In the Missouri Court of Appeals Western District STATE OF MISSOURI, ) ) Respondent, ) WD78653 ) v. ) OPINION FILED: October 18, 2016 ) JOSEPH FOUNTAIN PERRY, ) ) Appellant. )
Appeal from the Circuit Court of Livingston County, Missouri The Honorable Thomas N. Chapman, Judge
Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge
Joseph Perry ("Perry") appeals from a jury conviction for possession of a controlled
substance and his subsequent sentence to eight years imprisonment. Perry argues that the
trial court erred in overruling his motion to suppress methamphetamine found as a result
of an encounter with law enforcement. Perry claims that the evidence should have been
excluded because the encounter constituted a seizure that was not supported by a
reasonable suspicion that Perry was involved in illegal activity. Perry also argues that the
trial court plainly erred in sentencing him because the trial court was under a mistaken belief that the appropriate range of punishment included a minimum term of five years
imprisonment. We reverse.
Factual and Procedural Background
Officer Jodi Huber, of the Chillicothe Police Department, was out on patrol. She
purposefully drove past Perry's house on more than one occasion during her patrol because
Officer Huber believed Perry was selling methamphetamine out of his house. On one such
occasion, Officer Huber saw Perry backing a truck out of the driveway. Officer Huber
checked the vehicle's registration and identified the truck as belonging to Perry. Officer
Huber began following the vehicle.
Officer Huber radioed dispatch to check Perry's driving status. Officer Huber
believed Perry might be driving with a suspended driver's license. Officer Huber held this
belief because of a conversation she had with another officer, Officer Maples, about two
weeks prior. Officer Huber and Officer Maples were discussing people in the area with
suspended driver's licenses, and Officer Maples mentioned Perry.
Dispatch located several people with Perry's name and asked Officer Huber for a
date of birth in order to check the driving status for the right person. Officer Huber
suggested that Perry might have been born in the 1970's. Officer Huber continued to follow
Perry for two to four minutes while waiting for confirmation about his driving status.
Officer Huber still had not received confirmation about Perry's driving status when Perry
parked his car in his fiancé's driveway. Officer Huber decided to make contact with Perry
anyway. She stopped her vehicle in the street near the end of the driveway and "jumped
2 out." [S.H. Tr. 44] She approached Perry as he stood on private property within a few feet
of his vehicle. [S.H. Tr. 27]
As Officer Huber approached Perry, she said: "[Perry], do you have a valid driver's
license? I believe you're suspended." [SH Tr. 27]1 Perry responded that he was not
suspended. Officer Huber said: "Well do you have your driver's license on you and can I
see it?" [SH Tr. 27] Perry complied with Officer Huber's request, and handed over his
driver's license. Officer Huber testified that her intent in making contact with Perry was to
make him "show me his license since I still had not heard back from dispatch." [SH Tr.
45] Officer Huber testified that the only reason she "came into contact with [Perry was]
because [she] believed he was suspended." [SH Tr. 49] When asked to confirm that "Perry
wasn't getting away," Officer Huber responded that she "was going to make contact with
[Perry] . . . to show me his license since I still had not heard back from dispatch." [S.H.
Tr. 44-45]
Officer Huber testified that "someone producing a valid license [would not] end
[her] inquiry into suspicion." [SH Tr. 28] Instead, Officer Huber testified that she would
still need to "run a check to make sure that it's valid." [SH Tr. 28] With Perry's driver's
license in hand, Officer Huber attempted to make contact with dispatch to determine
whether the license was valid. Officer Huber's attempts were unsuccessful because,
according to Officer Huber, she was unaware her vehicle's radio was not set properly to
permit the transmission.
1 "SH Tr." refers to the suppression hearing transcript.
3 While Officer Huber was attempting to contact dispatch to confirm Perry's driving
status, Perry turned away from her and put his hand in his pocket. He pulled out what
appeared to Officer Huber to be a plastic bag and held the bag in a clenched fist. Officer
Huber could see a small corner of the bag. Officer Huber asked Perry to come over to her.
Perry ignored Officer Huber's request and focused on removing a bicycle from his truck
and pushing it along the driveway. He maintained a clenched fist. Officer Huber followed
Perry along the driveway and around to the front of his truck. Officer Huber again asked
Perry to come over to her. Perry ran away.
Officer Huber pursued Perry on foot. Perry came to a chain-link fence. He hesitated
at a fence post for a moment and then jumped over the fence. His hands were open once
he was over the fence, and he began to walk. By this point, Sheriff Steve Cox had arrived
on the scene. Perry surrendered himself to Sheriff Cox. During a subsequent search of the
area, another officer found a plastic bag in the hollow top of the fence post where Perry
hesitated. It was later determined that the bag contained methamphetamine.
Perry was charged with possession of a controlled substance with intent to distribute
under section 195.211,2 which is a class B felony. It was later determined that Perry's
driver's license was not suspended. [SH Tr. 39]
Prior to trial, Perry moved for suppression of the methamphetamine. The State
argued that Perry had no standing to assert a Fourth Amendment violation because the
methamphetamine was found in a fence post on property Perry did not own, and that as a
2 All statutory reference are to RSMo 2000 as supplemented unless otherwise indicated.
4 result, the Fourth Amendment was not implicated. [SH Tr. 60] In the alternative, the State
argued that at the moment Perry was arrested, there was probable cause to do so. The State
argued that the initial investigation of Perry's driving status was a consensual encounter
outside the realm of the Fourth Amendment, and that no seizure occurred until "the end of
the contact, after [Perry is] running with drugs." [SH Tr. 61] Perry responded that Officer
Huber's initial encounter with him to check his driver's license was a seizure that required
reasonable suspicion based on specific and articulable facts that Perry was involved in
criminal activity, and that in the absence of that, the drugs located during the course of the
unlawful seizure were subject to suppression. [SH Tr. 62-63] The trial court overruled the
motion to suppress without explaining its rationale.
