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State v. Donovan

Court of Appeals of Missouri, Eastern District, Second Division

October 24, 2017

STATE OF MISSOURI, Respondent,
v.
JAMES M. DONOVAN, Appellant.

         Appeal from the Circuit Court of Warren County 14BB-CR00269-01 Honorable Richard L. Scheibe

          Lisa P. Page, Presiding Judge.

         Following a jury trial, James Donovan ("Defendant") was convicted of one count each of driving while intoxicated, Section 577.010, [1] possession of marijuana, Section 195.202, unlawful use of drug paraphernalia, Section 195.233, and driving while revoked, Section 302.321.

         Defendant contends the trial court: (I) erred in failing to suppress evidence seized during a warrantless search; (II) erred in entering a conviction for driving while intoxicated due to the lack of sufficient evidence; (III) erred in entering a conviction for knowing possession of both marijuana and paraphernalia due to the lack of sufficient evidence; (IV) erred in quashing Defendant's subpoena of the arresting officer's disciplinary and personnel files; (V) abused its discretion in refusing to allow Defendant to inquire into the arresting officer's termination; and (VI) plainly erred by enhancing Defendant's sentence based on Defendant's election to go to trial. We affirm.

         BACKGROUND

         The facts, viewed in the light most favorable to the verdict rendered by the jury, [2] are as follows. In the early morning hours of April 11, 2014, Officer Chris Locher ("Officer Locher"), of the Foristell Police Department, saw Defendant's vehicle exhibiting an "odd behavior" by signaling a right turn where there was "only farmland [and] no streets for someone to make a right turn." As Officer Locher turned his vehicle around, Defendant "took off at a high rate of speed." Officer Locher activated his lights, sirens, and spotlight and pursued Defendant for approximately one mile. Defendant eventually stopped, after running a stop sign and later making "a long, lazy right turn."

         Officer Locher approached on foot and ordered Defendant from his vehicle; Defendant responded with a blank and confused stare. Officer Locher noted Defendant's "glossy and bloodshot" eyes, his "bright red" complexion, the "overwhelming" smell of alcohol, and a faint odor of marijuana. Officer Locher handcuffed Defendant and placed him in the back of his squad car.

         Officer Locher then proceeded to search Defendant's vehicle, where he recovered a black backpack from the front seat. Upon searching the backpack, Officer Locher discovered a small bag of marijuana, as well as a dugout and a pipe.

         Officer Locher ran Defendant's information through the system, which showed Defendant's license was revoked. He then administered several field sobriety tests, many of which Defendant failed. Defendant refused to take a breathalyzer test. Defendant was arrested, and his car was towed.

         Prior to trial, the court ruled that the search of Defendant's vehicle did not offend his right to be free from unreasonable searches and seizures.

         Additionally, prior to trial, Defendant subpoenaed the Foristell Police Department, requesting the production of documents regarding Officer Locher, including "any citizen complaints against [him], the [officer's] disciplinary file and [his] personnel file." The trial court quashed this subpoena. At trial, Defendant attempted to question Officer Locher about his termination. However, the court sustained the State's objection, finding Officer Locher's disciplinary and personnel issues irrelevant to Defendant's case. The court instructed the jury to disregard the issue concerning Officer Locher's termination.

         The jury found Defendant guilty of one count each of driving while intoxicated, possession of up to thirty-five grams of marijuana, unlawful use of drug paraphernalia, and driving while revoked.[3]

         At sentencing, the State recommended a total sentence of one year of incarceration, with execution of the sentence suspended, two years of probation, thirty-days of shock time, and a $300 fine. Defendant in turn requested a total of 30 days incarceration and no fine, stating he wanted to avoid the lengthy probationary period, and stating that he did not believe "he should be penalized for taking his case to trial." In response, the State recommended between six months to a year straight incarceration. Thereafter, the court considered Defendant's prior convictions, the recommendations of the State, and information learned as a result of Defendant's testimony at trial. Specifically, the trial court stated:

Well, [Defendant], I agree that somebody shouldn't be punished for exercising their right to trial, but I've got to tell you, when you have a trial, the Court hears a lot more than they do when the case is first filed, and I can tell you frankly we learned a lot when you testified. I learned a lot of things that I never knew in this case.

         The court ultimately sentenced Defendant to two-and-a-half years' incarceration.

         This appeal follows.

         Point I-Warrantless Search Was Permitted Under the Automobile Exception

         In his first point on appeal, Defendant contends the trial court erred in denying Defendant's motion to suppress the warrantless seizure of the marijuana and drug paraphernalia. Defendant maintains this evidence was not admissible under any exception to the Fourth Amendment. Defendant asserts he was thereby deprived of his right to be free from unreasonable searches and seizures, to due process of law, and to a fair trial, as guaranteed by the Fourth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, sections 10, 15, and 18(a) of the Missouri Constitution.

