Lead Opinion
Appellant, Travis Berry (“appellant”) appeals from the judgment of the Circuit Court of Audrain County convicting him of possession of a controlled substance with the intent to distribute, in violation of Sec
Appellant was charged with possession of cocaine with intent to distribute on November 15, 1999. Appellant filed a motion to suppress the evidence, alleging his rights were violated under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 15 of the Missouri Constitution, in that the evidence was the result of an unreasonable search and seizure. The trial court held a hearing on Appellant’s motion to suppress on March 22, 2000. The following evidence was adduced at that hearing.
At 11:21 a.m. on September 20, 1999, Franca Ancell, a dispatcher with the Au-drain County Sheriffs Department, received an anonymous telephone call from a woman. The caller stated that appellant left Mexico, Missouri around 10:00 a.m. and was en route to Kansas City to pick up a large quantity of cocaine. According to the caller, appellant was due in Kansas City about 12:00 or 12:30, and would return to Mеxico before dark. The caller also stated that appellant would be driving a white Cadillac with “fancy” wheels and a “temp tag” in the left rear window. Ms. Ancell recorded and logged the call, then placed a note of the call in Deputy Wes Ancell’s box.
At 1:00 p.m. on September 20, 1999, Ms. Ancell received another anonymous call. Ms. Ancell testified that the caller was the same person that had called earlier in the day. The caller stated that she had been mistaken about the date, and that all information given earlier would be for the next day. The information was then given to Deputy Ancell.
Deputy Ancell drove by appellant’s residence at approximately 10:00 a.m. on September 21, 1999. Deputy Ancell did not see a vehicle parked at appellant’s residence. Around noon on September 21, Audrain County Sheriffs Department Dispatcher Lena Rose received an anonymous phone call from a woman. The caller stated she had called the Sheriffs Department the day before with information concerning appellant. The caller further stated that appellant would be returning to Mexico around 3:00 or 4:00 p.m. that afternoon, and that he would be driving a white Cadillac. Ms. Rose then informed Deputy An-cell of the phone call.
At 3:00 p.m. on September 21, 1999, Deputy Ancell, Audrain County Sheriffs Deputy Dan Johnson and Missouri State Highway Patrol Trooper Phil Davis set up surveillance of northbound vehicles on Highway 54, just south of Mexico. Deputy Ancell stated this location was used because it was the most likely route appellant would take from Kansas City to Mexico. At 4:22 p.m. Deputy Ancell observed a vehicle that matched the caller’s description of appellant’s vehicle. Deputy Ancell testified that he recognized appellant as the driver because he had previous drug intelligence that appellant was invоlved in the sale of drugs and appellant had prior arrests and convictions for selling drugs. Appellant was the driver and Stacy Owens was a passenger in the vehicle.
Deputy Ancell initiated a traffic stop on the vehicle based on the anonymous tips. Deputy Ancell explained to appellant that he was stopped because he was suspected of having cocaine based on information received from an anonymous tip. Appellant denied having any drugs and informed Deputy Ancell he was welcome to search the car. Appellant and Mr. Owens both told Deputy Ancell that Mr. Owens was in
Appellant told Deputy Ancell that he owned the car, then gave the officers both verbal and written consent to search the car.
Appellant filed a motion to suppress the evidence pursuant to Section 542.296. The trial court overruled the motion to suppress stating the stop was proper because there was reasonable suspicion to stop appellant, the stop was brief, and although the officers did not corroborate the time appellant left Mexico on the morning September 21st, they did corroborate all the other information they had. A bench trial immediately followed. The parties stipulated to thе testimony adduced at the suppression hearing, except as to evidence of appellant’s prior convictions or reputation. The trial court found appellant guilty of possession of a controlled substance with intent to distribute, and appellant was sentenced to twenty years’ imprisonment without probation or parole. This appeal follows.
Appellant raises two points on appeal. Appellant first argues the trial court erred in denying his motion to suppress the cocaine found in the vehicle as the illegal fruit of an unreasonable search and seizure. Appellаnt then challenges the sufficiency of the evidence to support his conviction.
The State has the burden of going forward with the evidence and the risk of nonpersuasion to show by a preponderance of the evidence that a motion to suppress should be overruled. Section 542.296.6; State v. Weddle,
The Fourth Amendment of the United States Constitution protects the people against unreasonable search and seizures. Generally, a search or seizure is allowed only if the police have probable
“An anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.” Id. at 329,
The question presented in this case is whether the police did enough to corroborate the anonymous tip for it to exhibit sufficient reliability to provide reasonable suspicion to stop the appellant’s vehicle. Appellant argues the tip leading to his stop and subsequent arrest came from an anonymous source and lacked the required indicia of reliability to provide reasonable suspicion for the search and seizure. Appellant relies on Florida v. J.L.,
The Supreme Court held that the anonymous tip, without more, was not sufficient, to justify the police officer’s stop and frisk of J.L. Id. at 271, 120 S.Ct.1375. The Court stated that the tip did not provide the required indicia of reliability because “the anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” Id. Furthermore, the Court stated that a tip must be “reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Id.