Perry preserved his suppression argument by objecting to the admission of the drug
evidence at trial and in his motion for judgment of acquittal or new trial. During trial, there
was no appreciable difference in Officer Huber's testimony from that given during the
suppression hearing.
A jury found Perry guilty of the lesser included offense of possession of a controlled
substance pursuant to section 195.202, a class C felony. The trial court found Perry to be
a prior and persistent offender under section 558.016.
Perry's conviction of a class C felony subjected him to a maximum sentence of seven
years imprisonment and a minimum sentence of zero years. Section 558.011. However,
as a prior and persistent offender under section 558.016, the authorized maximum sentence
for Perry's class C felony increased to any sentence authorized for a class B felony. Section
5 558.016.7(3). A class B felony carries a minimum sentence of five years imprisonment.
Section 558.011.1(2).
When discussing the appropriate range of punishment at Perry's sentencing hearing,
the trial court, given Perry's status as a prior and persistent offender, stated that the
applicable sentencing range was between five and fifteen years' imprisonment, enhancing
both the minimum and the maximum class C felony sentence. The trial court asked defense
counsel whether that range was appropriate, and defense counsel agreed. The trial court
then sentenced Perry to eight years imprisonment.
This timely appeal followed.
Analysis
Perry argues two points on appeal. His first point argues that the trial court erred in
overruling his motion to suppress evidence obtained as a result of his encounter with
Officer Huber. Perry claims that the encounter was an unlawful seizure made without
reasonable suspicion. Perry's second point argues that the trial court plainly erred by
sentencing Perry under a materially false belief about the possible range of punishment.3
Point One
Perry claims that the methamphetamine obtained as a result of his encounter with
Officer Huber should have been suppressed and not admitted at trial over his objection
3 The State concedes that the trial court sentenced Perry based on a legally erroneous belief that both the minimum and maximum range of sentence for his class C felony should be enhanced, when in fact only the maximum sentence should have been enhanced by Perry's section 558.016 status as a prior and persistent offender. See State v. Cowan, 247 S.W.3d 617, 619 (Mo. App. W.D. 2008). Although the claim of error is subject only to plain error review, the State concedes that Perry is entitled, at a minimum, to a remand for resentencing as a result of this appeal. Id. (holding that "[a] sentence passed on the basis of a materially false foundation lacks due process of law and entitles the defendant to a reconsideration of the question of punishment in the light of the true facts, regardless of the eventual outcome").
6 because the encounter violated the Fourth Amendment to the United States Constitution
and article I, section 15 of the Missouri Constitution.4
At a hearing on a motion to suppress, the State must prove that the motion should
be overruled by a preponderance of the evidence. State v. Grayson, 336 S.W3d 138, 142
(Mo. banc 2011). "[T]he State bears both the burden of producing evidence and the risk
of nonpersuasion" that, based on the evidence it produces, the motion should be overruled.
Id. (quoting State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992)). "When reviewing
a trial court's overruling of a motion to suppress, this Court considers the evidence
presented at both the suppression hearing and at trial to determine whether sufficient
evidence exists in the record to support the trial court's ruling." State v. Pike, 162 S.W.3d
464, 472 (Mo. banc 2005). "The Court defers to the trial court's determination of credibility
and factual findings, inquiring only 'whether the decision is supported by substantial
evidence, and it will be reversed only if clearly erroneous.'" State v. Goff, 129 S.W.3d 857,
862 (Mo. banc 2004) (quoting State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003)).
"Whether conduct violates the Fourth Amendment is a question of law, which is reviewed
de novo." State v. Hillman, 417 S.W.3d 239, 246 (Mo. banc 2013).
The State contends on appeal that Perry's motion to suppress was properly overruled
for two reasons. First, the State contends that Perry does not have standing to assert a
constitutional violation because the methamphetamine was abandoned in the fence post on
property Perry did not own. Second, the State contends that the drugs were found during
4 "Article I, section 15 of the Missouri Constitution provides the same protection against unreasonable searches and seizures as that of the Fourth Amendment. Consequently, the same analysis applies under both provisions." State v. Grayson, 336 S.W.3d 138, 143 n.2 (Mo. banc 2011) (citation omitted).
7 a lawful Terry5 stop because "there were specific and articulable facts which created a
reasonable suspicion that [Perry] had committed a crime: specifically, driving with a
suspended license, as well as possible distribution of methamphetamine." [Respondent's
Brief, p. 19] For ease of discussion, we address these arguments in reverse order.
Perry was Seized Unlawfully in Violation of His Fourth Amendment Rights and the Trial Court Erred in Admitting at Trial Evidence Derived from that Seizure
A seizure occurs when "the totality of the circumstances surrounding the incident
indicates that a reasonable person would have believed that he was not free to leave."
Grayson, 336 S.W.3d at 143 (quoting State v. Sund, 215 S.W.3d 719, 723 (Mo. banc
2007)). Perry argues that he was seized by this definition when Officer Huber stopped her
vehicle after following him for several minutes and asked him for his driver's license,
expressing suspicion that he was driving suspended. During the suppression hearing, the
State argued that this initial encounter was not a seizure, and was instead a consensual
encounter that falls outside the realm of the Fourth Amendment seizure. On appeal, the
State has abandoned this argument.6 The State now concedes that the initial encounter
between Officer Huber and Perry was a Terry stop which was subject to the Fourth
Amendment. However, the State argues that the Terry stop was lawful because it was
supported by reasonable suspicion.
