Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Atkinson

Court of Appeals of Missouri, Southern District, Second Division

March 1, 2018

STATE OF MISSOURI, Plaintiff-Respondent,
MELISSA D. ATKINSON, Defendant-Appellant.

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Margaret Holden Palmietto, Associate Circuit Judge.


          WILLIAM W. FRANCIS, JR., J.

         Melissa D. Atkinson ("Atkinson") appeals her conviction for driving while intoxicated ("DWI") per section 577.010, [1] 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.

         Facts and Procedural History

         On July 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[2] (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 section 304.015.

         Atkinson 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.

         On 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.

         On the 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[3] 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[.]"

         Deputy 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.

         On 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 take."

         Corporal 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.

         After hearing testimony and argument, the trial court overruled Atkinson's motion to suppress, finding that there was "reasonable suspicion" for the traffic stop.

         Trial commenced on February 23, 2017.[4] 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.

         The 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 objection throughout.

         The trial court overruled the objection, but noted it to be a continuing objection.

         Deputy 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[5] rights and placed her under arrest for "driving while intoxicated due to suspicion of drug use[, ]" and she was transported to the Greene County jail.

         Deputy 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.[6] After reading Atkinson her implied consent rights, Deputy Riley released Atkinson to Deputy Randy Foster ("Deputy Foster"), who ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.