                                         In the
                        Missouri Court of Appeals
                                 Western District
STATE OF MISSOURI,                           )
                                             )
               Respondent,                   )   WD78404
                                             )
v.                                           )   OPINION FILED: May 3, 2016
                                             )
JAMES EARL LEE,                              )
                                             )
                Appellant.                   )

               Appeal from the Circuit Court of Saline County, Missouri
                         The Honorable Dennis A. Rolf, Judge

     Before Division Three: Gary D. Witt, Presiding Judge, James E. Welsh, Judge and
                              Anthony Rex Gabbert, Judge


        James Earl Lee ("Lee") was charged with felony possession of a controlled

substance (cocaine), misdemeanor possession of a controlled substance (less than thirty-

five grams of marijuana), felony resisting arrest, and misdemeanor failure to properly

maintain a vehicle license plate, all arising out of a 2014 traffic stop. Following a bench

trial, the Circuit Court of Saline County, Missouri, found him guilty of all counts and

sentenced him as a prior and persistent drug offender. Lee appeals the judgment, alleging

the circuit court erred in failing to suppress all evidence of the drugs found because the

search which set in motion the discovery of the drugs violated his Fourth Amendment
rights. Lee also argues that there was insufficient evidence to convict him of felony

resisting arrest. We agree and reverse the court's judgment of conviction as to all counts

except for Lee's conviction for failure to properly maintain a vehicle license plate and

remand for execution of that sentence.

                                Procedural and Factual Background1

        On May 2, 2014, Lee was traveling on I-70 when he was stopped by Missouri

State Highway Patrol Trooper Duvall for driving without a front license plate. When

Trooper Duvall approached Lee's vehicle, he observed the license plate on the dashboard

of the vehicle instead of properly affixed to the front of the vehicle. Trooper Duvall also

smelled a "very strong" order of raw marijuana coming from inside the car. Lee was

unable to produce a driver's license or other identification, and Trooper Duvall escorted

Lee to his patrol car for further investigation.

        While in the patrol car, Trooper Duvall performed a computer check of the license

plate and the name and identifying information that Lee had given him. Trooper Duvall

was able to obtain Lee's photograph from the Department of Revenue and confirmed

Lee's identity and that there were no warrants for his arrest. Trooper Duvall continued to

smell raw marijuana and asked Lee for an explanation. Lee stated that he was on "parole

and probation" for marijuana use but stated that his girlfriend, who was recently a

passenger in the vehicle, had used a vaporizer to ingest marijuana and that she had a

"license" for the vaporizer. Lee gave Trooper Duvall permission to search his vehicle,


        1
         The facts are recited in a light most favorable to the verdict. Ferguson v. State, 325 S.W.3d 400, 404 n.2
(Mo. App. W.D. 2010).

                                                         2
and Trooper Duvall called for another officer, Trooper Dancy, to come and supervise Lee

while he conducted the search.

      Trooper Duvall searched Lee's vehicle and found no illegal contraband but seized

a box of Swisher Sweet cigarillos.2 Trooper Duvall noted that, without Lee present, the

vehicle no longer smelled of marijuana. Finding no marijuana or other contraband in the

vehicle, he decided to search Lee for drugs. Trooper Duvall returned to the patrol car and

ordered Lee to exit the vehicle and put his hands on top of it. Trooper Duvall then

conducted what he characterized as a pat down, searching both the outside of Lee's

clothing and inside his pockets. Trooper Duvall had obtained neither a warrant nor Lee's

consent for this search of Lee's person. Trooper Duvall testified that he had no reason to

believe that Lee possessed a weapon or was otherwise dangerous. During the search,

Trooper Duvall felt a small, hard, round object behind Lee's right knee.

      Upon feeling the object, Trooper Duvall said, "Okay. Go ahead and put your

hands behind your back." Trooper Duvall could not identify the object but testified that

at that point he was concerned "for both our safety" and planned to "detain" Lee. Instead

of complying with Trooper Duvall's command, Lee fled on foot.

      Trooper Duvall and Trooper Dancy pursued Lee on foot and were able to

recapture him after Lee and Trooper Duvall tumbled down an embankment. Lee escaped

again, however, and, as they ran, Trooper Dancy informed Lee to stop and that he was

under arrest. Lee was again captured and subdued.



      2
          Cigarillos are known by law enforcement officers to be, at times, used in the smoking of marijuana.

                                                         3
         After handcuffing Lee, Trooper Dancy searched Lee and found a clear plastic bag

of marijuana around his left ankle and a clear plastic bag of cocaine around his right

ankle.

         Prior to trial, Lee moved that the evidence of the drugs be suppressed because

Trooper Duvall violated Lee's Fourth Amendment rights against unreasonable search and

seizure by failing to get a warrant or Lee's consent prior to the first "pat down" search of

his person.     Following a suppression hearing, the court denied Lee's motion.            Lee

renewed his objection to the evidence at the bench trial.

         The court found Lee guilty of all counts and sentenced him as a prior and

persistent offender. This appeal followed.

                                               I.

