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State v. Selvy

Court of Appeals of Missouri, Eastern District, First Division

April 7, 2015

STATE OF MISSOURI, Appellant,
v.
CHARLES A. SELVY, JR., Respondent

Page 757

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Page 758

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Page 759

Appeal from the Circuit Court of Cape Girardeau County. Honorable William L. Syler.

Chris Koster, Atty. Gen., Andrew C. Hooper, Asst. Atty. Gen., Jefferson City, MO, for appellant.

Samuel Buffaloe, Columbia, MO, for respondent.

LAWRENCE E. MOONEY, PRESIDING JUDGE. CLIFFORD H. AHRENS, J., and LISA VAN AMBURG, J., concur.

OPINION

LAWRENCE E. MOONEY, JUDGE.

Page 760

The State of Missouri brings this interlocutory appeal after the trial court sustained defendant Charles A. Selvy Jr.'s motion to suppress physical evidence found in a search during a traffic stop.[1] We affirm. The traffic stop and resulting search were unlawful in that the stop extended longer than necessary, without reasonable suspicion to justify extending the stop, and the consent given by Mr. Selvy was not voluntarily given. The trial court, therefore, did not clearly err in sustaining the motion and suppressing the evidence.

Factual and Procedural Background

Under the standard by which we review a trial court's order suppressing evidence, we view the facts and the reasonable inferences from those facts in the light most favorable to the trial court's ruling. The State acknowledges this standard, but then fails to apply it in bringing this appeal. Adopting the correct vantage point, we recount the circumstances of the traffic stop.

We begin by noting that the entirety of the traffic stop was recorded and subsequently viewed by the trial court before ruling on the Motion to Suppress.

Trooper Matthew Lomedico, of the Missouri State Highway Patrol, was on patrol one afternoon on the south side of Cape Girardeau in his fully-marked police car. Trooper Lomedico was not conducting a routine traffic patrol, rather he was part of a task force " looking for drugs" and conducting directed patrols to combat violent crimes and narcotic distribution on the south side of Cape Girardeau. Trooper Lomedico observed a car drive past him that displayed a rear Missouri license plate but not a front license plate. He activated his overhead lights, to pull the car over. Trooper Lomedico did not have to activate his siren, as the offending car immediately pulled over to the side of the road. Trooper Lomedico had " no problems" getting the car to stop. Once stopped, Trooper Lomedico, dressed in full uniform, with gun, exited his car and approached the offending car. He observed two men in the car -- the driver, defendant Selvy, and a male passenger sitting in the front passenger seat. As Trooper Lomedico approached the car, he did not smell any marijuana. He did not see any drugs or alcohol. Indeed, Trooper Lomedico acknowledged

Page 761

at the suppression hearing, that he did not see anything illegal except the absence of a front license plate. Trooper Lomedico further testified that neither Mr. Selvy nor his passenger appeared to be under the influence of any drugs or alcohol.

Trooper Lomedico informed Mr. Selvy of the reason for the traffic stop, and asked him where his front license plate was. Mr. Selvy responded that he did not know, as it was his sister's car. Upon request, Mr. Selvy and the passenger immediately produced their identification for Trooper Lomedico. Mr. Selvy also produced his insurance papers. Neither Mr. Selvy nor the passenger tried to hide their identities. When Trooper Lomedico got the passenger's identification, he read the passenger's name, " Brian Harris," out loud while standing next to the lowered driver's side window, with Mr. Selvy still sitting in the driver's seat.

Trooper Lomedico next asked Mr. Selvy to come sit in his patrol car. Selvy exited his car, and when asked, denied having a weapon on him. Mr. Selvy then consented to a pat-down prior to getting into the patrol car. Upon giving his consent, Mr. Selvy extended his arms out, so that Trooper Lomedico could perform the pat-down. Trooper Lomedico instead ordered Mr. Selvy to lean over and place his hands on the hood of the patrol car. Trooper Lomedico took one minute to perform the pat-down, and largely focused on Selvy's pants pockets. Trooper Lomedico found nothing illegal on Selvy. He did not find any drugs, and he found no weapon. Trooper Lomedico acknowledged at the hearing that Selvy was cooperative. The audiovisual recording reveals that Selvy answered all of Trooper Lomedico's questions, and that he made eye contact with the trooper when speaking to him.

With the pat-down completed, Trooper Lomedico and Mr. Selvy took their respective places in the patrol car. Trooper Lomedico sat in the driver's seat, where he began entering information into his laptop computer, in order to complete a records check of both men and so that the computer could print out the ticket. Mr. Selvy sat in the front passenger seat. The audiovisual recording shows that Selvy just sat in his seat, looking straight ahead. He did not fidget or make any other sudden or involuntary moves. Occasionally, he turned his head to look out the passenger-side window, and on occasion, when a car passed by, he turned his head to look out the driver's side window. He also occasionally looked in the direction of the computer, which was mounted in the front seat of the patrol car', between Selvy and Trooper Lomedico. Mr. Selvy responded to all of Trooper Lomedico's questions.

Trooper Lomedico, motioning towards Selvy's car, where the passenger was still sitting, asked Mr. Selvy, " How do you know him?" Selvy responded, " He's a family friend." Despite the fact that Trooper Lomedico had the passenger's identification -- it was sitting in front of him on the computer keyboard -- and despite the fact that Trooper Lomedico had previously spoken the passenger's name out loud, and despite the fact that he knew Mr. Selvy knew all this, Trooper Lomedico nevertheless asked, " What's his name?" Mr. Selvy leaned toward the computer, and with a slight smirk on his face, responded, " Brian Harris, I guess." He then pointed to the identification and said, " ...


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