State of Missouri v. Dana M. Hindman , 2014 Mo. App. LEXIS 685 ( 2014 )

IN TH MIS
HE SSOURI COUR OF A
I RT APPEAL
LS
WESTER DIST
W RN TRICT
STATE OF MISSOURI,
O )
)
Respondent, )
)
v.
. ) 76345
WD7
)
DANA M. HINDMA
M AN, ) nion filed: J
Opin June 17, 20
014
)
Appellant. )
PEAL FROM THE CIR
APP RCUIT COUURT OF CA ALDWELL COUNTY, MISSOUR
RI
The Honorable Daren L. A
D Adkins, Jud
dge
Be
efore Divisio One: Jo
on oseph M. El lis, Presidin Judge,
ng,
Karen King Mitchell, Judge and Antho Rex Ga
n ony abbert, Judg
ge
Dana Hindm
D man appea from he convictio in the Circuit Court of Cald
als er on dwell
County of one count of posse
ession of methamphet
m tamine with the intent to distribu §
h t ute,
195.211. For the fo
ollowing rea
asons, the judgment is affirmed.
j s
At about 8:3 a.m. on October 21, 2012, Deputy De
A 30 n 2 ean Koch o the Lafay
of yette
County Sheriff's Department saw a tan Chevy C
D n Cavalier pu out from a gas station
ull m
parking lot onto 13 Highway in Lafayette County. The licens plate on the car wa in
3 se n as
ondition an appeared to have been tampe
rough co nd d b ered with. When he ran a chec on
ck
the license plate number, Deputy Koch was informed that no such license plate was on
file. Deputy Koch turned on his lights and pulled the car over.
Roger Moultrie was driving the car, and Appellant was in the passenger seat. As
he approached the car, Deputy Koch saw Appellant spray some type of cleaner on the
dashboard and start wiping it off. Both individuals appeared to be very nervous. Both
had hollowed-out, watery, glassy, and bloodshot eyes and sunken cheeks with
protruding cheekbones. Moultrie kept his hands on the steering wheel, stared straight
ahead, and remained silent. Deputy Koch asked Moultrie for his license and proof of
insurance, and he also asked Appellant for identification. Appellant stated that she
owned the car but that it was not insured. Moultrie and Appellant provided Deputy Koch
with their driver's licenses. Appellant started to make a call on her cell phone but was
asked to terminate the call by the deputy. Appellant told Deputy Koch that they had
driven to Kansas City to visit her children and had actually stopped at that same gas
station at about 7:30 p.m. the previous night.1 When the deputy noted that Appellant
hadn't spent much time with the children, Appellant stated that she had only needed to
see them for a little while.
A check of the vehicle identification number indicated that it was not registered to
either Appellant or Moultrie. A check on Moultrie revealed that his driver's license had
been suspended and that there was a caution warning related to him based upon a
record of violence. Upon hearing that information from his dispatcher, Deputy Koch
1
No evidence was introduced indicating where Appellant lived or wherefrom she and Moultrie claimed to
have driven to Kansas City or where currently heading.
2
asked Moultrie to get out of the vehicle. He then asked Moultrie for permission to
search his person for safety purposes, and Moultrie consented. During the search,
Deputy Koch found a hollowed-out pen in Moultrie's pocket. When questioned about
the pen, Moultrie eventually admitted that he used it to smoke the "speed" that was in
the coin pocket of his pants. Moultrie gave the officer permission to retrieve the "speed"
from his pocket. Deputy Koch pulled a small plastic baggie wrapped in aluminum foil
from Moultrie's pocket. The substance in the baggie appeared to be, and field testing
confirmed that it was, a small amount of methamphetamine.
Deputy Koch asked Moultrie for permission to search the car, and Moultrie
consented. Deputy Koch had Moultrie sit in his patrol car while he conducted the
search.
Deputy Koch then asked Appellant to get out of the car and informed her that he
was going to search it. He also asked Appellant if any of the items in the car belonged
to her. Appellant got mad and upset and told Deputy Koch that she did not want him
searching her car but she did not claim ownership of any of the bags or other personal
items in the vehicle. Deputy Koch had Appellant sit on a guardrail as he conducted his
search.
In an open tote bag on the floor of the back seat, Deputy Koch found female
clothing, other female items, and a coffee cup. Because the inside of the eight-inch tall
coffee cup was only three inches deep, Deputy Koch suspected that the cup had a false
bottom. When he removed the false bottom, Deputy Koch discovered 48.77 grams of
3
methamphetamine inside the cup. In a pink "makeup bag"2 that was also in the back
seat, Deputy Koch found a baggie containing a small amount of methamphetamine.
When he searched the trunk, Deputy Koch found scales that tested positive for
methamphetamine residue and some pipes with methamphetamine residue in them.