         Lee's first point on appeal alleges that the circuit court erred in admitting evidence

regarding the controlled substances found on Lee's person because they were found as a

result of an illegal search. Lee alleges that, although the drugs were not found until the

second search, had the first "pat down" search not been conducted, the drugs would never

have been located. Thus, if the first pat down was illegal, the evidence should have been

suppressed.

         As a preliminary matter, the State challenges the preservation of Lee's claim for

appeal. "In order to attack the validity of a search and the admissibility of the fruits of

that search on appeal, the defendant must have filed a motion with the trial court to

suppress the evidence." State v. Anderson, 698 S.W.2d 849, 851 (Mo. banc 1985).

Additionally, to keep the challenge preserved for appeal, the defendant must assert timely

                                               4
objections throughout trial and raise the issue in a motion for new trial.3 Id.; State v.

Turner, 471 S.W.3d 405, 412 (Mo. App. E.D. 2015); State v. Ruff, 360 S.W.3d 880, 884

(Mo. App. S.D. 2012).                The record clearly indicates that Lee properly raised his

challenges to the seizure of the evidence in a motion to suppress, objected prior to

testimony regarding the second pat down that led to the seizure of the evidence, objected

prior to the admission of the evidence seized. The State, however, argues that Lee's

failure to object to testimony regarding the first pat down waived his claim and preserved

nothing for appeal. We disagree.

         A defendant's objection is "kept alive" at trial "by timely objection to the

introduction [of evidence] at trial . . . ." State v. Taylor, 538 S.W.2d 761, 764 (Mo. App.

1976) (emphasis added). Although testimony regarding what led to the pat down is

relevant to determine the legality of the search, Lee's objection is to the evidence yielded

as a result of the illegal search--the drugs. Thus, his objection to the evidence being

introduced at trial was timely and preserved the issue for appeal.

                                              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. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992).
         "When reviewing the trial court's overruling of a motion to suppress, this
         Court considers 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. Pike, 162 S.W.3d 464, 472 (Mo.
         banc 2005). "The Court defers to the trial court's determination of
         credibility and factual findings, inquiring only 'whether the decision is

         3
           Because this was a bench tried case, Lee did not need to raise the issue in a motion for new trial to
preserve the issue for appellate review. Rule 29.11(d).

                                                           5
      supported by substantial evidence, and it will be reversed only if clearly
      erroneous.'" State v. Goff, 129 S.W.3d 857, 862 (Mo. banc 2004), quoting
      State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003). By contrast,
      legal "determinations of reasonable suspicion and probable cause" are
      reviewed de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct.
      1657, 134 L.Ed.2d 911 (1996).

State v. Grayson, 336 S.W.3d 138, 142 (Mo. banc 2011).

                                       Discussion

      Missouri's constitutional guarantee against unreasonable searches and seizures is

co-extensive with that of the Fourth Amendment of the United States Constitution, as

applied to the states through the Fourteenth Amendment. State v. Rushing, 935 S.W.2d

30, 34 (Mo. banc 1996). The Fourth Amendment protects "[t]he right of people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures. . . ." U.S. CONST. amend IV; Rushing, 935 S.W.2d at 34.

      "Searches conducted outside of the judicial process, without prior approval by

judge or magistrate are per se unreasonable under the Fourth Amendment--subject only

to a few specifically established and well-delineated exceptions." Arizona v. Gant, 556

U.S. 332, 338 (2009) (internal citations omitted). A "warrantless search of the person is

reasonable only if it falls within a recognized exception" to the Fourth Amendment.

Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013).

      A search is not unreasonable under the Fourth Amendment if it is: (1) a
      search incident to a lawful arrest; (2) a seizure of items falling within the
      plain view doctrine; (3) a search of an automobile where probable cause
      exists to believe that it contains a substance which offends the law; or (4) a
      protective search by officers for weapons upon less than probable cause to
      arrest.



                                            6
State v. Leavitt, 993 S.W.2d 557, 561 (Mo. App. W.D. 1999). There also exists a well-

recognized exception for exigent circumstances. McNeely, 133 S.Ct. at 1558. The U.S.

Supreme Court has specifically noted there may be exigent circumstances where there is

a need to provide emergency assistance to the occupant of a home, a "hot pursuit" of a

fleeing suspect, police need to enter a burning building to put out a fire, or where police

need to prevent the imminent destruction of evidence. Id. at 1558-59.

       The question we must answer is whether there was an exception to the warrant

requirement of the Fourth Amendment applicable to these facts. The State alleges that

the search was a proper protective search under Terry.4 In the alternative, the State

argues that the search was valid as a search incident to arrest, because there was probable

cause to believe Lee possessed drugs on his person, or, in the alternative, there were

exigent circumstances. Finally, the State contends that, even if the seizure of the drugs

was not legal, there was no prejudice to Lee because they would have been inevitably

discovered.

       "When a motion to suppress is overruled and the evidence was introduced at trial,

an appellate court will consider the evidence presented both at the suppression hearing

and at trial in determining whether the motion should have been granted." State v.

Cunningham, 193 S.W.3d 774, 778 (Mo. App. S.D. 2006).

       We will address each of the State's arguments as to why this constituted a valid

search in turn.



