In the Missouri Court of Appeals Western District STATE OF MISSOURI, ) ) Respondent, ) WD84272 ) v. ) OPINION FILED: January 18, 2022 ) KENNETH L. WYKERT, ) ) Appellant. )
Appeal from the Circuit Court of Clinton County, Missouri The Honorable Ryan Wesley Horsman, Judge
Before Division Three: Lisa White Hardwick, Presiding Judge, Gary D. Witt, Judge and Edward R. Ardini, Jr., Judge
Kenneth Wykert ("Wykert") was charged with felony possession of a controlled
substance, section 579.0151, and misdemeanor unlawful possession of drug paraphernalia,
section 579.074. Following a bench trial, the Circuit Court of Clinton County ("trial court")
found Wykert guilty on both counts and sentenced him as a persistent offender to ten years'
imprisonment on the felony offense and to a fine on the misdemeanor offense. Prior to
trial, Wykert filed a motion to suppress, and the parties stipulated it could be taken with
1 All statutory references are to R.S.Mo. 2016, as updated by the most recent supplement unless otherwise indicated. the case and ruled on after the trial court heard the evidence at the bench trial. On appeal,
Wykert argues: (1) the trial court erred in admitting at trial statements and evidence
obtained during the pat-down of Wykert because Officer Ward ("Officer Ward") lacked
consent or reasonable suspicion to pat-down Wykert; and (2) the trial court erred in
admitting statements and evidence obtained following Wykert's interview with Officer
Ward in his patrol car because Wykert was subjected to custodial interrogation without
first being warned of his Miranda2 rights. Finding no error, we affirm.
Factual Background3
Officer Ward was dispatched to 506 South Chestnut in Clinton County, Missouri
as part of an effort to locate a missing person, L.D. Officer Ward went to the location to
speak to Wykert and gather information that could be useful in the search effort. When
Officer Ward arrived, he found Wykert in the parking lot with his hands and pockets full
of various items. Wykert was speaking with L.D.'s mother and grandmother in the parking
lot, and Officer Ward observed that they were visibly upset with Wykert. Officer Ward
asked Wykert if he would be willing to speak with him about L.D., and Wykert agreed. To
separate Wykert from L.D.'s mother and grandmother, Officer Ward asked Wykert if he
would like to speak in Officer Ward's patrol car instead of the parking lot, and Wykert
agreed. Before getting into the patrol car, Officer Ward asked Wykert if he could pat him
down to ensure he did not have any weapons on him because Wykert had his hands full of
items and was wearing cargo shorts with bulky items in the pockets. Wykert agreed that
2 Miranda v. Arizona, 384 U.S. 436 (1966). 3 The facts are recited in a light most favorable to the verdict. Ferguson v. State, 325 S.W.3d 400, 404 n.2 (Mo. App. W.D. 2010).
2 Officer Ward could pat him down. During the pat-down, Officer Ward placed his hand
over the left pocket of Wykert's cargo shorts and felt a bulge in his pocket that Officer
Ward believed could be a gun in a holster. Officer Ward asked Wykert if he had a gun in
his pocket. Wykert reached his hand toward the pocket and "wrenched" his hand into the
pocket. Officer Ward grabbed Wykert's wrist and removed it from the pocket, which
exposed a digital scale and a black zipper bag located in the pocket. Officer Ward did not
confiscate the items or ask Wykert about them at the time.
Officer Ward and Wykert then sat in Officer Ward's patrol car to discuss L.D.'s
possible whereabouts. Wykert entered the car willingly and sat in the front seat next to
Officer Ward. The vehicle remained unlocked as they spoke. By this point, another officer,
Officer White, had arrived at the scene and was conversing with L.D.'s family members in
the parking lot. During the conversation in the patrol vehicle, Officer Ward asked Wykert
about the scale he saw in his pocket. Wykert initially responded by saying the scale was
used to measure jewelry or coins, but Officer Ward indicated he did not believe Wykert.
Officer Ward asked Wykert if he had any drugs on him. Wykert acknowledged he "had a
quarter gram of meth." Officer Ward asked Wykert to hand it to him, and Wykert pulled
out a zippered bag from his pocket and handed it to Officer Ward. The zippered bag
contained a broken pipe and clear plastic baggies containing a substance resembling
methamphetamine. Officer Ward confiscated the items and later transported them to
Missouri State Highway Patrol lab for analysis, which revealed the substance in the baggies
to be methamphetamine.
