a vehicle also generally authorizes the officer to search the passenger’s
belongings found in the car that are capable of concealing the object of the
search. Id., citing Wyoming v. Houghton, 526 U.S. 295, 307 (1999).
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443, 458 (Mo. 1999). “Probable cause to search an automobile exists when
Defendant’s vehicle under the automobile exception to the warrant
requirement based upon the totality of the circumstances. On January 20,
2014, Trooper David Fouch received a dispatch that Defendant was driving a
black Chevrolet Malibu eastbound on I-70 in a careless and imprudent
manner. (Tr. 3-4). When Trooper Fouch pulled onto the interstate behind
Defendant’s vehicle, Defendant exited the highway and made two subsequent
turns so that he was travelling in the opposite direction on a state highway.
(Tr. 5). After initiating a traffic stop, Defendant told Trooper Fouch that he
was driving to Wright City. (Tr. 6-7). When asked why he exited and went
back westbound if he was heading to Wright City, Defendant told him that he
was trying to find a gas station to get some rest, even though there was no
indication of any such services at the exit Defendant used to exit I-70. (Tr. 78; 37-38). Under the totality of the circumstances, Defendant’s evasive
behavior was a factor to be considered when determining whether
Defendant’s vehicle contained contraband or evidence of a crime.
Trooper Fouch observed that Defendant’s eyes were very watery and
that he continually rubbed them while they talked. (Tr. 8). Defendant’s
speech was very mumbled and slurred to the point that it was incoherent and
Trooper Fouch had to ask Defendant to repeat himself because he could not
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In the instant case, Trooper Fouch had probable cause to search
throughout the stop. (Tr. 11). Trooper Fouch also observed three air
fresheners hanging in the car, the odor of which was overwhelming when
Defendant rolled the window down. (Tr. 8). Based on his training and
experience, Trooper Fouch knew that the existence of the three air fresheners
was significant in light of the totality of the circumstances. (Tr. 8). When
Trooper Fouch requested that Defendant accompany him back to his patrol
car and asked him to sit in the front passenger seat, he observed that
Defendant stepped slowly and that his balance was uncertain. (Tr. 9).
Defendant also initially walked to the front driver’s side door of the patrol car
before he realized that he would have to walk back around to the passenger
door. (Tr. 9). Based on these observations, Trooper Fouch suspected that
Defendant had been driving while intoxicated. (Tr. 10). Trooper Fouch
suspected that Defendant had been using drugs rather than alcohol because
he could not detect any odor of alcohol. (Tr. 11).
Inside the patrol car, Trooper Fouch spoke with Defendant while he ran
Defendant’s name, ran the registration on the car, called dispatch on the
radio, and typed Defendant’s citation for following too closely into the
computer. (Tr. 11-13, 25). When Trooper Fouch asked Defendant what drugs
he was on, Defendant responded that he was not on any drugs. (Tr. 11).
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understand what he was saying. (Tr. 8). Defendant continued to mumble
told him no. (Tr. 11). When Trooper Fouch asked Defendant if a K-9 sniff of
the car would reveal anything, Defendant responded there was probably a
strip of suboxone, an opiate and controlled substance that Defendant said he
would place under his tongue. (Tr. 11-13). After confirming that he
understood his Miranda rights, Defendant said that he had gotten the
suboxone on the street from a friend and that he had last taken it at 9:00
A.M., prior to leaving Kansas City. (Tr. 14).
When Defendant was allowed to retrieve the suboxone from the car,
Trooper Fouch noticed that Defendant was attempting to use his body to
shield the center console; however the trooper still noticed several syringes in
the area that Defendant was searching. (Tr. 15). Defendant gave the trooper
a small tan square that was labeled as suboxone and stamped with the
letters N-8. (Tr. 15). Based on his training and experience, Trooper Fouch
knew that syringes were often used to inject illegal drugs. (Tr. 16). Based on
the totality of the circumstances, it was reasonable to believe that the car
contained more drugs in light of the fact that the car contained paraphernalia
used to inject drugs, but Defendant had only given Trooper Fouch a drug that
was consumed orally.
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When Trooper Fouch asked Defendant if he could search his car, Defendant
conducted a search of the center console and discovered three syringes inside
an insulin syringe package, four Q-tips, and a little plastic container
containing a green, powdery, watery substance. (Tr. 15-16). Based on his
training and experience, Trooper Fouch knew that illegal drugs could often be
injected and could take the form of the substance found in the plastic
container. (Tr. 16). When Trooper Fouch asked Defendant about the items he
had found, Defendant told him that he used the syringes to inject the green
substance, which was roxicodone. (Tr. 16).
Under the totality of the circumstances, Trooper Fouch had probable
cause to search Defendant’s vehicle under the automobile exception in light of
Defendant’s evasive behavior; Defendant’s admission that the illegal drug
suboxone was probably inside the car; the suboxone, roxicodone, and syringes
found inside the car; and Defendant’s admission that he injected the
roxicodone. Under the automobile exception, this search was not limited to
only the passenger compartment, but included the trunk and any belongings
found inside the car that could conceal illegal drugs. State v. Gambow, 306
S.W.3d 163, 164 (Mo. App. S.D. 2010); citing Wyoming v. Houghton, 526 U.S.