       4
           Terry v. Ohio, 392 U.S. 1 (1968).

                                               7
        A. Terry v. Ohio

        Under Terry v. Ohio, an officer may briefly detain a person if the officer has a

reasonable suspicion that the person is involved in criminal activity and he may conduct a

frisk or pat down search of the suspect if the officer reasonably believes the person may

be armed and dangerous. 392 U.S. 1, 30 (1968); State v. Goff, 129 S.W.3d 857, 864-65

(Mo. banc 2004).5 "The officer must have more than a hunch; he or she must have a

reasonable, particularized suspicion that the suspect is armed." Goff, 129 S.W.3d at 865

(emphasis added). The officer must be "able to point to specific and articulable facts

which, taken together with rational inferences from those facts, reasonably warrant that

intrusion." Terry, 392 U.S. at 21 (emphasis added).

        If a stop is valid under Terry, an officer may conduct a pat down search of a

suspect's outer clothing "if they have a reasonable, particularized suspicion that the

suspect is armed." Leavitt, 993 S.W.2d at 561. "The purpose of this limited search is not

to discover evidence of crime, but to allow the officer to pursue his investigation without

fear of violence." Id.; Adams v. Williams, 407 U.S. 143, 146 (1972); Cunningham, 193

S.W.3d at 778. The "sole justification" for the search must be to locate a hidden weapon.

Terry, 392 U.S. at 29. "In analyzing a search pursuant to Terry 'it is material to inquire'

whether an officer could reasonably believe an object discovered during the pat down

was a weapon."          Leavitt, 993 S.W.2d at 561.               "Because there is no ready test for

determining reasonableness, there is a need to balance the search, or the seizure, against


        5
         The Missouri Supreme Court has held that traffic stops are analogous to a Terry stop. State v. Schroeder,
330 S.W.3d 468, 473 (Mo. banc 2011).

                                                        8
the invasion of the person's body which the search entails." State v. Hensley, 770 S.W.2d

730, 734 (Mo. App. S.D. 1989). "[T]he police officer must be able to point to specific

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

facts, reasonably warrants the intrusion." Id.

       Neither Trooper Duvall nor Trooper Dancy articulated any facts to support an

argument that either of them believed Lee had a weapon. In fact, both officers testified

that they were not in fear for their safety prior to the pat down of Lee. Trooper Duvall

plainly testified that his sole purpose in conducting a pat down of Lee was to search for

drugs. On direct examination he stated that he conducted the search of Lee only after he

did not find contraband in the vehicle.

       [State]. After you completed your search of the vehicle, what was the next
       step that you took in the investigation?

       [Trooper Duvall]. Well, since I didn't find any other contraband [in the
       vehicle], I went ahead and as well searched the subject himself.

When further questioned by defense counsel, it became extremely clear that Trooper

Duvall was neither in fear for his safety nor believed there was a weapon prior to the

search.

       [Defense Counsel]: While you were in the vehicle waiting for backup to
       arrive so she could sit with him while you searched his vehicle, did he do
       anything threatening or frightening, anything that would cause you to think
       he was armed or dangerous?

       [Trooper Duvall]: No.

       ....




                                             9
         [Defense Counsel]: As you returned and searched the Defendant [after the
         search of the vehicle], this was not because you believed him to be armed
         and dangerous, correct?

         [Trooper Duvall]: No, it was strictly --

         [Defense Counsel]: Nothing happened that caused you to -- would not
         impact on weapons?

         [Trooper Duvall]: No.

At trial, Officer Duvall again testified that he did not believe that Lee was armed:

         [Defense Counsel]: He had not given you any reason to believe he was

         armed?

         [Trooper Duvall]: No.

He agreed that his search was only because he had not found drugs in the car.

         Additionally, instead of conducting a "pat down" search, as permitted under Terry,

Trooper Duvall actually conducted a full search of Lee.6

         [Defense Counsel]: Okay. And your search exceeded just a pat down

         search. In fact, you are actually are [sic] on the video putting your hands in

         his pockets and -- his pants pockets and things like that aren't you?

         [Trooper Duvall]: Yes. 7



         6
            Trooper Duvall admitted during cross-examination that his search extended beyond the scope authorized
by Terry by reaching into Lee's pockets. Terry allows an officer to "pat a suspect's outer clothing" to determine if
the suspect has a weapon. Terry, 392 U.S. at 27. In Minnesota v. Dickerson, the U.S. Supreme Court approved the
"plain-feel" exception that reasoned if "a police officer pats down a suspect's outer clothing and feels an object
whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy
beyond that already authorized by the officer's search for weapons . . . ." 508 U.S. 366, 375-76. There is, however,
no extension of Terry that allows an officer to reach into a suspect's pockets as part of the pat down. See, State v.
Hutchinson, 796 S.W.2d 100, 108-09 (Mo. App. S.D. 1990) (noting that exploratory search of suspect's pocket when
all that was felt was Chap Stick was beyond the bounds of Terry).
          7
            The video was not provided as part of the record on appeal.

                                                         10
Trooper Dancy also testified that she did not find Lee to be threatening or have reason to

believe there was a weapon present prior to the search.

