Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Warren County 14BB-CR00269-01
Honorable Richard L. Scheibe
P. Page, Presiding Judge.
a jury trial, James Donovan ("Defendant") was
convicted of one count each of driving while intoxicated,
Section 577.010,  possession of marijuana, Section 195.202,
unlawful use of drug paraphernalia, Section 195.233, and
driving while revoked, Section 302.321.
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.
facts, viewed in the light most favorable to the verdict
rendered by the jury,  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."
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.
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.
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which showed Defendant's license was revoked.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.
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.
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
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
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.
court ultimately sentenced Defendant to two-and-a-half
I-Warrantless Search Was Permitted Under the Automobile
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
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).
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."
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,
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).
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
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.").
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.
II-Sufficient Evidence Existed to Sustain Defendant's DWI
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.