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08/24/93 STATE MISSOURI v. DONALD JOHNSON

August 24, 1993

STATE OF MISSOURI, RESPONDENT
v.
DONALD JOHNSON, APPELLANT; DONALD JOHNSON, APPELLANT V. STATE OF MISSOURI, RESPONDENT



No. 61436: Appeal from the Circuit Court of the City of St. Louis. Hon. Paul McGhee. No. 62952: Appeal from the Circuit Court of the City of St. Louis. Hon. Charles D. Kitchin.

Robert E. Crist, Judge, Crandall, P.j., and Reinhard, J., concur.

The opinion of the court was delivered by: Crist

This is a consolidated appeal. Defendant appeals from his conviction for possession of a controlled substance in violation of § 195.202, RSMo, and the subsequent denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. Affirmed.

Defendant raises three points on appeal. He first argues the trial court erred in denying his motion to suppress evidence because it was seized in violation of his Fourth Amendment rights. In reviewing a trial court's decision on a motion to suppress, we view the evidence and its reasonable inferences in the light most favorable to the decision. State v. Becton, 841 S.W.2d 315 (Mo. App. 1992). In addition, we review the decision only to determine if it is supported by sufficient evidence. State v. Riddle, 843 S.W.2d 385 (Mo. App. 1992).

On June 11, 1991, at approximately 11 a.m., Officers Dodson, Pleimann, and Ziphf were patrolling an area of the 3100 block of Sheridan in the City of St. Louis. They were investigating a numerous complaints of elicit drug trafficking in that area, specifically at "Fats and Sons Market." Officer Dodson testified he also knew the market to be frequented by drug traffickers and drug users. Their patrol car was unmarked and all three officers were dressed in plain clothes. As they approached the market, they observed Defendant leaving the doorway. Officer Dodson testified he then observed Defendant stuffing money into his right front pocket. Defendant was not carrying any groceries. Defendant made eye contact with the officers, did a "double look," and then walked toward a car. At this time, the officers stopped their car and got out. The officers identified themselves and asked Defendant to stop. Defendant continued walking away from the officers to a car as if to enter it. Officer Pleimann again asked Defendant to stop. As Defendant reached the car, he turned toward the officers. As he was turning, he dropped a clear plastic bag with a white powder substance to the ground. Then, Officer Dodson retrieved the packet and Officer Pleimann arrested Defendant. The white powder substance was identified at trial as cocaine.

Where an officer has a reasonable and articulable suspicion a suspect is engaged in criminal activity, that officer may briefly detain the suspect to make reasonable inquiries. Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 [33,34], 20 L. Ed. 2d 889 (1968). Defendant contends his detention was improper because the officers in question did not have reasonable, articulable suspicion to stop him.

However, the Fourth Amendment protections and Terry will become relevant until Defendant has been seized. In this case, we do not believe Defendant had been seized at the time he dropped the cocaine to the ground.

In California v. Hodari, ___ U.S. ___, 111 S. Ct. 1547, 1550 [1], ___ L. Ed. 2d ___ (1991), the Supreme Court held a seizure occurs where police apply physical force to restrain a suspect, or where that is absent, a suspect submits to an officer's show of authority. In that case, as officers approached several youths huddled around a small parked car, they ran. One officer chased one suspect, who tossed away a small rock of crack just as the officer was almost upon him. The court held the Fourth Amendment protections had not been implicated when the suspect tossed the crack because he had not yet been seized, i.e., he had not yet submitted to the officer's show of authority.

This case at hand is similar to State v. Qualls, 810 S.W.2d 649 (Mo. App. 1991), where a suspect discarded a bottle of heroin when officers approached him. The suspect had previously seen the officers, looked surprised, and turned around as if to re-enter a residence. This court, relying on Hodari, 111 S. Ct. at 1547, held the suspect had not yet been seized when he discarded the heroin, because he had not yet submitted to a show of authority. Qualls, 810 S.W.2d at 953 [6]; See also, State v. Shahid, 813 S.W.2d 38, 40 [4] (Mo. App. 1991) (defendant who dropped cocaine while running from police was not "seized" before abandoning cocaine). The court further found the suspect had abandoned the bottle, and the subsequent seizure of the abandoned property did not violate the fourth amendment. Qualls, 810 S.W.2d at 652 [2].

We find Hodari and Qualls controlling. Defendant had not yet been seized when he dropped the cocaine to the ground. While the officers had asked Defendant to stop, he had not yet yielded to their show of authority when he dropped the cocaine. Indeed, he was walking away from the officers. Point denied.

In Point II, Defendant argues the trial court erred in permitting "the prosecutor to appeal to the jury's fears of community endangerment during the State's rebuttal closing argument." The argument of which Defendant complains is as follows:

This cocaine we have, this cocaine is like cancer.

It's like cancer, it doesn't care about its victims, doesn't care about its neighborhood, doesn't care about its victim's friends, doesn't care about its neighborhood. The only thing it ...


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