       Under Terry, we look to whether a "reasonably prudent" person would be

warranted in the belief that there was a danger to his or her safety. Cunningham, 193

S.W.3d at 779. In Cunningham, the court found that the search of defendant was lawful

where the officer noted a bulge in defendant's pants which defendant attempted to

conceal, the defendant appeared nervous and fled from the officer, and the officer was

without backup.     Id.   "The totality of the circumstances provided [the officer] a

reasonable belief that [defendant] was involved in criminal activity and the person with

whom he was dealing may have been armed and presently dangerous." Id. at 780. In

State v. Gantt, the Southern District found a search was legal although the officer testified

that he noticed a plastic bag sticking out of defendant's pants and that he was only

concerned that defendant "possibly" had a gun. 87 S.W.3d 330 (Mo. App. S.D. 2002).

The court noted the defendant lied about the bag, the defendant's appearance seemed

peculiar, and the encounter was at night on the side of the highway. Id. at 334. But, in

Taylor v. State, this court found that a prior arrest record, presence in a high crime

neighborhood, and known history of the sale of drugs were not in themselves sufficient to

warrant a frisk when citing an individual for a traffic violation. 234 S.W.3d 532, 538

(Mo. App. W.D. 2007).

       Ignoring all the officer's statements that they were not, in fact, in fear for their

safety, we look instead to the circumstances as would a removed reasonable person.

Trooper Duvall smelled raw marijuana in Lee's vehicle and on Lee's person, leading him

                                             11
to believe that Lee was involved in criminal activity. He appeared nervous and fidgety

and was sweating. Trooper Dancy also smelled raw marijuana on Lee's person. They

were located on the highway in the early evening. These facts, however, are tempered by

Lee's compliant demeanor. Lee gave the trooper his true identity, even though he did not

have a driver's license on his person. While waiting for Trooper Dancy to arrive, Trooper

Duvall and Lee spoke for at least ten minutes "about basketball and kids and family,"

during which Lee was compliant and respectful. At no time did either officer notice a

bulge on Lee that could have possibly been a weapon. The search was conducted only

after both officers spent an extended period of time with Lee alone in the patrol car

which, presumably, would not have been done by a reasonable person if there were the

slightest belief that Lee was armed or dangerous.

       Under the totality of the circumstances, we cannot say that a reasonable person

would have feared that Lee had a weapon. Although we are not bound by the subjective

intent of the officers, it defies logic to find a reasonable person would have been in fear

that Lee had a weapon, where two experienced officers testified they did not have such a

fear and, in fact, did not search for a weapon until they had each remained alone with the

defendant for an extended period.

       We find Terry v. Ohio to be inapplicable to the facts of this case.

       B. Probable cause to arrest for drugs

       The State next argues that the initial search of Lee was justified because there was

probable cause to search his person based on the strong odor of marijuana. The State

relies on a number of cases from foreign jurisdictions finding that under the "plain smell"

                                             12
doctrine, there is probable cause to arrest a defendant where there is a strong odor of

marijuana coming from a person. See Jenkins v. State, 970 A.2d 154, 158-59 (Del. 2009)

(strong odor of marijuana and driver's behavior were sufficient to give officer probable

cause to arrest driver for driving under the influence and search his vehicle; court did not

address the frisk that was conducted prior to arrest that yielded no contraband);

Commonwealth v. Garden, 883 N.E.2d 905, 910-11 (Mass. 2008) (probable cause and

exigent circumstances allowed for the search of vehicle occupants where "the smell of

marijuana was coming from their clothing") (superseded by statute); State v. Smith, 593

A.2d 210, 212-13 (Me. 1991)(search of vehicle passenger was warranted under probable

cause and exigent circumstances where there was a "moderate and fresh smell of

marijuana" and driver had no incriminating evidence on his person); Butler v. U.S., 102

A.3d 736, 739-742 (D.C. App. 2014) (probable cause to arrest and search defendant

incident thereto where defendant was the sole occupant of the vehicle, making it likely

that the smell of marijuana was coming from either the vehicle or his person); State v.

T.T., 594 So.2d 839, 840 (Fla. App. 1992) (strong smell of marijuana on defendant

justified arrest and warrantless search); Edmond v. State, 951 N.E.2d 585, 591 (Ind. App.

2011) (odor of marijuana on defendant's breath and in his vehicle gave probable cause to

arrest and search the defendant). A majority of these cases are distinguishable because

they deal with searches incident to arrest.8




        8
          The other cases rely on probable cause coupled with the exigency exception to prevent destruction of
evidence in finding the search legal. The State raises exigency as a separate issue which is discussed below.

                                                        13
         In this case, neither officer testified as to any basis to arrest Lee for any offense

prior to conducting the search. Neither officer testified that Lee appeared to be impaired

from the effects of marijuana or otherwise to support an arrest for driving while

intoxicated. Both officers were clear that the odor they smelled was "raw" marijuana, not

"burned" marijuana, an indication that Lee had not ingested the marijuana. Neither

officer testified that Lee was placed under arrest for any violation prior to the search.

