State v. Milliorn

HIGGINS, Judge,

concurring in the judgment of suppression.

Although I agree with the majority that the judgment of suppression should be affirmed, in my opinion the majority engages in unnecessary discussion of both probable cause and inevitable discovery that could lead to unintended and unwarranted perceptions. Accordingly, and with due respect for the majority, I limit my concurrence to affirmance of the judgment and adapt the substance of the opinion of the Honorable Harold L. Lowenstein for the Court of Appeals, Western District, with emphasis supplied in support of my position:

The State of Missouri appeals from the grant of a motion by respondent Patrick Milliorn to suppress as evidence fifteen trash bags of marijuana discovered by police during the search of the camper portion of a 1984 Ford pickup truck. Milliorn was charged with four counts of possession of more than thirty-five grams of marijuana. Milliorn moved to suppress the evidence on the ground it had been obtained in an unlawful search and seizure. The trial court sustained this motion.

Trooper James Wingo of the Highway Patrol observed a 1984 Ford pickup truck with camper shell being driven by respondent, Patrick Milliorn. By use of radar or some other speed detection device, Wingo determined that Milliorn was traveling at 69 mph, in excess of the posted 65 mph speed limit.

Wingo stopped the truck and walked to the truck window, passing the rear camper portion of the truck, and began questioning Milliorn. Wingo could not see into the back portion of the truck which was enclosed by a camper shell with its windows tinted. In the course of a computer check of Milliorn's Colorado operator’s license, Wingo discovered it had been suspended in Colorado, the state of issue. Milliorn was then placed under arrest for driving without a valid operator’s license, and Wingo conducted a pat-down search. The search uncovered an unmarked, brown pill bottle which contained various controlled medications.

At this point, Milliorn stated that prescriptions for the medications were located in the passenger compartment of the truck *188 and could be found if Wingo looked for them. Upon entry into the truck, Wingo testified he could smell the strong odor of unprocessed raw marijuana. However, he could find none in the passenger compartment. He then took the keys from the ignition and opened the camper shell, uncovering the marijuana, the subject of the suppression hearing.

Although the State has come forth with numerous points seeking reversal of the order suppressing the marijuana, its case can be narrowed to two separate and distinct contentions. First, the State argues that Trooper Wingo possessed probable cause to believe that the truck contained contraband; and second, even if the initial search had been unlawful, the marijuana ultimately would have been discovered in the course of an otherwise lawful vehicle inventory search.

As to the standard of review, inquiry is limited to whether the trial court’s decision is supported by substantial evidence. State v. Craig, 759 S.W.2d 377, 378 (Mo.App.1988). Upon review of an order suppressing evidence, the facts and reasonable inferences arising therefrom are to be stated favorably to the order challenged on appeal and the court may disregard contrary evidence and inferences if the evidence is otherwise sufficient to sustain the lower court’s finding. Id. at 379; State v. McQuinn, 761 S.W.2d 668, 669 (Mo.App.1988); State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985).

PROBABLE CAUSE

It is the law that police officers possessed of probable cause to believe contraband is concealed in an automobile can conduct a warrantless search of the vehicle and any containers found therein. United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982); State v. Jackson, 646 S.W.2d 367, 369 (Mo.App.1982). “[T]he probable cause determination must be based on objective facts that could justify the issuance of a warrant by a magistrate and not merely on the subjective good faith of the police officers.” Ross, 456 U.S. at 808 , 102 S.Ct. at 2164 .

Applying the above principles to the facts adduced at the suppression hearing, coupled with the deference given to the trial court, this court is bound to uphold the finding that the search of the camper shell of the vehicle was without probable cause and the suppression of the marijuana was supported by substantial evidence.

The State’s evidence at the suppression hearing consisted only of Trooper Wingo’s testimony. Therefore, disposition of this point turns directly on whether the trial judge believed Wingo. Credibility is the sole issue. The court chose not to believe Wingo’s testimony, and unless this decision is not supported by substantial evidence, it cannot be overturned.

