Court of Appeals of Missouri, Western District, Third Division
Appeal from the Circuit Court of Cole County, Missouri. The Honorable Patricia S. Joyce, Judge.
Andrew C. Hooper, Jefferson City, MO, for appellant.
William P. Nacy and Curtis G. Hanrahan, Jefferson City, MO, for respondent.
Before Division Three: Mark D. Pfeiffer, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge. All concur.
Gary D. Witt, Judge
The State brings this interlocutory appeal, challenging the trial court's grant of Kraig J. Walker's (" Walker" ) motion to suppress physical evidence relating to possession of a controlled substance with intent to distribute. The State argues that the trial court erred in granting Walker's motion to suppress the evidence because the search of Walker's vehicle was justified under the " automobile exception" to the warrant requirement. The trial court found that the evidence should be suppressed under its analysis of the " search incident to arrest" warrant exception. However, because the State also argued that the search was lawful under the " automobile exception" but the trial court failed to consider that argument, we reverse and remand for the trial court to determine whether, under the facts, the officers had probable cause to search Walker's automobile under the " automobile exception."
Factual and Procedural History
For purposes of this appeal, the facts, which are drawn largely from the suppression hearing transcript and the trial court's order, are not in dispute. On October 29, 2013, at 11:51 p.m., Sergeant Jason Payne (" Sergeant Payne" ) of the Jefferson City Police Department was contacted by a local bail bondsman, Steve Smith (" Smith" ), with the location of Damien Rotter (" Damien" ) who was wanted on a felony warrant. Smith also informed Sergeant Payne that Damien was riding in a white Dodge Charger. Sergeant Payne confirmed the felony warrant, proceeded to the location and contacted Officer Zachary Kolb (" Officer Kolb" ) to request assistance.
When Sergeant Payne located the white Charger, he witnessed it almost run into a Chevy Suburban which was driven by Smith. Sergeant Payne activated his emergency lights to conduct a traffic stop. As Sergeant Payne approached the four-door white Charger, he noticed Damien trying to hide in the rear left side of the passenger compartment. Sergeant Payne noticed the driver, Walker, had his hands down below the steering wheel in an unusual fashion. Sergeant Payne announced that he was a police officer and then began " screaming" that he was a police officer, but Walker's attention appeared to be focused on Smith, who had gotten out of his vehicle. Sergeant Payne drew his service weapon because he was in fear of what Walker was doing beneath the steering wheel. Walker was pumping his arms up and down, and ignoring Sergeant Payne, who continued to scream that he was a police officer and " show me your hands."
At that time, Officer Kolb arrived at the scene. Sergeant Payne approached the
vehicle, and Officer Kolb removed Damien from the rear, passenger side of the vehicle, placed him in handcuffs, and secured him in his patrol vehicle. Walker kept his hands down until the Sergeant opened the car door and observed a gun on the floorboard at Walker's feet. ...