295, 307 (1999); United States v. Ross, 456 U.S. 798, 825 (1982); see also
State v. Lane, 937 S.W.2d 721, 722 (Mo. 1997).
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After Trooper Fouch escorted Defendant back to his patrol car, he
impermissible under Arizona v. Gant, this reasoning would not apply to a
search conducted under the automobile exception because Arizona v. Gant
applies only in the context of vehicle searches that are conducted pursuant to
a lawful arrest. Gant, 556 U.S. at 351 (“Police may search a vehicle incident
to a recent occupant's arrest only if the arrestee is within reaching distance of
the passenger compartment at the time of the search or it is reasonable to
believe the vehicle contains evidence of the offense of arrest”); see also State
v. Walker, WD77869, *9-10 (Mo. App. W.D. May 5, 2015). While the Gant
decision restricted the scope of a vehicle search incident to a lawful arrest,
the Court did not apply these restrictions to the scope of a search performed
under the automobile exception. Gant, 556 U.S. at 351 (“When these
justifications are absent, a search of an arrestee's vehicle will be
unreasonable unless police obtain a warrant or show that another exception
to the warrant requirement applies”); see also State v. Walker, WD77869, *910 (Mo. App. W.D. May 5, 2015). In fact, the Court reconfirmed that "[i]f
there is probable cause to believe a vehicle contains evidence of criminal
activity, United States v. Ross, authorizes a search of any area of the vehicle
in which the evidence might be found." Gant, 556 U.S. at 347; citing United
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While the trial court ruled that the search of Defendant’s car was
WD77869, *9-10 (Mo. App. W.D. May 5, 2015).
In the present case, both the transcript and the trial court’s order
demonstrate that the court analyzed this was under the context of a search
incident to lawful arrest. At the suppression hearing, the court questioned
Trooper Fouch about whether Defendant had been secured inside his patrol
car when he searched Defendant’s trunk, a factor that was only relevant in
determining whether the search was authorized under Arizona v. Gant.
(Tr. 38-39). In its order, the trial court excluded the drugs that were found in
the trunk of Defendant’s car because the search did not comply with Arizona
v. Gant, in that, at the time of the search, Defendant was secured in Trooper
Fouch’s vehicle and could not access a weapon or destroy evidence. (L.F. 21).
While the court also ruled that the evidence was not admissible under the
theory of inevitable discovery, there was no finding that the search was not
justified under the automobile exception. (L.F. 21). There is also no indication
that the court found Trooper Fouch to not be credible or that Trooper Fouch
exceeded the scope of the traffic stop. The trial court erred in finding that the
search of Defendant’s car was not justified under Arizona v. Gant because the
search was justified under the automobile exception, in that the facts and
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States v. Ross, 456 U.S. 798, 820-821 (1982); see also State v. Walker,
Defendant’s vehicle contained contraband.
The trial court erred in granting Defendant’s motion to suppress the
physical evidence because Trooper Fouch’s search incident to lawful arrest of
Defendant’s trunk for illegal drugs was justified under Arizona v. Gant in
that Defendant had just been arrested for possession of suboxone and
roxicodone, and it was reasonable to believe further evidence relevant to the
crime of arrest might be found in the vehicle. Trooper Fouch’s search of
Defendant’s vehicle was further justified under the automobile exception
because under the totality of the circumstances, there was probable cause
that it contained contraband or evidence of a crime in light of Defendant’s
evasive behavior; Defendant’s admission that the illegal drug suboxone was
probably inside the car; the suboxone, roxicodone, and syringes found inside
the car; and Defendant’s admission that he injected the roxicodone.
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circumstances would lead a reasonably prudent person to believe that
For the foregoing reasons, the circuit court’s order sustaining
Defendant’s motion to suppress the evidence should be reversed, and this
case should be remanded to the circuit court for entry of an order overruling
Defendant’s motion to suppress.
Respectfully submitted,
CHRIS KOSTER
Attorney General
/s/ Andrew C. Hooper
ANDREW C. HOOPER
Assistant Attorney General
Missouri Bar No. 64917
P.O. Box 899
Jefferson City, Missouri 65102
Phone: (573) 751-6757
Fax: (573) 751-5391
andrew.hooper@ago.mo.gov
ATTORNEYS FOR APPELLANT
STATE OF MISSOURI
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CONCLUSION
I hereby certify:
1. That the attached brief complies with the limitations contained in
Missouri Supreme Court Rule 84.06 and Special Rule XLI of this Court and
contains 4,754 words, excluding the cover, table of contents, table of
authorities, certification, and appendix, as determined by Microsoft Word
2007 software; and
2. That a copy of this notification was sent through the eFiling system
on this 19th day of June, 2015, to:
Margaret Johnston
1000 West Nifong
Building 7 Suite 100
Columbia, MO 65203
/s/ Andrew C. Hooper
ANDREW C. HOOPER
Assistant Attorney General
Missouri Bar No. 64917
P.O. Box 899
Jefferson City, Missouri 65102
Phone: (573) 751-6757
Fax: (573) 751-5391
andrew.hooper@ago.mo.gov
ATTORNEYS FOR APPELLANT
STATE OF MISSOURI
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CERTIFICATE OF COMPLIANCE