State of Missouri, Respondent, v. Jeffrey J. Thomas, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: State of Missouri, Respondent, v. Jeffrey J. Thomas, Appellant. Case Number: 74339 Handdown Date: 03/09/1999 Appeal From: Circuit Court of Franklin County, Hon. Jeff W. Schaeperkoetter Counsel for Appellant: Isidore I. Lamke Counsel for Respondent: Gregory L. Barnes Opinion Summary: Defendant appeals from his convictions in a court-tried case on two counts of possession of controlled substances with intent to distribute. He asserts that the trial court erred in denying his motion to suppress the drugs found in a search of his vehicle, as well as his post-arrest confession, claiming that this evidence was the product of an illegal seizure in violation of his Fourth Amendment rights. Defendant's vehicle was observed by a patrol officer at 1:18 in the morning, parked behind a strip mall shopping center in an area generally not utilized by the public and where there had been multiple past reports of vandalism, with its motor running and lights off. Though Defendant does not contest that the officer's brief investigatory stop of the vehicle under these circumstances was a valid Terry stop, he argues that the period of lawful detention became unlawful once it exceeded beyond the time reasonably necessary for the officer to accomplish his stated initial purpose of identifying the vehicle occupants and determining whether they needed any assistance. Therefore, Defendant claims, both the subsequent consent search of his vehicle and his post-arrest statement were inadmissible as fruit of the poisonous tree, and were not sufficiently attenuated from the prior unlawful detention to purge the taint of that illegality. AFFIRMED. Division Two holds: Given the applicable standard of review, the record shows a sufficient basis to support the trial court's implicit finding that part of the officer's initial purpose in conducting the Terry stop was to

investigate his reasonable suspicion that the occupants of the vehicle were involved in vandalism activity. Thus, the officer's lawful purpose had not yet expired at the time he requested Defendant's consent to search the vehicle, and accordingly neither the consent search nor the Defendant's post-arrest statements derived from an illegal detention. Further, the record supports the finding that Defendant's consent to search the vehicle was voluntarily given and therefore was valid. Citation: Opinion Author: Richard B. Teitelman, Judge Opinion Vote: AFFIRMED. Dowd, P.J., and Crahan, J., concur. Opinion: Jeffrey Thomas, Defendant, appeals from his convictions in a court-tried case on two counts of possession of controlled substances with intent to distribute, in violation of Section 195.211 RSMo 1994. He was sentenced to terms of five years imprisonment on each count, to be served concurrently. Defendant's Jeep vehicle, with Defendant and three other occupants in it, was spotted by a patrol officer at 1:18 in the morning, with its motor running and lights off, parked behind a strip mall shopping center in an area generally not utilized by the public and where there had been multiple past reports of property damage and vandalism. After getting out of his patrol car the officer approached the vehicle on foot and asked the occupants what they were doing. Defendant replied that they were talking about going to a party. The officer asked the occupants for their driver's licenses, which they gave him. He went back to his patrol car, ran a computer check, determined that there were no outstanding warrants for any of the vehicle occupants, checked the vehicle registration and found Defendant was the owner, then returned the licenses to the other occupants except for Defendant. Instead, the officer had Defendant exit his vehicle and walk back 12 to 15 feet with him towards the patrol car, where the officer asked Defendant for his consent to search Defendant's vehicle. Defendant gave his oral consent. The officer then searched the vehicle, finding some marijuana, drug paraphenalia, and a psilocyn mushroom. Defendant was arrested and taken to the police station, where he was advised of his Miranda (FN1) rights, executed a written waiver of those rights, and proceeded to make a statement in which he confessed that he had been selling some of the drugs around the Washington, Missouri area for the past few weeks. Defendant filed a motion to suppress the seized evidence as well as Defendant's post-arrest statements,

claiming that they resulted from an illegal search and seizure in violation of his Fourth Amendment rights. After a hearing the court denied the motion. On appeal, Defendant contends that the trial court erred in denying his motion to suppress. Although he concedes that the initial brief investigatory stop of the vehicle and its occupants was a valid Terry stop,(FN2) Defendant argues that his further detention became unlawful once it extended beyond the time in which the police officer accomplished his "initial purpose" of identifying the occupants of the vehicle and determining that they did not need any assistance, because during the period of the lawful detention the officer discovered no new factual predicate for reasonable suspicion that criminal activity was afoot, citing State v. Stevens, 845 S.W.2d 124, 128 (Mo. App. E.D. 1993). Thus, Defendant argues, both the search and subsequent confession were inadmissible as fruit of the poisonous tree, and were not sufficiently attenuated from the prior illegal detention to purge the taint of that illegality, citing State v. Miller, 894 S.W.2d 649, 655-56 (Mo. banc 1995). We have reviewed the briefs of the parties, the legal file and transcript, and find this claim of error to be without merit. Under the appropriate standard of review, we view the facts and all reasonable inferences to be drawn therefrom in the light most favorable to the trial court's ruling, and review the findings only to see if they are supported by substantial evidence. Stevens, 845 S.W.2d at 128; State v. Talbert, 873 S.W.2d 321, 323 (Mo. App. S.D. 1994). We may not reverse if the trial court's ruling is "plausible in light of the record viewed in its entirety;" and this is true even where we believe we would have weighed the evidence differently if we had been sitting as the trial court. Id. Although Defendant argues that the officer's police report and his testimony at the motion to suppress hearing indicate that his "sole" purpose in making the stop was merely to ascertain the identities of the vehicle occupants and see if they needed any help, careful review of the record persuades us that that is not precisely what the officer stated, and further that there was other testimony of the officer from which the trial court could have reasonably concluded that part of his purpose was in fact to investigate whether the occupants of the vehicle were involved in the type of vandalism activity that had previously occurred in the area. The officer never testified that seeing who the vehicle occupants were and whether they needed any help was the sole reason for conducting the Terry stop; rather, he testified at one point that that was why he first approached the vehicle.(FN3) It therefore is entirely possible that the officer became more suspicious after this encounter first began, when the four occupants failed to give a plausible explanation in response to his question asking them what they were doing there. If the results of an initial lawful encounter arouse further and reasonable suspicion in a police officer's mind, then he is entitled to conduct a Terry stop when the objective facts and circumstances of the

situation appear to warrant it. Courts have repeatedly held that the kind of situation the officer in this case encountered does present reasonable suspicion to support such a Terry stop; see 4 Lafave, Search and Seizure section 9.4 (d), n. 133 (3rd ed. 1996). Additionally, the officer also testified that the reason why he wanted to request Defendant's consent to search the vehicle was because he suspected the occupants were involved in the type of vandalism activity which had occurred in that area and which he personally had taken reports on. If that was part of the officer's purpose in conducting the stop then, obviously, his lawful purpose had not yet expired prior to the time he requested Defendant's consent to search the vehicle. Thus, the trial court here had an ample basis for its implicit finding that the consent search was not the product of an illegal seizure or detention. The record also supports a finding that Defendant's consent to search the vehicle was not involuntary. The judgment is affirmed. Footnotes: FN1. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). FN2. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). FN3. Strictly speaking, the Terry "stop" did not begin until the officer told the vehicle occupants that he would have to check their drivers license ID's; prior to that point in time the occupants were not detained, even briefly, and hence the interaction was simply an "encounter" short of a stop. State v.Talbert, 873 S.W.2d at 323. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.