3 A short time later, Deputy Patterson of Dekalb County arrived and continued
questioning Wykert about L.D. in the parking lot of the residence. Officer Ward then
arrested Wykert for the controlled substances and transported him to the Cameron Police
Department for further questioning. In the interview room, Officer Ward read Wykert his
Miranda rights and spoke to Wykert about L.D. and the confiscated items from Wykert's
pocket. Wykert again admitted to having possessed methamphetamine and smoking it
earlier that day.
The trial court overruled the motion to suppress and found Wykert guilty of one
count of felony possession of a controlled substance and one misdemeanor count of
unlawful possession of drug paraphernalia. Wykert was sentenced as a prior and persistent
offender to ten years' imprisonment on the felony offense, and a fine was assessed on the
misdemeanor offense. This appeal follows.
Wykert raises two points on appeal. Point I alleges error in the admission of all
statements and evidence obtained as a result of the pat-down search as lacking consent or
articulable suspicion. Point II alleges error in the admission of all statements and evidence
obtained following the interview in the patrol car as a custodial interrogation without
proper Miranda warnings.
Discussion
Standard of Review
Appellate courts review the trial court's ruling on a motion to suppress in the light
most favorable to the trial court's ruling and defer to the trial court's determinations of
credibility. State v. Schroeder, 330 S.W.3d 468, 472 (Mo. banc 2011). Review is limited
4 to determining if the ruling is supported by substantial evidence. Id. Analysis of whether
law enforcement conduct violates the Fourth Amendment is a legal issue that is reviewed
de novo. Id.
"In reviewing the trial court's denial of a motion to suppress, we consider 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.
Woodrome, 407 S.W.3d 702, 706 (Mo. App. W.D. 2013). "The facts and inferences
therefrom are reviewed in the light most favorable to the trial court's ruling, and all contrary
inferences are disregarded." Id. "Our review is limited to a determination of whether there
was sufficient evidence to support the trial court's findings." Id. "We defer to the trial
court's superior opportunity to judge the credibility of the witnesses at the suppression
motion hearing." Id.
Point One; Pat-down search
Wykert argues the trial court's ruling to admit evidence obtained as a result of
Wykert's pat-down search was error because Officer Ward did not have consent or
reasonable articulable suspicion to pat-down Wykert, and all evidence obtained therefrom
was fruit of the poisonous tree. "The Fourth Amendment of the United States Constitution
protects individuals' right to be free from 'unreasonable searches and seizures.'" State v.
Ledbetter, 599 S.W.3d 540, 544 (Mo. App. W.D. 2020) (quoting U.S. Const. amend. IV).
The protections of the Fourth Amendment have been extended via the Fourteenth
Amendment to defendants in state court prosecutions. Id. "There are three categories of
police-citizen encounters: (1) an arrest requiring probable cause, (2) an investigative
5 detention requiring only reasonable suspicion based upon specific articulable facts, and (3)
a consensual encounter." State v. Johnson, 427 S.W.3d 867, 872 (Mo. App. E.D. 2014).
"A consensual encounter does not implicate the Fourth Amendment until the officer
restrains the individual's liberty to the extent that a reasonable person would feel that he or
she was not free to leave or decline the officer's questions." Id. "If the encounter is
consensual, police officers have liberty to question individuals, even without reasonable
suspicion." Id. (internal quotations omitted). "For consent to be valid it must be freely and
voluntarily given by a person with the authority to consent and the search must not exceed
the scope of the consent given." State v. Leavitt, 993 S.W.2d 557, 563 (Mo. App. W.D.
1999). "Consent is freely and voluntarily given if, considering the totality of the
circumstances, the objective observer would conclude that the person giving consent made
a free and unconstrained choice to do so." Id.
As to Wykert's consent to the pat-down, Wykert does not suggest that the evidence
showed a lack of consent to the search. Rather, Wykert argues "the facts do not support
the credibility of [Officer Ward's] testimony[.]" Wykert argues, "[a]lthough the appellate
court should generally defer to credibility findings of the trial court, credibility findings are
'never conclusive, however,' and they are still subject to the clearly erroneous standard."
App. Br. 12 (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). To
support the contention the trial court clearly erred in finding Officer Ward credible, Wykert
argues: (1) his own testimony that he did not consent to the search contradicted Officer
Ward's testimony; (2) Wykert's hands being full of items would have prevented him from
"wrenching" his own hand in his pocket to reveal the scale and pipe; and (3) if it were true
6 Wykert had prior experience with law enforcement as the trial court found, Wykert would
have known not to consent to a search that would have yielded incriminating evidence.
