State of Missouri v. Shalimar Strong ( 2015 )

am the missuurt thurt cf appeals
(Eastern Eatstrint
DIVISION THREE
STATE OF MISSOURI, ) ED102338
)
Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
V. ) 1422—CR023 12-01
)
SHALIMAR STRONG, ) Honorable Thomas J. Frawley
)
Respondent. ) Filed: April 7, 2015
Introduction
This is an interlocutory appeal in which the State of Missouri (State) appeals the '
trial court’s grant of Shalirnar Strong’s (Defendant) motion to suppress evidence of a gun
seized by police officers from Strong. The State argues that the trial court erred in
suppressing the evidence because officers seized the gun during a lawful detention. We
reverse.
Background
The State charged Defendant with unlawful use of a weapon (Count I) and
unlawful possession of a firearm by a person who has been convicted of a felony (Count
11), both of which arose after police found a gun in Defendant’s pocket during a pat-down
search. Prior to trial, Defendant filed a motion to suppress evidence of the gun, arguing
that police unlawfully detained Defendant and conducted the search without reasonabie
suspicion of criminal activity. The trial court held a hearing on Defendant’s motion to
suppress, and later a bench trial, during which it heard the following evidence.
On June 14, 2014, Officers Ryan Buscemi (Officer Buscemi) and Edward
Gonzales (Officer Gonzales) were in uniform and on patrol in a marked police car in the
Dutchtown and Gravois Park neighborhoods. Raymond Fields (Fields) was driving his
car and pulled alongside the officers. Fields stated that his nephew told him that a man
wearing a white tank top and blue jean shorts in the 3300 block of Keokuk had raised his
shirt and shown a pistol sticking out of his pants to Fields’s nephew and several other
children. Officer Buscemi testified that he and Officer Gonzales decided to investigate
because “information of somebody in possession of a firearm, especially in these
neighborhoods, is very serious. We have a lot of gang activity, we have a lot of violent
crime, robberies, so we take it very seriously when we’re advised of somebody walking
around with a firearm on their person.”
When the officers arrived at 3300 Keokuk, they saw a man sitting on the steps
wearing a white tank top and blue jean shorts, who they later identified as Defendant.
As Officer Buscemi approached Defendant to conduct a field interview, Defendant’s
hand fell to the front right side by his pants pocket, “iike he was concealing something or
grabbing something that was right there.” Officer Buscemi testified that based on the
information they had received from Fields and Defendant’s hand movement toward his
pocket, he “had reason to believe [Defendant] had a firearm on his person.” Officer
Gonzales testified at trial that from his vantage point, when Defendant stood up, Officer
Gonzales saw the handle of a gun in Defendant’s right front pocket. Officer Buscemi and
Officer Gonzales drew their weapons and pointed them in Defendant’s direction. Officer
Buscemi told Defendant to put his hands in the air, and Defendant complied.
Officer Buscemi approached Defendant and handcuffed him for the safety of the
officers. Officer Buscemi lifted up Defendant’s shirt and saw a handgun sticking out of
the right front pocket of Defendant’s pants. Officer Buscemi seized the gun and handed
it to Officer Gonzales, who rendered it safe. While Defendant was still handcuffed, the
officers inquired into whether Defendant had a legal right to carry a concealed weapon.
They determined Defendant did not and placed him under arrest.
Defendant testified at the suppression hearing that the gun the officers found was
registered to Defendant’s girlfriend. Defendant said that before the officers arrived,
Defendant’s girlfriend had phoned him and asked him to bring the gun outside to ensure
she made it home safely from the bus stop. Defendant had also made a written statement
at the police station after his arrest in which he said, “i have been threatened and
approached several times by the people living next door, [and] I felt my life was on the
line so I put the gun on my person to protect myself.”
The trial ecurt initially denied Defendant’s motion to suppress. Later, the trial
court rescinded its first order and granted the motion to suppress, concluding that the
information Fields provided to the officers constituted an anonymous tip, and the officers
failed to observe any corroborating evidence giving rise to a reasonable suspicion of any
criminal activity before searching Defendant. This appeal follows.
Standard of Review
We will reverse a trial court’s ruling on a motion to suppress only if it is clearly
erroneous. State V. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007). We review “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.” tate v. Grayson, 336
S.W.3d 138, 142 (Mo. banc 2011). We defer to the trial court’s factual findings and
credibility determinations, and we consider all evidence and reasonable inferences in the
light most favorable to the trial court’s ruling. Sund, 215 S.W.3d at 723. Whether police
conduct violates the Fourth Amendment is a question of law, which we review de novo.
1;; w State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005) (stating same analysis
applies to cases brought under Missouri Constitution as under United States
Constitution).