5 Terry v. Ohio, 392 U.S. 1 (1968). 6 The dissent disagrees, noting that the State's Brief does not express a concession on this point. That is irrelevant. It is beyond argument that the State makes no effort on appeal to defend the stop as consensual, and instead characterizes the stop as a Terry stop. Though we are to affirm a trial court on any basis supported by the record, where, as here, the State bears the burden of proof and persuasion on the issue of the lawfulness of a warrantless search, the State's characterization of the stop on appeal is both compelling and supported by the record.
8 A police officer may make an investigatory stop of a person, in the absence of
probable cause, when the officer has reasonable suspicion to believe that a person is
engaging in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968). As the State now
concedes, the evidence offered during the suppression hearing plainly established that
Officer Huber made an investigatory Terry stop of Perry. Officer Huber testified that her
intent in making contact with Perry was to make him show her his license because she
believed he was driving with a suspended license. Officer Huber testified that this was the
only reason she "came in contact with [Perry]." [SH Tr. 49] Officer Huber reported her
suspicion of criminal activity to Perry immediately after getting out of her patrol car to
approach him. Though Perry denied his license was suspended, Officer Huber nonetheless
requested the license, and Perry complied. Officer Huber testified that Perry's production
on her request of a seemingly valid driver's license did not end her suspicion, but required
her to run the driver's license to determine its validity. In short, Officer Huber stopped
Perry to investigate whether Perry was driving with a suspended driver's license.
Given the totality of these circumstances, which included the fact that Officer Huber
had been following Perry for two to four minutes, a reasonable person would not have felt
free to leave after Officer Huber pulled up to their parked car, told them of a suspected
suspended license, and asked for a valid driver's license to prove otherwise. See United
States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) (where vehicle followed by
police car pulled over independently and officer asked for driver's license and registration,
driver was seized when officer "obtained and failed to return his driver's license and
9 registration, and proceeded with an investigation"). The plurality opinion in Florida v.
Royer is also insightful on this point:
"Asking for and examining Royer's ticket and his driver's license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment."
460 U.S. 491, 501 (1983). Four members of the United States Supreme Court held that the
circumstances "surely amount to a show of official authority such that 'a reasonable person
would have believed he was not free to leave.'" Id. at 502 (quoting United States v.
Mendenhall, 446 U.S. 544, 554 (1980)).
Similarly, we conclude that a reasonable person would not have believed that he or
she was free to leave where Officer Huber was obviously identifiable as a police officer;
had followed Perry in her patrol car for several minutes for several blocks, while Perry's
vehicle made several turns, and even stopped so a passenger could exit; stopped her car in
a lane of travel at the end of a private driveway immediately after Perry turned and parked
in that driveway; jumped out of her patrol car and approached Perry on private property
immediately after he exited his vehicle; announced to Perry that she wanted to talk to him
because he was suspected of driving with a suspended license; asked him to produce his
driver's license in order to quell her suspicion even though Perry told her he was not
suspended; kept the license while attempting to verify Perry's driving status; and testified
that her intent in making contact with Perry was to resolve one way or the other her
10 suspicion that he was driving suspended.7 See State v. Gabbert, 213 S.W.3d 713, 719 (Mo.
App. W.D. 2007) (finding that "[t]he totality of circumstances indicates that [defendant]
was seized because he voluntarily submitted to [the officer's] authority" where use of
language indicated request of suspect was mandatory); see also United States v. Villa-
Gonzalez, 623 F.3d 526, 533 (8th Cir. 2010) ("Without his identification card, a reasonable
person is much less likely to believe he can simply terminate a police encounter."). That
is particularly so here, given the history between Perry and law enforcement developed in
the record during the suppression hearing.8 Thus, Perry was seized under the Fourth
Amendment at the time Officer Huber requested, obtained, and kept Perry's driver's license
for the purpose of conducting further investigation of its status.9
The next issue to be addressed is whether Officer Huber's Terry stop of Perry was
supported by reasonable suspicion. "'[W]here a police officer observes unusual conduct
which leads him reasonably to conclude in light of his experience that criminal activity
7 Officer Huber also asked Perry that he "come here," but that was after Officer Huber requested, obtained, and kept Perry's driver's license. This is not entirely analogous to Florida v. Royer, 460 U.S. 491 (1983), because Officer Huber did not ask Perry to accompany her to any specific area at the time of the initial seizure. Nonetheless, we do not consider this distinction detrimental to our application of the Fourth Amendment in this case. 8 Officer Huber admitted during the suppression hearing that she and Perry have a history. [S.H. Tr. 36] Perry was someone Officer Huber was interested in because of reports that he was selling methamphetamine out of his house. [S.H. Tr. 20] Officer Huber testified that during her patrol on the day of Perry's arrest, she specifically drove by his house several times for that reason. [S.H. Tr. 20] She also admitted that she had been attempting to make a case on Perry for two years, and had once before stopped and arrested him. [S.H. Tr. 36, 38] She admitted that when she started following him, she was hoping he would make a mistake. [S.H. Tr. 42] She admitted that for the several minutes she followed his vehicle she was "hunting him," intent on pulling him over if he had "not used his turn signal or done something." [S,H, Tr. 43] 9 Though the State has abandoned the argument that Officer Huber's initial encounter with Perry was not a seizure, but was instead a consensual encounter outside the realm of the Fourth Amendment, the trial court could not have denied Perry's motion to suppress on this basis given the State's evidence. Officer Huber's stop of Perry plainly went beyond "merely . . . approaching [an] individual[] on the street or in other public places and putting questions to them if they are willing to listen." United States v. Drayton, 536 U.S. 194, 200 (2002). The dissent's rationale to the contrary would render nearly every voluntary relinquishment of identification on request a consensual encounter, notwithstanding indicia as are present here that would lead one to reasonably believe they are not free to leave.
