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State of Missouri v. Jason McDowell
Date: 03-24-2017
Case Number: ED103993
Judge: Lisa P. Page
Court: MISSOURI COURT OF APPEALS EASTERN DISTRICT
Plaintiff's Attorney: Nathan Aquino
Defendant's Attorney:
Randall Brachman
Description:
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On January 23, 2014, an employee ("Housekeeper") of Red Roof Inn was conducting
routine housekeeping functions in various hotel rooms. Upon entering Room 214, the
Housekeeper encountered a "white substance" and "pipes" on the counter; at the time the
Housekeeper entered Room 214, no individual was discovered therein. The Housekeeper
immediately exited Room 214 and proceeded to inform the management of Red Roof Inn of his
observations. The management of Red Roof Inn instructed Housekeeper to return to Room 214
to photograph the scene. Thereafter, Room 214 was placed on lockdown so as to prevent entry.
Approximately 9:00 P.M. that same evening, Defendant—the lodger of Room 214—
returned to Red Roof Inn. Upon recognizing Defendant, an employee of the Red Roof Inn
contacted Officer Scott Gruswitz ("Officer Gruswitz") of the Saint Louis Metropolitan Police
Department ("SLMPD"), who, fortuitously, was parked in the parking lot of the Red Roof Inn
while on patrol. Officer Gruswitz was informed of Housekeeper's earlier discoveries in Room
214. Officer Gruswitz was also provided the paperwork Defendant completed upon renting
Room 214, which revealed Defendant was driving a silver Chevy Impala.
After reviewing this paperwork, Officer Gruswitz entered the relevant information
through certain databases so as to determine the status of Defendant. As a result of these
searches, Officer Gruswitz learned Defendant's California driver's license had been suspended or
revoked and Defendant' vehicle was not registered. Shortly thereafter, Officer Gruswitz
approached Defendant in the lobby of the Red Roof Inn and requested identification; Defendant
provided Officer Gruswitz with a California driver's license.
Officer Gruswitz placed Defendant under arrest for driving while his license was
suspended or revoked. Defendant was searched, incident to arrest, wherein a scale with drug
residue was discovered in Defendant's pocket. Officer Gruswitz, in accordance with his training
and experience, ordered Defendant's automobile to be impounded because Defendant was placed
under arrest, the automobile was unregistered, and Officer Gruswitz was unable to determine the
identity of a third-party to remove the automobile from the Red Roof Inn parking lot. An
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inventory of the Defendant's automobile ensued; during that inventory search, marijuana was
discovered in the trunk of the automobile.
Upon the expiration of Defendant's lease of Room 214 the following day, Officer
Gruswitz was granted access by the employees of the Red Roof Inn to examine said room.
Officer Gruswitz discovered drug paraphernalia, currency, and methamphetamine during his
access to Room 214.
Defendant was thereafter charged with one count of possession of marijuana with the
intent to distribute, in violation of Section 195.211 ("Count I"), one count of possession of
methamphetamine, in violation of Section 195.202 ("Count II"), and one count of unlawful use
of drug paraphernalia, in violation of Section 195.233 ("Count III"). The trial court denied
Defendant's motions to suppress and motions for judgment of acquittal. After a bench trial,
Defendant was found guilty as charged and subsequently sentenced.
Defendant now appeals.
DISCUSSION
Defendant submits four points on appeal. In his first and second points on appeal,
Defendant contends the trial court erred in denying his motions for judgment of acquittal because
the evidence was insufficient to support Defendant's convictions of Count I and Count II.
Defendant argues the State failed to meet its burden of proving the substances that were
discovered in his automobile and hotel room were, in fact, marijuana and methamphetamine.
In his third and fourth points on appeal, Defendant claims the trial court erred in
overruling his motions to suppress evidence relating the warrantless searches of his automobile
and hotel room, respectively.
We elect to address Defendant's Points III and IV before returning to Points I and II.
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Points III & IV
In Points III and IV of his appeal, Defendant contends the trial court erred in denying his
motions to suppress evidence discovered by law enforcement during the warrantless searches of
his automobile and hotel room, respectively.
Standard of Review
Upon review of denial of a motion to suppress, this court determines if there was
substantial evidence to support the decision and will only reverse if the trial court's ruling was
clearly erroneous. State v. Nylon, 311 S.W.3d 869, 884 (Mo. App. E.D. 2010); see also State v.
Martin, 79 S.W.3d 912, 915 (Mo. App. E.D. 2002) ("We will reverse the trial court's ruling only
if it is clearly erroneous; that is, if we are left with a definite and firm belief that a mistake has
been made."). In reviewing the trial court's ruling on a motion to suppress, the facts and any
reasonable inferences arising therefrom are viewed in the light most favorable to the ruling of the
trial court. State v. Taber, 73 S.W.3d 699, 703 (Mo. App. W.D. 2002). Accordingly, this court
defers to the trial court's factual findings and credibility determinations. State v. Nebbitt, 455
S.W.3d 79, 85 (Mo. App. E.D. 2014). "However, we review questions of law, including whether
conduct violates the Fourth Amendment, de novo." Nylon, 311 S.W.3d at 884.
Analysis
As set forth in the Fourth Amendment to the United States Constitution, "[t]he right of
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated[.]" U.S. CONST. AMEND IV; see also MO. CONST. ART. I, § 15;
State v. Ramires, 152 S.W.3d 385, 391 (Mo. App. W.D. 2004) ("The Fourth Amendment to the
U.S. Constitution, enforceable against the states through the due process clause of the Fourteenth
Amendment, guarantees the right of the people to be secure from unreasonable searches and
5
seizures."); State v. Lee, 498 S.W.3d 442, 448 (Mo. App. W.D. 2016) ("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.").
It is a cardinal principle of Fourth Amendment jurisprudence that warrantless searches
are prima facie unreasonable, subject only to a few specifically established and well-delineated
exceptions. State v. Humble, 474 S.W.3d 210, 215 (Mo. App. W.D. 2015); State v. Williams,
654 S.W.2d 238, 241 (Mo. App. S.D. 1983). If an applicable exception is invoked, the burden
rests upon the State to vindicate the failure to procure a warrant. Williams, 654 S.W.2d at 241.
A. Impoundment of Defendant's Automobile was Lawful (Point III)
In his third point on appeal, Defendant contends the trial court erred in overruling his
motion to suppress evidence relating to the inventory search of his automobile. Specifically,
Defendant argues his automobile was not lawfully impounded, thus invalidating the subsequent
inventory search and the evidence discovered therefrom.
One such exception to the warrant requirement of the Fourth Amendment "is an
inventory search of a motor vehicle, which permits a law enforcement officer to make a
warrantless search of a lawfully seized vehicle[.]" Ramires, 152 S.W.3d at 391 (emphasis added)
(citing antecedent cases from the Supreme Court of the United States and Missouri courts).2 An
inventory search of an automobile is permitted where: (1) the police have lawfully impounded
the automobile; and (2) the police have acted in accordance with a reasonable, standard policy of
routinely securing and inventorying the contents of the impounded vehicle. South Dakota v.
