                                         In the
                        Missouri Court of Appeals
                                 Western District
 STATE OF MISSOURI,                           )
                                              )
               Respondent,                    )   WD79095
                                              )
 v.                                           )   OPINION FILED: October 4, 2016
                                              )
 JEFFREY C. McCARTY,                          )
                                              )
                Appellant.                    )

               Appeal from the Circuit Court of Cole County, Missouri
                       The Honorable Thomas Sodergren, Judge

 Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge
                             and Gary D. Witt, Judge


       Jeffrey McCarty ("McCarty") appeals from the trial court's judgment convicting him

of misdemeanor possession of an intoxicating liquor by a minor. McCarty argues that the

trial court erred in overruling his motion to suppress evidence discovered through a traffic

stop. McCarty claims that the evidence should have been suppressed because it was

obtained following an investigatory traffic stop that was unsupported by reasonable

suspicion that McCarty was involved in illegal activity. McCarty also contends that the
State failed to prove an essential element of the charged offense because the evidence

offered to prove his age at the time of the offense was inadmissible. We reverse.

                          Factual and Procedural Background

       At approximately 4:30 a.m. on April 12, 2014, Corporal Arthur Brown ("Corporal

Brown") of the Cole County Sheriff's Department responded to a call from dispatch.

Dispatch advised that an anonymous caller had reported that a male and female were having

a "loud disturbance" in a parking lot outside an apartment complex located in the 3000

block of Cassidy Road off of Highway 54 in Cole County, Missouri. The anonymous caller

described the disturbance as a verbal argument.

       Corporal Brown arrived in the area of the reported argument about ten minutes after

the call from dispatch. As Corporal Brown was about 100 to 150 feet from the apartment

complex, he noticed a vehicle coming towards him on Cassidy Road. As his headlights

illuminated the vehicle, Corporal Brown could see a male driver and a female passenger in

the vehicle. Corporal Brown testified during a suppression hearing that "initially I didn't

think anything of it" when he passed the vehicle on Cassidy Road.

       Corporal Brown proceeded to the parking lot of the apartment complex. As he drove

through the parking lot, he found no one outside, nor at the specific address where the call

came from. Corporal Brown did not stop to knock on any doors, and did not talk to anyone

at the scene. Corporal Brown testified during the suppression hearing that he did not

observe anything that would confirm two people had actually been arguing outside of the

apartment complex. Corporal Brown then testified:



                                             2
       When I got to the apartment and noticed there wasn't anything outside, you
       know--I've been doing this for a while. I'm trained that, you know,
       sometimes people leave the area--so that was just--it was kind of a hunch that
       maybe [the people in the vehicle he passed on Cassidy Road] are the people
       that were in the argument. And I just had to check on it just to make sure.

Corporal Brown thus turned around, left the parking lot, and caught up with the vehicle he

had passed on Cassidy Road. Corporal Brown pulled the vehicle over to investigate

whether the occupants were involved in the reported argument.

       Corporal Brown approached the vehicle and identified McCarty as the driver using

McCarty's driver's license. Corporal Brown observed that McCarty was under twenty-one

years of age based on the date of birth on the driver's license. While speaking with

McCarty, Corporal Brown could smell alcohol. Corporal Brown mentioned that McCarty

was underage and McCarty agreed.                      Corporal Brown administered a preliminary

breathalyzer test on McCarty, which tested positive for the presence of alcohol. Corporal

Brown arrested McCarty. After arresting McCarty, Corporal Brown secured the vehicle at

the scene and saw a case of beer on the backseat floorboard behind the driver's seat.

       McCarty was charged with misdemeanor possession of an intoxicating liquor by a

minor pursuant to section 311.325.1 McCarty filed a motion to suppress challenging the

lawfulness of Corporal Brown's traffic stop. The trial court overruled McCarty's motion.

       At trial, Corporal Brown testified about the events on the night of McCarty's arrest.

