IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT. STATE OF MISSOURI, ) ) Appellant, ) ) vs. ) No. WD78413 ) CHRISTOPHER P. HUMBLE, ) ) Respondent.

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1 IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI, ) ) Appellant, ) ) vs. ) No. WD78413 ) CHRISTOPHER P. HUMBLE, ) ) Respondent. ) APPEAL TO THE MISSOURI COURT OF APPEALS WESTERN DISTRICT FROM THE CIRCUIT COURT OF CALLAWAY COUNTY, MISSOURI 13 TH JUDICIAL CIRCUIT, DIVISION 2 THE HONORABLE GARY M. OXENHANDLER, JUDGE RESPONDENT S BRIEF Margaret M. Johnston, MOBar #45913 Attorney for Respondent Woodrail Centre 1000 West Nifong Building 7, Suite 100 Columbia, Missouri Telephone (573) FAX (573) maggie.johnston@mspd.mo.gov

2 INDEX Page TABLE OF AUTHORITIES... 2 FACTS... 3 ARGUMENT... 5 CONCLUSION CERTIFICATE OF COMPLIANCE AND SERVICE

3 TABLE OF AUTHORITIES Page CASES: Arizona v. Gant, 556 U.S. 332 (2009)... 5, 6, 11 Burkett v. State, 607 S.W.2d 399 (1980)... 9 Commonwealth v. Pacheco, 985 N.E.2d 839 (Mass. 2012)... 9, 10 Illinois v. Gates, 462 U.S. 213 (1983)... 8, 9 State v. Deaton, 395 S.W.3d 50 (Mo. App. S.D. 2013)... 6 State v. Farris, 849 N.E.2d 985 (Ohio 2006)... 9 State v. Irvin, 210 S.W.3d 360 (Mo. App. W.D. 2006)... 10, 11, 12 State v. Lane, 937 S.W.2d 721 (Mo. banc 1997)... 6 State v. Schmadeka, 38 P.3d 633 (Idaho App. 2001)... 8 U.S. v. Downs, 151 F.3d 1301 (10 th Cir. 1998)... 9 U.S. v. Ross, 456 U.S. 798 (1982)... 6, 7 U.S. v. Wald, 215 F.3d 1222 (10 th Cir. 2000)... 9 Wyoming v. Houghton, 526 U.S. 295 (1999)

4 FACTS In addition to the facts presented at the hearing on the motion to suppress, the trial court viewed Defendant s Exhibit A, a video and sound recording of the traffic stop (Tr ). Within one minute of calling in Mr. Humble s driver s license, Trooper Fouch was told it was valid (Def. Ex. A at 2:44:15 2:45:19). He immediately asked Mr. Humble, What kind of drugs you on today? (Ex. A at 2:45). When Mr. Humble responded that he was not on anything, Tpr. Fouch asked permission to search his vehicle, and then asked him what he had up there in his car (Ex. A 2:45-2:45:50). He told Mr. Humble that it would go easier for him if he worked with the trooper (Ex. A at 2:45:50). When Mr. Humble said there was nothing up in the car, the officer asked, so, when the dog comes, he won t find anything? (Ex. A at 2:46). Mr. Humble said he might have a ceboxin (Ex. A at 2:46:18). Tpr. Fouch radioed for a backup deputy (Ex. A at 2:49:10). The dispatcher told Tpr. Fouch that the car had a valid registration (Ex. A. 2:51:50). Tpr. Fouch read Mr. Humble his rights and told him that he was not under arrest; he asked where the ceboxin was, and Mr. Humble told him it was in the console (Ex. A at 2:51:50-2:53). 3

5 Mr. Humble was permitted to retrieve the ceboxin strip from the console (Ex. A at 2:58). While he was doing so, Tpr. Fouch reached his arm and leaned his head and shoulders into the car behind Mr. Humble (Ex. A at 2:58:25). After Mr. Humble gave the ceboxin to the officer, he was handcuffed and put back into the patrol car (Ex. A 2:59:15). Tpr. Fouch asked Mr. Humble what else he would find in the car, and Mr. Humble immediately responded, there s some syringes in the middle console (Ex. A at 3:02:30). After the syringes were retrieved by the officer, he asked Mr. Humble what was the green stuff, and Mr. Humble said it was roxy, for which he did not have a prescription (Ex. A at 3:04:05-3:05:10). The video camera is directed on Mr. Humble s face as the rest of the car is searched, including the trunk. After Tpr. Fouch discovered marijuana in a bag in the trunk, he returned to the patrol car and told Mr. Humble, Now you re under arrest (Ex. A at 3:07:40). He read Mr. Humble his rights and asked, Who you taking weed to? and Mr. Humble responded, I didn t even know it was in there. (Ex. A at 3:07:40). 4