He also found a red "makeup bag" that contained a small bag of methamphetamine.
After conducting his search of the vehicle, Deputy Koch placed Appellant and Moultrie
under arrest. When he searched Appellant's purse, Deputy Koch found $2,269.00 in
cash, mostly in small denominations.
Appellant was subsequently charged in the Circuit Court of Lafayette County with
one count of class B felony possession of methamphetamine with intent to distribute.
After a change of venue to Caldwell County, Appellant filed a motion seeking to have
the evidence recovered during the search of the car suppressed. She claimed that she
owned the car and, therefore, had standing to challenge the search. She argued that
the deputy did not have valid consent to search the car because she, as the owner of
the car, expressly denied such consent and Moultrie did not have an ownership interest
in the vehicle. She further argued that the deputy lacked probable cause to justify a
search of her automobile and that no other exception to the warrant requirement was
applicable. Following a hearing on the motion, the trial court denied Appellant's motion
to suppress.
2
With regard to the two "makeup bags" found in the car and searched by Deputy Koch, no makeup was
actually found inside those bags. The term simply reflects Deputy Koch's description of the type of bag
discovered and searched.
4
Appellant was tried by jury and found guilty as charged. She was sentenced, in
accordance with the jury's recommendation, to a term of seven years imprisonment.
In her sole point on appeal, Appellant contends that the trial court erred in
denying her motion to suppress evidence discovered during the search of the car and
subsequently admitting evidence and testimony related to the fruits of that search. She
claims that the search of the car violated her Fourth Amendment right to be free from
unreasonable search and seizure because the deputy did not have her consent to
conduct such a search.3
"When reviewing the trial court's overruling 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. Loyd, 338 S.W.3d 863, 865 (Mo. App. W.D. 2011) (internal quotation omitted). "We
reverse the trial court's decision only if it was clearly erroneous." Id. In making that
determination, "[t]his Court defers to the trial court's factual findings and credibility
3
In multifarious fashion, Appellant also contends that the evidence discovered in the search should have
been suppressed because Deputy Koch asked questions that were unrelated to the license plate
irregularities and which were, therefore, improper. Appellant fails to elaborate on what specific lines of
inquiry were inappropriate or why the asking of the questions somehow warrants the suppression of
physical evidence discovered in the vehicle during the search. More importantly, Appellant failed to
challenge the reasonableness of the detention or the deputy's questioning of Moultrie and/or herself at the
trial court level, and she advances these arguments for the first time on appeal. She did not object below
to any testimony related to the questions asked by Deputy Koch or the answers provided thereto.
Accordingly, even if the nature of her argument could be discerned, no claim related to the
reasonableness of the detention or the nature of the officer's questions has been preserved for appellate
review. State v. Overton, 261 S.W.3d 654, 667 (Mo. App. S.D. 2008). "'The defendant is bound by the
arguments made and the issues raised at trial and may not raise new and totally different arguments on
appeal.'" State v. Pesce, 325 S.W.3d 565, 573 (Mo. App. W.D. 2010) (quoting State v. Winfield, 5
S.W.3d 505, 515 (Mo. banc 1999)). We gratuitously note, however, that nothing in the record reflects that
the deputy's detention of Moultrie and Appellant or his questioning of them exceeded the bounds of
propriety under the circumstances presented.
5
determinations, and considers all evidence and reasonable inferences in the light most
favorable to the trial court's ruling." State v. Pesce, 325 S.W.3d 565, 569 (Mo. App.
W.D. 2010) (internal quotation omitted). But we review de novo whether the Fourth
Amendment was violated under the facts of the case. Loyd, 338 S.W.3d at 865.
Where, as here, specific findings and conclusions were not made, the trial court's ruling
will be affirmed on any reasonable basis supported by the record. State v. Foster, 392
S.W.3d 576, 578-79 (Mo. App. S.D. 2013).
"The Fourth Amendment to the United States Constitution guarantees that '[t]he
right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated.'" State v. Faruqi, 344
S.W.3d 193, 204 (Mo. banc 2011). "Article I, section 15 of the Missouri Constitution
provides the same guarantees against unreasonable search and seizures; thus, the
same analysis applies to cases under the Missouri Constitution as under the United
States Constitution." State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009).
"Generally, subject to certain exceptions, warrantless searches and seizures are
deemed per se unreasonable." Loyd, 338 S.W.3d at 865. "In determining whether or
not an exception applies to the search at hand, we consider what the officer had reason
to believe at the time of his search." State v. Breese, 250 S.W.3d 413, 418 (Mo. App.
S.D. 2008).
"Consent searches are a valid exception to the warrant requirement of the Fourth
and Fourteenth Amendments." State v. Woolfolk, 3 S.W.3d 823, 831 (Mo. App. W.D.
