                     In the Missouri Court of Appeals
                             Eastern District
                                         DIVISION FOUR

STATE OF MISSOURI,                             )       No. ED108332
                                               )
       Appellant,                              )       Appeal from the Circuit Court of
                                               )       Pike County
vs.                                            )       19PI-CR00044-01
                                               )
JEFFREY RANDALL LINDSAY,                       )       Honorable Patrick S. Flynn
                                               )
       Respondent.                             )       Filed: April 28, 2020


James M. Dowd, P.J., Gary M. Gaertner, Jr., J., and Robin Ransom, J.

                                             OPINION

                                            Introduction

       The State of Missouri appeals from the trial court’s order granting Respondent Lindsay’s

motion to suppress the evidence obtained as a result of a warrantless search of his vehicle, evidence

which formed the basis for the State’s charges against Lindsay of felony possession of over 35

grams of methamphetamine and felony intent to distribute. We reverse because while the facts

articulated by the arresting officer failed to justify a search of Lindsay’s vehicle for illegal drugs,

the facts articulated by the officer, that he was concerned for his personal safety, justified the

officer’s warrantless protective search for weapons inside Lindsay’s vehicle in all the same areas

of the vehicle where the drugs and drug-selling paraphernalia were found.
                                            Background

       On the evening of December 19, 2018 around 10:30 p.m., Lindsay was driving his pick-

up truck in Bowling Green, Missouri when Bowling Green police officer Samuel Zaerr noticed

Lindsay’s license plates were expired and stopped him. After Officer Zaerr approached the

vehicle and made contact with Lindsay through the driver’s side window, Lindsay gave Officer

Zaerr his driver’s license and admitted that his plates and his insurance were expired. Officer

Zaerr returned to his patrol vehicle to “run his license.” Lindsay remained in his vehicle.

       After the report came back that Lindsay was classified as a “Caution 1” which Officer

Zaerr understood to mean that Lindsay was known to be armed and dangerous, Officer Zaerr

“started recalling all the clutter he had inside of his truck and actually on the bed of the truck”

and the “safety hazard for [him] not being able to see what’s inside the vehicle, if there’s any

weapons. . .” Officer Zaerr testified that while he did not see any contraband, weapons, or

evidence of any illegal activity inside the vehicle, he did not feel safe in not being able to see

what was actually there.

       Then, Officer Zaerr approached Lindsay’s vehicle a second time and asked him for

consent to search it. Lindsay declined and, according to Officer Zaerr, he became agitated and

impatient with the request to search the vehicle and the length of the stop. Officer Zaerr asked

Lindsay to exit the vehicle and radioed for assistance to search the vehicle.

       Officer Zaerr escorted Lindsay back to his patrol vehicle and did a pat-down search of

Lindsay’s person. He testified the pat-down search was for his safety in light of the Caution 1

report received from dispatch. Officer Zaerr found a utility knife in Lindsay’s pocket. Also,

during the search, Lindsay became angry and repeatedly turned around to face Officer Zaerr

asking why he “was doing this,” so Officer Zaerr placed Lindsay in restraints.



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       Then, Sergeant Hipes and the K-9 unit arrived on scene and the K-9 “positive alerted” to

the driver’s and passenger’s side for some kind of controlled substance. Officer Zaerr then

searched the vehicle and found in the “driver’s side compartment” an empty pill bottle with a

white powdery substance inside. He found a pipe with residue in the front center console and in

the back seat on the driver’s side, Officer Zaerr “noticed a black Pelican case sitting in plain site”

inside of which were two bags containing a crystal-like substance and a black scale with what

appeared to be powder residue on it. The crystal-like substance tested positive for

methamphetamine. Officer Zaerr also found a large amount of cash on Lindsay’s person and in

the vehicle.

       The trial court granted Lindsay’s motion to suppress and explained its reasoning on the

record. For the court, the issue was whether Officer Zaerr had articulated sufficient facts to

demonstrate a reasonable suspicion that illegal drugs were present in Lindsay’s vehicle. And

since Officer Zaerr had not articulated any facts that supported a reasonable suspicion that illegal

drugs were in Lindsay’s vehicle, the search was not justified. The court emphasized that Officer

Zaerr did not smell drugs, had no prior information that Lindsay was engaged in drug

transactions, and did not suspect that Lindsay was under the influence of illegal drugs at the time

such as having glassy eyes or slurred speech or drug-induced agitation. This appeal follows.