2 Commonly, courts have justified inventory searches of impounded automobiles premised upon three reasons: (1) protection of property; (2) protection of the police from claims of lost property; and (3) the protection of the police from potential danger. Williams, 654 S.W.2d at 241.
6
Opperman, 428 U.S. 364, 368-72 (1976). Both the decision to take the automobile into custody
(the "seizure") and the concomitant inventory search (the "search") must meet the strictures of
the Fourth Amendment. Soldal v. Cook Cnty., Ill., 506 U.S. 56, 63 (1992) (quoting U.S. v.
Jacobsen, 466 U.S. 109, 113 (1984)) (The Fourth Amendment "protects two types of
expectations, one involving 'searches,' the other ‘seizures.'"); see also Miranda v. City of
Cornelius, 429 F.3d 858, 862 (9th Cir. 2005) ("The impoundment of an automobile is a seizure
within the meaning of the Fourth Amendment.").
In assessing the propriety of a warrantless inventory search of a defendant's automobile,
the threshold inquiry is whether law enforcement lawfully impounded the automobile.
Opperman, 428 U.S. at 368; Soldal, 506 U.S. at 63-64 (one can search property without seizing it
and seize property without searching it). Where the circumstances show the police lacked the
authority to impound the automobile, the resulting inventory search will be found to be unlawful.
State v. Holt, 695 S.W.2d 474, 477 (Mo. App. E.D. 1985) ("A routine warrantless inventory
search is constitutionally sanctioned provided the initial seizure of the car was legitimate and the
search reasonable in scope."). Ergo, lawful impoundment of an automobile by the police is a
necessary prerequisite to an inventory search; if the police fail to demonstrate proper legal
authority to impound the automobile, the inquiry ends as there can be no ensuing lawful
inventory search. Id.; see also People v. Brown, 2016 WL 6122812, *3 (Colo. App. Oct. 20,
2016) ("[B]y any fair account, a decision upholding an inventory search based on a policy—but
without asking whether the criteria for the underlying impoundment satisfy the Fourth
Amendment—is like the emperor with no clothes.").
The Supreme Court of the United State has afforded police broad authority to impound
vehicles without infringing upon rights endowed by the Fourth Amendment. Opperman, 428
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U.S. at 368-69. The authority to impound automobiles derives from the police's reasonable
"community caretaking functions," which include, but are not limited to, protecting the public's
safety, removing disabled or damaged vehicles from the highway, and impounding automobiles
which violate parking ordinances or impede efficient traffic flow. Id.; see also U.S. v.
Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 1991) (defining "community caretaking" as a
"catchall" for the wide range of responsibilities police must discharge).
Congruently, our Missouri courts have also furnished police with broad authority to
impound automobiles, including those instances where "the vehicle is associated with the
commission of an offense or the arrest of the defendant or if the location or condition of the
vehicle is such that the safety or interest of the public requires its removal and police intervention
is the only viable option." State v. Walker, 755 S.W.2d 404, 408 (Mo. App. E.D. 1988)
(citations omitted). In addition to the foregoing, if "serious doubts arise concerning the driver's
ownership or lawful possession of the vehicle[,]" impoundment may, in certain circumstances, be
proper and lawful. State v. Kelley, 678 S.W.2d 852, 854 (Mo. App. E.D. 1984).
Despite this broad authority, impoundment of an automobile must still be conducted
pursuant to a standardized criterion so as to not run afoul of the Fourth Amendment. Colorado v.
Bertine, 479 U.S. 367, 375 (1987). Thus, under the "community caretaking" doctrine, police
may, without a warrant, impound (and subsequently search) an automobile as long as they do so
in conformance with standardized procedures and in furtherance of a community caretaking
purpose. Id. (holding that it was constitutional for police regulations to give police the discretion
to impound an arrestee's automobile rather than leaving it locked and parked in a safe place, so
long as the police's decision in the matter was governed by standardized, objectively
ascertainable criteria); see also State v. Milliorn, 794 S.W.2d 181, 186 (Mo. banc 1990), infra.
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The constitutionally-required standardized criterion for determining when to impound an
automobile, however, does not prohibit "the exercise of police discretion so long as that
discretion is exercised according to standard criteria and on the basis of something other than
suspicion of evidence of criminal activity." Bertine, 479 U.S. at 375; see also U.S. v. Petty, 367
F.3d 1009, 1012 (8th Cir. 2004) ("Some degree of 'standardized criteria' or 'established routine'
must regulate [impoundments]" but "an impoundment policy may allow some 'latitude' and
'exercise of judgment' by a police officer when those decisions are based on concerns related to
the purposes of an impoundment."); cf. U.S. v. Coccia, 446 F.3d 233, 238 (1st Cir. 2006) ("[W]e
do not understand Bertine to mean that an impoundment decision made without the existence of
standard procedures is per se unconstitutional. Rather, we read Bertine to indicate that an
impoundment decision made pursuant to standardized procedures will most likely, although not
necessarily always, satisfy the Fourth Amendment.").
In fact, the Fourth Amendment does not demand police offer a motorist an alternative
means of removing his vehicle that will avoid the need to tow it and conduct and inventory
search. Bertine, 479 U.S. at 373-74 (police need not give a motorist "an opportunity to make
alternative arrangements" that avoids impoundment); see also U.S. v. Agofsky, 20 F.3d 866, 873
(8th Cir. 1994) ("Nothing in the Fourth Amendment requires a police department to allow an
arrested person to arrange for another person to pick up his car to avoid impoundment and
inventory."); cf. U.S. v. Duguay, 93 F.3d 346, 353 (7th Cir. 1996) ("The policy of impounding
the car without regard to whether the defendant can provide for its removal is patently
unreasonable if the ostensible purpose for impoundment is for the 'caretaking' of the streets.").
Here, during the suppression hearing, Officer Gruswitz testified that in accordance with
his training and experience, he elected to impound Defendant's automobile because the
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automobile was unregistered and a "prisoner's auto."3 Officer Gruswitz further testified that he
was unable to secure a third-party to remove the vehicle because Defendant refused, when
requested, to identify the owner of the automobile. Beyond Officer's Gruswitz's testimony
regarding his training and experience, the record is void of any evidence or exhibits regarding
SLMPD's standardized policy—written or otherwise—for impounding automobiles.
At the trial court, and, now, on appeal, Defendant avers the SLMPD's purported lack of
any standardized policy—written or otherwise—controlling the decision to impound a vehicle
equipped the police with unconstitutionally broad and unbridled discretion in determining
whether to impound Defendant's vehicle in this matter. We disagree.
