FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY The Honorable
Wesley C. Dalton, Judge
BRENT POWELL, JUDGE.
Smith appeals his conviction of felony possession of a
controlled substance in violation of section
579.015. The circuit court admitted, over
Smith's objection, evidence obtained from his statements
and a search of his vehicle after a traffic stop. Smith
argues the evidence should have been suppressed. Because the
traffic stop was justified after Smith's vehicle crossed
the fog line and drove on the shoulder in violation of
section 304.015, this Court affirms.
and Procedural History
January 8, 2017, Smith was stopped by Sgt. S.B. Johnson of
the Missouri State Highway Patrol on the side of Interstate
70 in Montgomery County. According to Sgt. Johnson's
testimony, Smith's vehicle drew his attention because he
noticed that, on several occasions, the vehicle's turn
signal turned on but then was turned off before the lane
change was fully completed. Shortly thereafter, Sgt. Johnson
observed the passenger-side tires of the vehicle appear to
completely cross the "fog line" on the right side
of the roadway. He could see pavement between the fog line
and the tire, and he observed the tire was "no longer
within the lane of traffic." Sgt. Johnson initiated a
traffic stop, and Smith pulled over to the side of the road.
the stop, Sgt. Johnson smelled marijuana. When asked by Sgt.
Johnson, Smith admitted he had smoked marijuana in the
vehicle the prior week and there was marijuana in the
vehicle. Sgt. Johnson searched the vehicle and found
marijuana cigarettes in a backpack in the passenger
compartment and approximately four pounds of marijuana in the
was charged with felony possession of a controlled substance.
Smith filed a motion to suppress physical evidence and
incriminating statements, arguing "[m]erely crossing the
fog line is insufficient probable cause to initiate a traffic
stop in Missouri" and "[l]legally signaling an
intention to change lanes creates no reasonable suspicion or
probable cause" for detention. The circuit court
overruled the motion to suppress, and
was found guilty of felony possession of a controlled
substance. His seven-year sentence was suspended, and he was
placed on probation for five years. Smith appealed, claiming
the circuit court erred in overruling his motion to suppress
because the traffic stop was unreasonable and a violation of
the Fourth Amendment of the United States Constitution and
article I, section 15 of the Missouri Constitution. After an
opinion by the court of appeals, this Court granted
issue of whether police conduct, such as a traffic stop,
violates the Fourth Amendment is a question of law that is
reviewed de novo. State v. Lammers, 479 S.W.3d 624,
630 (Mo. banc 2016). The question of whether crossing the
"fog line" is a traffic violation is an issue of
statutory interpretation, which is a question of law that is
also reviewed de novo. Finnegan v. Old Republic
Title Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo.
banc 2008). Where, as here, the circuit court does not issue
findings of fact when ruling on a motion to suppress, this
Court "considers all evidence and reasonable inferences
in the light most favorable to the trial court's
ruling." Lammers, 479 S.W.3d at
Fourth Amendment of the United States Constitution guarantees
the right of the people to be free from unreasonable searches
and seizures. State v. Jones, 865 S.W.2d 658, 660
(Mo. banc 1993). A temporary, noncustodial traffic stop
constitutes an "unreasonable" "seizure"
under the Fourth Amendment unless the stop is supported by
reasonable suspicion or probable cause. United States v.
Brignoni-Ponce, 422 U.S. 873, 879 (1975); Davis v.
Mississippi, 394 U.S. 721, 726-27 (1969). "A
routine traffic stop based on the violation of state traffic
laws is a justifiable seizure under the Fourth
Amendment." State v. Barks, 128 S.W.3d 513, 516
(Mo. banc 2004); see also Whren v. United States,
517 U.S. 806, 810 (1996) ("As a general matter, the
decision to stop an automobile is reasonable where the police
have probable cause to believe that a traffic violation has
occurred."); accord New York v. Class, 475 U.S.
106, 117-18 (1986) (stopping a car was justified for speeding
and a cracked windshield); Pennsylvania v. Mimms,
434 U.S. 106, 109 (1977) (stopping a car was justified for
expired license plate tags). "[A]ny traffic violation,
even a minor one, gives an officer probable cause to stop the
violator." United States v. Bell, 86 F.3d 820,
822 (8th Cir. 1996).
sole argument on appeal is that the traffic stop was
unreasonable in that it was not based on constitutionally
sufficient reasonable suspicion, and, therefore, the
subsequent discovery and seizure of marijuana and statements
Smith made are "fruit of the poisonous tree" and
should be suppressed. See Nardone v. United States,
308 U.S. 338, 341 (1939) (holding the exclusionary rule
applies to evidence discovered and found to be derivative of
an illegal search and seizure, or "fruit of the
poisonous tree"). However, if Sgt. Johnson had probable
cause to believe Smith committed a traffic violation, the
traffic stop would be a justifiable seizure under the Fourth
Amendment, and the recovery of contraband and statements
Smith made after the stop would not be subject to exclusion
under the "fruit of the poisonous tree" doctrine.
