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State v. Perry

Court of Appeals of Missouri, Western District, Second Division

October 18, 2016

STATE OF MISSOURI, Respondent,
v.
JOSEPH FOUNTAIN PERRY, Appellant.

         Appeal from the Circuit Court of Livingston County, Missouri The Honorable Thomas N. Chapman, Judge

          Before Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

         Joseph Perry ("Perry") appeals from a jury conviction for possession of a controlled substance and his subsequent sentence to eight years imprisonment. Perry argues that the trial court erred in overruling his motion to suppress methamphetamine found as a result of an encounter with law enforcement. Perry claims that the evidence should have been excluded because the encounter constituted a seizure that was not supported by a reasonable suspicion that Perry was involved in illegal activity. Perry also argues that the trial court plainly erred in sentencing him because the trial court was under a mistaken belief that the appropriate range of punishment included a minimum term of five years imprisonment. We reverse.

         Factual and Procedural Background

         Officer Jodi Huber, of the Chillicothe Police Department, was out on patrol. She purposefully drove past Perry's house on more than one occasion during her patrol because Officer Huber believed Perry was selling methamphetamine out of his house. On one such occasion, Officer Huber saw Perry backing a truck out of the driveway. Officer Huber checked the vehicle's registration and identified the truck as belonging to Perry. Officer Huber began following the vehicle.

         Officer Huber radioed dispatch to check Perry's driving status. Officer Huber believed Perry might be driving with a suspended driver's license. Officer Huber held this belief because of a conversation she had with another officer, Officer Maples, about two weeks prior. Officer Huber and Officer Maples were discussing people in the area with suspended driver's licenses, and Officer Maples mentioned Perry.

         Dispatch located several people with Perry's name and asked Officer Huber for a date of birth in order to check the driving status for the right person. Officer Huber suggested that Perry might have been born in the 1970's. Officer Huber continued to follow Perry for two to four minutes while waiting for confirmation about his driving status. Officer Huber still had not received confirmation about Perry's driving status when Perry parked his car in his fiancé's driveway. Officer Huber decided to make contact with Perry anyway. She stopped her vehicle in the street near the end of the driveway and "jumped out." [S.H. Tr. 44] She approached Perry as he stood on private property within a few feet of his vehicle. [S.H. Tr. 27]

         As Officer Huber approached Perry, she said: "[Perry], do you have a valid driver's license? I believe you're suspended." [SH Tr. 27][1] Perry responded that he was not suspended. Officer Huber said: "Well do you have your driver's license on you and can I see it?" [SH Tr. 27] Perry complied with Officer Huber's request, and handed over his driver's license. Officer Huber testified that her intent in making contact with Perry was to make him "show me his license since I still had not heard back from dispatch." [SH Tr. 45] Officer Huber testified that the only reason she "came into contact with [Perry was] because [she] believed he was suspended." [SH Tr. 49] When asked to confirm that "Perry wasn't getting away, " Officer Huber responded that she "was going to make contact with [Perry] . . . to show me his license since I still had not heard back from dispatch." [S.H. Tr. 44-45]

         Officer Huber testified that "someone producing a valid license [would not] end [her] inquiry into suspicion." [SH Tr. 28] Instead, Officer Huber testified that she would still need to "run a check to make sure that it's valid." [SH Tr. 28] With Perry's driver's license in hand, Officer Huber attempted to make contact with dispatch to determine whether the license was valid. Officer Huber's attempts were unsuccessful because, according to Officer Huber, she was unaware her vehicle's radio was not set properly to permit the transmission.

         While Officer Huber was attempting to contact dispatch to confirm Perry's driving status, Perry turned away from her and put his hand in his pocket. He pulled out what appeared to Officer Huber to be a plastic bag and held the bag in a clenched fist. Officer Huber could see a small corner of the bag. Officer Huber asked Perry to come over to her. Perry ignored Officer Huber's request and focused on removing a bicycle from his truck and pushing it along the driveway. He maintained a clenched fist. Officer Huber followed Perry along the driveway and around to the front of his truck. Officer Huber again asked Perry to come over to her. Perry ran away.

         Officer Huber pursued Perry on foot. Perry came to a chain-link fence. He hesitated at a fence post for a moment and then jumped over the fence. His hands were open once he was over the fence, and he began to walk. By this point, Sheriff Steve Cox had arrived on the scene. Perry surrendered himself to Sheriff Cox. During a subsequent search of the area, another officer found a plastic bag in the hollow top of the fence post where Perry hesitated. It was later determined that the bag contained methamphetamine.