1999). "An officer may at any time ask a citizen whether he has contraband in his car
6
and may ask for permission to search; if consent is given without coercion, the
subsequent search is not prohibited by the Fourth and Fourteenth Amendments." Id.Deputy Koch asked for and received permission from Moultrie, the driver of the car, to
conduct a search of the vehicle.4 Contrary to Appellant's assertion on appeal, a non-
owner driver of a vehicle has sufficient authority to grant valid consent to search the
vehicle. United States v. Thomas, 93 F.3d 479, 486 (8th Cir. 1996); United States v.
Jaras, 96 F.3d 764, 766 (5th Cir. 1996); United States v. Crain, 33 F.3d 480, 484 (5th
Cir. 1994), cert denied, 115 S.Ct. 1142 (1995).
Even assuming, arguendo, that Appellant's alternative argument is correct and
that a car owner passenger's express denial of consent to search the car overrides
consent granted by a driver with no ownership interest in the vehicle, Appellant's
argument presupposes that ownership of the car was conclusively proven. Indeed,
proof of Appellant's ownership interest in the car was necessary for her to even clear
the initial hurdle to her motion to suppress – the establishment of standing to challenge
the validity of the search. "[T]he 'capacity to claim the protection of the Fourth
Amendment depends . . . upon whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the invaded place.'" State v.
Brown, 382 S.W.3d 147, 157 (Mo. App. W.D. 2012) (quoting Rakas v. Illinois, 439
U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). While the State has the burden of
production and persuasion to show by a preponderance of the evidence that the
defendant's motion to suppress should be denied, the defendant bears the initial,
4
Appellant makes no claim that Moultrie's consent was in any way coerced.
7
threshold burden of proving that she has been aggrieved by the search or, stated
another way, that she has standing to challenge the search by demonstrating that she
had a legitimate expectation of privacy in the place or thing that was searched.5 State
v. Woodrome, 407 S.W.3d 702, 709 n.3 (Mo. App. W.D. 2013).
A mere passenger with no ownership interest in an automobile generally lacks
the requisite standing to challenge a search of the vehicle on Fourth Amendment
grounds.6 State v. Shoults, 159 S.W.3d 441, 445 (Mo. App. E.D. 2005). Something
more than permissive presence in the automobile is required to establish a legitimate
expectation of privacy in the vehicle.
The only basis upon which Appellant claimed standing to challenge Deputy
Koch's search of the car was her assertion of ownership of that vehicle. The only
evidence presented by Appellant in support of her claim of ownership was her own, self-
serving testimony that she was the sole owner of the car. The trial court was not
required to accept that testimony as credible, and this Court must defer to the credibility
determinations of the trial court. Pesce, 325 S.W.3d at 569. Indeed, evidence was
introduced indicating that the car was not registered to Appellant or insured by her, and
5
Appellant has only asserted that she has a legitimate expectation of privacy in the car. She has never
asserted any ownership or privacy interest in any of the various bags or items contained within the car. "It
is well settled, as to Fourth Amendment standing, that a defendant can have a legitimate expectation of
privacy in personal items regardless of location." State v. Ramires, 152 S.W.3d 385, 400 (Mo. App.
W.D. 2004).
6
A passenger may, however, challenge the propriety of his or her detention and seek to have suppressed
evidence obtained as a result of their unconstitutional seizure. State v. Shoults, 159 S.W.3d 441, 445
(Mo. App. E.D. 2005); see also United States v. Ellis, 497 F.3d 606, 612 (6th Cir. 2007) ("A passenger in
a vehicle ordinarily has no expectation of privacy in the vehicle, and thus does not have standing to
challenge the validity of consent given by a driver of the vehicle. . . . However, courts have distinguished
standing to challenge consent from standing to challenge evidence discovered as fruit of an unlawful
detention.") (internal quotation omitted).
8
Appellan did not submit into evidence a bill of sa title, or any other documentation
nt s ale, r
reflecting that she had an ow
wnership interest in the vehicle. The trial co
e ourt was simply
not requ
uired to, an presuma
nd ably did not believe A
t, Appellant's testimony t
that she ow
wned
the car. Viewing th record in the light most favora
he n m able to the trial court's ruling, the trial
s e
ould reason
court co nably have determined that Appe
d ellant failed to prove t
d that she ha an
ad
ownersh interest in the car and that she, therefo
hip ore, lacked standing to challenge the
o e
search on Fourth Amendmen grounds and, furthermore, sh lacked a
o nt he any authori to
ity
grant or refuse con
nsent to sea
arch the veh
hicle.
For the fore
F egoing reasons, the trial court's denial of the motio to supp
s f on press
cannot be deemed clearly erro
b oneous. Th judgmen is affirme
he nt ed.
___
___________________
__________
____
Jose M. Ellis Judge
eph s,
All concur.
9