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Greene v. State

Supreme Court of Missouri, En Banc

September 3, 2019

CLETUS GREENE, Appellant,
v.
STATE OF MISSOURI, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF CAPE GIRARDEAU COUNTY The Honorable Michael E. Gardner, Judge

          PATRICIA BRECKENRIDGE, JUDGE

         Cletus 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.

         The 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.

         Factual and Procedural Background

         In May 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.

         The 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 cigarettes.

         Soon 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.

         The 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.

         Approximately 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 test.

         Mr. 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.

         Mr. 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.

         On 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.

         Standard of Review

         "In 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 ...


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