                                        Standard of Review

       “A trial court's ruling on a motion to suppress may be reversed only if it is clearly

erroneous.” State v. Shaon, 145 S.W.3d 499, 504 (Mo. App. W.D. 2004). When reviewing a

trial court’s ruling on a motion to suppress, the appellate court limits its review to determining

whether there is substantial evidence to support the court’s decision and deference is given to the

trial court’s factual findings and credibility determinations. State v Whitaker, 101 S.W.3d 332,



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333 (Mo. App. E.D. 2003). “If the trial court's ruling ‘is plausible in light of the record viewed

in its entirety,’ this court ‘may not reverse it even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.’” State v. Kovach, 839 S.W.2d 303,

307 (Mo. App. S.D. 1992) (quoting State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990)).

Nevertheless, whether the Fourth Amendment was violated is a question of law that this Court

reviews de novo. State v. Holman, 502 S.W.3d 621, 624 (Mo. banc 2016).

                                      The Fourth Amendment

       The Fourth Amendment of the U.S. Constitution preserves the right of the people to be

secure from unreasonable searches and seizures. State v. Franklin, 841 S.W.2d 639, 641 (Mo.

banc 1992). A routine traffic stop based upon an officer's observation of a violation of state

traffic laws is a reasonable seizure under the Fourth Amendment. State v. Sund, 215 S.W.3d

719, 723 (Mo. banc 2007) (citing State v. Barks, 128 S.W.3d 513, 516 (Mo. banc 2004)).

“Miranda warnings are not necessary during questioning pursuant to a routine traffic stop

because traffic stops are analogous to a ‘Terry stop. 1’” State v. Schroeder, 330 S.W.3d 468, 473

(Mo. banc 2011) (citing Berkemer v. McCarty, 468 U.S. 420, 439-40 (1984)). “A reasonable

investigation may include ‘asking for the driver's license, requesting the driver to sit in the patrol

car, and asking the driver about his destination and purpose.’” Id. at 473-74 (quoting Barks, 128

S.W.3d at 517).




1
  In its landmark decision in Terry v. Ohio, 392 U.S. 1, 30 (1968), the United States Supreme
Court held that an officer may stop and briefly detain a person for questioning upon the officer’s
reasonable suspicion that the person may be connected with criminal activity. If the officer
articulates a reasonable suspicion that the person is armed and dangerous, the officer may
perform a limited search for weapons of the person. Id.
                                                  4
       1.      Fourth Amendment principles applicable to warrantless search of vehicle during

               routine traffic stop based on objectively reasonable suspicion the individual is

               involved in criminal activity.

       Once a traffic stop is complete, the law enforcement officer is required to allow the

person to “proceed without further questioning unless specific, articulable facts created an

objectively reasonable suspicion that the individual was involved in criminal activity.” Sund,

215 S.W.3d at 723. The existence of reasonable suspicion is determined objectively. State v.

Pike, 162 S.W.3d 464, 472 (Mo. banc 2005). The question is whether the facts available to the

officer at that moment would “warrant a [person] of reasonable caution to believe that the action

taken was appropriate[.]” Id. “Reasonable suspicion is a less stringent standard than probable

cause” and “may be established with information that is different in amount or content, or that is

less reliable, than the evidence required to establish probable cause.” Id. at 473. “The quantity

and quality of the information must be considered in the context of the ‘totality of the

circumstances'. . .” Id. “A suspicion is reasonable when the officer is ‘able to point to specific

and articulable facts which, taken together with rational inferences from those facts, reasonably

warrant that intrusion.’” State v. Hawkins, 137 S.W.3d 549, 557 (Mo. App. W.D. 2004) (quoting

Terry, 392 U.S. at 21). Nervousness, evasive and furtive actions, and the officer's knowledge of

the subject’s recent relevant criminal conduct are generally permissible components of

articulable suspicion. Id. at 558.

       2.      Fourth Amendment implications in warrantless search of vehicle during routine

               traffic stop based on officer’s reasonable suspicion driver poses danger to officer.

       The United States Supreme Court has recognized that investigative detentions involving

suspects in vehicles are especially fraught with danger to police officers. Michigan v. Long, 463



                                                 5
U.S. 1032, 1047 (1983). In Pennsylvania v. Mimms, 434 U.S. 106 (1977), the Court held that

police may order persons out of an automobile during a stop for a traffic violation, and may frisk

those persons for weapons if there is a reasonable belief that they may be armed and dangerous.

The Court rested its decision in part on the “inordinate risk confronting an officer as he

approaches a person seated in an automobile.” Id. at 110.

       In Chimel v. California, 395 U.S. 752 (1969), the Court addressed the limitations on

police authority when conducting a search incident to a valid arrest. Relying on Terry, the Court

held that when an arrest is made, it is reasonable for the arresting officer to search “the arrestee's

person and the area ‘within his immediate control’—construing that phrase to mean the area

from within which he might gain possession of a weapon or destructible evidence.” Id. at 763.

