           IN TH MIS
               HE SSOURI COUR OF A
                        I   RT    APPEAL
                                       LS
                   WESTER DIST
                   W    RN   TRICT
STATE OF MISSOURI,
      O                                 )
                                        )
             Respondent,                )
                                        )
      v.
       .                                )       76345
                                              WD7
                                        )
DANA M. HINDMA
     M       AN,                        )        nion filed: J
                                              Opin           June 17, 20
                                                                       014
                                        )
             Appellant.                 )


      PEAL FROM THE CIR
    APP               RCUIT COUURT OF CA ALDWELL COUNTY, MISSOUR
                                                               RI
                 The Honorable Daren L. A
                               D        Adkins, Jud
                                                  dge

               Be
                efore Divisio One: Jo
                            on        oseph M. El lis, Presidin Judge,
                                                              ng,
             Karen King Mitchell, Judge and Antho Rex Ga
                 n                              ony          abbert, Judg
                                                                        ge


      Dana Hindm
      D        man appea from he convictio in the Circuit Court of Cald
                       als     er        on                           dwell

County of one count of posse
                           ession of methamphet
                                     m        tamine with the intent to distribu §
                                                        h          t           ute,

195.211. For the fo
                  ollowing rea
                             asons, the judgment is affirmed.
                                        j         s

      At about 8:3 a.m. on October 21, 2012, Deputy De
      A          30      n         2                 ean Koch o the Lafay
                                                              of        yette

County Sheriff's Department saw a tan Chevy C
                 D                  n       Cavalier pu out from a gas station
                                                      ull      m

parking lot onto 13 Highway in Lafayette County. The licens plate on the car wa in
                  3                                       se       n          as

       ondition an appeared to have been tampe
rough co         nd       d         b        ered with. When he ran a chec on
                                                                         ck
the license plate number, Deputy Koch was informed that no such license plate was on

file. Deputy Koch turned on his lights and pulled the car over.

       Roger Moultrie was driving the car, and Appellant was in the passenger seat. As

he approached the car, Deputy Koch saw Appellant spray some type of cleaner on the

dashboard and start wiping it off. Both individuals appeared to be very nervous. Both

had hollowed-out, watery, glassy, and bloodshot eyes and sunken cheeks with

protruding cheekbones. Moultrie kept his hands on the steering wheel, stared straight

ahead, and remained silent. Deputy Koch asked Moultrie for his license and proof of

insurance, and he also asked Appellant for identification. Appellant stated that she

owned the car but that it was not insured. Moultrie and Appellant provided Deputy Koch

with their driver's licenses. Appellant started to make a call on her cell phone but was

asked to terminate the call by the deputy. Appellant told Deputy Koch that they had

driven to Kansas City to visit her children and had actually stopped at that same gas

station at about 7:30 p.m. the previous night.1 When the deputy noted that Appellant

hadn't spent much time with the children, Appellant stated that she had only needed to

see them for a little while.

       A check of the vehicle identification number indicated that it was not registered to

either Appellant or Moultrie. A check on Moultrie revealed that his driver's license had

been suspended and that there was a caution warning related to him based upon a

record of violence. Upon hearing that information from his dispatcher, Deputy Koch


1
 No evidence was introduced indicating where Appellant lived or wherefrom she and Moultrie claimed to
have driven to Kansas City or where currently heading.
                                                 2
asked Moultrie to get out of the vehicle. He then asked Moultrie for permission to

search his person for safety purposes, and Moultrie consented. During the search,

Deputy Koch found a hollowed-out pen in Moultrie's pocket. When questioned about

the pen, Moultrie eventually admitted that he used it to smoke the "speed" that was in

the coin pocket of his pants. Moultrie gave the officer permission to retrieve the "speed"

from his pocket. Deputy Koch pulled a small plastic baggie wrapped in aluminum foil

from Moultrie's pocket. The substance in the baggie appeared to be, and field testing

confirmed that it was, a small amount of methamphetamine.