         At times, a valid search incident to arrest may precede the actual arrest. Rawlings

v. Kentucky, 448 US. 98, 111 (1980). In Rawlings, the defendant had been read his

Miranda9 warnings and was in the process of being arrested at the time of the search,

only lacking "formal arrest." Id. In this case, however, there is no testimony that

Trooper Duvall intended to arrest Lee for drugs or any other offense prior to the search or

was intending to do so contemporaneously with this search. As noted by the dissent in

Butler, "under the search-incident-to-arrest exception to the warrant requirement, the

government needs more than just probable cause to arrest. It needs an arrest." Butler,

102 A.3d at 743 (dissent). "Rescinding this historical rule turns the search-incident-to-

arrest       exception       into     a     search-incident-to-probable-cause-to-arrest   exception,

disregarding the Supreme Court's repeated pronouncements describing warrant

exceptions as 'specifically established,' 'well delineated,' and 'jealously and carefully

drawn.'" Id. at 746 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971)).

         We agree with the dissent in Butler from the District of Columbia and find the

Southern District's holding in State v. Gambow directly applicable to this case. 306

         9
             Miranda v. Arizona, 384 U.S. 436 (1966).

                                                        14
S.W.3d 163 (Mo. App. S.D. 2010). In Gambow, defendant was a passenger in a car that

was stopped for speeding. Id. at 163. The officer conducting the stop smelled marijuana

and asked the driver for permission to search the vehicle. Id. The officer then conducted

a Terry pat down of Gambow during which he felt a hard object he did not believe to be a

weapon. Id. He ordered Gambow to empty his pockets and, without consent, opened a

small container, which came from his pocket, finding narcotics. Id. at 164. The defense

sought to exclude the evidence based on the illegal search, and the State argued that "the

police, with probable cause to search a vehicle, also have the right to search the persons

in the automobiles." Gambow, 306 S.W.3d at 164. The court held, however, that while

the smell of marijuana may justify searching the car's interior and a defendant's personal

possessions, "it will not alone justify the warrantless search of the vehicle's occupants

themselves." Id. We agree.

      The State attempts to distinguish Gambow from this case noting that there were

multiple occupants of the vehicle and thus officers could not have a particularized

suspicion that Gambow was the source of the marijuana smell. While in this case Lee

was the sole occupant of the vehicle, he volunteered to officers that the smell came from

the vaporizer of a recent passenger of his vehicle. The State argues that the troopers

"investigated" this explanation and "determined it to be false." While it may have been

that the officers did not believe Lee, there is no indication that any investigation was

made into his explanation or that anything in their investigation proved this statement to

be false. But, more importantly, this is a distinction without a difference. Nothing about

having a single occupant of a vehicle where the smell of marijuana is present justifies an

                                           15
exception to the Fourth Amendment and allows a complete search of his person. This

was not a search incident to arrest where it is clear that, prior to Lee fleeing, Trooper

Duvall had no intention to arrest him. Had Trooper Duvall wanted to search Lee for

contraband he could have obtained consent or obtained a warrant and conducted a search.

Searching Lee prior to taking one of these actions was illegal.

       We find Gambow controlling and at the time of the search there were no grounds

to arrest Lee, such that a warrantless search incident to arrest would have been

authorized.

       C. Exigent Circumstances

       As noted above, both Massachusetts and Maine have recognized the legality of a

search of a person where there is probable cause to suspect a person is in possession of

drugs because exigent circumstances exist in that the suspect could destroy the evidence

before a warrant is obtained. We can find no similar recognition in Missouri and no

support for such an argument in this case. Trooper Duvall made no effort to obtain

consent or a warrant to search Lee. He was easily able to request another officer to report

to the scene to supervise Lee, and there is no argument presented as to why he could not

have obtained a warrant under these circumstances. It is unlikely that Lee could have

destroyed, hidden, or consumed the drugs--as the State argues--while being continuously

monitored in the patrol car.

       The State's argument as to exigency is primarily premised on Lee's subsequent

flight. The challenged search, however, is the first search, not the second. At the time of

the second search, Lee had been arrested, making it a proper search incident to arrest

                                            16
(assuming, arguendo, that its fruits are not subject to suppression based upon an

unconstitutional first search). There is no evidence to support a finding of exigency prior

to the first search.

       D. Search incident to arrest/fruit of the poisonous tree

       The State next argues that, even if the pat down was not justified under Terry, it

was proper because Trooper Duvall was warranted in conducting a search incident to

arrest. The State argues first that the first pat down search was a search incident to arrest

for the traffic violation and but also that the second search was a proper search incident to

arrest after Lee fled from arrest. We disagree.

       An exception from the rule that warrantless searches are per se unreasonable is if

the search is incident to a lawful arrest. United States v. Robinson, 414 U.S. 218, 224

(1973). The United States Supreme Court has made clear the reasoning behind this

exception:

       When a custodial arrest is made, there is always some danger that the
       person arrested may seek to use a weapon, or that evidence may be
       concealed or destroyed. To safeguard himself and others, and to prevent
       the loss of evidence, it has been held reasonable for the arresting officer to
       conduct a prompt, warrantless search of the arrestee's person and the area
       within his immediate control. . . .

United States v. Chadwick, 433 U.S. 1, 14 (1977) (internal quotations omitted).

       The State contends that, because at the time of the first search, Lee could have

been arrested for the traffic violation, the search was a lawful search incident to an arrest.