Appellant also relies on State v. Miller,
One officer approached the driver’s side of the vehicle, asked Tope to exit the vehicle, explained to her the reason for the stop, and asked Tope for her consent to
Miller filed a motion to suppress the cocaine and several post-arrest statements. Id. The trial court denied Miller’s motion to suppress, but the Missouri Suprеme Court reversed, holding that the stop was illegal and the subsequent search was not sufficiently attenuated to purge the initial taint of illegality. Id. at 650. The Court stated that the information failed to show a special familiarity with the affairs of the object of the tip. Id. at 654. The information did not rise to the level of reasonable suspicion because it “merely accurately described a vehicle that might be located in a particular area” and did not “identify who would be in the vehicle, allow for corroboration of a travel route, or give an exact location for the vehicle.” Id.
The State argues this case is more in line with Alabama v. White, which the Supreme Court called a “close case.” White,
The Court held that the stop did not violate the Fourth Amendment because the police had sufficiently corroborated the tip to furnish reasonable suspicion that White was engaged in criminal activity. Id. at 331,
Like White, this is a close case. Appellant argues the tip was not reliable and the police did not sufficiently corroborate the tip for it to rise to the level of reasonable suspicion. We disagree. The tipster called the Audrain County Sheriffs Department three times, giving detailed information concerning appellant with each call. The caller identified the approximate time appellant was leaving Mex
Unlike Florida v. J.L, the caller in this case did give the police predictive information about appellant. In Florida v. J.L., the caller merely described a subject’s readily observable location and appearance. In the case at bar, the caller gave detailed predictive information specifically naming appellant and describing appellant’s destination, time frame, vehicle, and criminal activity.
We find appellant’s argument that the police did not corroborate enough information in the tip because they did not confirm the time appellant left his home on September 21, 1999 unpersuasive. The police, like the police in White, did sufficiently corroborate the tip, even though not every detail was corroborated. In White, the police did corroborate that a woman left the specific apartment building, entered the specific car, and then proceeded to drive towards the named hotel. White,
Appellant’s second point on appeal challenges the sufficiency of the evidence to support his conviction. Appellant argues that the State did not prove beyond a reasonable doubt that appellant consciously exercised dominion and control over the cocaine or that he knew of the existence of the cocaine. We find the State did present sufficient evidence to support appellant’s conviction.
When reviewing the sufficiency of the evidence, we review all evidence and inferences reasonably drawn from the evidence in the fight most favorable to the verdict, and disregard all contrary evidence and inferences. State v. Grim,
To sustain a conviction for possession of a controlled substance with or without intent to distribute, the State must prove: 1) conscious and intentional possession of the substance, either actual or constructive, and 2) awareness of the presence and nature of this substance. State v. Shinn,
In Shinn, the defendant was a passenger in a car stopped by the Missouri State Highway Patrol for speeding. Id. As the trooper approached the vehicle, he observed the driver and the defendant bending forward “as if to hide something.” Id. The trooper noticed that the defendant appeared nervous. Id. The trooper obtained the driver’s permission to search the car. Id. The trooper found cocaine and drug paraphernalia under the floor mat on the passenger side. Id. The defendant argued on appeal that the state failed to introduce sufficient evidence to support his conviction for possession of a controlled substance. Id. The court affirmed his conviction, stating that although defendant did not own the car, he and the driver had been in possession of the car most of the day. Id. The court noted that the coсaine and drug paraphernalia were found under the floor mat at the defendant’s feet, an area where he had superior access, which is an incriminating fact. Id. The court further noted that the defendant was visibly nervous, a condition that supports an inference of awareness of a controlled substance. Id. Finally, the court found significant the defendant’s actions in attempting to hide something under the seat as implying a consciousness of guilt. Id. Based on these factors, the court concluded that the evidence was sufficient to support defendant’s conviction. Id.
We find there was sufficient evidence to suрport appellant’s conviction of possession of a controlled substance with intent to distribute. First, and most significantly, appellant owned the vehicle in question. While there was a passenger in appellant’s vehicle, there was no evidence introduced that Mr. Owens, nor anyone other than the appellant, had access to or control of the trunk. As the owner of the vehicle, the appellant clearly had superior access to the trunk than anyone else at the time of the stop.
Further, Deputy Johnson testified he was standing next to appellant while Deputy Ancell searched his vehiсle. Deputy Johnson stated that while Deputy Ancell searched the driver’s compartment of the vehicle, appellant “didn’t seem to be too concerned with him searching the vehicle.” But when Deputy Ancell searched the trunk, appellant acted curious and paid very close attention to Deputy Ancell. This change in appellant’s behavior is similar to visual nervousness. Nervousness is a condition that supports an inference of awareness of a controlled substance. Id. Visible nervousness is one incriminating fact that will support a conviction if consistent with the totality of the circumstances, even though nervousness is not sufficient alone. Id.