         Perry was charged with possession of a controlled substance with intent to distribute under section 195.211, [2] which is a class B felony. It was later determined that Perry's driver's license was not suspended. [SH Tr. 39]

         Prior to trial, Perry moved for suppression of the methamphetamine. The State argued that Perry had no standing to assert a Fourth Amendment violation because the methamphetamine was found in a fence post on property Perry did not own, and that as a result, the Fourth Amendment was not implicated. [SH Tr. 60] In the alternative, the State argued that at the moment Perry was arrested, there was probable cause to do so. The State argued that the initial investigation of Perry's driving status was a consensual encounter outside the realm of the Fourth Amendment, and that no seizure occurred until "the end of the contact, after [Perry is] running with drugs." [SH Tr. 61] Perry responded that Officer Huber's initial encounter with him to check his driver's license was a seizure that required reasonable suspicion based on specific and articulable facts that Perry was involved in criminal activity, and that in the absence of that, the drugs located during the course of the unlawful seizure were subject to suppression. [SH Tr. 62-63] The trial court overruled the motion to suppress without explaining its rationale.

         Perry preserved his suppression argument by objecting to the admission of the drug evidence at trial and in his motion for judgment of acquittal or new trial. During trial, there was no appreciable difference in Officer Huber's testimony from that given during the suppression hearing.

         A jury found Perry guilty of the lesser included offense of possession of a controlled substance pursuant to section 195.202, a class C felony. The trial court found Perry to be a prior and persistent offender under section 558.016.

         Perry's conviction of a class C felony subjected him to a maximum sentence of seven years imprisonment and a minimum sentence of zero years. Section 558.011. However, as a prior and persistent offender under section 558.016, the authorized maximum sentence for Perry's class C felony increased to any sentence authorized for a class B felony. Section 558.016.7(3). A class B felony carries a minimum sentence of five years imprisonment. Section 558.011.1(2).

         When discussing the appropriate range of punishment at Perry's sentencing hearing, the trial court, given Perry's status as a prior and persistent offender, stated that the applicable sentencing range was between five and fifteen years' imprisonment, enhancing both the minimum and the maximum class C felony sentence. The trial court asked defense counsel whether that range was appropriate, and defense counsel agreed. The trial court then sentenced Perry to eight years imprisonment.

         This timely appeal followed.

         Analysis

         Perry argues two points on appeal. His first point argues that the trial court erred in overruling his motion to suppress evidence obtained as a result of his encounter with Officer Huber. Perry claims that the encounter was an unlawful seizure made without reasonable suspicion. Perry's second point argues that the trial court plainly erred by sentencing Perry under a materially false belief about the possible range of punishment.[3]

         Point One

         Perry claims that the methamphetamine obtained as a result of his encounter with Officer Huber should have been suppressed and not admitted at trial over his objection because the encounter violated the Fourth Amendment to the United States Constitution and article I, section 15 of the Missouri Constitution.[4]

         At a hearing on a motion to suppress, the State must prove that the motion should be overruled by a preponderance of the evidence. State v. Grayson, 336 S.W.3d 138');">336 S.W.3d 138, 142 (Mo. banc 2011). "[T]he State bears both the burden of producing evidence and the risk of nonpersuasion" that, based on the evidence it produces, the motion should be overruled. Id. (quoting State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992)). "When reviewing a trial court's overruling of a motion to suppress, this Court considers the evidence presented at both the suppression hearing and at trial to determine whether sufficient evidence exists in the record to support the trial court's ruling." State v. Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). "The Court defers to the trial court's determination of credibility and factual findings, inquiring only 'whether the decision is supported by substantial evidence, and it will be reversed only if clearly erroneous.'" State v. Goff, 129 S.W.3d 857, 862 (Mo. banc 2004) (quoting State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003)). "Whether conduct violates the Fourth Amendment is a question of law, which is reviewed de novo." State v. Hillman, 417 S.W.3d 239, 246 (Mo. banc 2013).

