State of Missouri v. Jeffrey c. McCarty , 2016 Mo. App. LEXIS 988 ( 2016 )


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  •                                          In the
    Missouri Court of Appeals
    Western District
    STATE OF MISSOURI,                           )
    )
    Respondent,                    )   WD79095
    )
    v.                                           )   OPINION FILED: October 4, 2016
    )
    JEFFREY C. McCARTY,                          )
    )
    Appellant.                    )
    Appeal from the Circuit Court of Cole County, Missouri
    The Honorable Thomas Sodergren, Judge
    Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
    and Gary D. Witt, Judge
    Jeffrey McCarty ("McCarty") appeals from the trial court's judgment convicting him
    of misdemeanor possession of an intoxicating liquor by a minor. McCarty argues that the
    trial court erred in overruling his motion to suppress evidence discovered through a traffic
    stop. McCarty claims that the evidence should have been suppressed because it was
    obtained following an investigatory traffic stop that was unsupported by reasonable
    suspicion that McCarty was involved in illegal activity. McCarty also contends that the
    State failed to prove an essential element of the charged offense because the evidence
    offered to prove his age at the time of the offense was inadmissible. We reverse.
    Factual and Procedural Background
    At approximately 4:30 a.m. on April 12, 2014, Corporal Arthur Brown ("Corporal
    Brown") of the Cole County Sheriff's Department responded to a call from dispatch.
    Dispatch advised that an anonymous caller had reported that a male and female were having
    a "loud disturbance" in a parking lot outside an apartment complex located in the 3000
    block of Cassidy Road off of Highway 54 in Cole County, Missouri. The anonymous caller
    described the disturbance as a verbal argument.
    Corporal Brown arrived in the area of the reported argument about ten minutes after
    the call from dispatch. As Corporal Brown was about 100 to 150 feet from the apartment
    complex, he noticed a vehicle coming towards him on Cassidy Road. As his headlights
    illuminated the vehicle, Corporal Brown could see a male driver and a female passenger in
    the vehicle. Corporal Brown testified during a suppression hearing that "initially I didn't
    think anything of it" when he passed the vehicle on Cassidy Road.
    Corporal Brown proceeded to the parking lot of the apartment complex. As he drove
    through the parking lot, he found no one outside, nor at the specific address where the call
    came from. Corporal Brown did not stop to knock on any doors, and did not talk to anyone
    at the scene. Corporal Brown testified during the suppression hearing that he did not
    observe anything that would confirm two people had actually been arguing outside of the
    apartment complex. Corporal Brown then testified:
    2
    When I got to the apartment and noticed there wasn't anything outside, you
    know--I've been doing this for a while. I'm trained that, you know,
    sometimes people leave the area--so that was just--it was kind of a hunch that
    maybe [the people in the vehicle he passed on Cassidy Road] are the people
    that were in the argument. And I just had to check on it just to make sure.
    Corporal Brown thus turned around, left the parking lot, and caught up with the vehicle he
    had passed on Cassidy Road. Corporal Brown pulled the vehicle over to investigate
    whether the occupants were involved in the reported argument.
    Corporal Brown approached the vehicle and identified McCarty as the driver using
    McCarty's driver's license. Corporal Brown observed that McCarty was under twenty-one
    years of age based on the date of birth on the driver's license. While speaking with
    McCarty, Corporal Brown could smell alcohol. Corporal Brown mentioned that McCarty
    was underage and McCarty agreed.                      Corporal Brown administered a preliminary
    breathalyzer test on McCarty, which tested positive for the presence of alcohol. Corporal
    Brown arrested McCarty. After arresting McCarty, Corporal Brown secured the vehicle at
    the scene and saw a case of beer on the backseat floorboard behind the driver's seat.
    McCarty was charged with misdemeanor possession of an intoxicating liquor by a
    minor pursuant to section 311.325.1 McCarty filed a motion to suppress challenging the
    lawfulness of Corporal Brown's traffic stop. The trial court overruled McCarty's motion.
    At trial, Corporal Brown testified about the events on the night of McCarty's arrest.