Initially, during the underlying proceedings, the State defended the impoundment of
Defendant's automobile grounded upon the "community caretaking" doctrine. In relevant part,
the State advocated as follows:
"[T]he vehicle had to be towed as there were no other licensed drivers available and the car was parked on private property. There is no question that the police department had procedures for towing vehicles as they have created a standard form for documenting such searches. The law does not require any additional written policies. Further, Officer Gruswitz testified that he was trained on when and how to conduct an inventory search and has conducted them in similar situations. The officers followed their training and experience and documented the vehicle's contents on the standard department form and in the police report."
Now, on appeal, the State apparently changes direction and claims Section 304.155
conferred the police with the authority to impound Defendant's vehicle. Germane to this appeal,
Section 304.155 reads as follows:
1. Any law enforcement officer within the officer's jurisdiction, or an officer of a government agency where that agency's real property is concerned, may authorize a towing company to remove to a place of safety:
3 Officer Gruswitz defined a "prisoner's auto" as one in which "the vehicle was left somewhere that we believe to be unsafe and we arrested someone who owns the vehicle or in possession of the vehicle."
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(5) Any abandoned property for which the person operating such property is arrested for an alleged offense for which the officer takes the person into custody and where such person is unable to arrange for the property's timely removal[.]
In Milliorn, our Supreme Court unequivocally held that "Section 304.155.1(5), RSMo 1986,
establishes standardized criterion for the decision to impound a vehicle." Milliorn, 794 S.W.2d
at 186.4
In order for law enforcement to satisfy the standardized criterion set forth in Section
304.155.1(5), the State must meet its burden that the arrestee is unable to arrange for the timely
removal of the automobile. See Section 304.155.1(5). Although the facts of this case do not
require this court to definitely determine what law enforcement must do in order to satisfy that an
arrestee cannot timely arrange for the removal of the automobile, we find the law enforcement's
actions, in this matter, were inadequate. Merely requesting that the arrestee provide the identity
of the owner does not equate to proof that the arrestee is unable to arrange for the timely removal
of the automobile. Miranda, 429 F.3d at 864 ("We begin with the premise . . . that the decision
to impound pursuant to the authority of a city ordinance and state statute does not, in and of
itself, determine the reasonableness of the seizure under the Fourth Amendment . . . .").
Notwithstanding the State's inability to satisfy the standardized criterion set forth in
Section 304.155.1(5), we still find the impoundment (or "seizure") of Defendant's automobile
was constitutional and in accord with the "community caretaking" doctrine.
Although there appears to a be split in authority regarding whether the Fourth
Amendment demands written standardized criterion for the impoundment of an automobile, the
United States Court of Appeals, Eighth Circuit, has held that written policy is superfluous and
4 Although the holding of Milliorn remains valid, it is worth noting that Section 304.155.1(5), RSMo 1986, omitted the requirement that "such person is unable to arrange for the property's timely removal." See Section 301.155.1(5), RSMo 1986. In 1996, our Legislature elected to amend Section 304.155.1(5) to include that foregoing requirement. See Section 304.155.1(5), RSMo Cum. Sup. 2015; see also S.B. 560 (1996).
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not required. Petty, 367 F.3d at 1012 ("It would have been simpler for the government to present
the police department's written impoundment policy . . . but testimony can be sufficient to
establish police procedures."); see also U.S. v. Arrocha, 713 F.3d 1159, 1163-64 (8th Cir. 2013);
but see U.S. v. Sanders, 796 F.3d 1241, 1248 (10th Cir. 2015) ("Yet no circuit has held either
that the existence of standardized procedures automatically renders an impoundment
constitutional, or that the absence of standardized procedures automatically renders an
impoundment unconstitutional."). "So long as the officer's residual judgment is exercised based
on legitimate concerns related to the purposes of an impoundment[,]" the constitutionality of the
impoundment will not be defeated simply because the standardized criterion was not in written
form. Petty, 367 F.3d at 1012; see also U.S. v. Betterton, 417 F.3d 826, 830 (8th Cir. 2005)
("[T]he absence of a written policy controlling the decision to impound a vehicle does not
automatically render an inventory search unconstitutional."); Coccia, 446 F.3d at 239 ("[A]
police's officer's discretion to impound a car is sufficiently cabined by the requirement that the
decision to impound be based, at least in part, on a reasonable community caretaking concern
and not exclusively on the suspicion of criminal activity.") (citations omitted). We find the logic
and reasoning of the Eighth Circuit persuasive, and elect to follow the same.
The facts of the case reveal the impoundment of Defendant's automobile was justified by
both a standardized policy and a reasonable, non-pretextual community caretaking rationale.
First, as discussed supra, Officer Gruswitz attested that it was customary, based upon his
training and experience, for the officers of the SLMPD to impound "prisoner autos." Moreover,
the vehicle was discovered to be unregistered, and law enforcement professionals were
unsuccessful in identifying the owner thereof. See, e.g., Kelley, 678 S.W.2d at 854. Although a
written standardized criterion for impounding automobiles may be preferred, the lack of written
12
standardized criterion did not render the impoundment of Defendant's automobile
unconstitutional. Officer Gruswitz's testimony was sufficient evidence for purposes of
establishing the standardized criterion for impoundments.
Second, the impoundment of Defendant's automobile was not conducted as a pretext for
further investigation, but rather was administered pursuant to the caretaking functions of the
police. State v. Meza, 941 S.W.2d 779, 782 (Mo. App. W.D. 1997) ("The presence of an
investigatory motive, even if proven, does not invalidate an otherwise lawful inventory search.")
(citations omitted). Officer Gruswitz's impoundment of Defendant's automobile (and the
standardized criterion employed by the SLMPD) was conducted for purposes of public safety.
Although substitute means may have been available to remove Defendant's automobile, "[t]he
reasonableness of any particular governmental activity does not necessarily or invariably turn on
the existence of alternative less intrusive means." Bertine, 479 U.S. at 373-74 (internal citations
omitted). The impoundment was not, therefore, an unconstitutional pretext for additional
investigations.5 See, e.g., Servis v. Com., 371 S.E.2d 156, 163-64 (Va. App. 1988) (finding
impoundment of automobile parked on motel parking lot did not violate the Fourth Amendment).
Therefore, we do not find the denial of Defendant's motions to suppress the evidence
discovered during the inventory search of his automobile to be clearly erroneous.
Point III is, thereby, denied.
B. Search of Hotel Room Did Not Violate the Fourth Amendment (Point IV)
In his fourth point on appeal, Defendant argues the trial court erred in overruling his
motion to suppress evidence relating to the warrantless search of his hotel room.
5 Defendant's Point III does not explicitly or implicitly contest the constitutionality of the subsequent inventory search after impoundment. As such, we did not address the inventory search, itself.
