State v. Scott , 2006 Mo. App. LEXIS 1692 ( 2006 )

OPINION

GLENN A. NORTON, Chief Judge.

Mecca Scott appeals the judgment entered on his conviction for attempted tampering with physical evidence after a jury trial, challenging the admission of drugs seized from his car. We affirm.

I. BACKGROUND

Scott was pulled over for driving with a burned-out taillight. Scott told the officer he did not have a driver’s license, and a computer check revealed that his license had been suspended and that he was on probation for prior drug offenses. The officer ordered Scott out of the car, told him he was under arrest for driving while suspended, handcuffed him and put him in the patrol car. The officer then searched Scott’s car. He testified that he was looking for drugs and anything that might hurt him, but he agreed that Scott could not hurt him because Scott was “locked up” in the patrol car. During the search of Scott’s car, the officer found a small container attached to the keychain in the ignition. Inside, the officer found crack cocaine. Scott was transported to the police station, where the officer put the contents of the container found in the car in a clear plastic bag. Scott grabbed the bag off the counter and ran into a bathroom, where he attempted to flush the bag down the toilet. The officers who chased after Scott claimed he struck and pushed them during their struggle to subdue him.

Scott was charged with possession of cocaine, tampering with physical evidence and two counts of assault. Before trial, Scott moved to suppress the evidence seized during the search of his car. The court concluded that the inevitable discovery doctrine applied and denied the motion after a hearing. At trial, Scott maintained that there were no drugs in his car and that the drugs he was shown at the police station were not his. Scott’s objections at trial to the admission of the drugs were overruled, and his motions for directed verdict of acquittal were denied. The jury was unable to reach a verdict on the possession charge. The jury found Scott guilty of attempted tampering with physical evidence, a lesser-included offense of the tampering charge on which the jury was instructed. Scott was found not guilty of both assault charges. The court declared a mistrial on the possession count and ordered a new trial on that count.

The day after the verdicts, the trial court entered an order in which it said that it had reconsidered its denial of Scott’s motion to suppress. Based on “supplemental” and “inconsistent” testimony at trial, the court concluded that the drugs were seized illegally — although it did not explain what specific testimony led to that conclusion or why that testimony demonstrated that the search was illegal — and granted the motion to suppress. The same day, the State filed a memorandum of nolle prosequi on the possession charge, which resulted in the dismissal without prejudice of that charge. Thereafter, Scott filed a motion for judgment of acquittal, for a new trial or for an order setting aside the verdict on the tampering charge, claiming that because the drugs were ultimately suppressed, the State could not make a submissible case that Scott had tampered or attempted to tamper with that evidence. The court denied the motion and during sentencing indicated that, although it believed the evidence was illegally obtained, Scott’s behavior could not be “tolerated.” Judgment was entered on the attempted tampering conviction, and Scott appeals.

II. DISCUSSION

Scott argues that the court erred in admitting the drugs seized from his car because the warrantless search was a violation of the Fourth Amendment to the United States Constitution. Where, as here, there is little or no dispute about the relevant facts, whether the Fourth Amendment has been violated is a question of law that we review de novo. State v. Simmons, 158 S.W.3d 901, 907 (Mo.App. S.D.2005).

To demonstrate that the search was illegal, Scott points to the fact that the officer had already placed him in the patrol car in handcuffs — and thus he posed no threat to the officer’s safety — and to the officer’s admission that he was looking for drugs in Scott’s car. But it is undisputed that Scott had been placed under arrest just prior to the search. “[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile .... [and] may also examine the contents of any containers found within the passenger compartment.” New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). We are aware of no authority to support Scott’s suggestion that a search incident to arrest is limited to a search for weapons.¹ Searches incident to arrest “have long been considered valid because of the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to prevent the concealment or destruction of evidence.” Id. at 2862 (quoting Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969)) (emphasis added). While the authority for a search incident to arrest is based on the need to disarm and to discover evidence, the validity of a particular search does not depend on the probability that weapons or evidence would have been found. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 476, 38 L.Ed.2d 427 (1973); see also Belton, 101 S.Ct. at 2864. Rather, the fact of arrest alone justifies the search. Robinson, 94 S.Ct. at 476.

Nor do the authorities support Scott’s argument that because he was handcuffed in the back of the patrol car, the search was invalid. In fact, in applying Belton, the Missouri Supreme Court recognized that the concern for officer safety is applicable even when the officer has already secured the suspect in handcuffs and it held that searches incident to arrest in that situation are valid. State v. Harvey, 648 S.W.2d 87, 89 (Mo. banc 1983).²

At oral argument, Scott cited to United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) as the most factually analogous case and the most persuasive authority regarding the search in this case. But, as the Court pointed out in Belton, that case did not involve an arguably valid search incident to arrest — rather, the search of the footlocker in Chadwick was conducted over an hour after that footlocker had been taken by the authorities and long after the suspects had been taken into custody. Belton, at 461-62, 101 S.Ct. 2860 (citing Chadwick, 97 S.Ct. at 2485). As in Belton, Chadwick simply has no application here.