Finally, Deputy Johnson testified that appellant stated a profanity when Deputy Ancell pulled the bags out of the speaker box. As with appellant’s nervousness, Appellant’s profane utterance is not enough alone to support a conviction, but may be considered in the totality of the circumstances to support appellant’s conviction.
Appellant argues, however, that State v. Bowyer,
In Mercado, the defendant was a passenger in a van stopped by a police officer for following another vehicle too closely. Mercado,
Both Bowyer and Mercado found insufficient evidence to support a conviction because of a lack of evidence connecting the defendants to the drugs found in the vehicles in which they were passengers. In both cases, there wаs no evidence beyond the defendants’ presence as passengers in the vehicles stopped to connect them to the drugs found in the vehicles.
Unlike Bowyer and Mercado, there was sufficient evidence to connect appellant to the drugs found in his vehicle. As stated, appellant was the owner of the vehicle; appellant had superior access to all others to the trunk of his car; appellant’s behavior changed when Deputy Ancell moved his search from the driver’s compartment to the trunk; and appellant uttered a profanity when Deputy Ancell removed the bags from the speaker box in the trunk. Bow-yer and Mercado arе not controlling because there was sufficient evidence to connect appellant to the cocaine found in his vehicle. Therefore there was sufficient evidence to support appellant’s conviction of possession of a controlled substance with intent to distribute. Point denied.
Based on the foregoing, we affirm.
Notes
. All further statutory references are to RSMo (1994) unless otherwise noted.
. The verbal consent was obtained about five minutes after the stop, and the written consent was obtained about thirteen minutes after the stop.
Dissenting Opinion
dissenting..
While I would agree with the majority’s discussion of the holdings in Alabama v. White, Florida v. J.L., and State v. Miller, supra, I respectfully disagree with the majority’s application of those cases to the instant case. I find the J.L. Court’s line of reasoning more persuasive in this case, and therefore, I respectfully dissent from the majority opinion and would reverse the judgment of the trial court and remand the cause.
An anonymous tip by itself seldom, if ever, produces reasonable suspicion that a person has committed a crime warranting a Terry stop. State v. Weddle,
Police may consider the anonymous tip if it is in conjunction with other independent corroborative evidence suggestive of criminal activity. Id. At issue is the reasonable suspicion which requires that a tip be rehable in its assertion of illegality, not just its tendency to identify a determinate
The J.L. Court held that an anonymous tip indicating a person was cаrrying a gun, without more, was insufficient to justify a Terry stop. J.L.,
In the instant case, as in J.L., the police made no personal observations and had no reason, aside from the anonymous tip, to suspect Berry of any illegal activity at the time of the Terry stop. Deputy Ancell acknowledged he did not see Berry commit any traffic violation, but merely stopped the car based upon the information received from the anonymous caller. The anonymous caller gave no information about her relationship with Berry nor did she say how she knew the information. The police corroborated some information provided by the anonymous caller, however, all of the corroborated details were easily obtainable facts and conditions existing at the time of the tip, similar to the circumstances in J .L.. Providing the police with a description of Berry’s car, the license plate, and a probable route at a particular time of day is insufficient to rise to the level of reasonable suspicion. State v.. Miller,
The majority stresses the fact that the anonymous caller contacted the police station on three separate occasions with detailed predictive information, such as specifically naming Berry and describing his destination, time frame, vehicle, and criminal activity. Presumptively, the three separate phone calls indicated she had a special familiarity with Berry’s affairs, specifically as to his destination and time frame, which differed each time she called. However, despite the caller’s conflicting and changing information, the police still failed to investigate adequately this “detailed predictive information” upon which the majority relies on.
Recognizing that additional investigative work could have demonstrated whether the anonymous caller had a special familiarity with Berry’s affairs, the additional work was lacking in this case. As stated earlier there was no investigation regarding the caller’s relationship or basis of knowledge as to Berry’s activities. Furthermore, the police did not take steps to corroborate the other information, such as the destination аnd time frame, which could have been easily verified. Deputy
Not only was the additional work lacking, the investigative work performed by the police was not sufficient to corroborate an anonymous tip under the dictates of State v. Miller, supra. They merely corroborated the description of Berry’s car, the license plate, and a probable route at a particular time of day, which is insufficient to rise to the level of reasonable suspicion. Moreover, simply because Berry had a previous drug conviction, and Deputy An-cell testified that he had some unelaborat-ed “intelligence” on Berry, these facts do not corroborate that he was engaged in current drug activity. See, Commonwealth v. Wimbush,
In the absence of sufficient corroboration, and based on the totality of the circumstances, I would hold the police did not have reasonable suspicion based solely on the anonymous tip to justify a Terry stop of Berry’s car. Therefore, the stop was illegal and the motion to suppress should have been granted. Finding Berry’s first point dispositive, I would not reach his second point challenging the sufficiency of the evidence to support his conviction and would reverse and remand for furthering proceedings.