11 may be afoot . . . ,' the officer may briefly stop the suspicious person and make 'reasonable
inquiries' aimed at confirming or dispelling his suspicions." Minnesota v. Dickerson, 508
U.S. 366, 373 (1993) (quoting Terry, 392 U.S. at 30). The suspicions must be reasonable,
"supported by articulable facts that the person stopped is engaged in criminal activity."
Grayson, 336 S.W.3d at 143 (quoting State v. Deck, 994 S.W.2d 527, 534 (Mo. banc
1999)). "In evaluating reasonable suspicion, courts must 'determine if the content of the
information possessed by the police and its degree of reliability is sufficient to create a
"reasonable suspicion" of criminal activity.'" Id. (quoting State v. Berry, 54 S.W.3d 668,
673 (Mo. App. E.D. 2001)).
The State first argues that Officer Huber had reasonable suspicion that Perry was
driving with a suspended driver's license based on her conversation with Officer Maples
where Officer Maples stated his belief that Perry had a suspended license. Perry contends
that the officers' conversation was not enough to give rise to a reasonable suspicion to
initiate a Terry stop.
"An officer may receive information through another officer sufficient to authorize
either an arrest or a stop." Franklin, 841 S.W.2d at 641. In the context of a Terry stop, the
evidence derived from the stop "is inadmissible if an officer makes the stop on the basis of
information provided by another officer or police department if the requesting officer or
department lacked reasonable suspicion to make the stop." Id. at 642. The State must
prove the facts that gave rise to the original suspicion "where the information appears to
originate with law enforcement personnel and the state uses the information to justify the
stop." State v. Norfolk, 966 S.W.2d 364, 367 (Mo. App. E.D. 1998).
12 Officer Huber based her suspicion that Perry was driving with a suspended license
on two articulable facts: the report she received two weeks prior from a fellow officer that
Perry's driver's license was suspended, and her personal observation of Perry driving.
Obviously, however, Officer Huber's bare observation of Perry driving offered nothing to
support her suspicion that Perry's license was suspended. The sole and only source of
Officer Huber's belief that Perry's license was suspended was Officer Maples' report to that
effect two weeks prior. The State was thus obligated to produce evidence persuasively
establishing that Officer Maples' suspicion was reasonable because it was supported by
specific and articulable facts. Stated another way, we assess the reasonableness of Officer
Huber's reliance on the information she received from Officer Maples as if Officer Maples
himself had made the investigatory stop of Perry.
The State did not sustain its burden of either production or persuasion on this
essential point. The State presented no evidence beyond naming Officer Maples as the
source of the information which motivated Officer Huber to stop Perry. No explanation
was offered to explain how or why Officer Maples came to believe that Perry's driver's
license was suspended. In short, there was no evidence that could have permitted the trial
court to conclude that Officer Huber's belief that Perry was driving with a suspended
license was supported by reasonable suspicion. Compare Franklin, 841 S.W.2d at 644-45
(finding a Terry stop unsupported by reasonable suspicion where the record was silent
about the source of information relayed to the arresting officer) with State v. Monath, 42
S.W.3d 644, 649-51 (Mo. App. W.D. 2001) (finding reasonable suspicion where the
13 dispatcher, an intermediary officer, and the seizing officer all testified at the suppression
hearing).
The State also argues in its Brief that Officer Huber's Terry stop of Perry was
supported by a reasonable suspicion that Perry was engaged in the distribution of
methamphetamine. This argument is facially inconsistent with the State's evidence
admitted during the suppression hearing. Officer Huber testified during the suppression
hearing that the only reason she "came in contact with [Perry was] because [she] believed
he was suspended." [SH Tr. 49] Though Officer Huber did testify that she generally
possessed the belief that Perry was involved in the distribution of methamphetamine to
explain why she had been driving by his house, absolutely no evidence was offered to
suggest that Officer Huber stopped Perry to investigate this suspicion, and no evidence was
offered to support this suspicion with specific and articulable facts. See Norfolk, 966
S.W.2d at 367-68.
The State did not sustain its burden to establish that Officer Huber's Terry stop of
Perry was supported by reasonable suspicion that Perry was driving with a suspended
license or engaged in the distribution of methamphetamine. The evidence seized as a result
of the investigatory stop, which Officer Huber testified was still ongoing at the point Perry
ran from her, should have been suppressed. See Norfolk, 966 S.W.2d at 367-68 (reversing
a trial court's overruling of a motion to suppress where the State produced "no evidence
regarding the origin of the information on which the officers relied").
During the suppression hearing, the State argued that "probable cause" to arrest
existed at the time Perry was arrested, and that Perry was not seized until he was arrested.
14 We have already explained that on appeal, the State has abandoned its argument that a
seizure did not occur until the point of Perry's arrest. In addition, the State has abandoned
on appeal its argument that the arrest was independently justified by "probable cause." The
State no doubt accepts that unless Officer Huber's initial Terry stop was lawful, no evidence
derived during the unlawful seizure could be used against Perry, including Officer Huber's
observations about Perry's behavior, or Perry's decision to run when asked to approach
Officer Huber. Cf. Gant v. State, 211 S.W.3d 655, 659 (Mo. App. W.D. 2007) ("Facts,
which would tend to show the defendant is guilty of a crime discovered after the arrest,
cannot be used to bolster an insufficient prior showing of probable cause.").
