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State v. McElroy

Court of Appeals of Missouri, Eastern District, Northern Division

June 26, 2018

Justin L. McElroy, Appellant.

          Appeal from the Circuit Court of Scotland County 15SE-CR00047-01 Honorable Gary L. Dial



         Justin L. McElroy was found guilty following a bench trial in the Circuit Court of Scotland County of one count of the class C felony of possession of a controlled substance, namely methamphetamine. McElroy was sentenced to five years in prison. On appeal, McElroy claims that the trial court clearly erred when it denied his motion to suppress and admitted into evidence a vial of methamphetamine powder found pursuant to a warrantless search of his person, and statements he made without first receiving the Miranda warnings. We disagree and affirm.

         Factual and Procedural Background

         Kevin Goosey was sentenced in an unrelated case to probation, one of the conditions of which was that his residence was to remain open to a warrantless search by law enforcement officers at any time to verify that he was complying with other conditions of his probation. So, on the evening of May 25, 2014, City of Memphis Police Officer Jason Ketchum enlisted the assistance of Missouri State Highway Patrol Sergeant Michael Kaugh and Trooper Brett Tappendorf to conduct a bond compliance search of Goosey's residence. None of the law enforcement officers had reason to know that McElroy would be at Goosey's residence.

         Once at the residence, the officers first made contact at the front door with James Wheeler, and when they identified themselves as police officers he responded in alarm with an expletive. Moments later, Goosey appeared at the door and allowed the officers to perform their bond compliance search of his residence. Once inside, the officers conversed briefly with Goosey and Wheeler before asking whether there was anyone else in the residence. Goosey responded that McElroy was also present. The officers moved from the front room of the house, a living room, back through the kitchen and toward the rear bedroom, where they found McElroy seated at a table.

         Officer Ketchum shook hands with McElroy and explained the nature of the search they were conducting. While speaking with McElroy, Officer Ketchum observed Goosey sit down at the table, lean toward a nearby bed, and begin to make furtive movements. Officer Ketchum was concerned that Goosey was grabbing for something that could harm the officers and ordered Goosey to stand up. Goosey complied. As Officer Ketchum approached Goosey, he observed partially beneath the bed and the table a blue pen stem and a piece of burnt foil. Officer Ketchum identified these items as methamphetamine-related drug paraphernalia.

         At that point, Officer Ketchum requested the other two officers to handcuff Goosey, Wheeler, and McElroy to prevent the alteration or destruction of evidence and to limit Goosey, Wheeler, and McElroy's movement in light of the tight quarters inside the residence and the readily available weapons in the house. Officer Ketchum had observed a "large amount of clutter str[e]wn completely through[out] the residence," including screwdrivers, handsaws, large glass bottles, and knives "laying all over the place" in the kitchen. Trooper Tappendorf also had noted that "[i]t was a very cluttered house, lots of places that anything could be stored that could be used as a weapon."

         Trooper Tappendorf handcuffed McElroy. He then conducted an over-the-clothing patdown of McElroy* s person, observing an unidentified "bulge" in McElroy's right front pocket. Trooper Tappendorf asked McElroy what it was and McElroy said it was a pocketknife. Trooper Tappendorf then removed the object from McEIroy's pocket. Trooper Tappendorf discovered that it was not a pocketknife but a small, clear vial containing a white powdery crystal substance that was later determined by the Missouri State Highway Patrol Crime Lab to be methamphetamine.

         McElroy was charged with one count of the class C felony of possession of a controlled substance. He filed a motion to suppress evidence of the vial of methamphetamine powder, including his statement to Trooper Tappendorf that he had a pocketknife in his pocket. The trial court denied the motion and McEIroy's motion to reconsider and found him guilty of the charged offense. This appeal follows.

         Standard of Review

         We will reverse the trial court's denial of a motion to suppress only if the trial court's ruling was clearly erroneous. State v. Esmerovic, 2018 WL 1720917, *2 (Mo.App.E.D. 2018) (citing State v. Cook, 273 S.W.3d 562, 567 (Mo.App.E.D. 2008)). The trial court's ruling is clearly erroneous if we are left with a definite and firm belief a mistake was made. Id. We will not reverse the trial court's decision if, in light of the record as a whole, the ruling was plausible. Id. (citing State v. Foster, 392 S.W.3d 576, 578 (Mo.App.S.D. 2013)). In reviewing the trial court's ruling on a motion to suppress, the facts and any reasonable inferences arising therefrom are to be viewed in a light most favorable to the ruling of the trial court. Id. (citing State v. Carter, 955 S.W.2d 548, 560 (Mo.banc 1997)). However, whether the Fourth Amendment was ultimately violated is a question of law, which we review de novo. Id. (citing State v. Swartz, 517 S.W.3d 40, 48 (Mo.App.W.D. 2017)). Consequently, we review de novo legal determinations of reasonable suspicion and probable cause. State v. Carrawell, 481 S.W.3d 833, 837 (Mo.banc 2016).


         In his three points on appeal, McElroy attacks the constitutionality of the police procedures pursuant to which officers seized from his pocket the vial containing methamphetamine powder. He claims the officers violated his Fourth Amendment rights[1] (1) by conducting the warrantless patdown search of his person that turned up the vial, because before he misrepresented that he had a pocketknife in his pocket, they did not have a reasonable, particularized suspicion that he was armed and presently dangerous, and (2) by removing the vial from his pocket, because it was not- before being removed-immediately identifiable as contraband or other evidence of a crime. He further claims that the officers violated his Fifth Amendment right against ...

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