                                          In the
                        Missouri Court of Appeals
                                  Western District
 STATE OF MISSOURI,                            )
                                               )
                 Appellant,                    )   WD82550
                                               )
 v.                                            )   OPINION FILED: July 30, 2019
                                               )
 DAWN GOUCHER,                                 )
                                               )
               Respondent.                     )

              Appeal from the Circuit Court of Henry County, Missouri
                        The Honorable James K. Journey, Judge

 Before Special Division: Zel M. Fischer, Special Judge, Presiding, Gary D. Witt, Judge
                           and Thomas N. Chapman, Judge


       The State brings this interlocutory appeal, challenging the trial court's grant of Dawn

Goucher's ("Goucher") motion to suppress her statement to law enforcement and seizure

of physical evidence relating to a charge of possession of a controlled substance. The State

argues that the trial court erred in granting Goucher's motion to suppress because Goucher's

statement to law enforcement was made voluntarily and not during a custodial

interrogation. Further, the State argues that the trial court erred in granting Goucher's

motion to suppress physical evidence based on an unreasonable search because Missouri
State Highway Patrol Trooper Dodson ("Trooper Dodson") had reasonable suspicion to

continue the traffic stop and search Goucher's purse subsequent to a lawful stop of a vehicle

in which she was a passenger. We affirm.

                                               Statement of Facts

         On September 16, 2017, Goucher was a passenger in a motor vehicle that was owned

by Goucher's mother, who was not present. The vehicle was driven by Eric Ingaman

("Driver"). Trooper Dodson initiated a traffic stop of the vehicle for allegedly failing to

have a properly functioning rear license plate light and, after following the vehicle, for

traveling briefly over the fog line on the right side of the roadway. Upon initial contact,

Trooper Dodson obtained identification from both occupants of the vehicle, removed the

Driver from the vehicle and had him sit in the passenger seat of his patrol vehicle. Another

officer, Deputy Swindell, was on patrol when he observed Trooper Dodson making the

traffic stop and pulled over to assist the Trooper. Deputy Swindell exited his patrol car and

stood by the side of the vehicle while Trooper Dodson questioned Driver in his vehicle.

         When Trooper Dodson informed Driver that the reason for the stop was the license

plate light, Driver informed him that it was probably just dirty because Goucher lived on a

gravel road. Trooper Dodson acknowledged that, when he came up behind the car, he

noticed the car was very dirty.1 Trooper Dodson told Driver he would write him a couple

of warnings regarding the traffic issues. While in the patrol car, Trooper Dodson asked

Driver if there was any illegal contraband in the car, to which Driver responded that, to his


         1
           It is unclear on the video recording of the incident if the license plate light was functioning because of the
bright lights of the patrol car reflecting off of the license plate.

                                                            2
knowledge, there was none.        Trooper Dodson then asked Driver if he could have

permission to search the vehicle, to which Driver said it was not his car so he could not

give permission. Driver informed him that the car belonged to Goucher.

       The insurance provided to Trooper Dodson by Goucher was expired. He left Driver

in the patrol car and approached the passenger side of the vehicle to ask Goucher if she had

current proof of insurance. When Trooper Dodson made contact with Goucher he noticed

that she spoke quickly and that the appearance of her face at the time of the traffic stop was

more "sunken in" than it appeared on her driver's license photograph. Goucher informed

Trooper Dodson that she was unable to locate current proof of insurance but offered to call

her mother, who was the actual owner of the vehicle, to obtain the current insurance.

Trooper Dodson told her not to worry about it because he did not want to wake her mother

since it was past midnight. He informed her that he was not concerned about the insurance.

Trooper Dodson then asked if he could search the car. Goucher asked Trooper Dodson if

he was going to tear up the car. Trooper Dodson said he would not as it was not his

property. Trooper Dodson then asked again if he could search the car, to which Goucher

assented.

       Approximately fifteen minutes after the initial stop of the car, Trooper Dodson

instructed Goucher to get out of the car and leave her purse in the car so he could search

both. Goucher refused to give permission for Trooper Dodson to search her purse and

stated this was due to the presence of personal items. Trooper Dodson continued to ask

Goucher to get out of the vehicle and leave the purse. Goucher continued to refuse to let

Trooper Dodson search her purse. Goucher eventually exited the vehicle with her purse.