Here, there is nothing in the record to suggest the trial court disbelieved Officer
Buscelni’s testimony from the suppression hearing or Officer Gonzales’ testimony from
the bench trial, as the court reiterated much of this testimony in its own findings of fact.
gee State v. Irvin, 210 S.W.3d 360, 363 n.3 (Mo. App. W.D. 2006). Rather, the trial
court came to its conclusions as a matter of law, independent of any credibility
determination. & fi Thus, our review is purely de novo.
Discussion
The State’s sole point on appeal is that the trial court clearly erred in granting
Defendant’s motion to suppress. The State argues that at the time the officers handcuffed
Defendant and conducted a pat-down search, they had reasonable suspicion to believe
Defendant was engaged in criminal activity, as well as a concern for the officers’ safety.
We agree.
The Fourth Amendment to the United States Constitution and article 1, section 15
of the Missouri Constitution both guarantee the right of an individual to be free from
unreasonable searches and seizures. m, 336 S.W.3d at 143 11.2 (same analysis
applies under both state and federal constitutional provisions). Not every police
encounter is a seizure; an officer may initiate a consensual encounter by approaching an
individuai to ask questions without detaining that person. State v. Johnson, 427 S.W.3d
867, 872 (Mo. App. ED. 2014). In contrast, “[a] person is seized when the totality of
circumstances surrounding the incident indicates that a reasonable person would have
believed that he [or she] was not free to leave.” w, 336 S.W.3d at 143 (internal
quotations omitted).
In the event the police detain a person in such a way that constitutes a seizure in
terms of the Fourth Amendment, the question becomes whether such a detention was
reasonable. id, in the context of pat-down searches, as here, “the Fourth Amendment is
not offended when a brief stop followed by a pat-down or frisk for weapons occurs and is
based upon reasonable suspicion supported by articulable facts that the person stopped is
engaged in criminal activity.” State v. Carr, 441 S.W.3d 166, 169 (Mo. App. WD. 2014)
(citing Terry v. Ohio, 392 U.S.1, 30 (1968)). This kind of brief detention is known as a
Tiny stop.
Reasonable suspicion justifying such a stop can, under certain circumstances, be
based on facts the officer did not personally observe; however, the totality of the
circumstances must indicate that the information supplied to the officer is reliable. See
State v. Miller, 894 S.W.2d 649, 652-53 (Mo. banc 1995); w Alabama v. White,
496 US. 325, 328-29 (1990) (totality of circumstances test applicable to determine both
probable cause and reasonable suspicion; noting “allowance must be made in applying
them for the lesser showing required to meet [reasonable suspicion} standard”). In the
context of a tip from an informant, most often reasonable suspicion will arise only
collectively from the tip and the officer’s subsequent independent observation of
corroborating evidence. m, 894 S.W.2d at 653.
Here, the trial court concluded that because the officers had no prior contact with
Fields, the information Fields provided to the officers constituted an anonymous tip,
requiring independent corroborating evidence before the officers could have reasonable
suspicion justifying a my stop. _S__e_e Grayson, 336 S.W.3d at 144 (quoting Statewy,
Deck, 994 S.W.2d 527, 536 (Mo. banc 1999) (“a detention and search and seizure is
unlawful if conducted solely on the basis of an anonymous tip”)). The State argues that
because Fields identified himself during an in~person encounter with the officers and
provided context for the information he shared, Fields should be considered a citizen
informant whose information is presumptively reliable. E State v. Long, 417 S.W.3d
849, 854 (Mo. App. SD. 2014).
However, we need not determine here whether the officers could have relied
solely on the information from Fields to justify a Iggy stop, because they did not do so.
Officer Buscemi testified that based on their knowledge of the prevalence of violent
crime in the neighborhood, he and Officer Gonzales decided to investigate what Fields
had told them. When they arrived at Defendant’s residence, they approached him to
conduct a field interview. At this point, the officer was pursuing a consensual encounter
and there was no seizure. See Qfl, 441 S.W.3d at 169 (officer’s request to speak with
defendant was not a Iggy stop, therefore no need to determine whether anonymous tip
alone provided reasonable suspicion); see also Deck, 994 S.W.2d at 535-36 (finding no
seizure when officer first approached car; seizure occurred only when officer ordered
driver to sit up and display his hands and driver complied).
As the officers approached Defendant, whose clothes matched the description
Fields had given, the officers saw Defendant move his hand toward his pocket, which
was where Fields had told the officers that Defendant was carrying the gun. At this point,
based on Defendant’s hand movement as well as what Fields had told him, Officer
Buscemi drew his weapon and told Defendant to put his hands in the air. Officer
Gonzales confirmed at trial that Officer Buscemi did this right after Defendant stood up
and moved his hand toward his pocket. Officer Gonzales also confirmed that he saw the
gun handle. At that point, it is undisputed Defendant was not free to leave.