The failure to properly affix a license plate to a vehicle is a violation of section 304.130,10


       10
            All statutory citations are to RSMo 2000 as currently updated, unless otherwise indicated.

                                                         17
which is deemed to be an infraction pursuant to section 301.440 and subject to a

maximum fine $200. Trooper Lee testified that he intended to give Lee a warning for not

properly displaying his license plate and that the later charge was only filed because he

was also being arrested for other offenses. As indicated above, Lee had not been placed

under arrest at the time of the first pat down search and neither trooper expressed any

indication that they had the intent to arrest Lee at that point in time.

       The State further contends that, even if the first pat down was not justified under

Terry, it is immaterial because the second search, during which the drugs were actually

located, was justified. The State cites to Illinois v. Wardlow, in which the United States

Supreme Court held that a person's flight from police justified the person's detention and

the officers' pat down search for weapons. 528 U.S. 119, 125-26 (2000). While it may

be the case that flight warrants a Terry stop and frisk, in this case, the second pat down

was a direct result of Trooper Duvall conducting his first unconstitutional pat down and

in which he felt an object below Lee's knee.           It was only at that point, after the

unconstitutional action by the trooper had occurred, that Lee fled. Where the illegal

conduct of the police caused the flight, and neither the flight nor the second pat down

would have occurred but for the unconstitutional actions, the flight does not justify the

search. In Wardlow, there were no prior unconstitutional actions by police and the pat

down conducted was legitimately a protective search for weapons allowed under Terry.

528 U.S. at 125.        Here, the second search was merely a continuation of the

unconstitutional search begun by Trooper Duvall, which set into motion Lee's flight.



                                              18
       The State argues that the attenuation doctrine purges the "primary taint" of the first

illegal search is not purged under the attenuation doctrine. State v. Hosier, 454 S.W.3d

883, 892-93 (Mo. banc 2015). "To determine if evidence has been 'purged of the primary

taint,' courts consider three factors: (1) the temporal proximity between the illegality and

the procurement of the evidence; (2) the presence of intervening circumstances; and (3)

the purpose and flagrancy of the official misconduct." Id. at 892. In Hosier, the court

noted that the first factor cautioned against admitting the evidence because the illegally

obtained cell phone "ping" order took place about two hours prior to the search. Id. In

this case, the illegal conduct was mere minutes before the search yielding the contraband.

In Hosier, while the court found that defendant leading the police on a car chase satisfied

the intervening circumstances factor, the defendant's flight was not directly correlated to

the officer's illegal act. Hosier did not flee because the police obtained an illegal ping

order. In this case, Lee fled from police only because Trooper Duvall felt what Lee knew

to be contraband while Trooper Duvall conducted the unconstitutional search.

       Finally, the court in Hosier found the police misconduct not to be flagrant because

courts are split as to whether a probable cause showing is necessary prior to obtaining

real-time cell phone location information. Id. at 893. In this case, Trooper Duvall

admitted that the search was solely a search for drugs, which is not allowed under

Missouri law. Further, the trooper readily admitted that he went beyond the bounds of




                                             19
any recognized search under Terry to reach inside Lee's pockets, which is unquestionably

unconstitutional conduct.11

         The State is correct that, generally, there exists an exception to the warrant

requirement for a search incident to arrest. Gant, 556 U.S. at 338-39. But such an

exception does not apply when it is a direct result of the unconstitutional conduct of

officers, as discussed above. Lee was not being arrested by Trooper Duvall, nor was

arrest even being considered until after the illegal search.                          Thus, the search is not

protected under this exception.

         E. Inevitable Discoverability

         The State's final argument is that, regardless of the legality of the search, the drugs

should not be excluded because they would have been inevitably discovered during Lee's

arrest or the inventory process at the jail. The inevitable discovery doctrine acts as an

exception to the exclusionary rule and holds that:

         If the prosecution can establish by a preponderance of the evidence that the
         information ultimately or inevitably would have been discovered by lawful
         means . . . the deterrence rational [deterrence of unlawful police conduct]
         has so little basis that the evidence should be received. Anything less
         would reject logic, experience and common sense.

State v. Butler, 676 S.W.2d 809, 813 (Mo. banc 1984) (quoting Chapman v. California,

386 U.S. 18, 22 (1967)). The State, however, fails to present any argument as to why the

evidence would have been inevitably discovered in this case. Trooper Duvall did not

         11
            The State cites to cases from the Eighth and Ninth Circuits which have found that while an initial stop
may not have been legal, the defendant's flight or resistance to arrest purged the primary taint of the original conduct
justifying the subsequent search. United States v. Dawdy, 46 F.3d 1427, 1431 (8th Circ. 1995); United States v.
Garcia, 516 F.2d 318, 319 (9th Circ. 1975). These cases are not binding precedent in this Court. Further, we find in
this case the cause and effect correlation between the illegal conduct and the flight too great to find that the
independent actions of Lee purged the illegal conduct of the officers.

                                                          20
intend to arrest Lee for the traffic infraction, adding that charge only after he determined

to arrest Lee for other more serious offenses of drug possession and resisting arrest.

Absent the illegal search, there is no indication that Lee would have been arrested leading

to the inevitable discovery of the drugs on his person.

