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State v. Schmutz3/31/2003
Opinion Vote: REVERSED.
Prewitt, P.J. and Rahmeyer, C.J. - Concur.
Opinion:
Jeffrey A. Schmutz ("Defendant") appeals his conviction for driving while intoxicated in violation of section 577.010, RSMo (2000). Defendant alleges the trial court committed reversible error when it overruled his motion to suppress and admitted the evidence at trial over Defendant's objections. Defendant claims such evidence should have been excluded at trial because the police officer had no reasonable suspicion to stop Defendant's vehicle. We agree. We reverse.
Because Defendant filed a motion to suppress and properly objected to the admission of the evidence at trial, the appellate court examines the record made at the suppression hearing as well as the trial record. State v. Deck, 994 S.W.2d 527, 534 (Mo.banc 1999); State v. Weddle , 18 S.W.3d 389, 391 (Mo.App. 2000). In our review, we view the facts in the light most favorable to the trial court's ruling. Id. We also defer to the trial court's factual findings and credibility determinations and review only to determine if such are clearly erroneous. Id. at 391-92 . Whether the historical facts as found by the trial court add up to reasonable suspicion is a question of law that we review de novo. Id. at 392 .
In large measure, the facts of this case are not in dispute. On February 23, 2001, officer David Fajen ("Fajen") of the Warsaw, Missouri, police department was on patrol around 12:30 a.m. when he witnessed a white, Chevrolet pickup truck pull into the Eastgate Shopping Center. The truck pulled into the east side of the center, "then turned around and backed" into a parking space by the building, and the lights were turned off. Fajen began "watching the truck to see if there was any crime occurring or about to occur." None of the businesses in the shopping center were open at this time of night, but the front of the center was well illuminated. The illumination of the east side of the center (where the truck was parked) was described by Fajen as " ou can see visible. It's not dark but it's not, you know, it's not--I couldn't read under it I don't think." All of the entrances into the center were located at either the back or the front.
Fajen testified at trial that he watched the vehicle for approximately " two or three minutes," but at the suppression hearing he claimed he only watched it for "15, 20 seconds." No one exited the truck. Fajen claimed, "if there was going to be a crime I didn't know if they'd see me there. So I wanted to kind of get in a less-conspicuous location." Fajen changed his position which took " robably 15 to 20 seconds."
From his new location, Fajen could see one person sitting in the driver's seat of the truck. Fajen continued his surveillance for approximately five minutes. From the time the truck parked by the building until it exited the lot, Fajen saw no one exit the truck, nor did the vehicle move. At this point, "the truck turned its lights on and left the parking lot in a little bit of a hurry." The truck was not speeding or violating any traffic laws. Fajen admitted that the truck did nothing "unusual" at this time, but claimed the speed "was just a little, I don't know, excessive, maybe."
Fajen followed the truck and pulled it over as it turned onto an exit ramp for the highway. Fajen stated his sole reason for the stop was as follows: " I wanted to identify him, find out what he was doing in the parking lot at that hour, and at least to get a name in case a crime had been committed." Fajen approached the truck and asked for the driver's license and proof of insurance. Fajen also asked the driver what he was doing in the parking lot, an
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