State v. Weddle3/14/2000
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Missouri Court of Appeals Eastern District
Appeal From: Circuit Court of Franklin County, Hon. Randolph Puchta
Opinion Vote: REVERSED. Rhodes Russell, C.J., and Crahan, J., concur.
Opinion:
Richard Weddle (Defendant) appeals his convictions for carrying a concealed weapon, possession of methamphetamine with intent to distribute, and misdemeanor possession of marijuana, in violation of section 571.031, RSMo 1994, section 195.211, RSMo Cum. Supp. 1999, and section 195.202, RSMo 1994, respectively. On his appeal, Defendant contends: (1) he was unreasonably seized without reasonable suspicion in violation of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968); (2) the search of his automobile was conducted without probable cause; and (3) there was insufficient evidence to support his convictions for carrying a concealed weapon, possession of methamphetamine with intent to distribute, and possession of marijuana. We reverse and order the Defendant discharged.
We find Defendant's first point dispositive. In Point I, Defendant contends the trial court erred in denying his motion to suppress and allowing the admission of exhibits 1 through 25 because the exhibits were the illegal fruits of an unreasonable search and seizure of Defendant in violation of his Fourth Amendment rights.
At a suppression hearing, the State bears both the burden of producing evidence and the risk of nonpersuasion to show by a preponderance of the evidence that the motion to suppress should be overruled. Section 542.296.6, RSMo 1994; State v. Milliorn, 794 S.W.2d 181, 184 (Mo. banc 1990). When reviewing a motion to suppress, we examine the record made at the motion to suppress hearing as well as the trial record. State v. Collins, 816 S.W.2d 257, 258 (Mo. App. E.D. 1991). In so reviewing, we view the facts in the light most favorable to the order challenged on appeal. State v. Riddle, 843 S.W.2d 385, 386 (Mo. App. E.D. 1992). An appellate court gives deference to the trial court's factual findings and credibility determinations reviewing only to determine if they are clearly erroneous, but reviews questions of law de novo. State v. Rousan, 961 S.W.2d 831, 845 (Mo. banc 1998). However, the question of whether the historical facts as found by the trial court add up to reasonable suspicion requires de novo review. See, Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 1662 (1996); State v. Werner, No. SC81663, slip op. at 6, (Mo. banc, filed January 11, 2000).
Applying this standard of review, the following facts were presented at the motion to suppress and the trial: On February 13, 1998, at about 9:20 a.m., Officer Michael L. Wirt was on duty for the City of St. Clair Police Department in Franklin County when he received a dispatch for a possible intoxicated driver on the Hardee's lot. An anonymous call had been placed about the driver who was occupying a blue-gray van on the north end of the Hardee's lot. Wirt admitted that the anonymous call provided information that was not reliable. Wirt arrived at the Hardee's about 9:25 a.m. and saw a blue-gray Ford Econoline parked on the north end of the lot. He saw a lone white male, who was Defendant, seated in the driver's seat. Defendant was "kind of slumped over the wheel like he was resting his head on the wheel." At this time, Wirt did not suspect Defendant was committing a crime and Defendant was not doing anything wrong. Still, Wirt approached the van and tapped on the window. Defendant did not respond, so Wirt tapped slightly harder on the window. At this time, Defendant woke up. He was
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