The trial court found the detention of Defendant was not justified even under
these circumstances because Defendant was “not engaged in any observable criminal
activity” before the officers detained him. The trial court found that despite the officers’
belief that Defendant was reaching for a gun, the officers did not know whether
Defendant had a legal right to conceal the gun until after they detained him. However,
where an officer reasonably suspects a person is illegally concealing a weapon, Missouri
courts have not required, and should not require, the officer to first make an inquiry into
whether the person has a permit to conceal a weapon before performing a Iggy stop and
pat-down search. _S_ee State v. Norfolk, 366 S.W.3d 528, 534 (Mo. banc 2012)
(defendant’s adjustment of his waistband after making eye contact with officer in area
where several robberies recently occurred was “movement that [officer’s] experience and
training reasonably caused her to believe was the illegal concealment of a weapon”);
m, 441 S.W.3d at 171 (when officer stated he wanted to speak with defendant,
defendant’s turning away and reaching toward hip area gave rise to “reasonable suspicion
that [defendant] was armed and engaged in criminal activity[,] i.e. [defendant] made
physical gesture leading the [o]fficer to believe [defendant] was reaching for a weapon”).
An officer does not have to be certain criminal activity has occurred, rather the
totality of the circumstances inform whether the officer’s suspicion is reasonable.
191m, 427 S.W.3d at 873 (citing United States V. Arvizu, 534 US. 266, 273 (2002)).
Then, the officer is permitted to take limited steps to confirm or dispel any reasonable
suspicion. State v. Waldrup, 331 S.W.3d 668, 674 (Mo. banc 2011) (quoting Berkerner
v. McCarty, 468 U.S, 420, 439 (1984)) (during My stop police may ask “a moderate
number of questions to determine his identity and to try to obtain information confirmng
or dispelling the officer's suspicion”).
Here, by the time the officers drew their weapons, the collective information from
Fields’ tip as well as the officers’ observations of Defendant formed a basis for their
reasonable suspicion that Defendant was armed and engaged in criminal activity. &
m, 336 S.W.3d at 144 (police may “properly consider [information from tip] if it is
in conjunction with other, independent corroborative evidence suggestive of criminal
activity”); M, 366 S.W.3d at 534 (noting “police officers are permitted to make use
of all of the information available to them” when forming reasonable suspicion, including
“their own experience and specialized training”). Fields told the officers a person
wearing what Defendant was wearing had raised his shirt and had shown a gun to several
children, conduct that could be criminal even if the person had a permit to carry a
I
concealed weapon. The officers went to the location supplied by Fields and found
1 For example, depending on the circumstances, showing a gun to a group of children could have been
evidence either of endangering the welfare of a child, or of unlawful use of a weapon under Section
8
Defendant, who, immediately upon the officers’ approach, stood up and moved his hand
toward his pocket, where Fields had said the gun was concealed. The officers were in a
high-crime area, and Officer Buscemi testified that the hand movement he observed
Defendant make suggested concealment of a weapon. Officer Gonzales could see the
weapon. Under the circumstances, at the time the officers drew their weapons,
reasonable suspicion supported by articulable facts existed to justify a m stop.
Therefore, the officers were justified in detaining Defendant in a manner
reasonable to ensure officer safety and for a reasonable period of time in order to dispel
or confirm their suspicion that Defendant was illegally concealing a Weapon. _S_§_e
w, 427 S.W.3d at 873-74 (discussing permissible actions of officers during M
stop). The officers handcuffed Defendant and performed a pat—down search for weapons
for the officers’ safety. 53;: 151,; gang, 44E S.W.3d at 169. immediately upon finding the
gun, they inquired into whether Defendant had a legal right to conceal it. Once this
inquiry confirmed the officers’ suspicion that Defendant was carrying the gun illegally,
they arrested him.
Given these circumstances, the officers’ discovery of the gun was not part of an
illegal search. Thus, the trial court’s suppression of this evidence was clearly erroneous.
Point granted.
571.030.1(4), RSMo. (Supp. 2013) (exhibiting deadly weapon in angry or threatening manner). Thus, the
officers were justified in investigating the circumstances to see whether Defendant’s conduct was in fact
criminal in this instance.
Conclusion
The trial court’s order granting Defendant’s motion to suppress is reversed.
Kurt S. Odenwald, P. 1., concurs.
Robert G. Dowd, J11, J ., concurs.
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