Court of Appeals of Missouri, Eastern District, Northern Division
from the Circuit Court of Scotland County 15SE-CR00047-01
Honorable Gary L. Dial
M. DOWD, CHIEF JUDGE
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.
and Procedural Background
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.
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.
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
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
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.
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.
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
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) 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