FROM THE CIRCUIT COURT OF CAPE GIRARDEAU COUNTY The Honorable
Michael E. Gardner, Judge
PATRICIA BRECKENRIDGE, JUDGE
W. Greene appeals the motion court's judgment overruling
his Rule 29.l5 motion for postconviction relief without an
evidentiary hearing. He claims his trial counsel provided
ineffective assistance in failing to seek suppression of
methamphetamine found during a warrantless search of a
cigarette pack seized from his pocket because the search
occurred approximately 30 minutes after his arrest in an area
outside Mr. Greene's immediate control.
motion court did not err in overruling Mr. Greene's
postconviction motion because trial counsel was not
ineffective in failing to file a motion to suppress the
evidence of methamphetamine found when Mr. Greene's
cigarette pack was searched. A motion to suppress would not
have been meritorious because the search of the cigarette
pack was a lawful search incident to arrest. Accordingly,
this Court affirms the motion court's judgment.
and Procedural Background
2014, officers assigned to the Southeast Missouri Drug Task
Force responded to an anonymous tip regarding narcotics
activity at a motel in Jackson, Missouri. Detective Bobby
Sullivan, Detective Chris Newton, and other officers went to
the second-floor balcony, where Mr. Greene stood with his
friend, Matthew Robinson. Detective Newton talked with Mr.
Greene, who was smoking a cigarette. Mr. Greene initially
gave Detective Newton a false name, but Detective Sullivan
personally knew him and addressed him by his real name. When
Detective Sullivan asked if Mr. Greene "[had] anything
on [him]," Mr. Greene responded, "Yes, I've got
marijuana" and motioned down to his left front pocket.
other officers noticed Mr. Robinson had a gun, so they
handcuffed both men and moved them to the ground. Detective
Sullivan then asked if he could remove the items in Mr.
Greene's pocket, and Mr. Greene consented. Detective
Sullivan removed several items from Mr. Greene's pocket,
including a small bud of marijuana and a pack of Kool brand
after the items were seized from Mr. Greene, the officers
heard the door of a nearby motel room ("Room 1")
slam shut. Detective Newton then heard shuffling inside. Upon
knocking on the door and entering Room 1, officers found two
men and two women they suspected of engaging in narcotics
activity, carrying firearms, and destroying evidence. Task
Force Officer Mike Alford arrived several minutes later and
helped to secure the individuals in Room 1.
officers placed the items seized from Mr. Greene's pocket
inside Mr. Greene's hat and secured them, along with Mr.
Robinson's firearm, on the dresser in an adjacent motel
room ("Room 2"), guarded by two officers standing
out front. The male suspects found in Room 1 were searched
and detained in that same room, and the officers searched
Room 1. Simultaneously, the two female suspects were taken to
Room 2, where they were searched. Directly after their
search, the two women were escorted out of Room 2.
30 minutes after Detective Sullivan initially removed the
cigarette pack from Mr. Greene's pocket, Officer Alford
entered Room 2, opened the pack, and looked underneath the
cellophane. There, he found a small plastic baggie containing
an off-white substance "secured or taped to the top of
the flip top on the inside." Detective Newton performed
a field test, which indicated the substance was
methamphetamine. This was later confirmed by a laboratory
Greene was charged, as a prior and persistent drug offender
under sections 195.275, RSMo 2000, and 195.291.1, RSMo 2000,
with the class C felony of possession of a controlled
substance (methamphetamine), section 195.202, RSMo Supp.
2013. He pleaded not guilty and was tried by a jury. His
defense counsel did not file a motion to suppress or object
at trial to evidence of the methamphetamine found during the
search of the cigarette pack. The jury returned a guilty
verdict, and the circuit court sentenced him to 10 years in
prison on the methamphetamine count.
Greene appealed the judgment, which was affirmed. State
v. Greene, 476 S.W.3d 309 (Mo. App. 2015). He
subsequently filed a Rule 29.15 motion, claiming his trial
counsel was ineffective for failing to file a motion to
suppress the methamphetamine found in his cigarette pack. The
motion court overruled his postconviction motion without an
evidentiary hearing, finding the search was legal because it
was incident to a lawful arrest. Mr. Greene appealed the
motion court's judgment. After opinion by the court of
appeals, this Court ordered the cause transferred. Mo. Const.
art. V, sec. 10.
appeal, Mr. Greene contends the motion court clearly erred in
overruling, without an evidentiary hearing, his claim that
trial counsel was ineffective for failing to file a motion to
suppress the methamphetamine found in the warrantless search
of the cigarette pack seized from his pocket. He asserts a
Fourth Amendment challenge to the search would have been
meritorious because the cigarette pack was subsequently
searched unlawfully when it was outside the area of his
immediate control and reasonable trial counsel would have
challenged the search.
reviewing the overruling of a motion for post-conviction
relief, the motion court's ruling is presumed
correct." McLaughlin v. State, 378 S.W.3d 328,
336-37 (Mo. banc 2012). This Court overturns a motion
court's judgment only when its findings of fact or
conclusions of law are "clearly erroneous." Rule
29.15(k). To be overturned, the ruling must create a
"definite and firm impression that a mistake has been
made." Zink v. State, 278 S.W.3d 170, 175 (Mo.
banc 2009). Furthermore, a movant is entitled to an
evidentiary hearing only if: "(1) [the movant] pleaded
facts, not conclusions, warranting relief; (2) the facts