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State v. Smith

Supreme Court of Missouri

January 14, 2020


          APPEAL FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY The Honorable Wesley C. Dalton, Judge


         Anthony Smith appeals his conviction of felony possession of a controlled substance in violation of section 579.015.[1] 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.

         Factual and Procedural History

         On 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"[2] 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.

         During 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 trunk.

         Smith 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

         Smith 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 transfer.[3]

         Standard of Review

         The 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 630.[4]


         The 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).[5] 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).

         Smith's 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 law.

         Interpretation of Section 304.015

         Smith's 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.

         The 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).

         Section 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, [6] 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.[7]

         Application of Section 304.015

         At the 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.[8] Accordingly, the circuit court did not clearly err in overruling Smith's motion to suppress.


         The circuit court's judgment is affirmed.

          Wilson, Russell, Breckenridge and Fischer, JJ., concur;

          Stith, J., dissents in separate opinion filed;

          Draper, C. J, concursin opinion of Stith, J.


          Laura Denvir Stith, Judge

         I 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.[1] 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.

         Before 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 ...

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