13
The Fourth Amendment generally protects individuals from warrantless searches and
seizures, "before an individual can invoke these protections and successfully argue for the
suppression of evidence obtained from such searches, he or she has the burden to show a
legitimate expectation of privacy in the place or thing being searched." State v. Mitchell, 20
S.W.3d 546, 557 (Mo. App. W.D. 2000). Generally, when rented by an individual, a hotel room
carries the same expectation of privacy as that enjoyed by a homeowner. State v. Ballard, 457
S.W.3d 809, 812 (Mo. App. E.D. 2014). However, upon the expiration of the rental period, the
guest completely loses his or her right to the use of the room and privacy associated therewith.
Id.
Here, we reject Defendant's claim of unlawful search. It is uncontested law enforcement
did not enter Room 214 until the following day, upon the cessation of Defendant's rental period
and with the consent of the hotel staff. As such, there was no intrusion into Defendant's privacy,
and the search was clearly permissible. Mitchell, 20 S.W.3d at 559.
Defendant, nevertheless, attempts to frame his argument around a reasonable expectation
of privacy in the vacated hotel room, in that he purportedly intended to continue possessing the
hotel room. Defendant bore the burden of demonstrating his reasonable expectation to privacy in
the hotel room. Id. at 557. Defendant's argument belies the facts of this matter as there is no
evidence Defendant intended to continue his occupancy of Room 214. Defendant assumed the
burden of proving his reasonable expectation of privacy, and his failure to do so cannot be a
basis to now complain. Ballard, 457 S.W.3d at 813. Defendant's fourth point on appeal is
without merit.
Therefore, we do not find the denial of Defendant's motions to suppress the evidence
discovered during the search of hotel room to be clearly erroneous.
14
Point IV is denied.
Points I & II
In his first and second points on appeal, Defendant maintains the trial court erred in
denying his motions for judgment of acquittal regarding two separate counts for possession of a
controlled substance. Specifically, Defendant avers there existed insufficient evidence to
demonstrate the discovered substances were, in fact, marijuana and methamphetamine,
respectively. Ostensibly, Defendant claims the laboratory tests (conducted by a forensic
chemist) were insufficient or deficient as said tests failed to prove the material of each substance
beyond a reasonable doubt.
Standard of Review
"In a jury-tried case, our review of a trial court's ruling on a motion for judgment of
acquittal is for a submissible case." State v. Davis, 71 S.W.3d 659, 664 (Mo. App. W.D. 2002);
see also State v. Sistrunk, 414 S.W.3d 592, 596 (Mo. App. E.D. 2013). However, in a bench
tried case, as here, we review to determine whether there was sufficient evidence from which the
trial court could have found the defendant guilty beyond a reasonable doubt. Davis, 71 S.W.3d
at 664. We will affirm a trial court's denial of a motion for judgment of acquittal if, at the close
of evidence, there was sufficient evidence from which reasonable persons could have found the
defendant guilty of the charged offense. State v. Kilgore, 505 S.W.3d 362, 366 (Mo. App. E.D.
2016).
"The trier of fact determines the credibility of the witnesses, and may believe all, some or
none of the testimony of a witness." State v. Warren, 141 S.W.3d 478, 490 (Mo. App. E.D.
2004). Further, this court will review all evidence and inferences reasonably drawn from the
evidence in the light most favorable to the verdict, and disregard all contrary evidence and
15
inferences. State v. Rousselo, 386 S.W.3d 919, 920-21 (Mo. App. S.D. 2012). "The function of
the reviewing court is not to reweigh the evidence, but [only] to determine if the conviction is
supported by sufficient evidence." State v. McCleod, 186 S.W.3d 439, 443 (Mo. App. W.D.
2006) (internal citations omitted). Thus, when reviewing the sufficiency of evidence supporting
a criminal conviction, the Court does not act as a "super juror" with veto powers. State v.
Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998).
Analysis
Under Point I, Defendant suggests the Duquenois-Levine test—commonly employed and
generally accepted as reliable in a substantial number of jurisdictions—used to identify
marijuana was insufficient as a matter of law because of the purported possibility of "false
positives." Defendant claims there are two forms of the Duquenois-Levine test (one which is
purportedly more reliable than the other), and the forensic chemist did not explicitly attest to
which form of the test she performed.
Similarly, under Point II, Defendant suggests the test performed to identify the
methamphetamine was also insufficient as a matter of law, because it is unclear whether the test
distinguished between "legal methamphetamine" and "illegal methamphetamine."6
At trial, Defendant elected not to cross-examine the forensic chemist in any manner. For
instance, Defendant did not cross-examine the forensic chemist as to the tests performed, the
reliability of those tests, or the manner in which those tests were performed. Moreover,
Defendant did not retain an expert of his own to conduct laboratory tests upon the material, nor
6 The terminology of "legal" and illegal" methamphetamine is simply used to distinguish between the enantiomers that comprise each form. Under the facts of this case, this court need not wade too deep into either the molecular distinctions or the disparities in the neurological effects of either form of methamphetamine. However, our terminology should not be read or interpreted as anything more than a rudimentary means to dispose of Defendant's highly technical and scientific arguments.
16
did Defendant seek to challenge the reliability or sufficiency of the State's laboratory tests. Now,
on appeal, Defendant directs this court's attention to a plethora of purported documentary data
and studies to support his contention the State submitted insufficient evidence to convict
Defendant because the laboratory tests did not prove, beyond a reasonable doubt, the materials
were, in fact, marijuana and methamphetamine.
Assuming, arguendo, Defendant adequately preserved Points I and II for appeal, we are
unconvinced. In this case, the trial judge, sitting as trier of fact, found as a fact that the
substances tested were marijuana and methamphetamine. Questions of fact are not generally
within this court's province where the record supports the trial court's findings. State v. Rehberg,
919 S.W.2d 543, 552 (Mo. App. W.D. 1995) ("In making that determination, we accept as true
all evidence tending to prove guilt together with all reasonable inferences that support the
finding, and all contrary evidence and inferences are ignored."). There was, indeed, sufficient
evidence from which the trial court could have found Defendant guilty beyond a reasonable
doubt.
Additionally, we will not reweigh the evidence, nor will this court reassess the credibility
of witnesses. State v. St. George, 215 S.W.3d 341, 345 (Mo. App. S.D. 2007). As such, we
decline to declare as a matter of law that the laboratory tests performed herein are not probative
(or inadequate as a matter of law) regarding the identity of the substance, especially when
Defendant made no showing of the same during trial. The evidence adduced during trial
sufficiently produced a submissible case. See, e.g., State v. Shelli, 675 S.W.2d 79, 81 (Mo. App.
E.D. 1984) (submissible case was made where forensic chemist testified that the material seized
was marijuana); see also State v. Kerfoot, 675 S.W.2d 658, 661 (Mo. App. E.D. 1984)
(testimony of sheriff identifying the drug is sufficient evidence to make a submissible case).
Points I and II are denied.