                                              3
Trooper Dodson then instructed Goucher to put her purse on the top of the car. Goucher

continued to refuse to let go of her purse and allow Trooper Dodson to search it. Trooper

Dodson ordered Goucher to move to the back of the vehicle, put her purse on the trunk,

and then lean back against hood of his patrol car. She complied.

       Trooper Dodson went to his patrol car and retrieved gloves in order to perform the

search. Trooper Dodson picked up the purse and asked if there is anything illegal in the

purse. Goucher did not respond. Trooper Dodson told Goucher he appreciates honesty

and will be more helpful to her if she is honest. Trooper Dodson again asked while holding

her purse with his hand partially inside if she had any illegal substances in the purse. After

additional pressure from Trooper Dodson, Goucher told him she had a "little bit of meth."

At no time up to this point had Goucher been given her Miranda2 rights. Trooper Dodson

then searched the contents of the purse and found the methamphetamine inside a makeup

case within the purse. Goucher was placed under arrest approximately 20 minutes after the

stop began.

       Goucher was charged with felony possession of a controlled substance and the

misdemeanor of unlawful possession of drug paraphernalia (a cut off straw was also found

in the purse). Goucher filed a motion to suppress evidence, requesting the trial court to

suppress her statements to Trooper Dodson regarding the presence of drugs within the

purse as well as to suppress the contraband found in her purse. On October 18, 2018, the

trial court heard evidence in a suppression hearing. At the hearing, Trooper Dodson



       2
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

                                                        4
testified and the State provided the dash cam video of the traffic stop. Deputy Swindell

was not called as a witness. Goucher testified on her own behalf.

       On December 10, 2018, the trial court granted Goucher's motion to suppress as to

both the statements and the items seized. The trial court found, as set forth in its order:

              According to the [Arresting Officer], his suspicions of illegal activity
       were aroused by the car's single swerve to the right, Defendant's appearance
       was different from her driver's license photo, and because Defendant talked
       fast.
              The Court finds that the search of Defendant's purse was unreasonable
       under the circumstances. There was no objective indicia of presently
       occurring illegal activity by the Defendant or the driver of the vehicle in
       which she was the occupant. There was no smell of drugs or alcohol. There
       was no plain view of paraphernalia or items commonly associated with drug
       use. While the questioning of the driver resulted in his admission that he had
       been on probation for drug charges there was nothing indicating present drug
       use. While the officer may have believed that Defendant's appearance and
       her speech patterns resulted from drug use, there is no corroborating
       objective facts to support a reasonable belief of present drug use or that she
       was possessing contraband.
              Defendant's motion to suppress is sustained.

                                   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). Our "review is

limited to a determination of whether the trial court's ruling is supported by sufficient

evidence from the record as a whole." Id.

       In reviewing a trial court's order on a motion to suppress, this court considers
       all facts and reasonable inferences in the light most favorable to the
       challenged order. The appellate court must defer to the trial court's
       determination as to the credibility of witnesses. This court may not substitute
       its discretion for that of the trial court when reviewing an order suppressing
       evidence. Nonetheless, this court must consider the ruling in light of the
       proper application of the precepts of the Fourth Amendment. The ultimate


                                              5
       issue of whether the Fourth Amendment was violated is a question of law
       which this court reviews de novo.

Id. (internal citations and quotation marks omitted). "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)). "The trial court was free to disbelieve

any of the state's proof, even if uncontradicted." State v. Foster, 392 S.W.3d 576, 578 (Mo.

App. S.D. 2013).

                                           Analysis

       The State raises two points on appeal. In the State's first point on appeal, the State

argues that the trial court erred in sustaining Goucher's motion to suppress to the extent it

suppressed Goucher's statement to Trooper Dodson because Goucher's statement was made

voluntarily and not during a custodial interrogation. In the State's second point on appeal,

the State argues that the trial court erred in sustaining Goucher's motion to suppress the

physical evidence based on an unreasonable search because Trooper Dodson had

reasonable suspicion to continue the traffic stop and search Goucher's purse subsequent to

a lawful stop of a vehicle for which she was a passenger.