Several reasons may be ascribed to the court’s ruling. First, Trooper Wingo’s testimony at deposition and at the suppression hearing concerning the speed of the truck was contradictory. He first stated at deposition he wasn’t sure how fast Milliorn was traveling; then, at the suppression hearing, he stated Milliorn was traveling 69 mph. Wingo explained the reason for this discrepancy was he was “never asked ... about the radar unit” at deposition. The judge obviously did not accept Wingo’s explanation. Second, although Wingo stated he had called in a routine operator license check at the time of the stop showing Milliorn’s license to be suspended, there was no other evidence to support this contention; there was no radio log or tape recording system offered to show that this call ever took place, nor did Wingo attempt to contact the state of Colorado to verify this fact. Finally, and most importantly, the court did not believe Trooper Wingo smelled marijuana when he entered the cab of the truck. Wingo admitted he smelled nothing as he walked by the camper three separate times before finally entering the cab. Nor did he smell marijuana as he stood by the truck window talking with Milliorn. Also, taking into account the camper portion of the truck is a closed and separate unit from the cab, it is hard to believe Wingo could smell anything con *189 tained in the camper while he was rummaging through the cab.

In sum, it cannot be said that the trial court’s decision to suppress is not supported by substantial evidence. If Trooper Wingo did not smell marijuana, there was no probable cause to search the camper portion of the vehicle. “[G]enerally[,] an arrest for a traffic violation standing by itself will not provide probable cause for an officer to believe that the contents of an automobile offend against the law to justify searching the entire automobile.” State v. Williams, 654 S.W.2d 238, 241 (Mo.App.1983).

INEVITABLE DISCOVERY

The State asserts that even if the original search was unlawful due to lack of probable cause, the camper shell would have eventually been searched and the marijuana ultimately discovered during the course of an otherwise lawful vehicle inventory search. “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 evidence should be received.” Nix v. Williams, 467 U.S. 431 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984); see also State v. Ferguson, 678 S.W.2d 873 (Mo.App.1984); State v. Butler, 676 S.W.2d 809 (Mo. banc 1984).

The State asserts an inventory search would have been made of the locked and sealed camper portion of the truck. The impoundment of the truck would probably have been valid since it would have been left unoccupied on Interstate 70 after Mill-iom’s arrest, placing the public’s safety in question. Ferguson, 678 S.W.2d at 876-77 . However, a legitimate seizure does not automatically justify an unlimited search of the vehicle. An inventory search must be reasonable in scope. United States v. Wilson, 636 F.2d 1161, 1163 (8th Cir.1980). Inventory searches of vehicles following impoundment are justified for three reasons: 1) protection of the vehicle owner’s property; 2) protection of the police from claims of lost property; and 3) protection of the police from potential danger. Williams, 654 S.W.2d at 241 ; State v. Valentine, 584 S.W.2d 92, 98 (Mo. banc 1979). Nowhere in brief nor at argument did the State assert any of these three reasons for an inventory search of the locked camper shell portion of the vehicle, and argument on the point would not have changed the outcome of the ruling. It has been held there is a greater expectation of privacy in the locked trunk of an automobile than in the interior of a car. Wilson, 636 F.2d at 1164 ; Williams, 654 S.W.2d at 242 ; United States v. Maier, 691 F.2d 421, 424 (8th Cir.1982). This analysis also extends to locked camper shells. See Maier. The only distinguishing factors allowing the search of trunks and camper shells seem to be probable cause arguments, Jackson, 646 S.W.2d at 369 , and plain view arguments. Williams, 654 S.W.2d 238 ; Maier, 691 F.2d 421 ; Wilson, 636 F.2d 1161 . There is no contention of plain view; probable cause based on smelling the contraband has been denied under the first point. Strengthened by the idea that an inventory search may ordinarily be accomplished without a serious intrusion into the locked trunk or camper shell of a vehicle, Wilson, 636 F.2d at 1165-66 , it cannot seriously be urged that an inventory search under the present circumstances would have been valid. It cannot be said the State could have shown by a preponderance of the evidence, Nix, 467 U.S. 431 , 104 S.Ct. 2501 , that the marijuana would have been discovered because it cannot show an inventory search would have been valid under these facts.

I would affirm the trial court’s decision to suppress. Alternatively, the case should be retransferred for promulgation of the opinion of the court of appeals.