Therefore, our analysis turns on whether crossing the fog
line and driving on the shoulder is a violation of Missouri
of Section 304.015
sole point on appeal contends "[m]erely touching or
crossing the fog line does not give reasonable suspicion that
any crime or traffic offense has occurred." The State
contends, however, crossing the fog line and driving on the
shoulder is a violation of the motor vehicle operating
restrictions set forth in section 304.015. Therefore, the
Court must interpret section 304.015 and discern whether
crossing the fog line and driving on the shoulder contravenes
this provision and constitutes a traffic violation.
goal of statutory interpretation is to give effect to the
General Assembly's intent "as reflected in the plain
language of the statute at issue." State v.
Jones, 479 S.W.3d 100, 106 (Mo. banc 2016) (quoting
Ivie v. Smith, 439 S.W.3d 189, 202 (Mo. banc 2014)).
"The primary rule of statutory construction is to
ascertain the intent of the legislature from the language
used [and] to give effect to that intent if possible[.]"
Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31
(Mo. banc 1988).
304.015.2 provides; "[U]pon all public roads or highways
of sufficient width a vehicle shall be driven upon the right
half of the roadway[.]" Section 304.001(12) defines
"roadway" as "that portion of a state highway
ordinarily used for vehicular travel, exclusive of the berm
or shoulder." The "fog line" is "the
white [or yellow] line that demarcates the shoulder from the
road." Riche v. Dir. of Revenue, 987 S.W.2d
331, 333 (Mo. banc 1999). There is no statutory definition of
"drive" for purposes of section 304.015.2. When a
term is not defined by statute, this Court will give the term
its "plain and ordinary meaning as derived from the
dictionary." Mo. Pub. Serv. Comm'n v. Union
Elec. Co., 552 S.W.3d 532, 541 (Mo. banc 2018). The verb
"drive" means, in relevant part, "to operate
the mechanism and controls and direct the course of" a
motor vehicle. Webster's New Int'l Dictionary 692 (3d
ed. 2002). Unless otherwise excepted by the statute,
therefore, operating and directing the course of a vehicle on
the shoulder by allowing a moving vehicle to leave the
roadway, including briefly crossing the fog line, is a
violation of section 304.015.2. Section 304.015.9 states a
"[v]iolation of [304.015] shall be deemed a class C
misdemeanor[.]" Crossing the fog line and driving on the
shoulder, therefore, is a traffic violation and creates a
lawful justification for a traffic stop.
of Section 304.015
suppression hearing, Sgt. Johnson testified he observed Smith
"completely cross the fog line," and thereby
operate and direct the course his vehicle on the shoulder.
Considering this evidence in the light most favorable to the
trial court's ruling, Sgt. Johnson had probable cause to
stop Smith's vehicle for a violation of section 304.015,
and the stop did not constitute an unreasonable seizure under
the Fourth Amendment. Accordingly, the circuit court did not
clearly err in overruling Smith's motion to suppress.
circuit court's judgment is affirmed.
Wilson, Russell, Breckenridge and Fischer, JJ., concur;
J., dissents in separate opinion filed;
Draper, C. J, concursin opinion of Stith, J.
Denvir Stith, Judge
respectfully dissent. The principal opinion concludes Sgt.
S.B. Johnson could stop Anthony Smith's vehicle after
allegedly witnessing the vehicle's rear passenger-side
tire momentarily cross the fog line because this gave Sgt.
Johnson probable cause to believe Mr. Smith was violating
section 304.015.2. That statute does not state that passage
of one or more tires of a vehicle over the fog line is a
traffic violation, however. It simply requires a car to be
"driven upon the right half of the roadway."
§ 304.015.2. No authority is cited that one
momentary crossing of the fog line by a vehicle's tires
(if such a crossing even occurred here) constitutes failing
to "drive" on the right half of the roadway. To the
contrary, prior cases from this Court assume, and prior cases
of the court of appeals and other jurisdictions hold, that
such minor deviations of a tire onto the shoulder do not
constitute a traffic offense. This Court should also so hold.
further discussing this legal issue, it is important to
clarify what the facts of this case actually are. There is no
claim here that Mr. Smith was driving dangerously or
recklessly, that he was proceeding down the shoulder rather
than in his lane, or that he was weaving in and out of his
lane. There could not be, for the dash camera video shows,
and Sgt. Johnson testified, there was nothing erratic about
Mr. Smith's driving. Rather, by the sergeant's own
testimony at the suppression hearing, Mr. Smith made several
controlled and orderly lane changes. Sgt. Johnson said he
observed only one momentary crossing over the fog line by the
rear passenger tire at the end of an otherwise measured and
proper lane change:
Q. And you saw him change lanes several times. You didn't
notice -- Until the fog line incident you didn't notice
his, the defendant, being unable to ...