State v. Drury

358 S.W.3d 158

STATE of Missouri, Appellant,

v.Kerri K. DRURY, Respondent.

No. ED 96754.

Missouri Court of Appeals, Eastern District, Southern Division.

Nov. 29, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 10, 2012.

Application for Transfer Denied March 6, 2012.

Carl D. Kinsky, Prosecuting Attorney for Ste. Genevieve County, Ste. Genevieve, MO, for Appellant.

Robert D. Huelskamp, Rottler & Huelskamp, P.C., Ste. Genevieve, MO, for Respondent.

KURT S. ODENWALD, Chief Judge.

Introduction

The State of Missouri (State) appeals from the trial court's order suppressing evidence related to the arrest of Kerri Drury (Drury) for driving while intoxicated. The trial court found that Drury was detained in violation of the Fourth Amendment, ordered the evidence suppressed, and dismissed the charges against her. After reviewing the record, we find that Drury was not seized in violation of the Fourth Amendment. Drury's original detention was constitutionally permissible because it was initiated for the purpose of officer safety at the scene of an arrest and was limited in scope and duration. We also find that Drury's continued detention was based upon an officer's reasonable suspicion that she had committed a crime, and was therefore also constitutionally permissible. Accordingly, we reverse the trial court's order suppressing evidence obtained in connection with Drury's detention, and dismissing the State's charges against Drury.

Factual and Procedural History

The facts of this case are not in dispute. Around 11 p.m., Corporal William Sevier (Cpl. Sevier) observed a Ford Ranger traveling approximately ten miles per hour above the speed limit. Cpl. Sevier also observed a Ford Escape traveling near the Ranger, but not breaking any traffic laws or otherwise driving erratically. Cpl. Sevier pulled behind the Ranger and turned on his emergency lights. Although the road had a shoulder, the Ranger did not stop. Cpl. Sevier turned on his siren. The Ranger still did not stop. Cpl. Sevier requested officer backup. After approximately a quarter mile, the Ranger pulled into a driveway and parked next to the Escape, which was already parked in the driveway. The location was later determined to be the home of both drivers.

Cpl. Sevier approached the driver of the Ranger, Byron Drury (Byron), smelled alcohol on his breath, saw that his eyes were bloodshot, and heard that his speech was slurred. As Cpl. Sevier addressed Byron, Drury, the sole occupant of the Ford Escape, started to exit her vehicle. Cpl. Sevier ordered Drury to remain in her vehicle while he investigated Byron for suspicion of driving while intoxicated. Drury complied with the request.

Sergeant Steven Poole (Sgt. Poole) arrived on the scene several minutes later. Cpl. Sevier asked Sgt. Poole to monitor Drury while he investigated Byron. Sgt. Poole then observed Drury beginning to exit her vehicle and asked her to remain where she was for a few minutes. Sgt. Poole smelled alcohol on Drury and noted that she had slurred speech. Sgt. Poole reported to Cpl. Sevier that he had observed signs that Drury was intoxicated. Cpl. Sevier requested that Sgt. Poole continue to watch Drury while he finished conducting a field sobriety test of Byron. When Sgt. Poole returned to Drury, she was again attempting to exit her car. Sgt. Poole requested that Drury move away from the area where Cpl. Sevier was conducting Byron's field sobriety test. Sgt. Poole testified that he moved Drury due to officer safety concerns because she was too close to Cpl. Sevier and Byron. Cpl. Sevier concluded his field sobriety test of Byron and placed him under arrest for driving while intoxicated.

After arresting Byron, Cpl. Sevier returned to Drury who was still detained by Sgt. Poole. Cpl. Sevier questioned Drury regarding her drinking, conducted a breathalyzer test, and requested that Drury recite the alphabet and count down from 67 to 43. Drury blew a 0.10 B.A.C., slurred during the alphabet test, and stated she was unable to perform the counting test. Cpl. Sevier placed Drury under arrest for driving while intoxicated.