6 ARGUMENT The trial court did not err in granting Mr. Humble s motion to suppress the physical evidence found in the trunk. The trial court ruled that the search of Mr. Humble s trunk was unlawful under Arizona v. Gant, 556 U.S. 332 (2009) (LF 21). Appellant argues that the search was justified as a search incident to Mr. Humble s arrest because he was arrested for possession of controlled substances, and it was reasonable for Trooper Fouch to believe that other controlled substances might be found in the vehicle. Appellant also argues that the search was justified because there was probable cause for Tpr. Fouch to believe the vehicle contained contraband or evidence of a crime based on the drugs already found inside the vehicle. Appellant s argument that the search of the trunk was justified as a search incident to arrest should fail because as demonstrated by the video recording of the incident, Mr. Humble was not placed under arrest until after the marijuana was found (Ex. A). The question presented here is: When does an officer s warrantless search, based on probable cause to believe a vehicle contains contraband or 5

7 evidence of a crime, extend beyond the passenger compartment of a vehicle to its trunk? The Gant Court noted that in many cases, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee s vehicle and any containers therein. 556 U.S. at 344 (emphasis added). The scope of such a search is defined by the object of the search and the places in which there is probable cause to believe that it may be found. U.S. v. Ross, 456 U.S. 798, 824 (1982). Probable cause to search a vehicle exists when objective facts, under the totality of the circumstances at the time of the search, would lead a reasonably prudent individual to believe that contraband was located in the automobile. State v. Deaton, 395 S.W.3d 50, 54 (Mo. App. S.D. 2013). If probable cause justifies the search of a vehicle, it justifies only the search of the parts of the vehicle and its contents that may contain the object of the search. State v. Lane, 937 S.W.2d 721, 722 (Mo. banc 1997). The Ross Court noted, Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab. Id. Mr. Humble confessed possession of both the ceboxin and the syringes, and told Tpr. Fouch where they were located (Defendant s Ex. A at 2:53, 3:02:30). Mr. Humble s license was valid (Ex. A at 2:45:33), and he 6

8 told the officer that the car belonged to a friend (Def. Ex. A at 2:49:20). The vehicle s registration was valid (Def. Ex. A at 2:51:50). There was no testimony by Tpr. Fouch that the contraband Mr. Humble admitted to possessing that was in the passenger compartment of the vehicle, supported a probable cause belief that there was additional contraband in the trunk. An officer s probable cause to justify a vehicle search only extends to the parts of the vehicle that may conceal the object of the search. Ross. Tpr. Fouch failed to articulate specific facts supporting probable cause to believe that Mr. Humble was concealing anything in the trunk. The critical element in a reasonable vehicle search is not that the driver of the vehicle is suspected of crime, but that there is reasonable cause to believe that the specific things to be searched for and seized are located in places in the vehicle to which entry is sought. Wyoming v. Houghton, 526 U.S. 295, 302 (1999). Mr. Humble admitted possessing suboxone, syringes, and later a container of roxycodone found with the syringes (D s Ex. A at 2:53, 3:02:30, 3:04:05-3:05:10). He told Tpr. Fouch where all items could be found. But Mr. Humble was not the owner of the vehicle. While Tpr. Fouch had probable cause to search the rest of the passenger compartment of the vehicle based on Mr. Humble s drugs and paraphernalia found in the 7

9 console, these facts do not support probable cause to search the trunk as well. In State v. Schmadeka, the defendant was pulled over for a cracked windshield and not wearing his seatbelt. 38 P.3d 633, 634 (Idaho App. 2001). When the trooper reached the driver s window, he smelled burnt marijuana and observed inside the vehicle a M-800 firecracker, a large explosive type of firework that he believed to be illegal in Idaho. Id. After running a license check, the officer ordered the defendant out of his vehicle and conducted a pat-down search before engaging in a prolonged search of the passenger compartment and trunk of the car. Id. at In the trunk, the officer discovered evidence of an active methamphetamine laboratory. Id. at 635. The court of appeals held that the presence of the single firecracker in the passenger compartment did not justify a search of the trunk under the automobile exception to the warrant requirement. Id. at 636. The Schmadeka court stated that a court must apply common sense, considering the totality of the circumstances to determine whether there is a fair probability that contraband will be discovered in a particular place. Id. at 637, citing Illinois v. Gates, 462 U.S. 213 (1983). The court held that even if the M-800 were an illegal firework, its lone presence in the 8

