                                         In the
                         Missouri Court of Appeals
                                  Western District
STATE OF MISSOURI,                           )
                                             )
                 Appellant,                  )   WD77869
                                             )
v.                                           )   OPINION FILED: May 5, 2015
                                             )
KRAIG J. WALKER,                             )
                                             )
                Respondent.                  )

                Appeal from the Circuit Court of Cole County, Missouri
                         The Honorable Patricia S. Joyce, Judge

     Before Division Three: Mark D. Pfeiffer, Presiding Judge, Gary D. Witt, Judge and
                              Anthony Rex Gabbert, Judge


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

Kraig J. Walker's ("Walker") motion to suppress physical evidence relating to possession

of a controlled substance with intent to distribute. The State argues that the trial court

erred in granting Walker's motion to suppress the evidence because the search of

Walker's vehicle was justified under the "automobile exception" to the warrant

requirement. The trial court found that the evidence should be suppressed under its

analysis of the "search incident to arrest" warrant exception. However, because the State

also argued that the search was lawful under the "automobile exception" but the trial
court failed to consider that argument, we reverse and remand for the trial court to

determine whether, under the facts, the officers had probable cause to search Walker's

automobile under the "automobile exception."

                                    Factual and Procedural History

        For purposes of this appeal, the facts, which are drawn largely from the

suppression hearing transcript and the trial court's order, are not in dispute.                              On

October 29, 2013, at 11:51 p.m., Sergeant Jason Payne ("Sergeant Payne") of the

Jefferson City Police Department was contacted by a local bail bondsman, Steve Smith

("Smith"), with the location of Damien Rotter ("Damien")1 who was wanted on a felony

warrant. Smith also informed Sergeant Payne that Damien was riding in a white Dodge

Charger. Sergeant Payne confirmed the felony warrant, proceeded to the location and

contacted Officer Zachary Kolb ("Officer Kolb") to request assistance.

        When Sergeant Payne located the white Charger, he witnessed it almost run into a

Chevy Suburban which was driven by Smith. Sergeant Payne activated his emergency

lights to conduct a traffic stop. As Sergeant Payne approached the four-door white

Charger, he noticed Damien trying to hide in the rear left side of the passenger

compartment. Sergeant Payne noticed the driver, Walker, had his hands down below the

steering wheel in an unusual fashion. Sergeant Payne announced that he was a police

officer and then began "screaming" that he was a police officer, but Walker's attention

appeared to be focused on Smith, who had gotten out of his vehicle. Sergeant Payne


        1
           We refer to Damien Rotter and Lindsay Rotter by their first names so as to distinguish them. No
disrespect or familiarity is intended.

                                                         2
drew his service weapon because he was in fear of what Walker was doing beneath the

steering wheel. Walker was pumping his arms up and down,2 and ignoring Sergeant

Payne, who continued to scream that he was a police officer and "show me your hands."

       At that time, Officer Kolb arrived at the scene. Sergeant Payne approached the

vehicle, and Officer Kolb removed Damien from the rear, passenger side of the vehicle,

placed him in handcuffs, and secured him in his patrol vehicle. Walker kept his hands

down until the Sergeant opened the car door and observed a gun on the floorboard at

Walker's feet. Sergeant Payne removed Walker from the vehicle and passed him to

Officer Kolb.

       Sergeant Payne went to the passenger side of the vehicle to remove the front

passenger, Lindsay Rotter ("Lindsay"), because he wanted to remove everyone from the

vehicle and move them away from the gun. When Sergeant Payne removed Lindsay

from the vehicle, he noticed she had a small baggie on her knee that was of the type the

sergeant commonly sees used as a package for narcotics. The package had white shards

that appeared to be methamphetamine. Although Lindsay was taken into custody, she

was released after refusing to give a statement and was never charged with a crime

arising from these events.

       Officer Kolb also noticed the handgun on the floorboard. He placed Walker in

handcuffs and passed Walker to a third officer so that he could assist Sergeant Payne in

removing Lindsay from the vehicle. Lindsay was removed from the vehicle and secured

in handcuffs.

       2
           The sergeant believed his movements were consistent with loading a gun.

                                                        3
         Officer Kolb retrieved the plastic bag containing residue. Officer Kolb then began

searching the interior of the car where the gun had been found "to see what else he would

have been trying to ditch down in between his feet." Nothing other than the gun and a

live bullet were found in the driver's side area of the vehicle.

         Officer Kolb searched the rest of the vehicle because of the apparent narcotics

found with Lindsay. The floorboards were the first place Officer Kolb searched because

"that's the easiest place for people to throw something down off their lap." On the

floorboards on the passenger side, Officer Kolb found "marijuana shake" or small

amounts of loose marijuana that appeared to have been spilled onto the floorboard. He

then opened the center console and found a larger Ziploc baggie full of smaller baggies

like the one located on Lindsay's lap. There were no controlled substances in those

baggies.