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On January 23, 2014, an employee ("Housekeeper") of Red Roof Inn was conducting
routine housekeeping functions in various hotel rooms. Upon entering Room 214, the
Housekeeper encountered a "white substance" and "pipes" on the counter; at the time the
Housekeeper entered Room 214, no individual was discovered therein. The Housekeeper
immediately exited Room 214 and proceeded to inform the management of Red Roof Inn of his
observations. The management of Red Roof Inn instructed Housekeeper to return to Room 214
to photograph the scene. Thereafter, Room 214 was placed on lockdown so as to prevent entry.
Approximately 9:00 P.M. that same evening, Defendant—the lodger of Room 214—
returned to Red Roof Inn. Upon recognizing Defendant, an employee of the Red Roof Inn
contacted Officer Scott Gruswitz ("Officer Gruswitz") of the Saint Louis Metropolitan Police
Department ("SLMPD"), who, fortuitously, was parked in the parking lot of the Red Roof Inn
while on patrol. Officer Gruswitz was informed of Housekeeper's earlier discoveries in Room
214. Officer Gruswitz was also provided the paperwork Defendant completed upon renting
Room 214, which revealed Defendant was driving a silver Chevy Impala.
After reviewing this paperwork, Officer Gruswitz entered the relevant information
through certain databases so as to determine the status of Defendant. As a result of these
searches, Officer Gruswitz learned Defendant's California driver's license had been suspended or
revoked and Defendant' vehicle was not registered. Shortly thereafter, Officer Gruswitz
approached Defendant in the lobby of the Red Roof Inn and requested identification; Defendant
provided Officer Gruswitz with a California driver's license.
Officer Gruswitz placed Defendant under arrest for driving while his license was
suspended or revoked. Defendant was searched, incident to arrest, wherein a scale with drug
residue was discovered in Defendant's pocket. Officer Gruswitz, in accordance with his training
and experience, ordered Defendant's automobile to be impounded because Defendant was placed
under arrest, the automobile was unregistered, and Officer Gruswitz was unable to determine the
identity of a third-party to remove the automobile from the Red Roof Inn parking lot. An
3
inventory of the Defendant's automobile ensued; during that inventory search, marijuana was
discovered in the trunk of the automobile.
Upon the expiration of Defendant's lease of Room 214 the following day, Officer
Gruswitz was granted access by the employees of the Red Roof Inn to examine said room.
Officer Gruswitz discovered drug paraphernalia, currency, and methamphetamine during his
access to Room 214.
Defendant was thereafter charged with one count of possession of marijuana with the
intent to distribute, in violation of Section 195.211 ("Count I"), one count of possession of
methamphetamine, in violation of Section 195.202 ("Count II"), and one count of unlawful use
of drug paraphernalia, in violation of Section 195.233 ("Count III"). The trial court denied
Defendant's motions to suppress and motions for judgment of acquittal. After a bench trial,
Defendant was found guilty as charged and subsequently sentenced.
Defendant now appeals.
DISCUSSION
Defendant submits four points on appeal. In his first and second points on appeal,
Defendant contends the trial court erred in denying his motions for judgment of acquittal because
the evidence was insufficient to support Defendant's convictions of Count I and Count II.
Defendant argues the State failed to meet its burden of proving the substances that were
discovered in his automobile and hotel room were, in fact, marijuana and methamphetamine.
In his third and fourth points on appeal, Defendant claims the trial court erred in
overruling his motions to suppress evidence relating the warrantless searches of his automobile
and hotel room, respectively.
We elect to address Defendant's Points III and IV before returning to Points I and II.
4
Points III & IV
In Points III and IV of his appeal, Defendant contends the trial court erred in denying his
motions to suppress evidence discovered by law enforcement during the warrantless searches of
his automobile and hotel room, respectively.
Standard of Review
Upon review of denial of a motion to suppress, this court determines if there was
substantial evidence to support the decision and will only reverse if the trial court's ruling was
clearly erroneous. State v. Nylon, 311 S.W.3d 869, 884 (Mo. App. E.D. 2010); see also State v.
Martin, 79 S.W.3d 912, 915 (Mo. App. E.D. 2002) ("We will reverse the trial court's ruling only
if it is clearly erroneous; that is, if we are left with a definite and firm belief that a mistake has
been made."). In reviewing the trial court's ruling on a motion to suppress, the facts and any
reasonable inferences arising therefrom are viewed in the light most favorable to the ruling of the
trial court. State v. Taber, 73 S.W.3d 699, 703 (Mo. App. W.D. 2002). Accordingly, this court
defers to the trial court's factual findings and credibility determinations. State v. Nebbitt, 455
S.W.3d 79, 85 (Mo. App. E.D. 2014). "However, we review questions of law, including whether
conduct violates the Fourth Amendment, de novo." Nylon, 311 S.W.3d at 884.
Analysis
As set forth in the Fourth Amendment to the United States Constitution, "[t]he right of
people to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated[.]" U.S. CONST. AMEND IV; see also MO. CONST. ART. I, § 15;
State v. Ramires, 152 S.W.3d 385, 391 (Mo. App. W.D. 2004) ("The Fourth Amendment to the
U.S. Constitution, enforceable against the states through the due process clause of the Fourteenth
Amendment, guarantees the right of the people to be secure from unreasonable searches and
5
seizures."); State v. Lee, 498 S.W.3d 442, 448 (Mo. App. W.D. 2016) ("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.").
It is a cardinal principle of Fourth Amendment jurisprudence that warrantless searches
are prima facie unreasonable, subject only to a few specifically established and well-delineated
exceptions. State v. Humble, 474 S.W.3d 210, 215 (Mo. App. W.D. 2015); State v. Williams,
654 S.W.2d 238, 241 (Mo. App. S.D. 1983). If an applicable exception is invoked, the burden
rests upon the State to vindicate the failure to procure a warrant. Williams, 654 S.W.2d at 241.
A. Impoundment of Defendant's Automobile was Lawful (Point III)
In his third point on appeal, Defendant contends the trial court erred in overruling his
motion to suppress evidence relating to the inventory search of his automobile. Specifically,
Defendant argues his automobile was not lawfully impounded, thus invalidating the subsequent
inventory search and the evidence discovered therefrom.
One such exception to the warrant requirement of the Fourth Amendment "is an
inventory search of a motor vehicle, which permits a law enforcement officer to make a
warrantless search of a lawfully seized vehicle[.]" Ramires, 152 S.W.3d at 391 (emphasis added)
(citing antecedent cases from the Supreme Court of the United States and Missouri courts).2 An
inventory search of an automobile is permitted where: (1) the police have lawfully impounded
the automobile; and (2) the police have acted in accordance with a reasonable, standard policy of
routinely securing and inventorying the contents of the impounded vehicle. South Dakota v.
2 Commonly, courts have justified inventory searches of impounded automobiles premised upon three reasons: (1) protection of property; (2) protection of the police from claims of lost property; and (3) the protection of the police from potential danger. Williams, 654 S.W.2d at 241.