      Deputy Koch asked Moultrie for permission to search the car, and Moultrie

consented.   Deputy Koch had Moultrie sit in his patrol car while he conducted the

search.

      Deputy Koch then asked Appellant to get out of the car and informed her that he

was going to search it. He also asked Appellant if any of the items in the car belonged

to her. Appellant got mad and upset and told Deputy Koch that she did not want him

searching her car but she did not claim ownership of any of the bags or other personal

items in the vehicle. Deputy Koch had Appellant sit on a guardrail as he conducted his

search.

      In an open tote bag on the floor of the back seat, Deputy Koch found female

clothing, other female items, and a coffee cup. Because the inside of the eight-inch tall

coffee cup was only three inches deep, Deputy Koch suspected that the cup had a false

bottom. When he removed the false bottom, Deputy Koch discovered 48.77 grams of


                                            3
methamphetamine inside the cup. In a pink "makeup bag"2 that was also in the back

seat, Deputy Koch found a baggie containing a small amount of methamphetamine.

When he searched the trunk, Deputy Koch found scales that tested positive for

methamphetamine residue and some pipes with methamphetamine residue in them.

He also found a red "makeup bag" that contained a small bag of methamphetamine.

After conducting his search of the vehicle, Deputy Koch placed Appellant and Moultrie

under arrest. When he searched Appellant's purse, Deputy Koch found $2,269.00 in

cash, mostly in small denominations.

       Appellant was subsequently charged in the Circuit Court of Lafayette County with

one count of class B felony possession of methamphetamine with intent to distribute.

After a change of venue to Caldwell County, Appellant filed a motion seeking to have

the evidence recovered during the search of the car suppressed. She claimed that she

owned the car and, therefore, had standing to challenge the search. She argued that

the deputy did not have valid consent to search the car because she, as the owner of

the car, expressly denied such consent and Moultrie did not have an ownership interest

in the vehicle. She further argued that the deputy lacked probable cause to justify a

search of her automobile and that no other exception to the warrant requirement was

applicable. Following a hearing on the motion, the trial court denied Appellant's motion

to suppress.



2
  With regard to the two "makeup bags" found in the car and searched by Deputy Koch, no makeup was
actually found inside those bags. The term simply reflects Deputy Koch's description of the type of bag
discovered and searched.
                                                  4
        Appellant was tried by jury and found guilty as charged. She was sentenced, in

accordance with the jury's recommendation, to a term of seven years imprisonment.

        In her sole point on appeal, Appellant contends that the trial court erred in

denying her motion to suppress evidence discovered during the search of the car and

subsequently admitting evidence and testimony related to the fruits of that search. She

claims that the search of the car violated her Fourth Amendment right to be free from

unreasonable search and seizure because the deputy did not have her consent to

conduct such a search.3

        "When reviewing the trial court's overruling of a motion to suppress, we consider

the evidence presented at both the suppression hearing and at trial to determine

whether sufficient evidence exists in the record to support the trial court's ruling." State

v. Loyd, 338 S.W.3d 863, 865 (Mo. App. W.D. 2011) (internal quotation omitted). "We

reverse the trial court's decision only if it was clearly erroneous." Id. In making that

determination, "[t]his Court defers to the trial court's factual findings and credibility


