State v. Burkhardt

E. RICHARD WEBBER, Special Judge,

dissenting.

I respectfully dissent.

The Fourth Amendment of the United States Constitution provides, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. *408543 (1925), recognized the lawful search of an automobile without a warrant, but not without probable cause. Mobility of automobiles was cited as the justification for adoption of this judicial exception. Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419, 426-427 (1970). The judgment of an officer by judicial construction is permitted to be substituted for the adjudication by a disinterested judge that probable cause exists and that a search should be conducted.

Warrantless searches of automobiles are recognized under many other recognized exceptions, not relevant here. State v. Achter, 512 S.W.2d 894, 899-905 (Mo.App. 1974). The lawfulness of this search must rest upon an ultimate conclusion that officers who stopped defendant for speeding had probable cause to believe the car contained evidence or contraband they were entitled to seize.

Probable cause means more than mere suspicion by the searching officer. State v. Hornbeck, 492 S.W.2d 802, 805 (Mo. 1973); State v. Morgan, 592 S.W.2d 796, 804 (Mo. banc 1980); State v. Patterson, 624 S.W.2d 11,14 (Mo.1981); State v. Johnson, 558 S.W.2d 424, 426 (Mo.App.1977); State v. Shigemura, 768 S.W.2d 620, 623 (Mo.App.1989). When defendant was stopped for speeding, officers had no information that the vehicle was offending the law in any way, except it measured a speed of 64 M.P.H. on the radar scope. The cases that forged the “automobile exception”, which authorizes officers’ warrant-less searches of vehicles upon police determination of probable cause, clearly demonstrate that before officers conduct lawful warrantless searches of automobiles, they must show by objective facts what they expected to seize. In Carroll v. United States, defendant was a known bootlegger; previously he had outrun the police in the same car in an area that was near the international boundary and known as one of the most active centers in the United States for the introduction of illegal liquor into commerce, and defendant and a companion using the same car earlier attempted to furnish whiskey to officers. When defendant Carroll was stopped, the officers were looking for illegal liquor, and obviously had probable cause to believe they would find the expected contraband. Likewise, in United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), an informant told a detective that “Bandit,” later discovered to be an alias of defendant, was selling narcotics from the trunk of his car at a known address; that he observed such a sale and “Bandit” informed him more drugs were in the trunk. The car was matched to defendant whose car was stopped and searched. The searching officer was looking for and found narcotics. In fact, in all of the Missouri cases involving the warrantless search of automobiles cited in the majority opinion where challenged searches were upheld, the officers conducting the searches, based upon objective articulable facts known to them, knew what they were intending to seize before the search began. It is the “fishing expedition,” the “hunch or suspicion”, or, as in State v. Witherspoon, 460 S.W.2d 281, 287 (Mo.1970), the “exploratory search” that offends the Fourth Amendment.

In that case, Defendant Witherspoon was stopped after being reported as a suspect for speeding and reckless driving. A license check revealed information concerning questionable automobile registration, which resulted in the arrest of defendant on the scene for use of an improper license plate. The officer asked defendant, “If there would be anything in the trunk they would care if I looked at?” Id. at 282. He “replied negatively” and gave the officer the keys. The officer’s search of the trunk produced burglar tools used against defendant over objection at his trial. “The patrolman disclosed no known reason to believe, and did not express the belief at the hearing, that the trunk contained any contraband or evidence which could be used in the prosecution of a felony he had probable cause to believe had been or was being committed_” Id. at 283. The Court observed, “Likewise, in the instant case the facts can only justify the conclusion that the officer embarked on an exploratory search, without any justification shown in the record that he had reasonable or proba*409ble cause. Lacking that vital element, the Motions to Suppress should have been sus-tained_” Id. at 287.

Subjective beliefs by police officers that something is wrong with a defendant’s behavior will not withstand a challenge of Fourth Amendment violation of unlawful search and seizure. "... Here, the State argues that the troopers had a ‘hunch’ or ‘suspicion’ that Hensley and Weber were drug dealers, and therefore, a search of their persons was justified. Hunches and suspicions, even if acted on in good faith by the officers involved, are not enough. If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be secure in their persons, houses, papers and effects only in the discretion of the police. Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964).” State v. Hensley, 770 S.W.2d 730, 734 (Mo.App.1989). Officers are required to point to objective articulable facts that cause them to seek specific contraband, to avoid the harm Judge Taft recognized in Carroll, “But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.” 267 U.S. at 154, 45 S.Ct. at 285.

Where evidence was ruled admissible in another case under the “inevitable discovery” doctrine but inadmissible for lacking probable cause, the court declared, “It is clear that the police officers did not have sufficient probable cause to conduct a war-rantless search of the containers within the trunk. Although there was probable cause to arrest the defendant (i.e., the outstanding warrants) the officers additionally needed a basis for believing that particular evidence of a crime or specific contraband was being concealed within the trunk before conducting a warrantless search.” (emphasis supplied) State v. Ferguson, 678 S.W.2d 873, 876 (Mo.App.1984). In that case, a witness observed a man later identified as defendant near a Camaro who fled at 5:30 a.m. after seeing the witness. The car had damage in the nature of that caused by forced entry. Many cars had been stolen in the community. A vehicle drove in and parked by a sports car in the early morning hours and, later, pulled into the parking lot of a nearby apartment complex. The Defendant was in the car. The officers learned that there were outstanding warrants for his arrest. The officers were looking for and found burglary tools in the trunk.