The Court reasoned that “[a] gun on a table or in a drawer in front of one who is arrested can be

as dangerous to the arresting officer as one concealed in the clothing of the person arrested.” Id.

The Court later held, in New York v. Belton, 453 U.S. 454, 460 (1981), that “articles inside the

relatively narrow compass of the passenger compartment of an automobile are in fact generally,

even if not inevitably, within ‘the area into which an arrestee might reach in order to grab a

weapon. . .’” (quoting Chimel, 395 U.S. at 763). The Court also held that the police may

examine the contents of any open or closed container found within the passenger compartment,

“for if the passenger compartment is within reach of the arrestee, so also will containers in it be

within his reach.” Belton, 453 U.S. at 460.

       In Long, the Court observed that its past cases indicate that the protection of police and

others can justify protective searches when police have a reasonable belief that the suspect poses

a danger if he were permitted to reenter his vehicle, that roadside encounters between police and

suspects are especially hazardous, and that danger may arise from the presence of weapons in the



                                                  6
area surrounding a suspect. 463 U.S. at 1049. These principles compel our conclusion that the

search of the passenger compartment of an automobile, limited to those areas in which a weapon

may be placed or hidden, is permissible if the police officer possesses a reasonable belief based

on “specific and articulable facts which, taken together with the rational inferences from those

facts, reasonably warrant” the officers in believing that the suspect is dangerous and the suspect

may gain immediate control of weapons. Id. (quoting Terry, 392 U.S. at 21). And in Terry, the

Court observed that “the issue is whether a reasonably prudent man in the circumstances would

be warranted in the belief that his safety or that of others was in danger.” 392 U.S. at 27.

       Our Supreme Court in State v. Waldrup, 331 S.W.3d 668, 675 (Mo. banc 2011),

recognized that the holding in Long extended the Terry principles “to the search of the interior of

the vehicle ‘if the police officer possesses a reasonable belief. . .the suspect is dangerous and the

suspect may gain immediate control of weapons.’” And if, while conducting a legitimate Terry

search of the interior of the automobile, an officer should discover contraband other than

weapons, he cannot be required to ignore the contraband, and the Fourth Amendment does not

require its suppression in such circumstances. State v. Preston, 861 S.W.2d 627, 631 (Mo. App.

E.D. 1993) (citing Long, 463 U.S. at 1050).

       3.      Our analysis.

       We begin our analysis by observing that the trial court found Officer Zaerr’s testimony to

be credible. Moreover, while we view Officer Zaerr’s conduct and testimony through the lens of

an objective and reasonable police officer, it bears mentioning that Officer Zaerr was a rookie

officer with about two months of experience.




                                                  7
       a. The initial stop.

       Since Lindsay’s plates were expired, Officer Zaerr’s initial routine traffic stop was a

“reasonable seizure under the Fourth Amendment.” Sund, 215 S.W.3d at 723. At that point,

Officer Zaerr had the authority to conduct a reasonable investigation which could properly

include asking Lindsay to exit the vehicle, asking Lindsay to enter the officer’s vehicle, asking

for Lindsay’s driver’s license, registration, and proof of insurance, and questioning Lindsay on

where he was coming from and where he was going. See Schroeder, 330 S.W.3d 468, 473-74.

But Officer Zaerr chose to proceed less intrusively. He conversed with Lindsay at the driver’s

side window and then returned to his police vehicle to “run” Lindsay’s driver’s license while

Lindsay remained in the vehicle.

       At that point, the circumstances changed. State v. Woods, 284 S.W.3d 630, 638 (Mo.

App. W.D. 2009) (officer was not limited to investigating traffic violations of driver). Officer

Zaerr received the report from dispatch that Lindsay was classified as a Caution 1 which meant

to Officer Zaerr that he was known to be armed and dangerous. 2 Officer Zaerr then added to that

data point his testimony regarding the considerable clutter he had observed inside Lindsay’s

vehicle during his first encounter with Lindsay. Moreover, he testified that Lindsay was agitated

and seemed to want Officer Zaerr to “rush through the stop.” As a result, Officer Zaerr “did not

feel safe in not being able to see what was actually inside the vehicle.”

       At this point of the stop, we find that the facts articulated by Officer Zaerr demonstrate

that he had a reasonable belief that Lindsay may have posed a danger to him through access to a

weapon from inside the vehicle. So, when Officer Zaerr made his second approach to the




2
 The only testimony in the record regarding the “Caution 1” report and its significance was from
Officer Zaerr.
                                                 8
vehicle, he could have asked Lindsay to exit the vehicle to allow him to perform a warrantless

sweep or search of Lindsay’s vehicle for the officer’s own protection in areas within the

immediate reach of Lindsay including any containers that might contain a weapon. See Belton,

453 U.S. at 460 and Chimel, 395 U.S. at 763.

       We further note that at this point in time, according to his testimony, Officer Zaerr had

only expressed concern for his own personal safety and had made no mention that he had any

concern or suspicion that Lindsay’s vehicle might contain any illegal drugs or evidence of some

other criminal activity.

       b. Officer Zaerr’s second approach to Lindsay’s vehicle.