3
  In multifarious fashion, Appellant also contends that the evidence discovered in the search should have
been suppressed because Deputy Koch asked questions that were unrelated to the license plate
irregularities and which were, therefore, improper. Appellant fails to elaborate on what specific lines of
inquiry were inappropriate or why the asking of the questions somehow warrants the suppression of
physical evidence discovered in the vehicle during the search. More importantly, Appellant failed to
challenge the reasonableness of the detention or the deputy's questioning of Moultrie and/or herself at the
trial court level, and she advances these arguments for the first time on appeal. She did not object below
to any testimony related to the questions asked by Deputy Koch or the answers provided thereto.
Accordingly, even if the nature of her argument could be discerned, no claim related to the
reasonableness of the detention or the nature of the officer's questions has been preserved for appellate
review. State v. Overton, 261 S.W.3d 654, 667 (Mo. App. S.D. 2008). "'The defendant is bound by the
arguments made and the issues raised at trial and may not raise new and totally different arguments on
appeal.'" State v. Pesce, 325 S.W.3d 565, 573 (Mo. App. W.D. 2010) (quoting State v. Winfield, 5
S.W.3d 505, 515 (Mo. banc 1999)). We gratuitously note, however, that nothing in the record reflects that
the deputy's detention of Moultrie and Appellant or his questioning of them exceeded the bounds of
propriety under the circumstances presented.
                                                    5
determinations, and considers all evidence and reasonable inferences in the light most

favorable to the trial court's ruling." State v. Pesce, 325 S.W.3d 565, 569 (Mo. App.

W.D. 2010) (internal quotation omitted). But we review de novo whether the Fourth

Amendment was violated under the facts of the case.         Loyd, 338 S.W.3d at 865.

Where, as here, specific findings and conclusions were not made, the trial court's ruling

will be affirmed on any reasonable basis supported by the record. State v. Foster, 392

S.W.3d 576, 578-79 (Mo. App. S.D. 2013).

      "The Fourth Amendment to the United States Constitution guarantees that '[t]he

right of the people to be secure in their persons, houses, papers and effects against

unreasonable searches and seizures shall not be violated.'"       State v. Faruqi, 344

S.W.3d 193, 204 (Mo. banc 2011).      "Article I, section 15 of the Missouri Constitution

provides the same guarantees against unreasonable search and seizures; thus, the

same analysis applies to cases under the Missouri Constitution as under the United

States Constitution." State v. Oliver, 293 S.W.3d 437, 442 (Mo. banc 2009).

      "Generally, subject to certain exceptions, warrantless searches and seizures are

deemed per se unreasonable." Loyd, 338 S.W.3d at 865. "In determining whether or

not an exception applies to the search at hand, we consider what the officer had reason

to believe at the time of his search." State v. Breese, 250 S.W.3d 413, 418 (Mo. App.

S.D. 2008).

      "Consent searches are a valid exception to the warrant requirement of the Fourth

and Fourteenth Amendments." State v. Woolfolk, 3 S.W.3d 823, 831 (Mo. App. W.D.

1999). "An officer may at any time ask a citizen whether he has contraband in his car
                                         6
and may ask for permission to search; if consent is given without coercion, the

subsequent search is not prohibited by the Fourth and Fourteenth Amendments." Id.

Deputy Koch asked for and received permission from Moultrie, the driver of the car, to

conduct a search of the vehicle.4 Contrary to Appellant's assertion on appeal, a non-

owner driver of a vehicle has sufficient authority to grant valid consent to search the

vehicle. United States v. Thomas, 93 F.3d 479, 486 (8th Cir. 1996); United States v.

Jaras, 96 F.3d 764, 766 (5th Cir. 1996); United States v. Crain, 33 F.3d 480, 484 (5th

Cir. 1994), cert denied, 115 S.Ct. 1142 (1995).

         Even assuming, arguendo, that Appellant's alternative argument is correct and

that a car owner passenger's express denial of consent to search the car overrides

consent granted by a driver with no ownership interest in the vehicle, Appellant's

argument presupposes that ownership of the car was conclusively proven. Indeed,

proof of Appellant's ownership interest in the car was necessary for her to even clear

the initial hurdle to her motion to suppress – the establishment of standing to challenge

the validity of the search.          "[T]he 'capacity to claim the protection of the Fourth

Amendment depends . . . upon whether the person who claims the protection of the

Amendment has a legitimate expectation of privacy in the invaded place.'" State v.

