State of Missouri v. Jeffrey Randall Lindsay

In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
STATE OF MISSOURI, ) No. ED108332
)
Appellant, ) Appeal from the Circuit Court of
) Pike County
vs. ) 19PI-CR00044-01
)
JEFFREY RANDALL LINDSAY, ) Honorable Patrick S. Flynn
)
Respondent. ) Filed: April 28, 2020
James M. Dowd, P.J., Gary M. Gaertner, Jr., J., and Robin Ransom, J.
OPINION
Introduction
The State of Missouri appeals from the trial court’s order granting Respondent Lindsay’s
motion to suppress the evidence obtained as a result of a warrantless search of his vehicle, evidence
which formed the basis for the State’s charges against Lindsay of felony possession of over 35
grams of methamphetamine and felony intent to distribute. We reverse because while the facts
articulated by the arresting officer failed to justify a search of Lindsay’s vehicle for illegal drugs,
the facts articulated by the officer, that he was concerned for his personal safety, justified the
officer’s warrantless protective search for weapons inside Lindsay’s vehicle in all the same areas
of the vehicle where the drugs and drug-selling paraphernalia were found.
Background
On the evening of December 19, 2018 around 10:30 p.m., Lindsay was driving his pick-
up truck in Bowling Green, Missouri when Bowling Green police officer Samuel Zaerr noticed
Lindsay’s license plates were expired and stopped him. After Officer Zaerr approached the
vehicle and made contact with Lindsay through the driver’s side window, Lindsay gave Officer
Zaerr his driver’s license and admitted that his plates and his insurance were expired. Officer
Zaerr returned to his patrol vehicle to “run his license.” Lindsay remained in his vehicle.
After the report came back that Lindsay was classified as a “Caution 1” which Officer
Zaerr understood to mean that Lindsay was known to be armed and dangerous, Officer Zaerr
“started recalling all the clutter he had inside of his truck and actually on the bed of the truck”
and the “safety hazard for [him] not being able to see what’s inside the vehicle, if there’s any
weapons. . .” Officer Zaerr testified that while he did not see any contraband, weapons, or
evidence of any illegal activity inside the vehicle, he did not feel safe in not being able to see
what was actually there.
Then, Officer Zaerr approached Lindsay’s vehicle a second time and asked him for
consent to search it. Lindsay declined and, according to Officer Zaerr, he became agitated and
impatient with the request to search the vehicle and the length of the stop. Officer Zaerr asked
Lindsay to exit the vehicle and radioed for assistance to search the vehicle.
Officer Zaerr escorted Lindsay back to his patrol vehicle and did a pat-down search of
Lindsay’s person. He testified the pat-down search was for his safety in light of the Caution 1
report received from dispatch. Officer Zaerr found a utility knife in Lindsay’s pocket. Also,
during the search, Lindsay became angry and repeatedly turned around to face Officer Zaerr
asking why he “was doing this,” so Officer Zaerr placed Lindsay in restraints.
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Then, Sergeant Hipes and the K-9 unit arrived on scene and the K-9 “positive alerted” to
the driver’s and passenger’s side for some kind of controlled substance. Officer Zaerr then
searched the vehicle and found in the “driver’s side compartment” an empty pill bottle with a
white powdery substance inside. He found a pipe with residue in the front center console and in
the back seat on the driver’s side, Officer Zaerr “noticed a black Pelican case sitting in plain site”
inside of which were two bags containing a crystal-like substance and a black scale with what
appeared to be powder residue on it. The crystal-like substance tested positive for
methamphetamine. Officer Zaerr also found a large amount of cash on Lindsay’s person and in
the vehicle.
The trial court granted Lindsay’s motion to suppress and explained its reasoning on the
record. For the court, the issue was whether Officer Zaerr had articulated sufficient facts to
demonstrate a reasonable suspicion that illegal drugs were present in Lindsay’s vehicle. And
since Officer Zaerr had not articulated any facts that supported a reasonable suspicion that illegal
drugs were in Lindsay’s vehicle, the search was not justified. The court emphasized that Officer
Zaerr did not smell drugs, had no prior information that Lindsay was engaged in drug
transactions, and did not suspect that Lindsay was under the influence of illegal drugs at the time
such as having glassy eyes or slurred speech or drug-induced agitation. This appeal follows.