6
Opperman, 428 U.S. 364, 368-72 (1976). Both the decision to take the automobile into custody
(the "seizure") and the concomitant inventory search (the "search") must meet the strictures of
the Fourth Amendment. Soldal v. Cook Cnty., Ill., 506 U.S. 56, 63 (1992) (quoting U.S. v.
Jacobsen, 466 U.S. 109, 113 (1984)) (The Fourth Amendment "protects two types of
expectations, one involving 'searches,' the other ‘seizures.'"); see also Miranda v. City of
Cornelius, 429 F.3d 858, 862 (9th Cir. 2005) ("The impoundment of an automobile is a seizure
within the meaning of the Fourth Amendment.").
In assessing the propriety of a warrantless inventory search of a defendant's automobile,
the threshold inquiry is whether law enforcement lawfully impounded the automobile.
Opperman, 428 U.S. at 368; Soldal, 506 U.S. at 63-64 (one can search property without seizing it
and seize property without searching it). Where the circumstances show the police lacked the
authority to impound the automobile, the resulting inventory search will be found to be unlawful.
State v. Holt, 695 S.W.2d 474, 477 (Mo. App. E.D. 1985) ("A routine warrantless inventory
search is constitutionally sanctioned provided the initial seizure of the car was legitimate and the
search reasonable in scope."). Ergo, lawful impoundment of an automobile by the police is a
necessary prerequisite to an inventory search; if the police fail to demonstrate proper legal
authority to impound the automobile, the inquiry ends as there can be no ensuing lawful
inventory search. Id.; see also People v. Brown, 2016 WL 6122812, *3 (Colo. App. Oct. 20,
2016) ("[B]y any fair account, a decision upholding an inventory search based on a policy—but
without asking whether the criteria for the underlying impoundment satisfy the Fourth
Amendment—is like the emperor with no clothes.").
The Supreme Court of the United State has afforded police broad authority to impound
vehicles without infringing upon rights endowed by the Fourth Amendment. Opperman, 428
7
U.S. at 368-69. The authority to impound automobiles derives from the police's reasonable
"community caretaking functions," which include, but are not limited to, protecting the public's
safety, removing disabled or damaged vehicles from the highway, and impounding automobiles
which violate parking ordinances or impede efficient traffic flow. Id.; see also U.S. v.
Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 1991) (defining "community caretaking" as a
"catchall" for the wide range of responsibilities police must discharge).
Congruently, our Missouri courts have also furnished police with broad authority to
impound automobiles, including those instances where "the vehicle is associated with the
commission of an offense or the arrest of the defendant or if the location or condition of the
vehicle is such that the safety or interest of the public requires its removal and police intervention
is the only viable option." State v. Walker, 755 S.W.2d 404, 408 (Mo. App. E.D. 1988)
(citations omitted). In addition to the foregoing, if "serious doubts arise concerning the driver's
ownership or lawful possession of the vehicle[,]" impoundment may, in certain circumstances, be
proper and lawful. State v. Kelley, 678 S.W.2d 852, 854 (Mo. App. E.D. 1984).
Despite this broad authority, impoundment of an automobile must still be conducted
pursuant to a standardized criterion so as to not run afoul of the Fourth Amendment. Colorado v.
Bertine, 479 U.S. 367, 375 (1987). Thus, under the "community caretaking" doctrine, police
may, without a warrant, impound (and subsequently search) an automobile as long as they do so
in conformance with standardized procedures and in furtherance of a community caretaking
purpose. Id. (holding that it was constitutional for police regulations to give police the discretion
to impound an arrestee's automobile rather than leaving it locked and parked in a safe place, so
long as the police's decision in the matter was governed by standardized, objectively
ascertainable criteria); see also State v. Milliorn, 794 S.W.2d 181, 186 (Mo. banc 1990), infra.
8
The constitutionally-required standardized criterion for determining when to impound an
automobile, however, does not prohibit "the exercise of police discretion so long as that
discretion is exercised according to standard criteria and on the basis of something other than
suspicion of evidence of criminal activity." Bertine, 479 U.S. at 375; see also U.S. v. Petty, 367
F.3d 1009, 1012 (8th Cir. 2004) ("Some degree of 'standardized criteria' or 'established routine'
must regulate [impoundments]" but "an impoundment policy may allow some 'latitude' and
'exercise of judgment' by a police officer when those decisions are based on concerns related to
the purposes of an impoundment."); cf. U.S. v. Coccia, 446 F.3d 233, 238 (1st Cir. 2006) ("[W]e
do not understand Bertine to mean that an impoundment decision made without the existence of
standard procedures is per se unconstitutional. Rather, we read Bertine to indicate that an
impoundment decision made pursuant to standardized procedures will most likely, although not
necessarily always, satisfy the Fourth Amendment.").
In fact, the Fourth Amendment does not demand police offer a motorist an alternative
means of removing his vehicle that will avoid the need to tow it and conduct and inventory
search. Bertine, 479 U.S. at 373-74 (police need not give a motorist "an opportunity to make
alternative arrangements" that avoids impoundment); see also U.S. v. Agofsky, 20 F.3d 866, 873
(8th Cir. 1994) ("Nothing in the Fourth Amendment requires a police department to allow an
arrested person to arrange for another person to pick up his car to avoid impoundment and
inventory."); cf. U.S. v. Duguay, 93 F.3d 346, 353 (7th Cir. 1996) ("The policy of impounding
the car without regard to whether the defendant can provide for its removal is patently
unreasonable if the ostensible purpose for impoundment is for the 'caretaking' of the streets.").
Here, during the suppression hearing, Officer Gruswitz testified that in accordance with
his training and experience, he elected to impound Defendant's automobile because the
9
automobile was unregistered and a "prisoner's auto."3 Officer Gruswitz further testified that he
was unable to secure a third-party to remove the vehicle because Defendant refused, when
requested, to identify the owner of the automobile. Beyond Officer's Gruswitz's testimony
regarding his training and experience, the record is void of any evidence or exhibits regarding
SLMPD's standardized policy—written or otherwise—for impounding automobiles.
At the trial court, and, now, on appeal, Defendant avers the SLMPD's purported lack of
any standardized policy—written or otherwise—controlling the decision to impound a vehicle
equipped the police with unconstitutionally broad and unbridled discretion in determining
whether to impound Defendant's vehicle in this matter. We disagree.
Initially, during the underlying proceedings, the State defended the impoundment of
Defendant's automobile grounded upon the "community caretaking" doctrine. In relevant part,
the State advocated as follows:
"[T]he vehicle had to be towed as there were no other licensed drivers available and the car was parked on private property. There is no question that the police department had procedures for towing vehicles as they have created a standard form for documenting such searches. The law does not require any additional written policies. Further, Officer Gruswitz testified that he was trained on when and how to conduct an inventory search and has conducted them in similar situations. The officers followed their training and experience and documented the vehicle's contents on the standard department form and in the police report."