Brown, 382 S.W.3d 147, 157 (Mo. App. W.D. 2012) (quoting Rakas v. Illinois, 439

U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). While the State has the burden of

production and persuasion to show by a preponderance of the evidence that the

defendant's motion to suppress should be denied, the defendant bears the initial,

4
    Appellant makes no claim that Moultrie's consent was in any way coerced.
                                                    7
threshold burden of proving that she has been aggrieved by the search or, stated

another way, that she has standing to challenge the search by demonstrating that she

had a legitimate expectation of privacy in the place or thing that was searched.5 State

v. Woodrome, 407 S.W.3d 702, 709 n.3 (Mo. App. W.D. 2013).

        A mere passenger with no ownership interest in an automobile generally lacks

the requisite standing to challenge a search of the vehicle on Fourth Amendment

grounds.6 State v. Shoults, 159 S.W.3d 441, 445 (Mo. App. E.D. 2005). Something

more than permissive presence in the automobile is required to establish a legitimate

expectation of privacy in the vehicle.

        The only basis upon which Appellant claimed standing to challenge Deputy

Koch's search of the car was her assertion of ownership of that vehicle. The only

evidence presented by Appellant in support of her claim of ownership was her own, self-

serving testimony that she was the sole owner of the car. The trial court was not

required to accept that testimony as credible, and this Court must defer to the credibility

determinations of the trial court. Pesce, 325 S.W.3d at 569. Indeed, evidence was

introduced indicating that the car was not registered to Appellant or insured by her, and


5
  Appellant has only asserted that she has a legitimate expectation of privacy in the car. She has never
asserted any ownership or privacy interest in any of the various bags or items contained within the car. "It
is well settled, as to Fourth Amendment standing, that a defendant can have a legitimate expectation of
privacy in personal items regardless of location." State v. Ramires, 152 S.W.3d 385, 400 (Mo. App.
W.D. 2004).
6
  A passenger may, however, challenge the propriety of his or her detention and seek to have suppressed
evidence obtained as a result of their unconstitutional seizure. State v. Shoults, 159 S.W.3d 441, 445
(Mo. App. E.D. 2005); see also United States v. Ellis, 497 F.3d 606, 612 (6th Cir. 2007) ("A passenger in
a vehicle ordinarily has no expectation of privacy in the vehicle, and thus does not have standing to
challenge the validity of consent given by a driver of the vehicle. . . . However, courts have distinguished
standing to challenge consent from standing to challenge evidence discovered as fruit of an unlawful
detention.") (internal quotation omitted).
                                                     8
Appellan did not submit into evidence a bill of sa title, or any other documentation
       nt        s                               ale,      r

reflecting that she had an ow
                            wnership interest in the vehicle. The trial co
                                                   e                     ourt was simply

not requ
       uired to, an presuma
                  nd      ably did not believe A
                                     t,        Appellant's testimony t
                                                                     that she ow
                                                                               wned

the car. Viewing th record in the light most favora
                  he        n           m         able to the trial court's ruling, the trial
                                                                          s           e

       ould reason
court co         nably have determined that Appe
                                     d         ellant failed to prove t
                                                           d          that she ha an
                                                                                ad

ownersh interest in the car and that she, therefo
      hip                                       ore, lacked standing to challenge the
                                                                      o         e

search on Fourth Amendmen grounds and, furthermore, sh lacked a
       o                nt                           he       any authori to
                                                                        ity

grant or refuse con
                  nsent to sea
                             arch the veh
                                        hicle.

       For the fore
       F          egoing reasons, the trial court's denial of the motio to supp
                                                  s         f         on      press

cannot be deemed clearly erro
       b                    oneous. Th judgmen is affirme
                                     he      nt         ed.




                                                 ___
                                                   ___________________
                                                                     __________
                                                                              ____
                                                 Jose M. Ellis Judge
                                                    eph      s,
All concur.




                                             9
