Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Margaret
Holden Palmietto, Associate Circuit Judge.
WILLIAM W. FRANCIS, JR., J.
D. Atkinson ("Atkinson") appeals her conviction for
driving while intoxicated ("DWI") per section
577.010,  and failing to drive on the right side of
the road per section 304.015. In two points, Atkinson
contends the trial court erred in rejecting her motion to
suppress on the basis that there was no reasonable suspicion
for the traffic stop, and in overruling her motion for
judgment of acquittal as there was no substantial evidence
that Atkinson violated section 304.015. Finding no merit to
these points, we affirm.
and Procedural History
8, 2014, Atkinson was arrested for "operat[ing] motor
vehicle in an intoxicated condition - drugs, " and
"[f]ailed to drive on right . . . half of roadway on
road of sufficient width." The State later charged
Atkinson, by amended information, with the class B
misdemeanor of DWI in that Atkinson operated a motor vehicle
while under the influence of methadone (Count I),
pursuant to section 577.010; and the class C misdemeanor of
failure to drive on the right half of the roadway, when the
roadway was of sufficient width (Count II), pursuant to
filed a "Motion to Suppress Evidence Obtained from
Unlawful Detention and Seizure, " asserting, in part,
that the "detention and seizure were conducted without
reasonable suspicion or probable cause of criminal
activity"; Atkinson did not consent to the detention or
seizure; and the seizure was not incident to a lawful arrest.
February 17, 2016, a hearing was held on Atkinson's
motion. The trial court heard testimony from Deputy Elyse
Riley ("Deputy Riley") and Corporal Bradley Wallace
("Corporal Wallace"). Deputy Riley testified she
had been a deputy with the Greene County Sherriff's
Department for five years and had been assigned to the DWI
specialist task force for two-and-a-half years prior to
leaving the department in March 2015. She received
substantial training in "driver detection, impaired
driving and how to process DWIs through standardized field
sobriety testing"; went through "advanced roadside
impairment detection education"; and became certified as
a drug recognition evaluator ("DRE"). At the time
of her departure from the department, she had made
approximately 415 DWI arrests.
date of the incident, Deputy Riley was the passenger in an
unmarked vehicle driven by Corporal Wallace. They were
stopped at a traffic light in the left north-bound lane when
she observed a driver (later identified as Atkinson) beside
them in the right-hand lane who was "slouched over[,
]" and "searching for her mouth with a
cigarette" in a "very slow and methodical"
manner. When the light turned green, Deputy Riley observed
Atkinson move "over to the right onto the shoulder past
the fog line and then started driving on the shoulder
as if it were an actual driving lane of traffic."
Atkinson was "almost . . . entirely" on the
shoulder and the driver's side tires "would probably
have been the only part of the car" not over the fog
line. Atkinson was on the shoulder for "less than 30
seconds, probably closer to 20." This included the
period of time it took for Atkinson to "correct slightly
back into the lane[.]"
Riley told Corporal Wallace to conduct a traffic stop.
Corporal Wallace moved behind Atkinson and turned on his
lights. Corporal Wallace made initial contact with Atkinson.
Thereafter, Deputy Riley, with Atkinson's consent,
conducted a "DWI investigation at the roadside[.]"
At the conclusion, Deputy Riley placed Atkinson under arrest.
cross-examination, Deputy Riley admitted that the entire
incident occurred "in a matter of seconds." She
testified that Atkinson drove on the shoulder "far
enough to where that's a very unusual action to
Wallace testified the decision was made to make the traffic
stop "due to a lane violation." He observed
Atkinson's vehicle drive "completely out of the
driving lane onto the shoulder." When Atkinson's
vehicle began crossing over the fog line, he slowed down and
pulled in behind her vehicle. He then activated his lights
and Atkinson came to a stop.
hearing testimony and argument, the trial court overruled
Atkinson's motion to suppress, finding that there was
"reasonable suspicion" for the traffic stop.
commenced on February 23, 2017. Deputy Riley testified that while
stopped at a traffic light, she observed Atkinson
"attempting to find her mouth with a cigarette that she
had lit in her hand." Deputy Riley explained that, as a
former smoker, you "have a motion where you take the
cigarette, usually in two fingers . . . and put it directly
to your lips. Instead, Atkinson was "searching, like by
tapping it to her face and sliding it to her mouth[, ]"
which "indicated unusual behavior." She then
directed Corporal Wallace's attention to Atkinson as they
waited for a green light. Once the light turned green,
Atkinson proceeded a little ahead of their car and proceeded
to "move over so both passenger side tires had crossed
over the solid [fog] line into . . . the shoulder of the
road." Atkinson stayed on the other side of the fog line
for a "few seconds[, ]" and then the vehicle
corrected itself onto the forward driving line. A traffic
stop of Atkinson's vehicle was then initiated.
prosecutor then asked Deputy Riley, "Now who made
contact with the driver first?" Atkinson's attorney
made an objection at this point stating:
I am going to object to any testimony from this point
forward. I'd previously filed a motion to suppress. We
took that up. I know it was overruled, but I'd like to
show my objection that any of the -- any observations or
evidence after this point in time are in violation of my
client's fourth amendment rights under the -- under the
Missouri constitution and also the bill of rights, the
Missouri constitution, Missouri statutes and State of
Missouri v. Beck, which we had previously argued. So -- and
I'd also ask the Court to show that as a continuing
trial court overruled the objection, but noted it to be a
Riley continued her testimony and indicated it was Corporal
Wallace who made first contact with Atkinson. After making
contact, Corporal Wallace returned to the patrol car
indicating he did not smell any alcohol. Deputy Riley then
made contact with Atkinson observing that Atkinson had poor
finger dexterity when trying to remove her driver's
license, slightly slurred speech, bloodshot and watery eyes,
and had what she described as a "staring look."
These indicators were consistent with a substance impairment,
but Deputy Riley could not make that determination based on
those indicators alone. Atkinson consented to field sobriety
testing, and Atkinson's test performances were consistent
with intoxication. Based on the sobriety test results and all
other factors present, as well as her experience as a DRE, it
was Deputy Riley's belief that Atkinson was under the
influence of some type of substance. Deputy Riley then read
Atkinson her Miranda rights and placed her under
arrest for "driving while intoxicated due to suspicion
of drug use[, ]" and she was transported to the Greene
Riley interviewed Atkinson at the jail. Atkinson admitted to
driving the vehicle at the time of the stop, but denied being
under the influence of alcohol. Atkinson did admit to taking
methadone and Celexa. After reading Atkinson her implied consent
rights, Deputy Riley released Atkinson to Deputy Randy Foster
("Deputy Foster"), who ...