                                          Point One

       In the State's first point on appeal, the State argues that the trial court erred in

granting Goucher's motion to suppress to the extent it suppressed Goucher's statement to

Trooper Dodson because Goucher's statement was made voluntarily and not during


                                               6
custodial interrogation.    The State argues that Goucher's statement that there was

methamphetamine inside her purse was made during the course of Trooper Dodson's traffic

stop of a vehicle of which Goucher was a passenger and that Trooper Dodson had been

granted voluntary permission to search the vehicle. The State argues that Goucher's

consent to search the vehicle naturally prolonged the length of the stop, and when she

admitted to having methamphetamine she was not in custody because she was not

handcuffed, restrained by force or threatened.

       "A routine traffic stop based on the violation of state traffic laws is a justifiable

seizure under the Fourth Amendment." State v. Stoebe, 406 S.W.3d 509, 516 (Mo. App.

W.D. 2013). "Miranda warnings are not necessary during questioning pursuant to a routine

traffic stop because traffic stops are analogous to a 'Terry stop.'" State v. Schroeder, 330

S.W.3d 468, 473 (Mo. banc 2011) (citing Berkemer v. McCarty, 468 U.S. 420, 439-40

(1984)). However, "[r]oadside detention may only last for the time necessary to conduct a

reasonable investigation" of the reasons for the stop. Schroeder, 330 S.W.3d at 473. "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 State v. Barks, 128 S.W.3d 513, 517 (Mo. banc 2004)). "The officer must

release the motorist unless the responses create probable cause." Id. at 474. "An officer

may continue to detain the individual beyond the time period necessary to investigate the

traffic violation if the officer develops 'reasonable and articulable grounds for suspicion of

illegal activity' based on the behavior and responses of the individual during the traffic

stop." State v. Stover, 388 S.W.3d 138, 149 (Mo. banc 2012).

                                               7
          In State v. Stoebe, the Officer initiated a traffic stop of Stoebe's vehicle due to the

rear license plate light "failing to illuminate the registration at a distance of fifty feet or

more…[a]nd the registration was also covered by dirt, which was making it obstructed to

where I couldn't view it." 406 S.W.3d 509, 511-12. The Officer had Stoebe sit in the patrol

car with him while he ran her information through MULES 3 and asked her if there was

anything illegal in the vehicle, to which she responded that there shouldn't be. Id. at 512.

The Officer testified that he thought Stoebe was nervous and it was not "regular

nervousness." Id. The Officer asked Stoebe for permission to search the vehicle but Stoebe

did not answer the question directly. Id. Stoebe did give the Officer consent to search her

purse. Id. When the Officer searched Stoebe's purse he found an Oxycodone prescription

bottle, which was prescribed to another person. Id. at 513. This Court found that the record

contained no evidence "from which a conclusion can be drawn as to the timing of Stoebe's

purported consent and the completion of the reasonable investigation into the traffic stop"

and therefore, "the State did not establish that Stoebe's consent to search the purse was

secured during the reasonable investigation of a traffic violation." Id. at 519-20.4

          In the case at bar, the State failed to establish that Trooper Dodson's questions as to

what Goucher had in her purse were within the scope of the investigation of the traffic

violations. The original stop involved a lack of a properly functioning rear license plate


          3
              Missouri Uniform Law Enforcement System, a statewide database maintained by the Missouri Highway
Patrol.
          4
            See also State v. Vogler, 297 S.W.3d 116 (Mo. App. S.D. 2009) (holding that a driver was illegally
detained after a traffic stop concluded and the fruits of an illegal search suppressed when he consented to a search
after he had already been informed he would not receive a ticket and had received his license back after a radio
check); State v. Weddle, 18 S.W.3d 389 (Mo. App. E.D. 2000) (holding that a driver did not feel free to leave and
the fruits of the search were found to be in violation of the Fourth Amendment when the driver consented to a search
after he was determined to not be intoxicated and the warrant check came back clean).

                                                         8
light and crossing the fog line. Goucher was not the driver of the vehicle. The reasonable

time necessary to conduct an investigation of those traffic matters expired when Trooper

Dodson informed Driver that he intended to give him a warning for those violations.