Evidence seized after the stop of McCarty's vehicle was admitted over McCarty's objection

regarding the lawfulness of the stop. Defense counsel also objected when Corporal Brown



       1
           All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

                                                         3
was asked to state the date of birth he saw listed on McCarty's driver's license, claiming

the testimony was hearsay and violated the best evidence rule. The trial court took that

objection with the case.

        At the State's request, and without objection, the trial court took judicial notice of

the following cases: 14AC-CR00995-01, 13AC-CR02465, 12AC-CR01619, 120052500,

and 091184137. These records indicate McCarty's birth year to be 1994.

        The trial court found McCarty guilty of the charged offense. McCarty was ordered

to pay a fine and court costs, and to complete an Alcohol and Drug Education Program.

        This timely appeal followed.

                                                   Analysis

        McCarty raises two points on appeal. His first point argues that the trial court erred

in overruling his motion to suppress evidence found following Corporal Brown's traffic

stop because the stop was unlawful as it was not supported by reasonable suspicion.

McCarty's second point asserts that the trial court erred in refusing to enter a judgment of

acquittal because the State failed to prove with competent evidence that McCarty was a

minor, an essential element of the charged offense.

                                                  Point One

        McCarty claims that all evidence seized as a result of Corporal Brown's initial traffic

stop should be suppressed because the stop was not supported by reasonable suspicion that

McCarty was involved in illegal activity.2


        2
          McCarty's first point on appeal also asserts that McCarty was stopped without probable cause. The
argument portion of McCarty's brief, however, does not expand this claim of error, so it is abandoned on appeal.
See State v. Nunley, 341 S.W.3d 611, 623 (Mo. banc 2011) ("Arguments raised in the points relied on portion of an

                                                        4
         At a hearing on a motion to suppress, the State must prove that the motion should

be overruled by a preponderance of the evidence. State v. Grayson, 336 S.W.3d 138, 142

(Mo. banc 2011). "[T]he State bears both the burden of producing evidence and the risk

of nonpersuasion" that, based on the evidence it produces, the motion should be overruled.

Id. (quoting State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992)). "In reviewing a

trial court's ruling on a motion to suppress, there must be 'substantial evidence' to support

the ruling." State v. Norfolk, 366 S.W.3d 528, 531 (Mo. banc 2012). To determine whether

substantial evidence exists to support the trial court's ruling, this Court examines evidence

presented at the suppression hearing and at trial. Id. (quoting State v. Gaw, 285 S.W.3d

318, 319-20 (Mo. banc 2009)). The facts, and reasonable inferences drawn therefrom, are

viewed in a light most favorable to the trial court's ruling, while any contrary evidence or

adverse inferences are disregarded. State v. Hillman, 417 S.W.3d 239, 246 (Mo. banc

2013). "Whether conduct violates the Fourth Amendment is a question of law, which is

reviewed de novo." Id.

         The Fourth Amendment protects the people "against unreasonable searches and

seizures." U.S. CONST. amend. IV. A traffic stop constitutes a seizure within the meaning

of the Fourth Amendment. Brendlin v. California, 551 U.S. 249, 255 (2007). Generally,

seizures are unreasonable, and therefore unconstitutional, when done without a warrant.

Norfolk, 366 S.W.3d at 533.



appellate brief that are not supported in the argument portion of the brief are deemed abandoned and preserve
nothing for appellate review."). In any event, this claim of error is immaterial because the investigatory stop at issue
is only required to be supported by reasonable suspicion. See United States v. Sokolow, 490 U.S. 1, 7 (1989) ("[T]he
level of suspicion required for a Terry stop is obviously less demanding than that for probable cause.").

                                                           5
       However, "the Fourth Amendment allows a brief investigative detention if the

officer has a reasonable suspicion, based on specific and articulable facts, that illegal

activity has occurred or is occurring." Id. (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)).