         Officer Kolb then searched the trunk. Inside was a black zip-up book bag. Inside

of that was a digital scale,3 a Ziploc bag full of marijuana, a glasses case that also

contained small baggies, and four individual baggies of marijuana inside of the large

Ziploc bag. Officer Kolb also found a large amount of cash on Walker's person but no

illegal substances.

         On April 1, 2014, the State filed an information charging Walker with the class B

felony of possession of a controlled substance with intent to distribute, in violation of




         3
           The testimony at the hearing appears to indicate the scales were found in the bag in the trunk; the motion
court's order found that they were in the console. We do not need to resolve this discrepancy to reach our decision
on this point.

                                                          4
Section 195.211.4 Walker filed a motion to suppress the physical evidence found within

the passenger compartment of the car and the trunk. At the suppression hearing, the State

argued that Walker's vehicle was lawfully searched under the "automobile exception" to

the warrant requirement. Walker argued that the search violated Arizona v. Gant, 556

U.S. 332 (2009), which addressed the application of the "search incident to arrest"

exception to the warrant requirement for a vehicle. In a written order, the trial court

agreed with Walker that the search violated Gant without analyzing whether the

"automobile exception" to the warrant requirement was applicable to the facts. The trial

court accordingly suppressed the evidence of marijuana seized from the floor of the

vehicle, the baggies, and the contents of the backpack.

                                            Standard of Review

       "At a hearing on a motion to suppress, '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. Williams, 382

S.W.3d 232, 234 (Mo. App. W.D. 2012) (citations omitted). We review a trial court's

ruling on a motion to suppress in the light most favorable to the ruling and defer to the

trial court's determinations of credibility. State v. Stover, 388 S.W.3d 138, 149 (Mo. banc

2012) (quoting State v. Schroeder, 330 S.W.3d 468, 472 (Mo. banc 2011)). Review is

limited to determining whether the decision is supported by substantial evidence. Stover,

388 S.W.3d at 149 (citation omitted). However, "[a]nalysis of whether conduct violates

the Fourth Amendment is an issue of law that this Court review de novo." Id. Put

       4
           All statutory references are to RSMo 2000 as currently supplemented unless indicated otherwise.

                                                         5
another way, "legal determinations of reasonable suspicion and probable cause are

reviewed de novo." Williams, 382 S.W.3d at 234 (internal citations and quotations

omitted).

                                          Analysis

       In its sole point on appeal, the State argues that the trial court erred in suppressing

the evidence, not under the confines of the "search incident to arrest" exception to the

warrant requirement set forth in Arizona v. Gant, 556 U.S. 332 (2009), but under the

"automobile exception" to the warrant requirement. The State appears to concede that the

search of Walker's vehicle was not valid under Gant but argues, as it did at the

suppression hearing, that the search falls instead within the "automobile exception," an

exception not addressed by the trial court. We hold that the trial court erred in failing to

consider the State’s argument that the search fell within the "automobile exception."

       The Fourth Amendment to the United States Constitution ensures the rights of

citizens to be free from unreasonable searches and seizures and requires that no warrant

shall issue except on probable cause supported by oath or affirmation.           The Fourth

Amendment applies to state actors through the Fourteenth Amendment.                  State v.

Lovelady, 432 S.W.3d 187, 190 (Mo. banc 2014) (citation omitted). Additionally, the

Missouri Constitution provides coextensive protection such that the same analysis applies

under both provisions. Lovelady, 432 S.W.3d at 190 (citation omitted); MO. CONST. ART.

I, § 15.

       "As a general rule, warrantless seizures are unreasonable and unconstitutional."

State v. Hillman, 417 S.W.3d 239, 247 (Mo. banc 2013) (citation omitted). However, "a

                                              6
warrantless search will not offend the Fourth Amendment if it was conducted pursuant to

a well-recognized exception." State v. Deaton, 395 S.W.3d 50, 54 (Mo. App. S.D. 2013)

(citation omitted). The "automobile exception" is such an exception. Id.

      "Under the automobile exception to the warrant requirement, police may search a

vehicle and seize contraband found if there is probable cause to believe that the vehicle

contains contraband and exigent circumstances necessitate the search."          State v.

