The State appeals from a “judgment” granting a “suppression of evidence” by the Circuit Court of Cole County (“trial court”). Because we conclude that the trial court’s “judgment” was a “judgment of acquittal” and not an “interlocutory suppression order,” we lack authority to hear the State’s “interlocutory” appeal and the same is dismissed.
On December 3, 2008, Patrick Connell (“Connell”) was pulled over by Officers Marsey and Flessa on the suspicion that there was an existing warrant for Connell and for a lane-change violation. Connell was handcuffed and placed in the back of Officer Flessa’s patrol car so that Flessa could ascertain Connell’s warrant status. While Officer Flessa checked Connell’s warrant status, Officer Marsey, a K-9 officer, walked the exterior of Connell’s truck with his canine. The dog alerted on Con-nell’s door and Officer Marsey, after opening the door, discovered a marijuana cigarette in a pack of cigarettes on the driver’s seat. A further search of the interior of the truck revealed a plastic bag of marijuana hidden in the fuse box. Connell was arrested and subsequently charged with the class A misdemeanor of possession of a controlled substance.
On June 11, 2009, Connell filed a motion to suppress evidence in which he argued that, in light of the United States Supreme Court decision in
Arizona v. Gant,
— U.S.-,
On April 15, 2010, a bench trial was held. Without objection, the State presented the testimony of Officers Flessa and Marsey and introduced the marijuana obtained from the search of Connell’s truck (i.e. the evidence was not suppressed). Connell presented no evidence in his defense. After the State’s closing argument, Connell’s trial counsel argued that the State had not met its burden of proof because the only evidence tying Con-nell to the charged crime was “the fruit of an illegal search.” After closing arguments, the trial court requested and received additional legal suggestions regarding the legality of the search that resulted in the discovery of marijuana in Connell’s truck. Thereafter, on June 18, 2010, the trial court signed a document with its summary of facts and law relating to the search; additionally, the document that was signed by the trial court stated: “Judgement [sic] — Defendant’s Motion to Suppress Evidence 1 is sustained.” On June 22, 2010, the State filed this “interlocutory” appeal, contesting the trial court’s “suppression order.”
Double Jeopardy and Appellate Jurisdiction
Connell argues that the trial court’s judgment was not an interlocutory order but, instead, a judgment of acquittal. As a result, Connell argues that the State’s appeal is not interlocutory but, instead, a post-trial appeal. Consequently, Connell moves to dismiss the State’s appeal on the basis that the State’s right to appeal ends where Connell’s right to be free from double jeopardy begins. § 547.200.2. 2 We agree.
In Missouri “‘[t]he right to appeal is purely statutory and, where a stat
In evaluating the trial court’s judgment for double jeopardy implications, we do not rely upon the trial court’s characterization of its action but “must examine and consider the language of the judgment in its entirety.”
Id.
(quoting
Woodfill v. Shelter Mut. Ins. Co.,
Although there are obvious similarities between the procedural history in Shaon and the instant case, we find significant and controlling differences between the two cases. In Shaon, both parties had agreed to submit argument on the motion to suppress in combination with the trial. Consequently, after the evidence was submitted, the trial court considered the separate issue of evidentiary suppression before continuing with the guilt phase of the trial. In the instant case, the motion to suppress had previously been overruled on multiple occasions by the trial court prior to the trial. Connell did not renew his motion when the marijuana evidence was admitted and did not even object to the introduction of the evidence during the trial. Instead, in Connell’s closing argument, Connell’s trial counsel argued that the only evidence tying Connell to a crime was evidence obtained in an illegal search. Connell’s trial counsel essentially intertwined the validity of the search with the question of Connell’s culpability: If the search was valid, Connell was guilty; if the search was invalid, the State could not meet its burden of proof and Connell must be acquitted.
While it is possible that the defendant in
Shaon
made a similar argument, it is the timing of Connell’s argument that distinguishes the procedural history of this case from
Shaon.
In
Shaon,
the trial court recessed the case to consider the motion to suppress
after
hearing all the evidence but
before
final arguments of counsel, clearly separating the issue of the motion to sup
Consequently, the practical effect of the trial court’s judgment is that the trial court, after hearing all of the evidence and argument of the parties, had concluded— as a matter of law — that the State could not meet its burden of proving the crime charged and Connell was, thus, acquitted. More importantly, we conclude that, in light of the trial court’s actions, jeopardy has attached, and this court does not have the authority to review the State’s “interlocutory” appeal. 3 § 547.200.2. Accordingly, the State’s appeal is dismissed. 4
JAMES EDWARD WELSH, Judge, and KAREN KING MITCHELL, Judge, concur.
Notes
. This is nonsensical. To suppress evidence is to prevent its admission into evidence at trial. To the contrary, in this case, the evidence in question was admitted at trial without objection.
. Unless otherwise indicated, statutory references are to RSMo 2000, as updated through the 2009 Cumulative Supplement.
.
See State v. Seuferling,
. In so ruling, it has not escaped our attention that the trial court had not one, but two, opportunities to rule upon the motion to suppress before the presentation of evidence. Based upon the record before us, the facts do not appear to have changed since the trial court’s previous rulings on the motion to suppress. Nonetheless, by waiting until after the presentation of evidence and after final arguments of counsel to reverse its conclusions as to the legality of the search in question, the trial court has effectively prevented appellate review of its conclusion regarding the legality of the search. We presume that the trial court is aware that evidentiary suppression via motion should be ruled upon before, not after, evidence has been admitted at trial. We presume the trial court, instead, simply recognized that this was a bench-tried case in which the trial court permitted all evidence to come in and ultimately concluded that the State had not met its factual and/or legal burden of proof to convict Connell and, hence, its "judgment” in favor of Connell.