The totality of circumstances in this case lead to the inescapable conclusion that the officers who stopped defendant for speeding were committed to search this out of state car for something. The identity of what they sought is not suggested by any facts known to them before Officer Rous-set made the decision to search the car. He had no idea what he was after, only that he was determined to look for something. According to his testimony, the probable cause determination was based upon the following two pieces of information:

Q. She make any other statement at that time?
A. She did. She asked if we were going to go ahead and search the car anyway, to which I responded that I felt that we had probable cause based on her nervousness, and the fact that their stories didn’t coincide, and that we were going to search the car.

These are the facts relied upon by the officer in determining whether probable cause existed to lawfully authorize a search of defendant's car. These facts come from the officer’s mouth. A cocaine possession conviction was reversed where defendant was “extremely nervous” just before a warrantless search by a trooper was conducted after he was stopped for speeding. The officer asked defendant, “Is there anything in the car I should know about” and invited himself to “look in the car.” The defendant demurred to no avail. The trooper seized evidence, which the trial court did not suppress. “In fact, it was clear that the officer did not know what he was looking for. He found no weapon, and *410turned his search to drugs: ‘at the time I didn’t know exactly what I was wanting to search for. I knew something was wrong. I felt like there was possibly a contraband ... Although, I admit, had I found drugs, that would have been contraband, which is what I was looking for ... ’ The only articulable fact shown by the officer as an objective basis for his suspicion and search was Donohoe’s extreme nervousness. That solitary circumstance simply does not suffice for the intrusion into a motor vehicle for a search, either for weapons or drugs_” State v. Donohoe, 770 S.W.2d 252, 258 (Mo.App.1989).

Defendant and a companion were interrogated separately after the speeding stop, a practice consistent with a conclusion that the officers intended to search the out of state car from the moment of the stop. The registration was in order; no radio communications indicated any criminal activity by the occupants or that either had a criminal record; the occupants were from all accounts courteous and neither made any unusual statements or requests. Their accounts of historical data were in some respects inconsistent. Another search of an automobile without a warrant was ruled violative of Fourth Amendment rights where an officer searched a trunk, “... because conflicting stories of the defendants made him suspicious....” State v. Witherspoon, 460 S.W.2d at 283.

There are good reasons for these rulings, which require more than nervousness of a defendant or conflicting stories of a defendant and another vehicle occupant. In some quarters, abuse by over zealous officers could easily occur. The slightest body movement could be interpreted as an act of nervousness by a driver. The slightest discrepancy in accounts of activities by a driver and an occupant, perhaps made in jest, could be used for unlawful intrusive purposes.

The majority opinion concludes that the following statements of defendant may be included by the officers as additional facts upon which a probable cause finding might be supported. She said, after the officer announced he was going to search, “You might as well go ahead and search it yourself. I’m not going to tell you where it’s at.” Defendant made it very clear that she did not want her luggage searched. In State v. Young, 425 S.W.2d 177, 181 (Mo.1968), a warrantless search of an automobile was reversed. The officer wanted to look in the trunk. The defendant took his keys and opened the trunk after he told the officer he did not want to open it and he “didn’t like people looking through my private stuff”, to which the officer explained, “We are going to be looking at them now whether you like it or not.” “Under the circumstances, defendant was doing no more than submitting to the will of the police in what must have been a firm determination on the part of the authorities to look in the trunk.” Id. at 181. Defendant, in withholding further cooperation was submitting to lawful authority. For that she may not be criticized.

Defendant’s Fourth Amendment right to be secure against an unlawful search was violated. United States v. Ross requires a probable cause determination based on objective facts that could justify issuance of a warrant by a magistrate. “Only the prior approval of the Magistrate is waived; the search otherwise is as the Magistrate could authorize.” Id at 823, 102 S.Ct. at 2172. Officers here could not have described “things to be seized” to a disinterested judge. All other cases reporting valid searches previously decided recite facts that officers knew and could articulate to point to specific things to be seized. The departure permits that which was heretofore offensive, “... for ‘Thus the Government is obliged to justify the arrest by the search and at the same time to justify the search by the arrest. This will not do ... Any other rule would undermine “the right of the people to be secure in their persons, houses, papers and effects”, and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.’ Johnson v. United States, 333 U.S. 10,16-17, 68 S.Ct. 367, 370, 92 L.Ed. 436 (1948).” State v. Witherspoon, 460 S.W.2d at 287.

*411I would affirm the Court of Appeals, Southern District, and reverse the conviction and discharge the defendant.