Officer Huber testified during the suppression hearing that Perry began acting
suspiciously while she was in the midst of radioing dispatch to check the validity of Perry's
driver's license, and that her investigation into her suspicion that Perry was driving
suspended did not end when he handed her a seemingly valid driver's license. Perry's
conduct during the conceded temporal parameters of an unlawful Terry stop could not
supply a new factual predicate for reasonable suspicion that Perry was engaging in criminal
activity. Cf. Grayson, 336 S.W.3d at 145-46 (quoting State v. Slavin, 944 S.W.2d 314,
317-18 (Mo. App. W.D. 1997)) (stating that a new factual predicate for reasonable
suspicion may be found during the period of a lawful seizure permitting the initial lawful
detention to extend beyond the time reasonably necessary to effect its initial purpose); see
also State v. Hicks, 515 S.W.2d 518, 521 (Mo. 1974) ("After-the-event-justification is not
permissible."). Rather, Perry's conduct during the unlawful Terry stop would itself have
been fruits of the poisonous tree subject to suppression. See State v. Miller, 894 S.W.2d
15 649, 653 n.4 (Mo. banc 1995) (quoting United States v. Di Re, 332 U.S. 581, 595 (1948))
("[A] search is not to be made legal by what it turns up. In law it is good or bad when it
starts and does not change character from its success.").
Officer Huber's Terry stop of Perry was unlawful. The methamphetamine evidence
should have been excluded as the fruit of a Fourth Amendment violation. See Miller, 894
S.W.2d at 654.
The Abandonment Doctrine does not Apply to Evidence Derived from an Unlawful Seizure
The State alternatively argues that regardless of the legality of the Terry stop, Perry
does not have standing to assert a Fourth Amendment violation because the
methamphetamine was abandoned in the fence post on property he did not own. The State
relies on State v. Mosby, 94 S.W.3d 410, 418 (Mo. App. W.D. 2003), where we held that
"[w]here . . . an individual drops, throws, or otherwise discards contraband while being
followed or pursued by a police officer, the contraband is deemed to have been abandoned,
and Fourth Amendment protections no longer apply."
The State's reliance on Mosby is misplaced, as in Mosby the defendant had not been
unlawfully seized at the time of the abandonment. "The law is well-settled that
abandonment will be found only when incriminating evidence has been abandoned
voluntarily, and that abandonment is not voluntary if it results from an illegal seizure."
Grayson, 336 S.W.3d at 151 n.7 (citing United States v. Stephens, 206 F.3d 914, 917 (9th
Cir. 2000) (holding that "abandonment must be voluntary, and an abandonment that results
from [a] Fourth Amendment violation cannot be voluntary"); United States v. Austin, 66
16 F.3d 1115, 1118 (10th Cir. 1995) (same); United States v. Segars, 31 F.3d 655, 658 (8th
Cir. 1994) (holding "abandonment cannot be the product of unlawful police conduct");
State v. Solt, 48 S.W.3d 677, 682 (Mo. App. S.D. 2001) (same)).
Because Perry was seized unlawfully, and because the pursuit of Perry began while
Perry was still subject to an unlawful seizure, Perry's discarding of the methamphetamine
while being pursued by law enforcement cannot be characterized as voluntary
abandonment as a matter of law.
Point One on appeal is granted. Perry's conviction and sentence are reversed.
Point Two
Because Perry's conviction and sentence are reversed in connection with Point One
on appeal, Perry's second point on appeal, addressing his sentence, is rendered moot.
Conclusion
Perry's conviction and sentence for the class C felony of possession of a controlled
substance are reversed.10
__________________________________ Cynthia L. Martin, Judge
Mitchell, Presiding Judge, dissents in separate opinion
10 Perry was charged with possession of a controlled substance with the intent to distribute, and was convicted of the lesser included offense of possession of a controlled substance, both of which have as an essential element possession of a controlled substance. The only evidence supporting this essential element is the methamphetamine found in the fence post--evidence which was unlawfully seized and which should have been suppressed, and excluded from evidence at trial. As a result, the State is unable to prove an essential element of the crime with which it charged Perry, warranting reversal without remand. See State v. King, 157 S.W.3d 656, 664-65 (Mo. App. W.D. 2004); State v. Brightwell, 984 S.W.2d 124, 126 (Mo. App. W.D. 1998).
17 Witt, Judge, joins in the majority opinion
2 IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT
STATE OF MISSOURI, ) ) Respondent, ) ) WD78653 v. ) ) OPINION FILED: ) October 18, 2016 JOSEPH FOUNTAIN PERRY, ) ) Appellant. )
DISSENT
The majority concludes that Perry was seized without reasonable suspicion in violation of
the Fourth Amendment and, therefore, the trial court erred in overruling his motion to suppress.
While I agree with the majority that Officer Huber lacked any reasonable suspicion to believe that
Perry was driving while suspended at the time she first encountered him, I disagree with the
majority’s conclusion that Perry was seized at any time before he voluntarily turned himself in to
Sheriff Cox. In reaching its conclusion, the majority applies the wrong standard for determining
whether a seizure has occurred, and upon application of the proper standard, it is evident that, at
no time, did Officer Huber effect a seizure implicating the Fourth Amendment. Therefore, I
respectfully dissent. A. The State’s arguments
As the majority recognizes, the State argued below that the “initial encounter was not a
seizure, and was instead a consensual encounter that falls outside the realm of the Fourth
Amendment seizure.” Maj. Op. at 8. “Although the Fourth Amendment prevents police from
seizing a person without a reasonable suspicion of criminal activity, the Amendment is not
triggered by a consensual encounter between an officer and a private citizen.” U.S. v.
Villa-Gonzalez, 623 F.3d 526, 531 (8th Cir. 2010). But the majority then asserts: “On appeal, the
State has abandoned this argument. The State now concedes that the initial encounter between
Officer Huber and Perry was a Terry stop which was subject to the Fourth Amendment.” Maj.
Op. at 8 (footnote omitted). I disagree with this characterization of the State’s arguments,1 though
ultimately, it does not matter “[b]ecause appellate courts are primarily concerned with the
correctness of the result reached by the trial court,” and “the judgment will be affirmed if
cognizable under any theory.” State v. Onate, 398 S.W.3d 102, 107 (Mo. App. W.D. 2013)
(quoting State ex rel. Feltz v. Bob Sight Ford, Inc., 341 S.W.3d 863, 868 n.3 (Mo. App. W.D.