Wykert's arguments fail. As an initial matter, Wykert relies almost exclusively on
evidence viewed contrary to our standard of review. On appeal, facts and inferences are
reviewed in the light most favorable to the trial court's ruling, and all contrary inferences
are disregarded. Woodrome, 407 S.W.3d at 706. By citing his own testimony that
contradicted Officer Ward's testimony, Wykert asks us to view the evidence in a light
unfavorable to the ruling, which we cannot do. Moreover, because we defer to the trial
court's superior position to judge the credibility of the witnesses, we need only find
sufficient evidence to support the trial court's ruling. See id. Here, the trial court's ruling
is supported by sufficient evidence. The trial court stated that it found Officer Ward
"completely credible." Officer Ward testified that he asked Wykert to sit in his patrol car
to speak about L.D. Officer Ward testified, "[Wykert] had a whole bunch of stuff in his
hands and his pockets, so I asked him before he got in the car if I could pat him down.
[Wykert] consented to that." When patting down Wykert, Officer Ward testified,
When I got to his left cargo pocket, I felt a bulge. I asked him if it was a gun in his pocket. He began to reach for it and wrench his hand -- wrench his hand inside his pocket. I just grabbed his wrist and removed his hand, told him not to reach; and as I pulled his hand out, I seen that he had a digital scale and a black bag, a zipper bag, in his pocket. I left all those items in there, just asked him to sit in my car.
Any logical contradictions regarding Wykert's ability to reach into his own pockets were
elicited by defense counsel on cross-examination. When pressed on how Wykert reached
into his pocket, Officer Ward testified he could not remember exactly how Wykert reached
7 his hand into his pocket, only that it was possible Wykert shifted items from one hand to
another, set some items down on the hood of the car, or threw out a cigarette he was
holding. The trial court found credible Officer Ward's account of the interaction with
Wykert, a finding to which we defer. Officer Ward's testimony provided sufficient
evidentiary support for the trial court's determination that Wykert consented to the pat-
down. Accordingly, the trial court's determination that Wykert consented to the pat-down
was not clearly erroneous. We, therefore, need not address whether Wykert's pat-down
was supported by reasonable suspicion.
Point one is denied.
Point Two; Wykert's admissions
In Wykert's second point on appeal, he argues the trial court erred in admitting
statements obtained following Wykert's interview with Officer Ward in the patrol car
because Wykert was subjected to custodial interrogation without first being warned of his
Miranda rights.4 "A criminal suspect is entitled to Miranda warnings, consistent with the
Fifth Amendment right against self-incrimination, once the suspect is subjected to a
custodial interrogation." State v. Wright, 585 S.W.3d 360, 367 (Mo. App. W.D. 2019).
"Custodial interrogation occurs either when a suspect is formally arrested or under any
other circumstance where the suspect is deprived of his freedom of action in any significant
way." Id. (internal quotations omitted). "'Custody' for purposes of Miranda warnings, 'is
4 The statements which Wykert sought to suppress were all made to Officer Ward, prior to Officer Ward's confiscation of the drugs and paraphernalia removed from Wykert's pocket. We express no opinion whether Wykert was in custody subsequent to the seizure of the illegal items, and before Officer Ward informed Wykert that he was under arrest.
8 a term of art used to specify circumstances that are thought to present a serious danger of
coercion.'" Id. at 368. "In deciding whether a suspect is 'in custody' at a particular time,
courts examine the extent of the restraints placed on the suspect during the interrogation in
light of whether a reasonable person in the suspect's position would have understood the
situation to be one of custody." Id. "Custody is determined by an examination of the
totality of the circumstances." Id.
In State v. Werner, 9 S.W.3d 590 (Mo banc. 2000), our Supreme Court outlined
factors to consider in the court's determination of whether a person is in custody based on
the suspect's freedom to leave and the purpose, place, and length of interrogation. These
indicia of custody include:
(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to answer questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere was police dominated; or, (6) whether the suspect was placed under arrest at the termination of questioning.
Wright, S.W.3d at 368 (quoting Werner, 9 S.W.3d at 595). The factors listed above are not
an exhaustive list; courts may also consider the individual's "personal background,
experience, familiarity with police questioning, maturity, education, and intelligence."
Werner, 9 S.W.3d at 595-96. Our Supreme Court has also directed that "[i]t is not
necessary that all of the foregoing indicia be present to find custody," and the affirmative
9 presence of one or more of the first three factors during questioning "would tend to mitigate
the existence of custody at the time of questioning." Id. at 596 (quoting United States v.
Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990)).
