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State v. Allen

Court of Appeals of Missouri, Southern District, Second Division

April 30, 2018

STATE OF MISSOURI, Plaintiff-Respondent,
KEON TERRELL ALLEN, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY Honorable Michael M. Pritchett, Circuit Judge

          JEFFREY W. BATES, J.

         Following a bench trial, Keon Allen (Defendant) was convicted of the class B felony of possession of a controlled substance with intent to distribute. See § 195.211.[1]Presenting a single point on appeal, Defendant contends the trial court clearly erred in failing to suppress "the cocaine, marijuana, and methamphetamine evidence" because such evidence was obtained in violation of his Fourth Amendment right to be free from unreasonable search and seizure. We disagree and affirm.

          "This Court reviews a trial court's ruling on a motion to suppress in the light most favorable to the ruling, disregarding any contrary evidence or adverse inferences." State v. Waldrup, 331 S.W.3d 668, 672 (Mo. banc 2011). When a motion to suppress is overruled and evidence is introduced at trial, an appellate court considers the evidence presented at the suppression hearing and at trial in determining whether the motion should have been granted. State v. Goff, 129 S.W.3d 857, 861-62 (Mo. banc 2004). Viewed from that perspective, the following facts were before the trial court.

         Around 5:30 p.m. on June 24, 2015, Officer Rick Cook (Officer Cook) went to a residence on Michigan Lane in Dexter, Missouri, to investigate a report of domestic assault. The dispute concerned whether a guest who had been living there would be permitted to stay at the residence.

         When Officer Cook arrived, he encountered five individuals: (1) Sharon Goodman (Goodman), who owned the residence and lived next door; (2) Heath Moore (Moore), Goodman's grandson; (3) Yvonne Anderson (Anderson), who lived with Moore at the residence; (4) Delisha Price (Price), the guest; and (5) Price's seven-year-old daughter. When Price was asked to leave the residence, an altercation between Price and Anderson ensued. Goodman had called the police and consented to Officer Cook's entry into the residence.

         According to Officer Cook, everyone was "fighting and arguing" and gave him different versions of what had gone on the past one or two days. After about 10 to 15 minutes, Officer Dwain Forshee (Officer Forshee) also arrived at the residence and was invited inside by Goodman and the others involved in the dispute. Officer Forshee similarly described the scene as one in which "everybody was arguing … kind of chaos" and Officer Cook "was trying to basically figure out what was going on." Around that same time, the officers learned that Defendant, described as Price's boyfriend, also was a guest in the home and was in a bedroom.

         Officer Forshee went to the bedroom to speak with Defendant. The officer wanted to see whether Defendant had played any part in the altercation and what he knew about it. According to Officer Forshee, it also was standard procedure when responding to a call at a residence to identify everybody inside, interview witnesses and obtain statements. When Officer Forshee first walked into the bedroom, he could tell that Defendant was awake because he saw Defendant's eyes squinted and Defendant's "eyeballs moving ... tracking me with his eyes." Defendant was attempting to appear asleep. Officer Forshee asked Defendant several times to get up, and Defendant finally opened his eyes and asked what was going on. When Officer Cook heard that Defendant was not complying with Officer Forshee's requests, Officer Cook went into the bedroom to assist.

         Defendant provided two different false names to Officer Forshee. Defendant first stated that he was Terrell R. Smith, and then that he was Keon T. Smith. Both names came back "not on file" with the date of birth Defendant provided. Defendant also provided false social security numbers.

         Defendant was wearing a t-shirt and long shorts. He also had a red bath towel over his waist and groin area. Defendant kept moving the towel around and fidgeting with it while seated, instead of getting up as Officer Forshee requested. The officers interpreted this as suspicious because: "[a] normal person is going to get up, move the towel and get up." Defendant kept his hands underneath the towel, fidgeting with it, and he would not remove it from his waist area. Officers Cook and Forshee both feared that Defendant might be concealing a weapon underneath the towel.

         When Defendant finally stood up, he was still holding the towel, even though he was fully clothed. Defendant was also fidgety, looking around and at the door. Defendant appeared sweaty and overly nervous. Both Officers Cook and Forshee were afraid that Defendant would attempt to flee.[2] Because Officer Forshee was afraid for the safety of Officer Cook and himself, he placed Defendant in handcuffs.

         Officer Cook asked Defendant, "do you have anything illegal on you, a knife or a gun or anything like that, " and Defendant nodded. Officer Cook then patted him down and felt a hard, round object in Defendant's left front shorts pocket, "[p]robably smaller than a baseball." Although Officer Cook was not sure what the object was, he thought it "could have been a weapon."

         Officer Cook testified that police "continually get updates on weapons that they are using across the United States that are .22s that fit in the size of your hand that have a little barrel that sticks out, very little that you can squeeze that is hard." Based upon Officer Cook's "knowledge of how people are making weapons out of different things, that was enough for me" to further investigate the object. According to Officer Cook, under the circumstances he "felt like it could very well be a weapon[, ]" that the item could have been any of various specific weapons, and that a ball-shaped weapon would not be uncommon.[3]

         When Officer Cook reached inside Defendant's pocket, he pulled out a baggy containing marijuana and white substances. This baggy had several smaller baggies inside, some of which contained cocaine base, methamphetamine and heroin. Defendant's pocket also contained another baggy with a green leafy material.[4] Defendant was eventually charged, as a prior ...

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