2011)). And, here, because the trial court’s decision overruling Perry’s motion to suppress can be
affirmed on the ground that there was no seizure, the State’s arguments on appeal—to the extent
they abandon any claims made below—are of no consequence.
1 The State’s primary argument in response to Point I is that Perry lacked standing to raise an alleged Fourth Amendment violation because he abandoned the drugs found in the fence post. In making this argument, the State correctly notes that “[c]ontraband discarded by a subject while fleeing from police is considered abandoned property and no cause to search or seize the contraband is required if the subject has not been seized.” State’s Brief at 15 (citing California v. Hodari D., 499 U.S. 621, 629 (1991)) (emphasis added). The State recognizes that the factual predicate required for its abandonment argument is the absence of a seizure. Thus, while the State has not focused on the consensual nature of the encounter in the same way it did below, I do not believe it can be said that the State has conceded that a seizure has occurred. And though the State argues that any Terry stop was justified by reasonable suspicion, this is plainly an alternative argument to its primary argument that Perry abandoned the drugs.
2 B. “Seizure” under the Fourth Amendment
The majority begins its analysis by stating, “A seizure occurs when ‘the totality of the
circumstances surrounding the incident indicates that a reasonable person would have believed
that he was not free to leave.’” Maj. Op. at 8 (quoting State v. Grayson, 336 S.W.3d 138, 143
(Mo. banc 2011)). While the objective test is certainly relevant, the United States Supreme Court
has held that “it states [only] a necessary, but not a sufficient, condition for seizure.” California
v. Hodari D., 499 U.S. 621, 628 (1991). “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.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “Only when such restraint is
imposed is there any foundation whatever for invoking constitutional safeguards.” U.S. v.
Mendenhall, 446 U.S. 544, 553 (1980).
The objective test cited by the majority originated in the Supreme Court’s decision in
Mendenhall in response to a claim that the defendant’s liberty was restrained through a show of
authority. In Mendenhall, the defendant argued that she had been seized in violation of the Fourth
Amendment when, after disembarking from a plane at an airport, she was approached on the
concourse by two DEA agents who identified themselves as federal agents and asked to see her
identification and airline ticket. Id. at 547-48. The defendant complied, and upon noticing that
her license and ticket bore different names, the agents asked the defendant to accompany them to
the airport DEA office for further questions. Id. at 548. The defendant again complied, and upon
their arrival at the office, the agents asked the defendant for consent to search her person and
handbag, noting that she had a right to decline. Id. The defendant responded, “Go ahead.” Id.
The search revealed several packages of heroin. Id. at 549.
3 The Court, relying on its earlier holding in Terry, rejected the defendant’s claim that she
had been seized at any time on the concourse: “The respondent was not seized simply by reason
of the fact that the agents approached her, asked her if she would show them her ticket and
identification, and posed to her a few questions. Nor was it enough to establish a seizure that the
person asking the questions was a law enforcement official.” Id. at 555. The Court reasoned:
“[N]othing in the record suggests that the respondent had any objective reason to believe that she
was not free to end the conversation in the concourse and proceed on her way.” Id. In reaching
this conclusion, the Court held “that a person has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.” Id. at 554. The Court then noted:
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
Id. “In the absence of some such evidence, otherwise inoffensive contact between a member of
the public and the police cannot, as a matter of law, amount to a seizure of that person.” Id. at 555.
Following the Court’s decision in Mendenhall, the Court decided Michigan v. Chesternut,
486 U.S. 567 (1988), where it was asked to determine what actions constituted a sufficient “show
of authority” to effect a seizure for purposes of the Fourth Amendment. In Chesternut, officers
driving on routine patrol noticed a car pull up to a curb, where a person got out and approached
the defendant, who had been standing alone on the corner. Id. at 569. When the defendant saw
the patrol vehicle, he turned and ran. Id. The patrol car followed the defendant “to see where he
was going,” and once it caught up to him, the patrol car “drove alongside him for a short distance.”
Id. While driving alongside the defendant, the officers watched the defendant discard several
4 packets that he had removed from his pocket. Id. One of the officers got out of the car and
examined the packets, discovering that they contained pills he believed to be codeine. Id. When
the defendant noticed the officer looking at the packets, he stopped. Id. The officer then arrested
him for possession of narcotics. Id.
The defendant later argued that he had been seized when the patrol car followed him on
the street because the “chase” “necessarily communicate[d] that detention [wa]s intended and
imminent”; thus, it was a sufficient show of authority to effect a seizure. Id. at 574-75. The Court
disagreed, noting that “the police conduct involved here would not have communicated to the
reasonable person an attempt to capture or otherwise intrude upon [the defendant]’s freedom of
movement.” Id. at 575. The Court relied on the facts that the police did not activate their siren or
flashers, did not command the defendant to halt, did not display any weapons, and did not operate
their car in an aggressive manner to block the defendant’s course or control or direct his
movements. Id. The Court noted that, “[w]hile the very presence of a police car driving parallel
to a running pedestrian could be somewhat intimidating, this kind of police presence does not,
standing alone, constitute a seizure.” Id.
After Chesternut, the Court was asked to determine whether a “show of authority” was
sufficient to effect a seizure when “the subject does not yield.” Hodari D., 499 U.S. at 625-26. In
Hodari D., officers on patrol came across four or five youths huddled around a car parked at the
curb. Id. at 622. Upon noticing the officers’ approach, the youths fled. Id. at 623. The defendant
ran through an alley, with an officer pursuing him on foot. Id. The defendant did not initially see
the officer pursuing him until the officer was “almost upon him.” Id. At that point, the defendant
tossed away a small rock, later determined to be crack cocaine. Id. The officer then tackled the
defendant, handcuffed him, and called for assistance. Id. The defendant sought to suppress the
5 crack cocaine as evidence at trial, arguing that he was “seized” at the moment he saw the officer
running towards him. Id.