         Standard of Review

         Appellate review of the denial of a motion to suppress is limited to a determination of whether there is substantial evidence to support the ruling. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). In making this determination, this court reviews both the record of the suppression hearing and the trial. State v. Ramires, 152 S.W.3d 385, 391 (Mo. App. W.D. 2004). We give deference to the trial court's factual findings and credibility determinations, but questions of law, including whether the Fourth Amendment has been violated, are reviewed de novo. State v. Howes, 150 S.W.3d 139, 142 (Mo. App. E.D. 2004).

         Analysis

         The Fourth Amendment to the United States Constitution ensures the rights of citizens to be free from unreasonable searches and seizures and requires that no warrant shall issue except on probable cause supported by oath or affirmation. State v. Walker, 460 S.W.3d 81, 85 (Mo. App. W.D. 2015). Generally, "warrantless seizures are unreasonable and unconstitutional." Id. However, "a warrantless search will not offend the Fourth Amendment if it was conducted pursuant to a well-recognized exception." Id.

         Automobiles present an "exigent circumstance, " where "the mere possibility that the vehicle can be moved" provides sufficient justification for a warrantless search. Id.; State v. Hampton, 959 S.W.2d 444, 450 (Mo. banc 1997) ("Searches of automobiles, because they are mobile, are generally excepted from the warrant requirement."); State v. Ritter, 809 S.W.2d 175, 177 (Mo. App. E.D. 1991) ("[A] broad and well-established exception to the warrant requirement arises where an automobile is the subject of the search."). Under this exception, police may search anywhere in a vehicle "pursuant to probable cause to believe that contraband, weapons or evidence of a crime are within the automobile." State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990); see also State v. Childress, 828 S.W.2d 935, 943 (Mo. App. S.D. 1992) ("A warrantless search of an automobile may include a search of a container or package found inside the automobile when such a search is supported by probable cause."). A search under the automobile exception is justified not by the arrest of the occupant, but by the circumstances establishing probable cause. Carroll v. U.S., 267 U.S. 132, 158-59 (1925).

         Probable cause is a flexible, common-sense concept dealing with "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Hampton, 959 S.W.2d at 451 (quoting Ornelas v. U.S., 517 U.S. 690, 695 (1996)). "[P]robable cause to search . . . exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found." Hampton, 959 S.W.2d at 451; State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990) (whether probable cause existed at the time of the search depends on the objective facts as viewed by a reasonably prudent person).

         Here, the evidence, when reviewed in a light most favorable to the verdict, demonstrates that a reasonably prudent person would have had probable cause to believe Defendant's vehicle contained evidence of the crime of driving while intoxicated. When Officer Locher first encountered Defendant in the early morning hours of April 11, 2014, he observed Defendant's vehicle exhibiting an "odd behavior" by signaling a right turn where there was "only farmland [and] no streets for someone to make a right turn." As Officer Locher turned his vehicle around, Defendant "took off at a high rate of speed, " causing Officer Locher to activate his lights, sirens, and spotlight and pursue Defendant for approximately one mile. After running a stop sign and later making "a long, lazy right turn, " Defendant finally stopped. Officer Locher approached on foot and ordered Defendant from his vehicle; Defendant responded with a blank, confused stare. Officer Locher noted Defendant's "glossy and bloodshot" eyes, his "bright red" complexion, the "overwhelming" smell of alcohol, and a faint odor of marijuana.

         These facts, taken together, reliably support a finding that Officer Locher had probable cause to suspect Defendant was guilty of the offense of driving while intoxicated. See State v. Swartz, 517 S.W.3d 40, 48 (Mo. App. W.D. 2017) (observations, including erratic driving, the strong odor of intoxicating beverage, bloodshot, glassy, watery eyes, slurred speech, or swaying balance or gait, can be sufficient to support probable cause to arrest for driving under the influence); Newsham v. Dir. of Revenue, 142 S.W.3d 207, 209 (Mo. App. E.D. 2004) ("Probable cause to arrest for driving while intoxicated exists when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist.").

         Insomuch as we determine probable cause presented Officer Locher with an exigent circumstance to search Defendant's automobile without a warrant, Defendant's right to be free from an unreasonable search was not offended.

         Point I is denied.

         Point II-Sufficient Evidence Existed to Sustain Defendant's DWI Conviction

         In his second point on appeal, Defendant contends the trial court erred in entering judgment and sentence against him on the count of driving while intoxicated, in violation of Section 577.010. Defendant maintains insufficient evidence existed to prove he operated the vehicle while under the influence of alcohol. Defendant asserts he was thereby deprived of his right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, section 10 of the Missouri Constitution.

         Standard ...


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