    Evidence seized after the stop of McCarty's vehicle was admitted over McCarty's objection
    regarding the lawfulness of the stop. Defense counsel also objected when Corporal Brown
    1
    All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
    3
    was asked to state the date of birth he saw listed on McCarty's driver's license, claiming
    the testimony was hearsay and violated the best evidence rule. The trial court took that
    objection with the case.
    At the State's request, and without objection, the trial court took judicial notice of
    the following cases: 14AC-CR00995-01, 13AC-CR02465, 12AC-CR01619, 120052500,
    and 091184137. These records indicate McCarty's birth year to be 1994.
    The trial court found McCarty guilty of the charged offense. McCarty was ordered
    to pay a fine and court costs, and to complete an Alcohol and Drug Education Program.
    This timely appeal followed.
    Analysis
    McCarty raises two points on appeal. His first point argues that the trial court erred
    in overruling his motion to suppress evidence found following Corporal Brown's traffic
    stop because the stop was unlawful as it was not supported by reasonable suspicion.
    McCarty's second point asserts that the trial court erred in refusing to enter a judgment of
    acquittal because the State failed to prove with competent evidence that McCarty was a
    minor, an essential element of the charged offense.
    Point One
    McCarty claims that all evidence seized as a result of Corporal Brown's initial traffic
    stop should be suppressed because the stop was not supported by reasonable suspicion that
    McCarty was involved in illegal activity.2
    2
    McCarty's first point on appeal also asserts that McCarty was stopped without probable cause. The
    argument portion of McCarty's brief, however, does not expand this claim of error, so it is abandoned on appeal.
    See State v. Nunley, 
    341 S.W.3d 611
    , 623 (Mo. banc 2011) ("Arguments raised in the points relied on portion of an
    4
    At a hearing on a motion to suppress, the State must prove that the motion should
    be overruled by a preponderance of the evidence. State v. Grayson, 
    336 S.W.3d 138
    , 142
    (Mo. banc 2011). "[T]he State bears both the burden of producing evidence and the risk
    of nonpersuasion" that, based on the evidence it produces, the motion should be overruled.
    
    Id. (quoting State
    v. Franklin, 
    841 S.W.2d 639
    , 644 (Mo. banc 1992)). "In reviewing a
    trial court's ruling on a motion to suppress, there must be 'substantial evidence' to support
    the ruling." State v. Norfolk, 
    366 S.W.3d 528
    , 531 (Mo. banc 2012). To determine whether
    substantial evidence exists to support the trial court's ruling, this Court examines evidence
    presented at the suppression hearing and at trial. 
    Id. (quoting State
    v. Gaw, 
    285 S.W.3d 318
    , 319-20 (Mo. banc 2009)). The facts, and reasonable inferences drawn therefrom, are
    viewed in a light most favorable to the trial court's ruling, while any contrary evidence or
    adverse inferences are disregarded. State v. Hillman, 
    417 S.W.3d 239
    , 246 (Mo. banc
    2013). "Whether conduct violates the Fourth Amendment is a question of law, which is
    reviewed de novo." 
    Id. The Fourth
    Amendment protects the people "against unreasonable searches and
    seizures." U.S. CONST. amend. IV. A traffic stop constitutes a seizure within the meaning
    of the Fourth Amendment. Brendlin v. California, 
    551 U.S. 249
    , 255 (2007). Generally,
    seizures are unreasonable, and therefore unconstitutional, when done without a warrant.
    
    Norfolk, 366 S.W.3d at 533
    .
    appellate brief that are not supported in the argument portion of the brief are deemed abandoned and preserve
    nothing for appellate review."). In any event, this claim of error is immaterial because the investigatory stop at issue
    is only required to be supported by reasonable suspicion. See United States v. Sokolow, 
    490 U.S. 1
    , 7 (1989) ("[T]he
    level of suspicion required for a Terry stop is obviously less demanding than that for probable cause.").
    5
    However, "the Fourth Amendment allows a brief investigative detention if the
    officer has a reasonable suspicion, based on specific and articulable facts, that illegal
    activity has occurred or is occurring." 
    Id. (citing Terry
    v. Ohio, 
    392 U.S. 1
    , 21 (1968)).