The Court indicated, “The narrow question before us is whether, with respect to a show of
authority as with respect to application of physical force, a seizure occurs even though the subject
does not yield.” Id. at 626. The Court held “that it does not,” reasoning that:
[t]he word “seizure” readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. . . . It does not remotely apply, however, to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form that continues to flee. That is no seizure.
Id.
The defendant in Hodari D. argued that the objective Mendenhall test applied, and that,
under that test, a reasonable person in his position (faced with a rapidly approaching officer
commanding him to stop) would not have felt free to leave. Id. at 627. The Court disagreed,
suggesting that the Mendenhall decision should be read more narrowly:
[i]n seeking to rely upon that test . . . , [defendant] fails to read it carefully. It says that a person has been seized “only if,” not that he has been seized “whenever”; it states a necessary, but not a sufficient, condition for seizure—or, more precisely, for seizure effected through a “show of authority.”
Id. at 628. The Court concluded that, “assuming that [the officer]’s pursuit in the present case
constituted a ‘show of authority’ enjoining [the defendant] to halt, since [the defendant] did not
comply with that injunction he was not seized until he was tackled.” Id. at 629.
C. Perry was not seized by Officer Huber
As the Supreme Court has repeatedly held, it is “[o]nly when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a citizen . . . that a
‘seizure’ has occurred.” Terry, 392 U.S. at 19 n.16. There is nothing in the record to indicate that
Officer Huber ever laid hands on Perry; thus, if a seizure existed, it could arise only by a “show of
6 authority.” As the Court in Hodari D. pointed out, “Mendenhall establishes that the test for
existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he
was being ordered to restrict his movement, but whether the officer’s words and actions would
have conveyed that to a reasonable person.” Hodari D., 499 U.S. at 628. But the Court also noted
that satisfaction of the Mendenhall test, alone, was insufficient to establish a seizure. Id. Instead,
for a seizure to exist upon a “show of authority,” there must also be submission by the citizen to
that show of authority. Id. at 626 (holding that, “where [physical force] is absent, submission to
the assertion of authority” is required to effect a seizure); see also State v. Shahid, 813 S.W.2d 38,
40 (Mo. App. E.D. 1991) (recognizing that Hodari D. modified the objective Mendenhall test so
that “‘seizure of the person’ . . . requires . . . where force is absent, submission to an officer’s ‘show
of authority’ to restrain the subject’s liberty”); State v. Gabbert, 213 S.W.3d 713, 718-19 (Mo.
App. W.D. 2007) (“A seizure occurs only when an individual is subject to the application of
physical force or voluntarily submits to the assertion of police authority.”).
The majority concludes, relying in part on U.S. v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th
Cir. 1997), that Officer Huber made a “show of authority” by “following Perry for two to four
minutes,” “pull[ing] up to [his] parked car,” advising him “of a suspected suspended license,” and
“ask[ing] for a valid driver’s license to prove otherwise.” Maj. Op. at 9. Though Perry complied
with the request for his license, I disagree with the majority that his action constituted submission
to a show of authority, as opposed to cooperation with a request made during a consensual
encounter. “The Fourth Amendment proscribes unreasonable searches and seizures; it does not
proscribe voluntary cooperation.” Florida v. Bostick, 501 U.S. 429, 439 (1991). “While most
citizens will respond to a police request, the fact that people do so, and do so without being told
7 they are free not to respond, hardly eliminates the consensual nature of the response.” I.N.S. v.
Delgado, 466 U.S. 210, 216 (1984).2
To begin, Officer Huber did not pull Perry over; Perry stopped of his own accord upon
reaching his destination (his girlfriend’s house). “[I]t does not make sense to blame an officer for
interfering with someone’s liberty when a person stops of his own accord, particularly when the
officer did nothing to effect the stop and did not intend to stop him.” U.S. v. Al Nasser, 555 F.3d
722, 726 (9th Cir. 2009). Officer Huber testified that she never turned on her lights or siren and
never attempted to stop Perry’s truck. She indicated that she “didn’t perform a traffic stop . . .
[b]ecause he didn’t violate any traffic laws.”
In Al Nasser, the Ninth Circuit considered the argument that, “if a reasonable person would
think that he was being stopped, then the person is ‘seized’ within the meaning of the Fourth
Amendment, even if the police do not want the person to stop and intended for him to go on about
his business without stopping.” Id. at 725. And the court rejected the very reading of its holding
in Chan-Jimenez that the majority opinion espouses: “There is language in some decisions[3] that
might arguably lend itself to such an interpretation, but we reject it.” Id. “[In Chan-Jimenez, w]e
did not characterize [the] officer’s following the truck until it stopped as a seizure.” Id. at 730.
Indeed, if following a pedestrian in a police vehicle did not constitute a seizure in Chesternut, it is
hard to understand why it would constitute a seizure here, where the only distinction is that Perry
was in his own vehicle, rather than on foot. “Violation of the Fourth Amendment requires an
2 “Unless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, one cannot say that the questioning resulted in a detention under the Fourth Amendment.” I.N.S. v. Delgado, 466 U.S. 210, 216 (1984). “But if the person refuses to answer and the police take additional steps . . . to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure.” Id. at 216-17. Here, Perry voluntarily responded and Officer Huber was not called upon to take any additional steps. 3 “See, e.g., United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir.1997).” U.S. v. Al Nasser, 555 F.3d 722, 726 (9th Cir. 2009).
8 intentional acquisition of physical control.” Brower v. Cty. of Inyo, 489 U.S. 593, 596 (1989)
(emphasis added).