         The State contends on appeal that Perry's motion to suppress was properly overruled for two reasons. First, the State contends that Perry does not have standing to assert a constitutional violation because the methamphetamine was abandoned in the fence post on property Perry did not own. Second, the State contends that the drugs were found during a lawful Terry[5] stop because "there were specific and articulable facts which created a reasonable suspicion that [Perry] had committed a crime: specifically, driving with a suspended license, as well as possible distribution of methamphetamine." [Respondent's Brief, p. 19] For ease of discussion, we address these arguments in reverse order.

         Perry was Seized Unlawfully in Violation of His Fourth Amendment Rights and the Trial Court Erred in Admitting at Trial Evidence Derived from that Seizure

         A seizure occurs when "the totality of the circumstances surrounding the incident indicates that a reasonable person would have believed that he was not free to leave." Grayson, 336 S.W.3d at 143 (quoting State v. Sund, 215 S.W.3d 719, 723 (Mo. banc 2007)). Perry argues that he was seized by this definition when Officer Huber stopped her vehicle after following him for several minutes and asked him for his driver's license, expressing suspicion that he was driving suspended. During the suppression hearing, the State argued that this initial encounter was not a seizure, and was instead a consensual encounter that falls outside the realm of the Fourth Amendment seizure. On appeal, the State has abandoned this argument.[6] The State now concedes that the initial encounter between Officer Huber and Perry was a Terry stop which was subject to the Fourth Amendment. However, the State argues that the Terry stop was lawful because it was supported by reasonable suspicion.

         A police officer may make an investigatory stop of a person, in the absence of probable cause, when the officer has reasonable suspicion to believe that a person is engaging in criminal activity. Terry v. Ohio, 392 U.S. 1, 30 (1968). As the State now concedes, the evidence offered during the suppression hearing plainly established that Officer Huber made an investigatory Terry stop of Perry. Officer Huber testified that her intent in making contact with Perry was to make him show her his license because she believed he was driving with a suspended license. Officer Huber testified that this was the only reason she "came in contact with [Perry]." [SH Tr. 49] Officer Huber reported her suspicion of criminal activity to Perry immediately after getting out of her patrol car to approach him. Though Perry denied his license was suspended, Officer Huber nonetheless requested the license, and Perry complied. Officer Huber testified that Perry's production on her request of a seemingly valid driver's license did not end her suspicion, but required her to run the driver's license to determine its validity. In short, Officer Huber stopped Perry to investigate whether Perry was driving with a suspended driver's license.

         Given the totality of these circumstances, which included the fact that Officer Huber had been following Perry for two to four minutes, a reasonable person would not have felt free to leave after Officer Huber pulled up to their parked car, told them of a suspected suspended license, and asked for a valid driver's license to prove otherwise. See United States v. Chan-Jimenez, 125 F.3d 1324, 1326 (9th Cir. 1997) (where vehicle followed by police car pulled over independently and officer asked for driver's license and registration, driver was seized when officer "obtained and failed to return his driver's license and registration, and proceeded with an investigation"). The plurality opinion in Florida v. Royer is also insightful on this point:

"Asking for and examining Royer's ticket and his driver's license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment."

460 U.S. 491, 501 (1983). Four members of the United States Supreme Court held that the circumstances "surely amount to a show of official authority such that 'a reasonable person would have believed he was not free to leave.'" Id. at 502 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).

         Similarly, we conclude that a reasonable person would not have believed that he or she was free to leave where Officer Huber was obviously identifiable as a police officer; had followed Perry in her patrol car for several minutes for several blocks, while Perry's vehicle made several turns, and even stopped so a passenger could exit; stopped her car in a lane of travel at the end of a private driveway immediately after Perry turned and parked in that driveway; jumped out of her patrol car and approached Perry on private property immediately after he exited his vehicle; announced to Perry that she wanted to talk to him because he was suspected of driving with a suspended license; asked him to produce his driver's license in order to quell her suspicion even though Perry told her he was not suspended; kept the license while attempting to verify Perry's driving status; and testified that her intent in making contact with Perry was to resolve one way or the other her suspicion that he was driving suspended.[7]See State v. Gabbert, 213 S.W.3d 713, 719 (Mo. App. W.D. 2007) (finding that "[t]he totality of circumstances indicates that [defendant] was seized because he voluntarily submitted to [the officer's] authority" where use of language indicated request of suspect was mandatory); see also United States v. Villa-Gonzalez, 623 F.3d 526, 533 (8th Cir. 2010) ("Without his identification card, a reasonable person is much less likely to believe he can simply terminate a ...


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