       Officer Zaerr then approached Lindsay’s vehicle for the second time and asked Lindsay

to consent to a search of the vehicle. Again, we believe that Officer Zaerr had already articulated

sufficient facts that would have allowed him to perform a protective search of Lindsay and of the

vehicle. Instead, however, when Lindsay declined to consent to the search, Officer Zaerr asked

him to exit the vehicle and he performed a pat-down search which we also find to be appropriate.

When Lindsay repeatedly turned to face Officer Zaerr during the pat-down search and angrily

questioned what he was doing and why, Officer Zaerr put wrist restraints on Lindsay. We find

all this to be appropriate and reasonable given Officer Zaerr’s concerns for his safety and

especially since he was alone.

       c. Officer Zaerr’s call for back-up.

       The stop took another turn when Lindsay declined to consent to the search and Officer

Zaerr called for “assistance from Sergeant Hipes, who had the K-9 on duty that day.”

Unfortunately, it is unclear from the transcript whether Officer Zaerr specifically requested

assistance from the K-9 because he suspected Lindsay’s vehicle contained illegal drugs or



                                                 9
whether Officer Zaerr simply called for back-up and the back-up happened to include the K-9

unit. We note this because Officer Zaerr had not expressed any suspicion whatsoever regarding

illegal drugs in Lindsay’s vehicle or on his person for which Officer Zaerr might have

specifically requested a drug-sniffing K-9 unit.

       Regardless, Sergeant Hipes and the K-9 arrived and after acclimating the K-9 to the

scene, Sergeant Hipes conducted an exterior sweep of the vehicle and the K-9 alerted for illegal

drugs inside the passenger compartment of Lindsay’s vehicle. Officer Zaerr then searched the

passenger compartment and found the drugs and drug-selling paraphernalia at issue.

       d. The trial court’s order.

       We now turn to the trial court’s decision to suppress this evidence because the search was

unconstitutional in that Officer Zaerr failed to articulate sufficient facts to justify a reasonable

suspicion that Lindsay’s vehicle contained illegal drugs. In light of the above-referenced

authorities, e.g., Sund, 215 S.W.3d at 723, we agree with the trial court because Officer Zaerr did

not articulate any facts whatsoever that he suspected Lindsay’s vehicle to contain illegal drugs or

illegal drug activity. And if the record had stopped there, so would we.

       But the trial court’s narrow focus ignored the Fourth Amendment implications of Officer

Zaerr’s testimony that contained “specific and articulable facts which, taken together with the

rational inferences from those facts, reasonably warrant” the officer in believing that the suspect

is dangerous and may gain immediate control of weapons. Long, 463 U.S. at 1049 (quoting

Terry, 392 U.S. at 21). Specifically, Zaerr testified he was concerned for his safety due to

Lindsay’s agitation, anger, and impatience with the stop, the clutter throughout his vehicle, and

that he was known to be armed and dangerous.




                                                   10
       On this record and in light of the U.S. Supreme Court dictates from Terry and Long,

Officer Lindsay’s protective search for weapons that uncovered the methamphetamine and the

drug-selling tools readily passes Fourth Amendment muster under our de novo review. Holman,

502 S.W.3d at 624.

       Our only criticism of the trial court here is that it focused solely on whether the search

was justified to look for illegal drugs while ignoring Officer Zaerr’s testimony that justified the

search from a constitutional standpoint for the safety of the officer. Likewise, we are

unpersuaded that the involvement of the K-9 somehow stripped Officer Zaerr’s justified search

for weapons of its constitutional underpinnings. The areas of the passenger compartment of the

vehicle that Officer Zaerr testified he searched and found the evidence in question, would

encompass the areas he was allowed to search as part of a protective search for weapons. See,

e.g., Belton, 453 U.S. at 460 and Chimel, 395 U.S. at 763.

       Based on the foregoing, we find that Officer Zaerr discovered the drugs and drug-selling

paraphernalia pursuant to a legitimate Terry search, and therefore, Lindsay’s motion to suppress

should have been denied.

                                            Conclusion

       For the reasons set forth above, we reverse the trial court’s order suppressing the evidence

and remand for further proceedings.




                                                                                        _______
                                                              James M. Dowd, Presiding Judge

Gary M. Gaertner, Jr., J., and
Robin Ransom, J. concur.

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