The State filed charges against Drury in the Circuit Court of Saint Genevieve Country for driving while intoxicated. Drury filed a motion to suppress all evidence related to her arrest on grounds that she was unlawfully detained in violation of her Fourth Amendment rights. Drury argued that Cpl. Sevier did not have probable cause or reasonable suspicion to detain Drury because he had not observed her break any traffic laws or drive erratically. Drury argued that her detention, therefore, violated the Fourth Amendment and all evidence obtained in connection with her detention should be suppressed. Following a hearing, the trial court granted Drury's motion to suppress and dismissed the charges against Drury. The State now appeals.

Point on Appeal

In its sole point on appeal, the State argues that the trial court erred in granting Drury's motion to suppress all evidence related to her arrest, and thereafter entering an order dismissing the State's case against her.¹ The State contends that Cpl. Sevier initially detained Drury for reasons of officer safety, and that Drury's subsequent detention was based upon probable cause that she had committed an offense. Accordingly, the State argues that neither of Drury's detentions was unreasonable under the Fourth Amendment.

Standard of Review

When reviewing a trial court's judgment suppressing evidence, the facts and reasonable inferences derived therefrom are viewed in the light most favorable to the trial court's decision. State v. Williams, 334 S.W.3d 177, 179 (Mo.App. W.D.2011). We reverse only if the trial court's decision is clearly erroneous. State v. Bibb, 922 S.W.2d 798, 802 (Mo.App.E.D.1996).

Discussion

I. Drury's detention was not an unreasonable seizure under the Fourth Amendment.

The Fourth Amendment to the U.S. Constitution protects against unreasonable searches and seizures. U.S. Const. amend. IV. A person is seized within the meaning of the Fourth Amendment “when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.” Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (internal quotations and citations omitted).

The facts of this case present two separate and distinct seizures of Drury under the Fourth Amendment. The first seizure occurred when Cpl. Sevier ordered Drury to remain in her car until another officer arrived at the scene so that he could investigate and arrest Byron for driving while intoxicated. Any reasonable person in Drury's position would have determined that she was unable to leave the scene as a result of the Cpl. Sevier's demonstration of authority in ordering her to remain in her vehicle. See id. Therefore, her original detention by Cpl. Sevier constitutes a Fourth Amendment seizure. The second seizure occurred after Sgt. Poole reported to Cpl. Sevier that he believed Drury was intoxicated, and Cpl. Sevier had Sgt. Poole detain Drury for the purpose of investigating whether she had driven while intoxicated. When Cpl. Sevier's purpose for detaining Drury changed from securing the scene of an arrest to investigating Drury for suspicion of committing a crime, the second seizure began. We analyze the constitutionality of each seizure in turn.

A. Drury's original detention was reasonable because it was limited in duration and was in response to a legitimate risk to officer safety.

We are first asked to consider whether an officer may reasonably detain a bystander for a limited duration in response to officer safety concerns during the investigation of a crime to which the bystander is not a suspect. Although we find no precedent in our own jurisdiction addressing this specific question, we find instructive judicial authority in other jurisdictions holding that such a detention is not unreasonable of the Fourth Amendment.

The Fourth Amendment protects against only unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security[.]” Maryland v. Wilson, 519 U.S. 408, 411, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (internal citations omitted). Reasonableness depends upon the balance between public interest and the individual's right to be free from arbitrary interference by police officers. Id.

Officer safety is a weighty and legitimate governmental interest. Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). The risk of harm to officers is minimized when police officers “exercise unquestioned command of the situation.” Michigan v. Summers, 452 U.S. 692, 702–03, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). It is reasonable “to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety.” Brendlin, 551 U.S. at 258, 127 S.Ct. 2400; Mimms, 434 U.S. at 111, 98 S.Ct. 330 (officer may order a driver out of the car as a matter of course without violating the Fourth Amendment); Wilson, 519 U.S. at 414–15, 117 S.Ct. 882 (officer may order a passenger out of a car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk).

Recognizing the importance of protecting officer safety, several courts have upheld the constitutionality under the Fourth Amendment of protective detentions, where an officer briefly detains an individual to reduce a perceived threat of harm to themselves, or others. State v. Sparr, 13 Neb.App. 144, 688 N.W.2d 913, 922 (2004); U.S. v. Maddox, 388 F.3d 1356, 1363 (10th Cir.2004) (holding “officer safety may justify protective detentions [ ]”); Thompson v. City of Lawrence, 58 F.3d 1511, 1517 (10th Cir.1995) ( “The...