Under the binding precedent of Harvey, the search of Scott’s car was a valid search incident to his arrest regardless of the officer’s intent to search for drugs or the fact that Scott was handcuffed in the patrol car at the time of the search. The drugs seized during that search were properly admitted into evidence at Scott’s trial. Point I is denied.

Scott also claims that because, after the trial, the court reconsidered its ruling on his motion to suppress and ultimately concluded that the search was illegal, that evidence should not have been considered in the court’s evaluation of Scott’s motion for directed verdict of acquittal at the close of evidence or his post-trial motion for judgment of acquittal on the tampering charge. He contends that without the drugs seized during the illegal search, the State could not make a submis-sible case that Scott had attempted to tamper with those drugs. But the conclusion that the search was illegal is clearly incorrect for the reasons discussed above.³ Therefore, the premise of Scott’s argument for why his motions for judgment of acquittal should have been granted fails. The drugs were properly admitted at trial, and judgment of acquittal was not appropriate. Points II and III are denied.

III. CONCLUSION

The judgment is affirmed.

KATHIANNE KNAUP CRANE, Judge, concurs. CLIFFORD H. AHRENS, Judge, concurs. ROBERT G. DOWD, JR., Judge, concurs. SHERRI B. SULLIVAN, Judge, concurs. ROY L. RICHTER, Judge, concurs. LAWRENCE E. MOONEY, Judge, concurs in result in separate opinion. MARY K. HOFF, Judge, concurs in opinion of MOONEY, J. KENNETH M. ROMINES, Judge, concurs in result in separate opinion. PATRICIA L. COHEN, Judge, dissents. GEORGE W. DRAPER, III, Judge, concurs in dissent of COHEN, J. BOOKER T. SHAW, Judge, concurs in dissent of COHEN, J. NANNETTE A. BAKER, Judge, concurs in dissent of COHEN, J. GARY M. GAERTNER, SR., Judge, not sitting.

1 . Justice Scalia has proposed in a concurring opinion that such searches be limited to situations in which it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. See Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 2137, 158 L.Ed.2d 905 (2004).

2 . In Thornton, the majority addressed whether Belton was limited to situations where the officer first contacts the suspect while the suspect is in the car. 124 S.Ct. at 2129. In that case, the suspect was approached by the officer after he had exited his car; the suspect was arrested, handcuffed and placed in the back of the patrol car before the officer searched his car. Id. The Court held that "[s]o long as an arrestee is the sort of ‘recent occupant’ of a vehicle such as petitioner was here, officers may search that vehicle incident to the arrest.” Id. at 2132. While the Court stated that it would not address whether the suspect’s "temporal or spatial relationship” to the car at the time of the arrest and search would affect the analysis under Belton, it also stated that ”[t]he need for a clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment, justifies the sort of generalization which Belton announced.” Id. at 2131 (emphasis added). In this way, we find the holding of Thornton, if not expressly on point to the issue of whether being handcuffed in the patrol car invalidated the search, at least consistent with Harvey. See also State v. Reed, 157 S.W.3d 353, 358-59 (Mo.App. W.D.2005) (concluding that Thornton extended the rule in Belton to include suspects who had been handcuffed and removed from direct and immediate access to the cars they had recently occupied, proving that Harvey was correct).

3 . The trial court's ruling on reconsideration of the motion to suppress has not been appealed. Therefore, although it is clearly incorrect on the merits, we need not reverse or otherwise dispose of it on appeal. Moreover, the ruling did not have any effect on the trial court’s determination of Scott’s motions — that is, the court still considered the evidence that it had ruled was illegally obtained in determining Scott’s motions. Nor will the ruling have any binding or preclusive effect on future proceedings should the possession charge be re-filed. See State v. Beezley, 752 S.W.2d 915, 917-18 (Mo.App. S.D.1988) (following suppression, charge dismissed; after same charge re-filed, State not collaterally estopped from offering evidence previously suppressed); State v. Pippenger, 741 S.W.2d 710, 711-12 (Mo.App. W.D.1987) (following suppression, charge dismissed; after different charge re-filed, State not collaterally estopped from offering evidence previously suppressed). Nevertheless, Scott relies on the conclusion of illegality to support the contention that his other motions should have been granted, putting the validity of the search squarely before us in this appeal. Therefore, we cannot ignore that the basis for granting the motion to suppress on reconsideration is erroneous. We agree with the dissent's position that the trial court had the authority after the trial but before sentencing to reconsider its ruling on the motion to suppress. But the dissent goes directly to concluding that, based on that ruling, the trial court should have granted Scott's post-trial motion for a new trial without first addressing whether the trial court’s determination that the search was illegal was correct.