Such a detention must be supported by something more than an unparticularized hunch,

but requires only "some minimal level of objective justification." United States v. Sokolow,

490 U.S. 1, 7 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217 (1984)).

       Corporal Brown conceded in his testimony during the suppression hearing that

although dispatch had relayed an anonymous tip about an argument, he saw nothing when

he arrived at the scene to confirm the report. Despite that fact, Corporal Brown acted on a

"hunch," and decided to investigate whether the occupants in the vehicle he passed on

Cassidy Road might be the male and female who had reportedly been arguing.

       Corporal Brown's "hunch" was not supported by specific and articulable facts.

Though the anonymous caller reported that a male and female had been verbally arguing,

no other identifying information about the persons involved was provided. There was no

report that the two had gotten into a vehicle and were seen leaving the scene. Though

Corporal Brown passed a vehicle containing a man and a woman about 100 to 150 yards

from the apartment complex, he testified during the suppression hearing that he "didn't see

[the male and female] arguing in the car." In fact, when Corporal Brown first passed the

vehicle on Cassidy Road, his suspicions were not aroused at all, as "initially [he] didn't

think anything of it." Corporal Brown's suspicions about the vehicle were not aroused until

he arrived at the apartment complex parking lot and found no one outside. Corporal Brown

then decided to follow a "hunch" that the vehicle he had passed might have been leaving

                                             6
the scene. However, Corporal Brown admitted that he did not know whether the vehicle

had left the parking lot, and that he "didn't see [the vehicle] pull out of anywhere." The

record is silent about the geography of Cassidy Road in relation to the apartment complex,

other than Corporal Brown's testimony that the apartment complex is comprised of a row

of five four-plexes running approximately the length of one-half of a football field along

the "right-hand side" of Cassidy Road. There is nothing in the record, therefore, to permit

a reasonable inference that the vehicle Corporal Brown passed on Cassidy Road came from

the apartment complex.

       Based on Corporal Brown's testimony, the only reason McCarty's vehicle was

stopped was to investigate whether its male and female occupants had been involved in the

reported argument. And the only basis for Corporal Brown's suspicion that the occupants

of the vehicle might have been involved in the reported argument was his training that

"sometimes the people leave the area." Corporal Brown's self-described hunch was not

supported by "a particularized and objective basis for suspecting [McCarty] of criminal

activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981); see also Terry, 392 U.S.

at 27 (holding that a mere 'hunch' does not create reasonable suspicion).

       The State did not sustain its burden to establish that Corporal Brown's stop of

McCarty's vehicle was supported by reasonable suspicion. Corporal Brown's Terry stop of

McCarty's vehicle was thus unlawful. All evidence thereafter seized should have been

suppressed, and excluded from evidence at trial, as the fruit of a Fourth Amendment

violation. See State v. Miller, 894 S.W.2d 649, 653 n.4 (Mo. banc 1995) ("[A] search is

not to be made legal by what it turns up. In law it is good or bad when it starts and does

                                             7
not change character from its success.") (quoting United States v. Di Re, 332 U.S. 581, 595

(1948)).

        Point One on appeal is granted. McCarty's conviction and sentence are reversed.

                                                 Point Two

        Because McCarty's conviction and sentence are reversed in connection with Point

One on appeal, McCarty's second point on appeal, addressing the erroneous admission of

evidence at trial regarding his age, is rendered moot and need not be addressed.

                                                Conclusion

        McCarty's conviction and sentence for misdemeanor possession of an intoxicating

liquor by a minor pursuant to section 311.325 are reversed.3



                                                   __________________________________
                                                   Cynthia L. Martin, Judge


All concur




        3
          The only evidence supporting McCarty's conviction was unlawfully seized. As a result, the State cannot
prove the charged crime, warranting reversal without remand. See State v. King, 157 S.W.3d 656, 664-65 (Mo. App.
W.D. 2004); State v. Brightwell, 984 S.W.2d 124, 126 (Mo. App. W.D. 1998).

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