Likewise, Officer Huber’s request to see Perry’s license did not constitute a “show of
authority,” even when coupled with her asserted belief that his license was suspended, because it
was nothing more than a request that carried with it no implication that compliance would be
compelled. “It is ‘clearly’ not a seizure . . . for an officer to approach an individual in a public
setting, identify himself as a police officer, and ask the individual to step aside and talk to
detectives.” U.S. v. Vera, 457 F.3d 831, 834-35 (8th Cir. 2006) (quoting Florida v. Rodriguez,
469 U.S. 1, 5-6 (1984)). “A request to see identification is not a seizure, ‘as long as the police do
not convey a message that compliance with their request is required.’” Id. (quoting Bostick, 501
U.S. at 435).
Though the majority is correct in noting that a four-member plurality of the Court, in
Florida v. Royer, 460 U.S. 491, 501 (1983), believed that “a show of official authority” was present
when narcotics agents approached the defendant, asked for identification and travel documents,
and advised the defendant “that he was suspected of transporting narcotics,” a full majority of the
Court has never gone so far. And in a 6-3 decision, nineteen years later, the Court concluded that
there is a distinction between an authoritative order or command and a simple request. U.S. v.
Drayton, 536 U.S. 194, 204 (2002). In Drayton, the Court determined that an officer’s questioning
of individuals—on a stationary bus—did not suggest that compliance would be compelled, where
“[t]here was no application of force, no intimidating movement, no overwhelming show of force,
no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative
tone of voice.” Id.
9 Similarly, here, Officer Huber testified that she never yelled at Perry, never ordered him to
put his hands in the air, never drew her weapon on him, did not block his vehicle in any way, and
indicated that, during the encounter, until she saw the drugs, he was free to leave. 4 The record
further indicates that her requests for Perry’s license were merely requests, rather than commands:
A. . . . I stopped my vehicle on the street, got out and said, “Hey Joe, can I talk to you?”
...
Q. What did you say first, exactly?
A. . . . I said, “Joe, do you have a valid driver’s license? I believe you’re suspended[.]” And he goes, “I’m not suspended.” And I said, “Well do you have your driver’s license on you and can I see it?” He said, “Sure,” and he reached in his back pocket and got it.
In short, Officer Huber never made a “show of authority” to which Perry submitted. When
he handed her his license upon her request, he was merely engaging in voluntary cooperation
during a consensual encounter.
Once Officer Huber noticed Perry holding a small baggie in a clenched fist, she issued her
first command for Perry to “come here for a minute.” Though the record does not indicate her
tone of voice, assuming this command constituted a show of authority, it still did not result in a
seizure because Perry refused to comply. Instead, he advised her that he needed “to get this bike
out of the back of [his] truck.” When Perry took the bike down with his fist still clenched around
the baggie, Officer Huber again commanded, “Joe, come here for a minute.” But Perry continued
4 The majority implies that Officer Huber held Perry’s license for an inordinate amount of time, stating that “[w]ithout his identification card, a reasonable person is much less likely to believe he can simply terminate a police encounter.” Maj. Op. at 11 (quoting U.S. v. Villa-Gonzalez, 623 F.3d 526, 533 (8th Cir. 2010)). I disagree with this characterization. In Villa-Gonzalez, “there [wa]s no indication that [the officer] ever returned [the defendant]’s identification card,” despite the opportunity to have done so. Id. Here, on the other hand, Perry began acting suspicious immediately after handing Officer Huber his license, by turning away from Officer Huber, putting his hand in his pocket, pulling out a plastic baggie, and holding it in a clenched fist. Officer Huber had not finished checking his license and, therefore, did not have an opportunity to return it before Perry’s suspicious behavior commenced.
10 to ignore her “and kept trying to put distance between” them. Officer Huber followed Perry around
to the front of his truck, where he still had his hand clenched, and she demanded a third time for
Perry to “come here for a minute.” At that point, Perry “threw the bike down and took off running.”
As Officer Huber was giving chase, she yelled multiple times for Perry to “stop running,” but he
did not stop until he finally turned himself in to Sheriff Cox. Thus, when Officer Huber did engage
in a show of authority, Perry did not submit. And because his earlier voluntary cooperation was
merely part of a consensual encounter, at no point did Officer Huber seize Perry. Accordingly,
the Fourth Amendment was not implicated, and the trial court committed no error in overruling
Perry’s motion to suppress.
Because I believe the majority has applied an improper test for determining whether a
seizure occurred, I respectfully dissent.5 I would affirm the trial court’s ruling on Perry’s motion
to suppress.
Karen King Mitchell, Judge
5 In stating the test for seizure, the majority quotes the Missouri Supreme Court in State v. Grayson, 336 S.W.3d 138 (Mo. banc 2011). First it should be noted that there was no question about whether the contact at issue in Grayson was consensual or a seizure: “Officer Lambert detained Mr. Grayson by compelling him to pull his vehicle over to the side of the road for questioning. The officer said that Mr. Grayson was not free to leave, and a reasonable person would not feel free to leave once he was pulled over by the police and his license taken.” Grayson, 336 S.W.3d at 143. In setting out the objective Mendenhall test, the Grayson court omitted the words “only if” before the reasonable person analysis. Id. As noted above, in Hodari D. the United States Supreme Court found these words important to understanding the breadth of the objective test articulated in Mendenhall. Though I recognize that “[s]tates are free to provide greater protections in their criminal justice system than the Federal Constitution requires,” California v. Ramos, 463 U.S. 992, 1014 (1983), there is no basis to believe that is what the Missouri Supreme Court was attempting to do in Grayson. Grayson was quoting State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007), which was in turn quoting State v. Werner, 9 S.W.3d 590, 600 (Mo. banc 2000). In Werner, the Court quoted Michigan v. Chesternut, 486 U.S. 567, 573 (1988), when it held: “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 was not free to leave.’” Werner, 9 S.W.3d at 600.