However, Trooper Dodson still had cause to further investigate the automobile insurance

issue. He approached Goucher and asked if she had current proof of insurance. When

Goucher informed Trooper Dodson that she could not locate the current insurance card but

would contact her mother (the actual owner of the automobile) to get the proper insurance

information, Trooper Dodson informed her not to call her mother as it was after midnight

and he didn't want her to wake her mother up. He then informed her that he was not

concerned about the insurance issue. At this point the reasonable investigation of each and

every offense identified by Trooper Dodson had concluded. See Stoebe, 406 S.W.3d at

520. It was at this point in time that he first began to request Goucher's permission to

search the vehicle. Asking Goucher about drug usage and whether her purse contained

illegal substances was outside the scope of the investigation of the traffic stop. A finding

that the consent to search was only obtained after the reasonable time for the investigation

of the traffic stop had concluded is supported by the evidence.

       Further, there was nothing in the record establishing that Officer Dodson had a

reasonable suspicion that Driver or Goucher was engaged in any current criminal activity

beyond the traffic stop. As the trial court found, the only evidence Officer Dodson testified

to in support of a reasonable suspicion of current criminal activity are that Goucher spoke

quickly and her face appeared more sunken in than in her driver's license photo. Speaking

quickly is commonly associated with nervousness. Nervousness alone does not give rise

                                             9
to a reasonable suspicion. Barks, 128 S.W.3d 513 (holding that after the completion of a

traffic stop, nervousness of the driver did not give rise to reasonable suspicion sufficient to

allow the officer to ask if there was anything illegal in the vehicle). "The basis for the

reasonable suspicion must arise within the perimeters of the traffic stop itself; suspicions

based upon answers to questions asked after the stop is completed are irrelevant to the

determination of whether specific, articulable facts supported a reasonable suspicion of

criminal activity and provided a justification for further questioning once the traffic stop

was completed." State v. Granado, 148 S.W.3d 309, 312 (Mo. banc 2004). Therefore, any

response Goucher provided after the completion of the traffic stop is irrelevant to

determining if there was reasonable suspicion, and her quick talking does not alone create

reasonable suspicion. A finding that this was nothing more than a "fishing expedition" in

hopes of finding illegal drugs is supported by the record.

       The State failed to present evidence that the questions regarding drug use and the

search of the contents of her purse were within the scope of the traffic investigation. The

State further failed to present evidence that Officer Dodson had reasonable suspicion of

criminal activity which arose during the reasonable period for the traffic investigation. We

are not left with a strong feeling that the trial court clearly erred in suppressing Goucher's

statement as there was sufficient evidence that the statement was made in response to

questioning outside the scope of the traffic stop. Point One is denied.

                                         Point Two

       In the State's second point on appeal, it argues that the trial court erred in granting

Goucher's motion to suppress the physical evidence based on an unreasonable search

                                              10
because Trooper Dodson had reasonable suspicion of criminal activity justifying him to

continue the traffic stop and search Goucher's purse subsequent to a lawful stop of a vehicle

in which she was a passenger. The State argues that Goucher's statement and Trooper

Dodson's observation of Goucher's behavior created reasonable suspicion to continue the

traffic stop and search Goucher's purse.

       "The Fourth Amendment to the United States Constitution guarantees the right of

all citizens to be free from unreasonable searches and seizures." Barks, 128 S.W.3d at 516.

"Enforced pursuant to the exclusionary rule, the protections of the Fourth Amendment have

been extended via the Fourteenth Amendment to defendants in state court prosecutions."

Stoebe, 406 S.W.3d at 515. "Warrantless searches or seizures are per se unreasonable

unless there are special circumstances which excuse compliance with federal and state

warrant requirements." Id. (quoting State v. Hensley, 770 S.W.2d 730, 734 (Mo. App. S.D.

1989)). "The burden falls on the State to justify [the] warrantless search or seizure." Id. at

514. "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." State v. Weedle, 18 S.W.3d 389, 391 (Mo. App. E.D. 2000).

       "In determining whether the seizure and search were unreasonable, the court must

determine 'whether the officer's action was justified at its inception, and whether it was

reasonably related in scope to the circumstances which justified the interference in the first

place." Id. at 393. "Constitutionally sound probable cause is not dependent upon the

subjective intentions of the officer.      'Subjective intentions play no role in ordinary,

probable-cause Fourth Amendment analysis.'" State v. Lane, 937 S.W.2d 721, 723 (Mo.