Wykert argues the Werner factors establish the existence of custody. He argues he
was in custody because: Officer Ward interviewed Wykert in a patrol car; Officer Ward
did not inform Wykert he could refuse questioning; Officer Ward initiated contact with
Wykert; Officer Ward removed Wykert from other people, particularly friends and family,
at the scene; Wykert was placed under arrest following questioning; and Officer Ward was
questioned in a "police dominated" atmosphere because two uniformed officers were
present at the scene. Wykert argues this case is similar to Werner, wherein the Court held
the defendant was in custody because he was not told he could refuse questioning, was
taken to the police station, and was placed under arrest after questioning. See id. at 589.
Despite the factors argued by Wykert, we find he was not subjected to custodial
interrogation. The trial court found Wykert voluntarily spoke with Officer Ward in his
patrol car and was free to leave or refuse to answer questions at any time. Officer Ward
testified that he asked Wykert to get in the patrol car for their conversation because when
he arrived, the missing woman's mother and grandmother were present and they "were not
happy" with Wykert. Wykert was not in handcuffs, nor was he restrained in any way.
Wykert was not removed from the scene of the initial contact and taken to the police station.
Officer Ward testified that the doors to the patrol car remained unlocked throughout the
entire conversation. Wykert sat in the front seat of the patrol car with Officer Ward, and
Officer Ward asked Wykert questions regarding L.D.'s whereabouts and Wykert's
10 possession of drug paraphernalia in a calm demeanor without using an intimidating or
forceful tone. The conversation was brief, roughly fifteen minutes in duration. There was
no evidence of strong-arm tactics or deceptive stratagems used to coerce Wykert into
speaking with Officer Ward.
It is true Wykert was separated from other people at the scene to speak with Officer
Ward and that Officer Ward asked Wykert to speak in a patrol car, but Officer Ward
testified that was only to provide Wykert with a more suitable environment for
conversation, given L.D.'s family's observable anger toward him. It is hard to find that
Officer Ward separated Wykert from individuals capable of lending him "moral support"
in the moment. See Griffin, 992 F.2d at 1352. Although Officer Ward never explicitly
informed Wykert he was not under arrest or that he could leave the situation, an individual
is not in custody "merely because they are not expressly told in particular words that they
can leave whenever they want to, in the absence of circumstances indicating some
restraint." State v. Brooks, 185 S.W.3d 265, 277 (Mo. App. W.D. 2006).
Moreover, Werner is easily distinguishable from this case. In Werner, the
defendant, a special-needs student with an I.Q. of 78, was removed from school by a
detective and driven to the police station for questioning regarding the death of the
defendant's relative. Werner, 9 S.W.3d at 593. The detective marked on the school's sign-
out sheet that he was taking "custody" of the defendant. Id. The defendant was placed in
an interview room by himself for two hours before questioning began while his family
member was questioned in a separate interview room. Id. at 593-94. The detective testified
that he would not have allowed an attorney to be present if the defendant had requested an
11 attorney. Id. at 598. The totality of the circumstances in Werner, notably the police-
dominated atmosphere, restraint of the defendant, and the defendant's youth and low
intelligence, led to a determination the defendant was in custody and a reasonable person
under those circumstances would not have felt free to leave. Id. The totality of the
circumstances here, based upon the evidence the trial court found credible, does not favor
such a finding.
Rather, the totality of the circumstances in this case resembles the Court's holding
in State v. Glass, 136 S.W.3d 496 (Mo. banc 2004). In Glass, the Court held that a custodial
interrogation did not occur because the defendant (Glass) willingly accompanied a police
officer to the station to provide a written statement. Id. at 509. There, the police officer's
interaction with Glass began with a "voluntary discussion" outside Glass's home. Id. Glass
agreed to go the sheriff's office in the officers' patrol car, but there was no evidence the
officers' "presence was to restrain, threaten or intimidate Glass into accompanying them to
the station." Id. "[B]ecause Glass went voluntarily to the sheriff's office, he was not 'seized'
or 'detained' such that his Fourth Amendment rights were infringed[.]" Id. at 510.
Similarly, Officer Ward asked Wykert if they could sit in Officer Ward's patrol car to
discuss L.D.'s whereabouts. Officer Ward testified, "I asked him if we could sit in my car
to be separated from the grandmother, [L.D.'s] mother and grandmother. He consented to
that." Officer Ward further testified that he did not force Wykert to sit in the car, that
Wykert sat willingly in the car in the front seat, and that Officer Ward never locked the
door to where Wykert was not free to leave. Considering the totality of the circumstances,
notably Wykert's assent to a voluntary discussion with Officer Ward, a reasonable person
12 in Wykert's position would have believed he was free to leave the conversation; thus,
Wykert was not in custody. Accordingly, the trial court did not clearly err in overruling
Wykert's motion to suppress. Point two is denied.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
__________________________________ Gary D. Witt, Judge
All concur