Now, on appeal, the State apparently changes direction and claims Section 304.155
conferred the police with the authority to impound Defendant's vehicle. Germane to this appeal,
Section 304.155 reads as follows:
1. Any law enforcement officer within the officer's jurisdiction, or an officer of a government agency where that agency's real property is concerned, may authorize a towing company to remove to a place of safety:
3 Officer Gruswitz defined a "prisoner's auto" as one in which "the vehicle was left somewhere that we believe to be unsafe and we arrested someone who owns the vehicle or in possession of the vehicle."
10
(5) Any abandoned property for which the person operating such property is arrested for an alleged offense for which the officer takes the person into custody and where such person is unable to arrange for the property's timely removal[.]
In Milliorn, our Supreme Court unequivocally held that "Section 304.155.1(5), RSMo 1986,
establishes standardized criterion for the decision to impound a vehicle." Milliorn, 794 S.W.2d
at 186.4
In order for law enforcement to satisfy the standardized criterion set forth in Section
304.155.1(5), the State must meet its burden that the arrestee is unable to arrange for the timely
removal of the automobile. See Section 304.155.1(5). Although the facts of this case do not
require this court to definitely determine what law enforcement must do in order to satisfy that an
arrestee cannot timely arrange for the removal of the automobile, we find the law enforcement's
actions, in this matter, were inadequate. Merely requesting that the arrestee provide the identity
of the owner does not equate to proof that the arrestee is unable to arrange for the timely removal
of the automobile. Miranda, 429 F.3d at 864 ("We begin with the premise . . . that the decision
to impound pursuant to the authority of a city ordinance and state statute does not, in and of
itself, determine the reasonableness of the seizure under the Fourth Amendment . . . .").
Notwithstanding the State's inability to satisfy the standardized criterion set forth in
Section 304.155.1(5), we still find the impoundment (or "seizure") of Defendant's automobile
was constitutional and in accord with the "community caretaking" doctrine.
Although there appears to a be split in authority regarding whether the Fourth
Amendment demands written standardized criterion for the impoundment of an automobile, the
United States Court of Appeals, Eighth Circuit, has held that written policy is superfluous and
4 Although the holding of Milliorn remains valid, it is worth noting that Section 304.155.1(5), RSMo 1986, omitted the requirement that "such person is unable to arrange for the property's timely removal." See Section 301.155.1(5), RSMo 1986. In 1996, our Legislature elected to amend Section 304.155.1(5) to include that foregoing requirement. See Section 304.155.1(5), RSMo Cum. Sup. 2015; see also S.B. 560 (1996).
11
not required. Petty, 367 F.3d at 1012 ("It would have been simpler for the government to present
the police department's written impoundment policy . . . but testimony can be sufficient to
establish police procedures."); see also U.S. v. Arrocha, 713 F.3d 1159, 1163-64 (8th Cir. 2013);
but see U.S. v. Sanders, 796 F.3d 1241, 1248 (10th Cir. 2015) ("Yet no circuit has held either
that the existence of standardized procedures automatically renders an impoundment
constitutional, or that the absence of standardized procedures automatically renders an
impoundment unconstitutional."). "So long as the officer's residual judgment is exercised based
on legitimate concerns related to the purposes of an impoundment[,]" the constitutionality of the
impoundment will not be defeated simply because the standardized criterion was not in written
form. Petty, 367 F.3d at 1012; see also U.S. v. Betterton, 417 F.3d 826, 830 (8th Cir. 2005)
("[T]he absence of a written policy controlling the decision to impound a vehicle does not
automatically render an inventory search unconstitutional."); Coccia, 446 F.3d at 239 ("[A]
police's officer's discretion to impound a car is sufficiently cabined by the requirement that the
decision to impound be based, at least in part, on a reasonable community caretaking concern
and not exclusively on the suspicion of criminal activity.") (citations omitted). We find the logic
and reasoning of the Eighth Circuit persuasive, and elect to follow the same.
The facts of the case reveal the impoundment of Defendant's automobile was justified by
both a standardized policy and a reasonable, non-pretextual community caretaking rationale.
First, as discussed supra, Officer Gruswitz attested that it was customary, based upon his
training and experience, for the officers of the SLMPD to impound "prisoner autos." Moreover,
the vehicle was discovered to be unregistered, and law enforcement professionals were
unsuccessful in identifying the owner thereof. See, e.g., Kelley, 678 S.W.2d at 854. Although a
written standardized criterion for impounding automobiles may be preferred, the lack of written
12
standardized criterion did not render the impoundment of Defendant's automobile
unconstitutional. Officer Gruswitz's testimony was sufficient evidence for purposes of
establishing the standardized criterion for impoundments.
Second, the impoundment of Defendant's automobile was not conducted as a pretext for
further investigation, but rather was administered pursuant to the caretaking functions of the
police. State v. Meza, 941 S.W.2d 779, 782 (Mo. App. W.D. 1997) ("The presence of an
investigatory motive, even if proven, does not invalidate an otherwise lawful inventory search.")
(citations omitted). Officer Gruswitz's impoundment of Defendant's automobile (and the
standardized criterion employed by the SLMPD) was conducted for purposes of public safety.
Although substitute means may have been available to remove Defendant's automobile, "[t]he
reasonableness of any particular governmental activity does not necessarily or invariably turn on
the existence of alternative less intrusive means." Bertine, 479 U.S. at 373-74 (internal citations
omitted). The impoundment was not, therefore, an unconstitutional pretext for additional
investigations.5 See, e.g., Servis v. Com., 371 S.E.2d 156, 163-64 (Va. App. 1988) (finding
impoundment of automobile parked on motel parking lot did not violate the Fourth Amendment).
Therefore, we do not find the denial of Defendant's motions to suppress the evidence
discovered during the inventory search of his automobile to be clearly erroneous.
Point III is, thereby, denied.
B. Search of Hotel Room Did Not Violate the Fourth Amendment (Point IV)
In his fourth point on appeal, Defendant argues the trial court erred in overruling his
motion to suppress evidence relating to the warrantless search of his hotel room.
5 Defendant's Point III does not explicitly or implicitly contest the constitutionality of the subsequent inventory search after impoundment. As such, we did not address the inventory search, itself.
13
The Fourth Amendment generally protects individuals from warrantless searches and
seizures, "before an individual can invoke these protections and successfully argue for the
suppression of evidence obtained from such searches, he or she has the burden to show a
legitimate expectation of privacy in the place or thing being searched." State v. Mitchell, 20
S.W.3d 546, 557 (Mo. App. W.D. 2000). Generally, when rented by an individual, a hotel room
carries the same expectation of privacy as that enjoyed by a homeowner. State v. Ballard, 457
S.W.3d 809, 812 (Mo. App. E.D. 2014). However, upon the expiration of the rental period, the
guest completely loses his or her right to the use of the room and privacy associated therewith.