10 passenger compartment did not justify a search of the trunk because there was not a fair probability that more of the same contraband would be found in the trunk. Id. The court also held that the slight odor of burnt marijuana in the passenger compartment of the car was insufficient to give rise to probable cause to believe that contraband or evidence was concealed in the trunk. Id. at , citing U.S. v. Downs, 151 F.3d 1301, 1303 (10 th Cir. 1998) (smell of burnt marijuana in passenger portion of vehicle did not give probable cause to search the trunk); U.S. v. Wald, 215 F.3d 1222 (10 th Cir. 2000) (odor of burnt methamphetamine in passenger compartment of vehicle did not give probable cause to search the trunk); Burkett v. State, 607 S.W.2d 399 (1980) (roach clip and marijuana cigarette butt in ashtray did not extend scope of probable cause to the trunk). Also see State v. Farris, 849 N.E.2d 985 (Ohio 2006) ( A trunk and a passenger compartment of an automobile are subject to different standards of probable cause to conduct searches. The odor of burnt marijuana in the passenger compartment of a vehicle does not, standing alone, establish probable cause for a warrantless search of the trunk.). In Commonwealth v. Pacheco, a state trooper approached a vehicle parked in a handicapped parking space without a handicapped 9

11 registration plate. 985 N.E.2d 839, 841 (Mass. 2012). When the occupants lowered the vehicle windows, the trooper smelled a strong odor of freshly burnt marijuana emanating from inside the vehicle. Id. He searched each occupant, one of whom directed him to a bag of marijuana on the floor mat behind the front passenger seat that contained less than one ounce. Id. at The trooper found nothing else during a search of the interior of the vehicle, but opened the trunk and found a backpack containing a semiautomatic handgun. Id. at 842. The officer s search of the trunk was reversed on appeal. Id. at 843. The court found that the smell of freshly burnt marijuana coupled with such a small amount of marijuana did not, without more, support probable cause to believe that a criminal amount of marijuana would be found in the trunk. Id. In order to search the trunk, the trooper was required to have articulable facts supporting a belief that one of the vehicle occupants possessed a criminal amount of marijuana. Id. The court found that the occupants use of the drug did not give the officer probable cause to believe that they had a distribution amount that they might be hiding in the trunk. Id. In State v. Irvin, 210 S.W.3d 360, 361 (Mo. App. W.D. 2006), Mr. Irvin was stopped for speeding and the sheriff detected a strong odor of 10

12 alcohol coming from the car. After failing one field sobriety test, Mr. Irvin refused to do any others and was arrested. Id. A search of the passenger compartment of his car revealed one small baggie of marijuana (7.9 grams) in the pocket of a duffel bag on the passenger side, and another small baggie of marijuana (3.0 grams) with rolling papers in the center console. Id. A search of the trunk revealed a large bag of marijuana (113.2 grams), and Mr. Irvin was charged with felony possession of a controlled substance. Id. The trial court suppressed the marijuana found in the trunk but not the marijuana found in the passenger compartment. Id. On appeal, this Court reversed the trial court s suppression of the marijuana found in the trunk. The trunk was searched incidental to arrest, and there was no constitutional violation. Id. at Here, Mr. Humble was not under arrest when the trunk of his car was searched. It was not until after the marijuana in the trunk was found that he was placed under arrest. Since Mr. Humble was not placed under arrest until after the search of the trunk, the state s argument that this was a search incident to arrest under Arizona v. Gant is factually inapplicable. Mr. Humble was driving another person s car and freely admitted to Tpr. Fouch that he had used drugs earlier that day, that he had one dose of 11

13 suboxone in the car, that he had syringes in the car, and that a container found by the officer near the syringes contained Roxicodone. Certainly Tpr. Fouch had probable cause to search the rest of the passenger compartment of the vehicle that Mr. Humble occupied while driving it, but under the totality of the circumstances, the objective facts would not lead a reasonably-prudent individual to believe that Mr. Humble had hidden any contraband in the trunk of someone else s car. The trial court concluded that the trooper, should have gotten a warrant. (LF 21). The court s ruling is supported by substantial evidence and should be affirmed. Irvin, 210 S.W.3d at

14 CONCLUSION Respondent requests that this Court affirm the trial court s ruling on Mr. Humble s motion to suppress physical evidence found in the trunk. Respectfully submitted, /s/ Margaret M. Johnston Margaret M. Johnston, MOBar #45913 Attorney for Respondent Office of State Public Defender Woodrail Centre 1000 West Nifong Building 7, Suite 100 Columbia, MO (573) FAX (573) maggie.johnston@mspd.mo.gov 13

15 CERTIFICATE OF COMPLIANCE AND SERVICE I, Margaret M. Johnston, hereby certify to the following. The attached brief complies with the limitations contained in Rule 84.06(b) and Special Rule XLI. The brief was completed using Microsoft Word, Office 2007, in Book Antiqua size 13 point font, which is no smaller than Times New Roman size 13 point font. Excluding the cover page, the signature block, and this certificate of compliance and service, the brief contains 2,310 words, which does not exceed the 13,950 words allowed for a respondent s brief. On this 10 th day of August, 2015, an electronic copy of Respondent s Brief was placed for delivery through the Missouri e-filing System to Andrew Hooper, Assistant Attorney General, at Andrew.Hooper@ago.mo.gov. /s/ Margaret M. Johnston Margaret M. Johnston 14