Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Louis County Cause No.
15SL-CC02663, Honorable Maura B. McShane.
COLLEEN DOLAN, JUDGE.
Doe (Petitioner) appeals an order and judgment of the Circuit
Court of St. Louis County denying his petition for
expungement under § 610.122 RSMo Supp.
2014. Petitioner argues the court erred in
finding his arrest was not based on false information. We
Factual and Procedural Background
October 3, 2014, Petitioner arrived at the Lambert-St. Louis
International Airport (the Airport) and was detained when
Transportation Security Administration (TSA) agents found a
loaded, semi-automatic pistol in his carry-on luggage as he
passed through a security checkpoint. Petitioner was arrested
for unlawful use of a weapon in violation of §
571.030.1(1). He was subsequently charged in St. Louis County
Circuit Court and the case was dismissed on May 18, 2015,
following the prosecutor's filing of a memorandum of
August 5, 2015, Petitioner petitioned the court for
expungement of his arrest. Petitioner testified at the
expungement hearing that TSA agents did find his gun inside
his carry-on luggage when it was screened at a security
checkpoint within the Airport. Petitioner stated he informed
the police he had a valid concealed carry permit but he had
removed it from his wallet in anticipation of his vacation.
He explained that he had forgotten to remove his firearm from
his backpack, which he had not checked prior to entering the
screening area in order to save time. Petitioner testified
that his concealed carry permit was valid at the time of his
arrest and he had not been re-charged with any crime relating
to this incident, or received a suspended imposition of
sentence for the offense. He also testified that he did not
have any prior or subsequent misdemeanor or felony
convictions and that no other civil action was pending
relating to his arrest in this case. The court found there
was probable cause to believe that Petitioner committed the
offense of unlawful use of a weapon at the time of the
arrest and the arrest was not based on false
information. Accordingly, the court denied Petitioner's
petition for expungement.
March 3, 2016, the court heard arguments on Petitioner's
motion for new trial. Petitioner asserted there was no
probable cause at the time of the expungement
hearing to believe Petitioner committed a crime because
it was undisputed that Petitioner possessed a valid concealed
carry permit at the time of his arrest. The court
acknowledged the proper standard under § 610.122 is not
probable cause at the time of the arrest but whether there
was probable cause at the time of the action to expunge. The
court did not make a finding of whether there was probable
cause for the arrest at the time of the expungement hearing.
Instead, the court stated that in its original ruling, it
found the arrest was not based on false information and
denied the motion for new trial on that basis.
court took judicial notice of § 571.030.1(1), which
states: "A person commits the offense of unlawful use of
[a] weapon, except as otherwise provided by section 571.101
to 571.121, if he or she knowingly: (1) Carries concealed
upon or about his or her person a knife, a firearm, a
blackjack or any other weapon readily capable of lethal use
into any area where firearms are restricted under section
571.107." Section 571.107 lists where a concealed carry
permit does not authorize concealed firearms. Petitioner
argued that he did not commit the offense of unlawful use of
a weapon because § 571.107.2 specifically provides that
it is not a "criminal act" for a person with a
valid concealed carry permit to carry a concealed firearm
into an airport in Missouri. Petitioner further argued that
arresting someone and charging them with a crime for conduct
that is not criminal must involve the use of false
information. However, the court found that Petitioner did
have a gun in his backpack while going through security,
concluded that the arrest was not based on false information,
and denied Petitioner's motion.
filed a notice of appeal to this Court on March 14, 2016.
Standard of Review
Missouri law, any record of arrest may be expunged if: (1)
the court determines it was based on false information; (2)
there was no probable cause at the time of the expungement
hearing to believe the individual committed the offense; (3)
no charges were pursued as a result of the arrest; (4) the
arrest did not lead to a suspended imposition of sentence;
(5) the petitioner has no prior or subsequent misdemeanor or
felony convictions; and (6) no civil action is pending
relating to the arrest or records sought to be expunged.
§ 610.122; In re Dyer, 163 S.W.3d 915, 918 (Mo.
review of a court-tried case, we affirm the judgment of the
court "unless there is no substantial evidence to
support it, it is against the weight of the evidence, or it
erroneously declares or applies the law." Doe v. Mo.
State Highway Patrol Crim. Records Repository, 474
S.W.3d 171, 174 (Mo. App. E.D. 2015). "The trial
court's application of statutory requirements is a
question of law rather than fact; therefore, we review the
trial court's application of statutory requirements
de novo." Id. However, "[w]e
defer to the trial court's determination of the
witnesses' credibility." Id. At the time of
the expungement hearing, the petitioner bears the burden of
demonstrating by a preponderance of the evidence, his actual
innocence of the crime for which he was arrested. In re
Dyer, 163 S.W.3d at 919. In the present case, the court
found Petitioner had not shown that his arrest was based on
false information and denied his petition for expungement. We
find this was against the weight of the evidence and a
misapplication of the law.