                                              11
banc 1997) (quoting Whren v. United States, 517 U.S. 806, 813 (1996)). "Whether

'reasonable suspicion' exists depends on the totality of the circumstances." State v. West,

58 S.W.3d 563, 568 (Mo. App. W.D. 2001). "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.'" Id. (quoting State v.

Lasley, 583 S.W.2d 511, 518 (Mo. banc 1979) (abrogated on other grounds)). The standard

is "whether the facts available to the officer at the moment of the seizure warrant a person

of reasonable caution in the belief that the action taken was appropriate." Lasley, 583

S.W.2d at 518. "Officers may detain travelers involved in routine traffic stops for matters

unrelated to the traffic violation if they have reasonable and articulable grounds for

suspicion of illegal activity." State v. Waldrup, 331 S.W.3d 668, 674 (Mo. banc 2011)

(internal quotation marks omitted).

       Trooper Dodson testified that he noticed that Goucher was speaking quickly and her

face seemed to be sunken when compared to her driver's license photo. As discussed in

Point One, this is not sufficient reasonable suspicion to believe that criminal activity is

currently occurring and therefore justifying a nonconsensual search of Goucher's purse.

See e.g., Barks, 128 S.W.3d at 517; Granado, 148 S.W.3d at 312. The trial court detailed

each fact known to the officer at the time he began his nonconsensual search of the purse

and specifically found there were insufficient grounds to establish a reasonable belief of

current criminal activity.

       The State argues that Trooper Dodson had reasonable suspicion sufficient to search

Goucher's purse. However, Goucher had a right to privacy regarding the contents of her

                                            12
purse and she was adamant in protecting that right. A citizen's denial of a request by law

enforcement to search an item or place cannot be used to support a finding of reasonable

suspicion. State v. Woolfolk, 3 S.W.3d 823, 830 (Mo. App. W.D. 1999) ("Nor may the

officer use a driver's refusal to consent to a voluntary request to search a vehicle as support

of the requisite reasonable suspicion to support the search.") (internal quotation omitted).

To hold otherwise, would create a body of law that anytime a law enforcement officer

requested permission to search a place or item and consent was refused, the officer would

thereby automatically have grounds to search, thereby eliminating any constitutional right

to privacy. Goucher's consent to search the car did not include her purse and she made

specifically clear that she did not want her purse searched due to personal items contained

therein. Goucher is allowed to restrict her consent to search the car to exclude her purse.

See State v. Burkhardt, 795 S.W.2d 399, 406 (Mo. banc 1990) ("The consensual search of

the car itself was proper though defendant's consent was restricted by her statement that

the luggage not be searched.").

       The State attempts to argue that Goucher's consent to the search of the vehicle

constituted a voluntary extension of the traffic stop and therefore the subsequent admission

by Goucher of the presence of illegal drugs in her purse was admissible. However, our

Supreme Court has noted that once the initial traffic stop was completed without there

being reasonable grounds to believe there is current illegal activity, any further questioning

is the result of an illegal seizure and detention of the person. State v. Banks, 128 S.W.3d

513, 517 (Mo. banc 2004). "The basis for the reasonable suspicion must arise within the

perimeters of the traffic stop itself; suspicions based upon answers to questions asked after

                                              13
the stop is completed are irrelevant to the determination of whether specific, articulable

facts supported a reasonable suspicion of criminal activity and provided a justification for

further questioning once the traffic stop was completed." Granado, 148 S.W.3d at 312.

Evidence obtained by the exploitation of an illegal detention is inadmissible and cannot

create the reasonable suspicion of criminal activity to justify the search. Id.; Banks at 517.

Trooper Dodson's request to search the vehicle did not occur until after the traffic stop was

completed and was thus also obtained by the exploitation of an illegal detention.

       As    discussed    in   Point   One,      Goucher's   statement   regarding    having

methamphetamines in her purse and consent to search the vehicle were both outside the

scope of the traffic investigation and therefore are not admissible and cannot provide

reasonable suspicion of criminal activity. The State failed to meet its burden that there was

reasonable suspicion of criminal activity sufficient to justify the search of Goucher's purse.

The trial court did not err in suppressing the physical evidence found in Goucher's purse.

Point Two is denied.

                                        Conclusion

       The trial court's judgment is affirmed.


                                           __________________________________
                                           Gary D. Witt, Judge

All concur




                                              14