    Such a detention must be supported by something more than an unparticularized hunch,
    but requires only "some minimal level of objective justification." United States v. Sokolow,
    
    490 U.S. 1
    , 7 (1989) (quoting INS v. Delgado, 
    466 U.S. 210
    , 217 (1984)).
    Corporal Brown conceded in his testimony during the suppression hearing that
    although dispatch had relayed an anonymous tip about an argument, he saw nothing when
    he arrived at the scene to confirm the report. Despite that fact, Corporal Brown acted on a
    "hunch," and decided to investigate whether the occupants in the vehicle he passed on
    Cassidy Road might be the male and female who had reportedly been arguing.
    Corporal Brown's "hunch" was not supported by specific and articulable facts.
    Though the anonymous caller reported that a male and female had been verbally arguing,
    no other identifying information about the persons involved was provided. There was no
    report that the two had gotten into a vehicle and were seen leaving the scene. Though
    Corporal Brown passed a vehicle containing a man and a woman about 100 to 150 yards
    from the apartment complex, he testified during the suppression hearing that he "didn't see
    [the male and female] arguing in the car." In fact, when Corporal Brown first passed the
    vehicle on Cassidy Road, his suspicions were not aroused at all, as "initially [he] didn't
    think anything of it." Corporal Brown's suspicions about the vehicle were not aroused until
    he arrived at the apartment complex parking lot and found no one outside. Corporal Brown
    then decided to follow a "hunch" that the vehicle he had passed might have been leaving
    6
    the scene. However, Corporal Brown admitted that he did not know whether the vehicle
    had left the parking lot, and that he "didn't see [the vehicle] pull out of anywhere." The
    record is silent about the geography of Cassidy Road in relation to the apartment complex,
    other than Corporal Brown's testimony that the apartment complex is comprised of a row
    of five four-plexes running approximately the length of one-half of a football field along
    the "right-hand side" of Cassidy Road. There is nothing in the record, therefore, to permit
    a reasonable inference that the vehicle Corporal Brown passed on Cassidy Road came from
    the apartment complex.
    Based on Corporal Brown's testimony, the only reason McCarty's vehicle was
    stopped was to investigate whether its male and female occupants had been involved in the
    reported argument. And the only basis for Corporal Brown's suspicion that the occupants
    of the vehicle might have been involved in the reported argument was his training that
    "sometimes the people leave the area." Corporal Brown's self-described hunch was not
    supported by "a particularized and objective basis for suspecting [McCarty] of criminal
    activity." United States v. Cortez, 
    449 U.S. 411
    , 417-18 (1981); see also 
    Terry, 392 U.S. at 27
    (holding that a mere 'hunch' does not create reasonable suspicion).
    The State did not sustain its burden to establish that Corporal Brown's stop of
    McCarty's vehicle was supported by reasonable suspicion. Corporal Brown's Terry stop of
    McCarty's vehicle was thus unlawful. All evidence thereafter seized should have been
    suppressed, and excluded from evidence at trial, as the fruit of a Fourth Amendment
    violation. See State v. Miller, 
    894 S.W.2d 649
    , 653 n.4 (Mo. banc 1995) ("[A] search is
    not to be made legal by what it turns up. In law it is good or bad when it starts and does
    7
    not change character from its success.") (quoting United States v. Di Re, 
    332 U.S. 581
    , 595
    (1948)).
    Point One on appeal is granted. McCarty's conviction and sentence are reversed.
    Point Two
    Because McCarty's conviction and sentence are reversed in connection with Point
    One on appeal, McCarty's second point on appeal, addressing the erroneous admission of
    evidence at trial regarding his age, is rendered moot and need not be addressed.
    Conclusion
    McCarty's conviction and sentence for misdemeanor possession of an intoxicating
    liquor by a minor pursuant to section 311.325 are reversed.3
    __________________________________
    Cynthia L. Martin, Judge
    All concur
    3
    The only evidence supporting McCarty's conviction was unlawfully seized. As a result, the State cannot
    prove the charged crime, warranting reversal without remand. See State v. King, 
    157 S.W.3d 656
    , 664-65 (Mo. App.
    W.D. 2004); State v. Brightwell, 
    984 S.W.2d 124
    , 126 (Mo. App. W.D. 1998).
    8