       We find that the drugs found on Lee should have been excluded. The first search

was not permissible under any recognized exception to the Fourth Amendment. Lee's

flight did not purge the taint of the first search from the second search. Therefore, we

reverse Lee's convictions for Count I, Possession of Controlled Substance Except 35

Grams Or Less Of Marijuana, and Count II, Possession of Up to 35 Grams Marijuana,

and order that Lee be discharged on these counts. See State v. Brightwell, 984 S.W.2d

124, 126 (Mo. App. W.D. 1998).

                                             II.

       Lee's second point on appeal alleges that the circuit court erred in finding him

guilty of felony resisting arrest because, at the time Lee fled, it was not clear that he was

being arrested--as opposed to simply being legally detained. Resisting arrest for a felony

is a felony under section 575.150.5, but resisting a detention or stop is only a

misdemeanor offense unless the state proves that it was done in a manner which creates a

substantial risk of serious physical injury or death to any person. To find Lee guilty of

the charge as filed, the court was required to find that, at the point Lee fled, Trooper

Duvall was attempting to arrest him for a felony or that Lee fled detention in a way that

created a substantial risk of serious physical injury or death.



                                             21
                                   Standard of Review

       The standard for reviewing claims challenging the sufficiency of evidence
       is well-established. State v. Clay, 975 S.W.2d 121, 139 (Mo. 1998). On
       review, the Court accepts as true all of the evidence favorable to the State,
       including all favorable inferences drawn from the evidence and disregards
       all evidence and inferences to the contrary. Id. In reviewing a challenge to
       the sufficiency of the evidence, appellate review is limited to a
       determination of whether there is sufficient evidence from which a
       reasonable juror might have found the defendant guilty beyond a reasonable
       doubt. Id. In considering whether the evidence is sufficient to support the
       verdict, this Court considers whether a reasonable juror could find each
       element of a crime beyond a reasonable doubt. Id. When reviewing for
       sufficiency of the evidence, circumstantial evidence is afforded the same
       weight as direct evidence. State v. Hutchison, 957 S.W.2d 757, 767 (Mo.
       banc 1997). If there actually is insufficient evidence to support a guilty
       verdict, then a directed verdict of acquittal is authorized. State v. Holloway,
       992 S.W.2d 886, 889 (Mo. App. S.D.1999).

State v. Brooks, 158 S.W.3d 841, 847 (Mo. App. E.D. 2005).

                                        Discussion

       We begin by noting that section 575.150.4 specifically states that "[i]t is no

defense to a prosecution [for resisting arrest] that the law enforcement officer was acting

unlawfully in making the arrest." Thus, we address Lee's second point.

       In order to find Lee guilty of felony resisting arrest, the court needed to find both

that at the time Lee fled: (1) Trooper Duvall was attempting to arrest Lee and (2) the

arrest was for a felony. Section 575.150. Or, in the alternative the State needed to show

that when Lee fled he did so in a manner that created a substantial risk of serious physical

injury or death to any person. Id. Resisting arrest is only a felony offense if the

underlying offense is a felony and the resistance is accomplished by means other than

flight. State v. Furne, 642 S.W.2d 614, 616 (Mo. banc 1982). "The relevant inquiry to


                                             22
determine whether appellant's resistance constituted a felony is not whether the appellant

is guilty of the underlying charge." State v. Merritt, 805 S.W.2d 337, 339 (Mo. App.

E.D. 1991). What matters is whether the officer was contemplating making a felony

arrest. Id.; State v. Wanner, 751 S.W.2d 789, 791 (Mo. App. E.D. 1988) (officer testified

that he only intended to "warn" the defendant about his driving not to arrest him thus

Wanner could not be guilty of resisting arrest). "The relevant inquiry is not whether the

defendant is guilty of the charge for which he or she was arrested, but whether the

arresting officer contemplated making a felony arrest." State v. Jordan, 181 S.W.3d 588,

592 (Mo. App. E.D. 2005). In Jordan, the defendant struck an officer with his car while

the officer was attempting to stop his vehicle. Id. at 591. He was later stopped and

arrested by another officer who testified he intended to arrest Jordan for "evading my red

lights, and siren." Id. at 593. Although striking the officer did constitute a felony,

because it was not the officer's intent to arrest him for such an offense, there was

insufficient evidence to find him guilty of felony resisting arrest. Id.; see also, State v.

Hunter, 179 S.W.3d 317, 320-21 (Mo. App. E.D. 2005) (although defendant was

ultimately convicted of felony stealing and second degree burglary, he was not guilty of

felony resisting arrest because, at the time he fled, there was no indication that the officer

intended to arrest him for felony offenses).

       The series of events leading to Lee's flight were that, after feeling the object on

Lee's leg, Trooper Duvall "requested him to put his hands behind his back, at which time

he attempted to flee." "[T]he offense of resisting arrest cannot occur unless a law

enforcement officer actually contemplates an arrest." State v. St. George, 215 S.W.3d

                                               23
341, 345 (Mo. App. S.D. 2007). "An arrest is in progress once the officer is attempting to

actually restrain or control the person of the defendant." Id. at 346. "The facts needed to

determine whether an officer was making a stop versus the facts needed to determine if

an officer was making an arrest are different." State v. Joos, 218 S.W.3d 543, 550 (Mo.