Id.
Here, we reject Defendant's claim of unlawful search. It is uncontested law enforcement
did not enter Room 214 until the following day, upon the cessation of Defendant's rental period
and with the consent of the hotel staff. As such, there was no intrusion into Defendant's privacy,
and the search was clearly permissible. Mitchell, 20 S.W.3d at 559.
Defendant, nevertheless, attempts to frame his argument around a reasonable expectation
of privacy in the vacated hotel room, in that he purportedly intended to continue possessing the
hotel room. Defendant bore the burden of demonstrating his reasonable expectation to privacy in
the hotel room. Id. at 557. Defendant's argument belies the facts of this matter as there is no
evidence Defendant intended to continue his occupancy of Room 214. Defendant assumed the
burden of proving his reasonable expectation of privacy, and his failure to do so cannot be a
basis to now complain. Ballard, 457 S.W.3d at 813. Defendant's fourth point on appeal is
without merit.
Therefore, we do not find the denial of Defendant's motions to suppress the evidence
discovered during the search of hotel room to be clearly erroneous.
14
Point IV is denied.
Points I & II
In his first and second points on appeal, Defendant maintains the trial court erred in
denying his motions for judgment of acquittal regarding two separate counts for possession of a
controlled substance. Specifically, Defendant avers there existed insufficient evidence to
demonstrate the discovered substances were, in fact, marijuana and methamphetamine,
respectively. Ostensibly, Defendant claims the laboratory tests (conducted by a forensic
chemist) were insufficient or deficient as said tests failed to prove the material of each substance
beyond a reasonable doubt.
Standard of Review
"In a jury-tried case, our review of a trial court's ruling on a motion for judgment of
acquittal is for a submissible case." State v. Davis, 71 S.W.3d 659, 664 (Mo. App. W.D. 2002);
see also State v. Sistrunk, 414 S.W.3d 592, 596 (Mo. App. E.D. 2013). However, in a bench
tried case, as here, we review to determine whether there was sufficient evidence from which the
trial court could have found the defendant guilty beyond a reasonable doubt. Davis, 71 S.W.3d
at 664. We will affirm a trial court's denial of a motion for judgment of acquittal if, at the close
of evidence, there was sufficient evidence from which reasonable persons could have found the
defendant guilty of the charged offense. State v. Kilgore, 505 S.W.3d 362, 366 (Mo. App. E.D.
2016).
"The trier of fact determines the credibility of the witnesses, and may believe all, some or
none of the testimony of a witness." State v. Warren, 141 S.W.3d 478, 490 (Mo. App. E.D.
2004). Further, this court will review all evidence and inferences reasonably drawn from the
evidence in the light most favorable to the verdict, and disregard all contrary evidence and
15
inferences. State v. Rousselo, 386 S.W.3d 919, 920-21 (Mo. App. S.D. 2012). "The function of
the reviewing court is not to reweigh the evidence, but [only] to determine if the conviction is
supported by sufficient evidence." State v. McCleod, 186 S.W.3d 439, 443 (Mo. App. W.D.
2006) (internal citations omitted). Thus, when reviewing the sufficiency of evidence supporting
a criminal conviction, the Court does not act as a "super juror" with veto powers. State v.
Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998).
Analysis
Under Point I, Defendant suggests the Duquenois-Levine test—commonly employed and
generally accepted as reliable in a substantial number of jurisdictions—used to identify
marijuana was insufficient as a matter of law because of the purported possibility of "false
positives." Defendant claims there are two forms of the Duquenois-Levine test (one which is
purportedly more reliable than the other), and the forensic chemist did not explicitly attest to
which form of the test she performed.
Similarly, under Point II, Defendant suggests the test performed to identify the
methamphetamine was also insufficient as a matter of law, because it is unclear whether the test
distinguished between "legal methamphetamine" and "illegal methamphetamine."6
At trial, Defendant elected not to cross-examine the forensic chemist in any manner. For
instance, Defendant did not cross-examine the forensic chemist as to the tests performed, the
reliability of those tests, or the manner in which those tests were performed. Moreover,
Defendant did not retain an expert of his own to conduct laboratory tests upon the material, nor
6 The terminology of "legal" and illegal" methamphetamine is simply used to distinguish between the enantiomers that comprise each form. Under the facts of this case, this court need not wade too deep into either the molecular distinctions or the disparities in the neurological effects of either form of methamphetamine. However, our terminology should not be read or interpreted as anything more than a rudimentary means to dispose of Defendant's highly technical and scientific arguments.
16
did Defendant seek to challenge the reliability or sufficiency of the State's laboratory tests. Now,
on appeal, Defendant directs this court's attention to a plethora of purported documentary data
and studies to support his contention the State submitted insufficient evidence to convict
Defendant because the laboratory tests did not prove, beyond a reasonable doubt, the materials
were, in fact, marijuana and methamphetamine.
Assuming, arguendo, Defendant adequately preserved Points I and II for appeal, we are
unconvinced. In this case, the trial judge, sitting as trier of fact, found as a fact that the
substances tested were marijuana and methamphetamine. Questions of fact are not generally
within this court's province where the record supports the trial court's findings. State v. Rehberg,
919 S.W.2d 543, 552 (Mo. App. W.D. 1995) ("In making that determination, we accept as true
all evidence tending to prove guilt together with all reasonable inferences that support the
finding, and all contrary evidence and inferences are ignored."). There was, indeed, sufficient
evidence from which the trial court could have found Defendant guilty beyond a reasonable
doubt.
Additionally, we will not reweigh the evidence, nor will this court reassess the credibility
of witnesses. State v. St. George, 215 S.W.3d 341, 345 (Mo. App. S.D. 2007). As such, we
decline to declare as a matter of law that the laboratory tests performed herein are not probative
(or inadequate as a matter of law) regarding the identity of the substance, especially when
Defendant made no showing of the same during trial. The evidence adduced during trial
sufficiently produced a submissible case. See, e.g., State v. Shelli, 675 S.W.2d 79, 81 (Mo. App.
E.D. 1984) (submissible case was made where forensic chemist testified that the material seized
was marijuana); see also State v. Kerfoot, 675 S.W.2d 658, 661 (Mo. App. E.D. 1984)
(testimony of sheriff identifying the drug is sufficient evidence to make a submissible case).
Points I and II are denied.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of State of Missouri v. Jason McDowell?
The outcome was: < For the foregoing reasons, the judgment of the trial court is affirmed. >
Which court heard State of Missouri v. Jason McDowell?
This case was heard in MISSOURI COURT OF APPEALS EASTERN DISTRICT, MO. The presiding judge was Lisa P. Page.
Who were the attorneys in State of Missouri v. Jason McDowell?
Plaintiff's attorney: Nathan Aquino. Defendant's attorney: Randall Brachman.
When was State of Missouri v. Jason McDowell decided?
This case was decided on March 24, 2017.