Middleton, 995 S.W.2d 443, 458 (Mo. banc 1999) (citations omitted). "As a practical

matter, exigent circumstances exist whenever an automobile is involved; the mere

possibility that the vehicle can be moved is generally sufficient justification for a

warrantless search." Id. (citations omitted). "Probable cause to search an automobile

exists when objective facts, under the totality of the circumstances at the time of the

search, would lead a reasonably prudent individual to believe that contraband was located

in the automobile." State v. Irvin, 210 S.W.3d 360, 362 (Mo. App. W.D. 2006) (citing

State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990)). "In an automobile context,

probable cause to search exists 'when the facts and circumstances would lead a

reasonably prudent [person] to believe that the vehicle contains contraband.'" State v.

Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990), quoting U. S. v. Clark, 559 F.2d 420,

424 (5th Cir. 1977). See also Deaton, 395 S.W.3d at 54. Essentially, probable cause

requires a reasonable belief that it is more probable than not that the vehicle contains

illegal items. Milliorn, 794 S.W.2d at 183. "If probable cause justifies the search of a

lawfully stopped vehicle, it justifies the search of every part of the vehicle and its

contents that may contain the object of the search." State v. Lane, 937 S.W.2d 721, 722

                                           7
(Mo. banc 1997) (quoting U.S. v. Ross, 456 U.S. 798 (1982); additional citations

omitted).

       Here, the State argued that the search of Walker's vehicle was justified under the

"automobile exception" because the facts and circumstances would lead a reasonably

prudent person to believe that the white Charger contained contraband. In reviewing the

record and the trial court's order, we note that the trial court made no findings addressing

the credibility of the two officers, the only witnesses who testified at the suppression

hearing. The court extensively examined why the "search incident to arrest" exception

under Gant did not apply to the facts presented but failed to address whether the search

was valid under the distinct and separate "automobile exception" to the warrant

requirement.

       Viewing the totality of the circumstances surrounding the officers' encounter with

the vehicle through the lens of the "automobile exception," however, may yield a

conclusion that differed from the trial court’s application of the "search incident to arrest"

doctrine: Sergeant Payne activated his lights and conducted a traffic stop after witnessing

Walker's vehicle almost run into Smith's vehicle. Sergeant Payne then was faced with

Walker's failure to comply with numerous police orders "screaming" at Walker to show

his hands after viewing his suspicious arm movements. The sergeants' suspicion that

Walker had a gun was confirmed when they indeed found a gun lying at his feet on the

floorboard of his car. The officers also removed from the vehicle a person they had

confirmed had an outstanding felony warrant for his arrest, who had been attempting to

conceal himself in the back seat. When, for safety reasons, the officers removed the third

                                              8
person from the vehicle, they found evidence of suspected narcotics. In short, Walker's

near accident, his failure to comply with an officer's orders, his possession of a firearm

after he had been making pumping motions consistent with loading a gun, the presence of

a man with a felony warrant who was trying to hide in the back of his vehicle, and the

evidence of narcotics may support a finding of probable cause to search the white

Charger for weapons and drugs pursuant to the "automobile exception." While testimony

was presented to support each of these facts, we do not know if the trial court found the

testimony on each issue to be credible and persuasive.

      As noted above, it is the State's burden to produce evidence and it bears the risk of

nonpersuasion. The State must show by a preponderance of the evidence that the motion

to suppress should be overruled.      Williams, 382 S.W.3d at 234.        The trial court

overlooked consideration of the "automobile exception," thus, we cannot determine based

on this record whether the State met its burden of persuasion to establish by credible

evidence that this exception to the warrant requirement applies, making remand

appropriate.

      In so holding, we note that Gant did not eliminate the "automobile exception" to

the warrant requirement. While the Gant Court expressed some willingness to expand

privacy protection where the cause involves a search of a vehicle incident to arrest, the

Gant Court did nothing to limit the scope of a search under the "automobile exception" to

the warrant requirement. In fact, the Gant Court reconfirmed that "[i]f there is probable

cause to believe a vehicle contains evidence of criminal activity, United States v. Ross,

456 U.S. 798, 820–821, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), authorizes a search of

                                            9
any area of the vehicle in which the evidence might be found." Gant, 556 U.S. at 347.

Further, in refining the circumstances under which the "search incident to arrest"

exception can apply, the Gant Court held that police "may search a vehicle incident to a

recent occupant's arrest only if the arrestee is within reaching distance of the passenger

compartment at the time of the search or it is reasonable to believe the vehicle contains

evidence of the offense of arrest." Id. at 351. "When these justifications are absent, a

search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or

show that another exception to the warrant requirement applies." Id. (emphasis added).

In this case, we need not detail whether the exception explained in Gant would have

applied because the State appears to have conceded for purposes of this appeal that it did

not apply.

                                       Conclusion

      The judgment of the trial court is reversed and the cause is remanded for further

proceedings consistent with this opinion.



                                            __________________________________
                                            Gary D. Witt, Judge
All concur




                                             10