Standard of Review
“A trial court's ruling on a motion to suppress may be reversed only if it is clearly
erroneous.” State v. Shaon, 145 S.W.3d 499, 504 (Mo. App. W.D. 2004). When reviewing a
trial court’s ruling on a motion to suppress, the appellate court limits its review to determining
whether there is substantial evidence to support the court’s decision and deference is given to the
trial court’s factual findings and credibility determinations. State v Whitaker, 101 S.W.3d 332,
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333 (Mo. App. E.D. 2003). “If the trial court's ruling ‘is plausible in light of the record viewed
in its entirety,’ this court ‘may not reverse it even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.’” State v. Kovach, 839 S.W.2d 303,
307 (Mo. App. S.D. 1992) (quoting State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990)).
Nevertheless, whether the Fourth Amendment was violated is a question of law that this Court
reviews de novo. State v. Holman, 502 S.W.3d 621, 624 (Mo. banc 2016).
The Fourth Amendment
The Fourth Amendment of the U.S. Constitution preserves the right of the people to be
secure from unreasonable searches and seizures. State v. Franklin, 841 S.W.2d 639, 641 (Mo.
banc 1992). A routine traffic stop based upon an officer's observation of a violation of state
traffic laws is a reasonable seizure under the Fourth Amendment. State v. Sund, 215 S.W.3d
719, 723 (Mo. banc 2007) (citing State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004)).
“Miranda warnings are not necessary during questioning pursuant to a routine traffic stop
because traffic stops are analogous to a ‘Terry stop. 1’” State v. Schroeder, 330 S.W.3d 468, 473
(Mo. banc 2011) (citing Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984)). “A reasonable
investigation may include ‘asking for the driver's license, requesting the driver to sit in the patrol
car, and asking the driver about his destination and purpose.’” Id. at 473-74 (quoting Barks, 128
S.W.3d at 517).
1
In its landmark decision in Terry v. Ohio, 392 U.S. 1, 30 (1968), the United States Supreme
Court held that an officer may stop and briefly detain a person for questioning upon the officer’s
reasonable suspicion that the person may be connected with criminal activity. If the officer
articulates a reasonable suspicion that the person is armed and dangerous, the officer may
perform a limited search for weapons of the person. Id.
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1. Fourth Amendment principles applicable to warrantless search of vehicle during
routine traffic stop based on objectively reasonable suspicion the individual is
involved in criminal activity.
Once a traffic stop is complete, the law enforcement officer is required to allow the
person to “proceed without further questioning unless specific, articulable facts created an
objectively reasonable suspicion that the individual was involved in criminal activity.” Sund,
215 S.W.3d at 723. The existence of reasonable suspicion is determined objectively. State v.
Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). The question is whether the facts available to the
officer at that moment would “warrant a [person] of reasonable caution to believe that the action
taken was appropriate[.]” Id. “Reasonable suspicion is a less stringent standard than probable
cause” and “may be established with information that is different in amount or content, or that is
less reliable, than the evidence required to establish probable cause.” Id. at 473. “The quantity
and quality of the information must be considered in the context of the ‘totality of the
circumstances'. . .” Id. “A suspicion is reasonable when the officer is ‘able to point to specific
and articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.’” State v. Hawkins, 137 S.W.3d 549, 557 (Mo. App. W.D. 2004) (quoting
Terry, 392 U.S. at 21). Nervousness, evasive and furtive actions, and the officer's knowledge of
the subject’s recent relevant criminal conduct are generally permissible components of
articulable suspicion. Id. at 558.
2. Fourth Amendment implications in warrantless search of vehicle during routine
traffic stop based on officer’s reasonable suspicion driver poses danger to officer.
The United States Supreme Court has recognized that investigative detentions involving
suspects in vehicles are especially fraught with danger to police officers. Michigan v. Long, 463
5
U.S. 1032, 1047 (1983). In Pennsylvania v. Mimms, 434 U.S. 106 (1977), the Court held that
police may order persons out of an automobile during a stop for a traffic violation, and may frisk
those persons for weapons if there is a reasonable belief that they may be armed and dangerous.
The Court rested its decision in part on the “inordinate risk confronting an officer as he
approaches a person seated in an automobile.” Id. at 110.
In Chimel v. California, 395 U.S. 752 (1969), the Court addressed the limitations on
police authority when conducting a search incident to a valid arrest. Relying on Terry, the Court
held that when an arrest is made, it is reasonable for the arresting officer to search “the arrestee's
person and the area ‘within his immediate control’—construing that phrase to mean the area
from within which he might gain possession of a weapon or destructible evidence.” Id. at 763.
The Court reasoned that “[a] gun on a table or in a drawer in front of one who is arrested can be
as dangerous to the arresting officer as one concealed in the clothing of the person arrested.” Id.