App. S.D. 2007). Whether the intent was to arrest for a felony or merely detain is

important because, while the former is a felony, the latter is only a misdemeanor offense.

Hunter, 179 S.W.3d at 320-21.

       We must determine whether, prior to Lee's flight Trooper Duvall intended to arrest

him for felony possession of cocaine as charged in the indictment. We find he did not.

First, the testimony of Trooper Duvall does not support that he was attempting to arrest

Lee for any offense at the time Lee fled. Trooper Duvall had not informed Lee that he

was under arrest nor does he testify that he had such intent.         The only testimony

regarding his intent was at the suppression hearing in which he testified that after feeling

the object under Lee's pants: "I requested -- since I didn't know for sure what it was, for

both our safety I went ahead and placed his hands behind his back to detain him, at which

time he began to flee." (emphasis added).

       Further, even if we ignore Trooper Duvall's testimony that at the time of Lee's

flight he intended to "detain" him, the sequence of events cannot support intent to arrest

for a felony at the point Lee initially fled. Trooper Duvall felt a hard object under Lee's

pants but had failed to identify it as contraband or otherwise and he did not believe it was

a weapon. Although he had a suspicion that Lee was carrying marijuana, there was no

evidence to even suggest that he had cocaine such as allow him to arrest Lee for felony

                                            24
cocaine possession.12 Where Trooper Duvall testified that he intended to "detain" Lee

and, at the time of flight, Trooper Duvall had no reason to arrest Lee for a felony, we

cannot find that Lee fled arrest much less a felony arrest.

         This, however, is not the end of our inquiry.

         For resisting arrest to amount to a felony, the State must prove either that
         the offense for which the defendant was arrested was a felony or that the
         defendant resisted arrest by fleeing in such a manner that the person fleeing
         created a substantial risk of serious physical injury or death to any person.

St. George, 215 S.W.3d at 346. Under section 575.150, a person may be guilty of felony

resisting arrest, detention, or stop13 where they "flee in such a manner that the person

fleeing create[d] a substantial risk of serious physical injury or death to any person."

Section 575.150.5. There was testimony at trial that while chasing Lee, Trooper Duvall

grabbed Lee and together they "tumbled down a large embankment."                                         The State,

however, makes no argument that this caused a substantial risk of serious injury to

Trooper Duvall. Absent such an argument by the State and any evidentiary support that

there was a "substantial risk of serious physical injury" to Trooper Duvall, Trooper

Dancy, or another in the record, we will not presume such a risk.




         12
            There was further no way for the officer to determine if this was in fact marijuana or that the amount of
marijuana would have been more than 35 grams such that the amount of marijuana would have attained the felony
level.
         13
            Lee raises no challenge to the legality of the detention or stop. An officer conducting a traffic stop may
detain the defendant and conduct an investigation beyond the scope of the original traffic stop if the officer has a
reasonable suspicion that the defendant is engaged in additional criminal activity. State v. Barks, 128 S.W.3d 513,
517 (Mo. banc 2004). The suspicion must be based on articulable facts. Id. In this case, the strong odor of raw
marijuana immediately upon approaching the vehicle gave Trooper Duvall a reasonable suspicion to investigate to
determine whether Lee had in his possession illegal drugs.

                                                          25
         We agree that there was insufficient evidence presented to the circuit court to find

Lee guilty of felony resisting arrest. We reverse the court's judgment as to Count III and

discharge Lee as to this count.14 See Brightwell, 984 S.W.2d at 126.

                                                   Conclusion

         We find the circuit court erred both in failing to suppress the evidence seized from

Lee's person and in finding sufficient evidence to support the crime of felony resisting

arrest. We reverse the court's judgment as it relates to his convictions on Charges I, II,

and III and order Lee be discharged as to those three charges.                              The judgment and

sentence as to Charge IV--failure to properly maintain his vehicle license plate is

affirmed, as Lee makes no challenge to that conviction or sentence. The defendant shall

be remanded to the custody of the Saline County Sheriff for execution of his ten day

sentence on that charge, provided he has not fully served this sentence by time already

served.




                                                      __________________________________
                                                      Gary D. Witt, Judge

All concur


         14
            The State makes no argument that we should find Lee guilty of the misdemeanor offense, resisting or
interfering with a detention or stop, as a lesser-included offense of felony resisting arrest. See State v. Neher, 213
S.W.3d 44, 48 (Mo. banc 2007). The Southern District has previously found that misdemeanor resisting a lawful
stop by fleeing is not a lesser-included offense of resisting a felony arrest. State v. Joos, 218 S.W.3d 543, 550 (Mo.
App. S.D. 2007). In Joos, the court found insufficient evidence to support felony resisting arrest and the state
requested the court to enter a conviction for misdemeanor resisting a lawful stop and remand to the circuit court for
resentencing. Id. The court found it was not a lesser-included offense and declined to enter a judgment for the
misdemeanor. Id. The court further declined to remand for a new trial on the misdemeanor offense where it was not
requested by the state. Id. Given Joos, we will not exercise any authority to enter judgment against Lee on a lesser-
included offense or remand for a new trial on the misdemeanor offense.

                                                         26
