State v. Duncan

879 S.W.2d 749, 1994 Mo. App. LEXIS 1160, 1994 WL 327773
CourtMissouri Court of Appeals
DecidedJuly 12, 1994
DocketWD 47221
StatusPublished
Cited by10 cases

This text of 879 S.W.2d 749 (State v. Duncan) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Duncan, 879 S.W.2d 749, 1994 Mo. App. LEXIS 1160, 1994 WL 327773 (Mo. Ct. App. 1994).

Opinion

SPINDEN, Judge.

A jury convicted Terry Duncan of the class B felony offense of production of more than five grams of marijuana. The court sentenced him to five years in prison. He challenges his conviction on three grounds: He contends that the trial court erred by (1) not suppressing the marijuana found in the car in which he was riding because the officer acted unlawfully in seizing it; (2) overruling his challenge for cause to a venireperson; and (3) submitting the reasonable doubt instruction patterned after MAI-CR3d 302.04. We affirm the conviction.

SUPPRESSION OF MARIJUANA

On August 5, 1991, Officer David Trickel, Deputy Sheriff of Grundy County, received a radio dispatch that a white Monte Carlo with a particular license plate number had been seen at the southwest comer of the Hickory area on Route W in Grundy County. 1 A later dispatch informed Trickel that the vehi-ele had stopped in front of a farm house and that two people had jumped the fence. The dispatch also told Trickel that when the individuals got back in their car they appeared to be carrying something and that the car was headed north on Route W. The farm house belonged to Trickel’s grandmother, and he knew that marijuana grew wild on the farm. He also knew that the abandoned farm house still had old furniture in it and that the house had been the target of thieves and vandals.

Trickel drove toward the area. He saw the car going north on Route W and saw three people in it. The car’s license plate number matched the number given by the dispatch. Trickel followed the car. While following the car into Trenton, Trickel turned on his car’s red emergency lights either shortly before or as the ear pulled into the driveway of Duncan’s residence at 417 Crow-der Road. Trickel parked his car in the driveway.

The driver and the front seat passenger ran from the car. Duncan remained in the back seat. When Trickel walked up to the car and asked Duncan what he was doing, he could see two brown plastic trash bags in the back seat. Protmding from the bags were stalks, stems and green leafy material which appeared to Trickel to be marijuana. Trickel placed Duncan under arrest and conducted a field test on the material. The test indicated that it was marijuana.

Duncan filed a motion to suppress the marijuana. He alleged that he was stopped and searched without probable cause. At the suppression hearing, Trickel acknowledged that the dispatcher did not tell him who had provided the information and that he had no reason to believe it was a reliable tip. He also acknowledged that the only reason he followed the car was his knowledge of wild marijuana growing on his grandmother’s farm and the dispatch’s report that the car’s occupants had thrown something into the car. The trial court denied the motion to suppress.

*751 When we review a ruling on a motion to suppress, we will affirm if the ruling is supported by substantial evidence. State v. Franklin, 841 S.W.2d 639, 641 (Mo. banc 1992). We review the facts in the light most favorable to the ruling and disregard any contrary inferences. State v. Hoopingamer, 845 S.W.2d 89, 92 (Mo.App.1993). Our review is not limited to the evidence presented at the hearing on the motion; we may review the entire record, including additional evidence presented at trial. State v. Collins, 816 S.W.2d 257, 258 (Mo.App.1991).

The Fourth Amendment of the United States Constitution 2 is not offended when a police officer briefly stops a person if the officer has a reasonable suspicion, based upon specific and articulable facts, that the person was or is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Nor is the Fourth Amendment offended when a police officer stops a moving vehicle to investigate if the officer has a reasonable suspicion, based upon specific and articulable facts, that the passengers of the vehicle are involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 882, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975). Further, a passenger in a vehicle is entitled to challenge the validity of an initial stop. See United States v. Portwood, 857 F.2d 1221, 1222 (8th Cir.1988), cert. denied, 490 U.S. 1069, 109 S.Ct. 2073, 104 L.Ed.2d 638 (1989).

The state contends that an investigative stop did not occur. We need not decide because even if this case involved an investigative stop, Trickel had a reasonable suspicion, based upon specific and articulable facts, that the vehicle’s passengers were involved in criminal activity. Reasonable suspicion is dependent upon the totality of circumstances. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981). Trickel had a reasonable suspicion, based upon his own knowledge, that the car’s passengers were involved in criminal activity. The radio dispatches informed Trickel that a vehicle had been seen on his grandmother’s farm and provided a license plate number. The source of the dispatch was revealed at trial to be Trickel’s uncle. Trickel knew that marijuana grew wild on his grandmother’s farm and that the abandoned farm house had been the target of thieves and vandals. It was reasonable for him to conclude in light of his knowledge that the vehicle was not supposed to be on the property and reasonable for him to investigate. Pursuant to Terry, he was entitled to make a brief stop of the vehicle to investigate his suspicions.

Duncan relies on State v. Franklin, 841 S.W.2d at 639, in support of his contention that Triekel lacked reasonable suspicion to initiate the stop. In Franklin, the police officer received a radio dispatch stating “party armed, occupying a black 1984 Pontiac Fiero in the area of 4200 East 60th Terrace.” After stopping a ear matching the description in the indicated area, the officer discovered no weapons, but ultimately uncovered contraband. Relying on United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) the court noted that no evidence was produced establishing that the dispatch was based on reasonable suspicion. The court concluded:

The record contains no evidence of a dispatch issued on the basis of reasonable suspicion, and the detaining officer did not personally observe, independent of the dispatch, any behavior that would justify the stop. The dispatcher was not called to testify at the suppression hearing. The record is silent as to the source of the information that lead to the police dispatch.

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Bluebook (online)
879 S.W.2d 749, 1994 Mo. App. LEXIS 1160, 1994 WL 327773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duncan-moctapp-1994.