The Court later held, in New York v. Belton, 453 U.S. 454, 460 (1981), that “articles inside the
relatively narrow compass of the passenger compartment of an automobile are in fact generally,
even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a
weapon. . .’” (quoting Chimel, 395 U.S. at 763). The Court also held that the police may
examine the contents of any open or closed container found within the passenger compartment,
“for if the passenger compartment is within reach of the arrestee, so also will containers in it be
within his reach.” Belton, 453 U.S. at 460.
In Long, the Court observed that its past cases indicate that the protection of police and
others can justify protective searches when police have a reasonable belief that the suspect poses
a danger if he were permitted to reenter his vehicle, that roadside encounters between police and
suspects are especially hazardous, and that danger may arise from the presence of weapons in the
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area surrounding a suspect. 463 U.S. at 1049. These principles compel our conclusion that the
search of the passenger compartment of an automobile, limited to those areas in which a weapon
may be placed or hidden, is permissible if the police officer possesses a reasonable belief based
on “specific and articulable facts which, taken together with the rational inferences from those
facts, reasonably warrant” the officers in believing that the suspect is dangerous and the suspect
may gain immediate control of weapons. Id. (quoting Terry, 392 U.S. at 21). And in Terry, the
Court observed that “the issue is whether a reasonably prudent man in the circumstances would
be warranted in the belief that his safety or that of others was in danger.” 392 U.S. at 27.
Our Supreme Court in State v. Waldrup, 331 S.W.3d 668, 675 (Mo. banc 2011),
recognized that the holding in Long extended the Terry principles “to the search of the interior of
the vehicle ‘if the police officer possesses a reasonable belief. . .the suspect is dangerous and the
suspect may gain immediate control of weapons.’” And if, while conducting a legitimate Terry
search of the interior of the automobile, an officer should discover contraband other than
weapons, he cannot be required to ignore the contraband, and the Fourth Amendment does not
require its suppression in such circumstances. State v. Preston, 861 S.W.2d 627, 631 (Mo. App.
E.D. 1993) (citing Long, 463 U.S. at 1050).
3. Our analysis.
We begin our analysis by observing that the trial court found Officer Zaerr’s testimony to
be credible. Moreover, while we view Officer Zaerr’s conduct and testimony through the lens of
an objective and reasonable police officer, it bears mentioning that Officer Zaerr was a rookie
officer with about two months of experience.
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a. The initial stop.
Since Lindsay’s plates were expired, Officer Zaerr’s initial routine traffic stop was a
“reasonable seizure under the Fourth Amendment.” Sund, 215 S.W.3d at 723. At that point,
Officer Zaerr had the authority to conduct a reasonable investigation which could properly
include asking Lindsay to exit the vehicle, asking Lindsay to enter the officer’s vehicle, asking
for Lindsay’s driver’s license, registration, and proof of insurance, and questioning Lindsay on
where he was coming from and where he was going. See Schroeder, 330 S.W.3d 468, 473-74.
But Officer Zaerr chose to proceed less intrusively. He conversed with Lindsay at the driver’s
side window and then returned to his police vehicle to “run” Lindsay’s driver’s license while
Lindsay remained in the vehicle.
At that point, the circumstances changed. State v. Woods, 284 S.W.3d 630, 638 (Mo.
App. W.D. 2009) (officer was not limited to investigating traffic violations of driver). Officer
Zaerr received the report from dispatch that Lindsay was classified as a Caution 1 which meant
to Officer Zaerr that he was known to be armed and dangerous. 2 Officer Zaerr then added to that
data point his testimony regarding the considerable clutter he had observed inside Lindsay’s
vehicle during his first encounter with Lindsay. Moreover, he testified that Lindsay was agitated
and seemed to want Officer Zaerr to “rush through the stop.” As a result, Officer Zaerr “did not
feel safe in not being able to see what was actually inside the vehicle.”
At this point of the stop, we find that the facts articulated by Officer Zaerr demonstrate
that he had a reasonable belief that Lindsay may have posed a danger to him through access to a
weapon from inside the vehicle. So, when Officer Zaerr made his second approach to the
2
The only testimony in the record regarding the “Caution 1” report and its significance was from
Officer Zaerr.
