Court of Appeals of Missouri, Southern District, First Division
APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle L. Crane, Circuit Judge.
WILLIAM W. FRANCIS, JR., C.J./P.J.
Larry Lee Smith, Jr. ("Smith"), appeals his conviction, in a bench-tried case, of the class B felony of possession of a controlled substance with the intent to distribute in violation of section 195.211. Finding no merit to Smith's claims, we affirm the judgment of the trial court.
Facts and Procedural Background
In reviewing the trial court's denial of a motion to suppress evidence, and objections to that evidence at trial, we consider the evidence presented at the suppression hearing and at trial. State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). Viewed in the light most favorable to the judgment, disregarding contrary evidence and inferences, the evidence presented at trial was as follows. State v. Foster, 392 S.W.3d 576, 578 (Mo.App. S.D. 2013).
On the night of December 31, 2011, Carthage Police Officer Nathan Moore ("Officer Moore"), while driving his patrol car, noticed a vehicle abort a turn into a driveway, then make the first two available turns after he began following it. The car eventually pulled to the curb, turned off its lights, and parked. Smith, who was riding in the front-passenger seat, exited the vehicle and quickly approached a nearby house. After reaching the front door, Smith paused for a few moments looking at his cell phone. At that time, Officer Moore recognized Smith as a known drug user and dealer. Smith knocked on the front door, and after briefly conversing with two individuals in the house who shook their heads "no, " Smith turned around, saw Officer Moore's car, and instead of returning to the car in which he had been riding, he briskly walked away from the house through the yards of adjoining houses.
Officer Moore pulled up next to Smith, exited his patrol car, and called Smith over to his car. Officer Moore instructed Smith to place his hands on the patrol car so that Officer Moore could perform a Terry search for weapons on Smith's person. Smith initially complied but as Officer Moore touched Smith, Smith quickly took his right hand off the hood of the patrol car and reached for his right waistband and pocket area. Officer Moore grabbed Smith's right hand and tried to place it behind his back while giving Smith verbal commands to stop resisting. Instead, Smith stiffened his right arm, leading to a brief struggle.
Officer Moore shoved Smith forward toward the hood of his car, stepped back, and fired his taser at Smith. Thereafter, Officer Moore was able to handcuff Smith and place him under arrest for resisting arrest. In Officer Moore's search of Smith, he found a rolled marijuana cigarette in Smith's right-front pocket. Officer Moore then placed Smith in the back of his patrol car.
Officer Moore approached the driver of the vehicle Smith had been riding in, and she consented to a search of her vehicle. Officer Moore found a vacuum-sealed bag containing 158.4 grams of marijuana underneath the front-passenger seat where Smith had been sitting. Smith then began yelling from the back of the patrol car, although Officer Moore could not understand what he was saying. Officer Moore then read Smith his Miranda rights, which Smith indicated he understood. Smith stated that the marijuana in the vehicle was his, he had purchased it for $400, intended to sell it, and that the driver had nothing to do with the drugs.
In pre-trial motions to suppress evidence and statements, and through objections at trial, Smith preserved the issue of whether the marijuana found on Smith's person, the marijuana found in the vehicle, and Smith's confession, should be excluded on the basis that Officer Moore did not have reasonable suspicion to detain Smith or perform a Terry stop and search. Smith waived his right to a jury trial and was then tried before the court.
Over Smith's objections at trial, the trial court concluded that based on the totality of the circumstances, Officer Moore had reasonable suspicion that illegal activity occurred or was occurring at the time Smith was stopped. Smith was found guilty of possession of a controlled substance with the intent to distribute and sentenced to eight years in the Department of Corrections.
Smith contends that the trial court erred in overruling his motions to suppress evidence of the drugs found on his person and in the car, Smith's confession, and in overruling his objections at trial, because Officer Moore had no reasonable suspicion Smith was involved in criminal activity at the time Smith was detained and searched.
The issues for our determination are:
1. Did the trial court clearly err in concluding that Officer Moore had reasonable suspicion that criminal activity had occurred or was occurring ...