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vehicle, he could have asked Lindsay to exit the vehicle to allow him to perform a warrantless
sweep or search of Lindsay’s vehicle for the officer’s own protection in areas within the
immediate reach of Lindsay including any containers that might contain a weapon. See Belton,
453 U.S. at 460 and Chimel, 395 U.S. at 763.
We further note that at this point in time, according to his testimony, Officer Zaerr had
only expressed concern for his own personal safety and had made no mention that he had any
concern or suspicion that Lindsay’s vehicle might contain any illegal drugs or evidence of some
other criminal activity.
b. Officer Zaerr’s second approach to Lindsay’s vehicle.
Officer Zaerr then approached Lindsay’s vehicle for the second time and asked Lindsay
to consent to a search of the vehicle. Again, we believe that Officer Zaerr had already articulated
sufficient facts that would have allowed him to perform a protective search of Lindsay and of the
vehicle. Instead, however, when Lindsay declined to consent to the search, Officer Zaerr asked
him to exit the vehicle and he performed a pat-down search which we also find to be appropriate.
When Lindsay repeatedly turned to face Officer Zaerr during the pat-down search and angrily
questioned what he was doing and why, Officer Zaerr put wrist restraints on Lindsay. We find
all this to be appropriate and reasonable given Officer Zaerr’s concerns for his safety and
especially since he was alone.
c. Officer Zaerr’s call for back-up.
The stop took another turn when Lindsay declined to consent to the search and Officer
Zaerr called for “assistance from Sergeant Hipes, who had the K-9 on duty that day.”
Unfortunately, it is unclear from the transcript whether Officer Zaerr specifically requested
assistance from the K-9 because he suspected Lindsay’s vehicle contained illegal drugs or
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whether Officer Zaerr simply called for back-up and the back-up happened to include the K-9
unit. We note this because Officer Zaerr had not expressed any suspicion whatsoever regarding
illegal drugs in Lindsay’s vehicle or on his person for which Officer Zaerr might have
specifically requested a drug-sniffing K-9 unit.
Regardless, Sergeant Hipes and the K-9 arrived and after acclimating the K-9 to the
scene, Sergeant Hipes conducted an exterior sweep of the vehicle and the K-9 alerted for illegal
drugs inside the passenger compartment of Lindsay’s vehicle. Officer Zaerr then searched the
passenger compartment and found the drugs and drug-selling paraphernalia at issue.
d. The trial court’s order.
We now turn to the trial court’s decision to suppress this evidence because the search was
unconstitutional in that Officer Zaerr failed to articulate sufficient facts to justify a reasonable
suspicion that Lindsay’s vehicle contained illegal drugs. In light of the above-referenced
authorities, e.g., Sund, 215 S.W.3d at 723, we agree with the trial court because Officer Zaerr did
not articulate any facts whatsoever that he suspected Lindsay’s vehicle to contain illegal drugs or
illegal drug activity. And if the record had stopped there, so would we.
But the trial court’s narrow focus ignored the Fourth Amendment implications of Officer
Zaerr’s testimony that contained “specific and articulable facts which, taken together with the
rational inferences from those facts, reasonably warrant” the officer in believing that the suspect
is dangerous and may gain immediate control of weapons. Long, 463 U.S. at 1049 (quoting
Terry, 392 U.S. at 21). Specifically, Zaerr testified he was concerned for his safety due to
Lindsay’s agitation, anger, and impatience with the stop, the clutter throughout his vehicle, and
that he was known to be armed and dangerous.
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On this record and in light of the U.S. Supreme Court dictates from Terry and Long,
Officer Lindsay’s protective search for weapons that uncovered the methamphetamine and the
drug-selling tools readily passes Fourth Amendment muster under our de novo review. Holman,
502 S.W.3d at 624.
Our only criticism of the trial court here is that it focused solely on whether the search
was justified to look for illegal drugs while ignoring Officer Zaerr’s testimony that justified the
search from a constitutional standpoint for the safety of the officer. Likewise, we are
unpersuaded that the involvement of the K-9 somehow stripped Officer Zaerr’s justified search
for weapons of its constitutional underpinnings. The areas of the passenger compartment of the
vehicle that Officer Zaerr testified he searched and found the evidence in question, would
encompass the areas he was allowed to search as part of a protective search for weapons. See,
e.g., Belton, 453 U.S. at 460 and Chimel, 395 U.S. at 763.
Based on the foregoing, we find that Officer Zaerr discovered the drugs and drug-selling
paraphernalia pursuant to a legitimate Terry search, and therefore, Lindsay’s motion to suppress
should have been denied.
Conclusion
For the reasons set forth above, we reverse the trial court’s order suppressing the evidence
and remand for further proceedings.
_______
James M. Dowd, Presiding Judge
Gary M. Gaertner, Jr., J., and
Robin Ransom, J. concur.
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