State v. Nebbitt, ED 99548.

455 S.W.3d 79

STATE of Missouri, Appellant

v.Terry NEBBITT, Respondent.

No. ED 99548.

Missouri Court of Appeals, Eastern District, Division Four.

July 29, 2014.

Matthew William Huckeby, Assistant Public Defender, St. Louis, MO, for appellant.

Chris Koster, Attorney General, Evan Joseph Buchheim, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Terry Nebbitt (Defendant) appeals the judgment of the Circuit Court of the City of St. Louis convicting him of felony possession of a controlled substance and misdemeanor possession of drug paraphernalia. In his two points on appeal, Defendant claims the trial court erred in refusing to suppress physical evidence. In Point One, Defendant contends the trial court erred in overruling his motion to suppress and admitting into evidence the drugs and drug paraphernalia because police officers conducted a warrantless search of his apartment and the seizure of the drug paraphernalia was not justified by the plain view doctrine. In Point Two, Defendant asserts that the trial court erred in overruling the motion to suppress and admitting into evidence the drugs and paraphernalia because police officers had neither reasonable suspicion nor probable cause to detain Defendant. We affirm in part and remand in part.

Factual and Procedural Background

On July 12, 2011, an “anonymous tipster” informed the St. Louis Metropolitan Police Department that “a short black male” named Terry was selling illegal narcotics in apartment 7007 of the Warwood Apartments. Detective Gary Burgess and Officer Mark Seper decided to investigate by performing a “knock and talk.” Defendant answered the door for the officers, who entered Defendant's apartment and seized from the coffee table in his living room: a cut-off soda can bottom; a ceramic pipe; a plastic straw; a hypodermic needle; a “scorched metal spoon with [ ] off-white chunks”;¹ and empty pill capsules. From the Defendant's living room, the police officers noticed more paraphernalia in the bedroom and recovered from the bed five digital scales and a “medicine container.” The officers also seized a .07–gram rock of crack cocaine, which fell from Defendant's pocket.

The State charged Defendant as a prior drug offender with felony possession of a controlled substance (Count I) and misdemeanor possession of drug paraphernalia (Count II). Prior to trial, Defendant filed a pro se motion to suppress the evidence of drugs and drug paraphernalia seized by the officers on the grounds that the officers illegally “detained” him because they failed to corroborate the anonymous tip with “independent police observation.” Defense counsel did not call up the pro se motion for a hearing. Instead, defense counsel filed a motion to suppress statements and a motion to suppress evidence.² In the motion to suppress evidence, counsel asserted that the evidence was “obtained pursuant to an unlawful search and seizure by members of law enforcement”; the search “was conducted without a warrant, without probable cause”; and the “items seized were not in plain view and the seizing officers were not at a place the officers had a legal right to be.”

The trial court conducted a pre-trial suppression hearing on the morning of trial and received testimony as to whether the drug paraphernalia on Defendant's coffee table was in plain view of Defendant's apartment door. The State presented Officer Seper, who testified that he observed “illegal drug paraphernalia” from his position “[o]utside the [apartment] door.” Officer Seper stated that, after he observed the drug paraphernalia, he asked Defendant to step outside the apartment to provide his pedigree information. According to Officer Seper, while Defendant was in the hallway, he removed his right hand from his pants pocket “and discarded an off-white chunk to the ground,” which appeared to be crack cocaine. Officer Seper placed Defendant under arrest then entered Defendant's apartment and retrieved the drug paraphernalia.

On cross-examination, defense counsel asked Officer Seper whether: Defendant informed the officers that he did not wish to speak to them; Defendant attempted to close the door; and Officer Seper pushed the door open. Officer Seper answered each question, “I don't recall.” Officer Seper denied entering Defendant's apartment prior to arresting Defendant in the hallway.

The defense called Stephanie Hugger, the public defender who represented Defendant at his preliminary hearing. Ms. Hugger testified that, at the preliminary hearing, Officer Seper stated that, when Defendant opened the door, the drugs and paraphernalia “basically [ ] were in plain view and so they walked in and seized the items” and “after they arrested [Defendant], they said something fell out of his pocket, which they seized because it looked like a controlled substance.” Ms. Hugger also asked Officer Seper whether there was “a wall inside the front door,” and Officer Seper “said no, there was no wall, the door was open and they could see right into the, I believe living area where there was a table.” At the preliminary hearing, Ms. Hugger inquired “more than once ... about a wall being in front of the door,” and Officer Seper maintained “that there was no wall.... [H]e could see the table very clearly.”

At the suppression hearing, the defense also presented the testimony of Tamara Walker, an investigator for the public defender's office. Ms. Walker testified that she visited and photographed Defendant's apartment about one year after his arrest and stated that “[w]hen you first open the [apartment] door, there's a wall right in front of you.” Ms. Walker identified various photographs that she took of the apartment, which showed that “when you open the front door, the only thing you see is the wall in front of you, okay, with the return duct on it.” Ms. Walker explained that, “just standing outside the threshold in the hallway,” one cannot see Defendant's living room and “[y]ou have to actually step in and step to your left in order to see the living room.”

Defendant also testified at the suppression hearing and recalled that Officer Seper and Det. Burgess knocked on his door and informed him that “they wanted to search [his] apartment for guns and drugs.” Defendant stated that he opened the door and asked the police officers whether they had a search warrant, and the officers “told [him] that by living in public housing they didn't need a search warrant.” Defendant recounted that he attempted to close the door, but the officers “put the[ir] foot in the door and their arm to my door.... And they wouldn't allow me to shut the door....” Defendant stated that, at some point, the officers entered Defendant's apartment without his consent, handcuffed Defendant and another man who was in Defendant's apartment, and “just took control.” Defendant also identified the photographs that Ms. Walker took of his apartment. At the suppression hearing, defense counsel did not argue that Defendant's detention was unsupported by reasonable suspicion.

Shortly before the conclusion of the evidence, the trial court commented, as follows:

[COURT]: Counselor, tell me where this is, why the dispute whether [sic] can be seen or not be seen, isn't that a question of fact that I'm not going to be able to determine, that's got to be given to the jury any way [sic]?

[PROSECUTOR]: That would be my argument, yes.

[COURT]: All right. Then let's proceed. We understand there may be a difference of opinion as to what you can see from the hallway, but I can't say as a matter of law the officer's right or the defendant's right or the investigator's right. So let's proceed....

(emphasis added).

At the conclusion of testimony, the trial court heard arguments of counsel. Defense counsel argued that Officer Seper “was standing inside [her] client's apartment” when he observed the drugs and paraphernalia and that:

[h]e had no legal authority to be inside the house, and once he was standing outside, if a person believes once he's standing outside he's in plain view, at that point he should have gotten consent, either from my client or he could have or should have gotten a search warrant, he didn't do either.

The trial court ruled as followed:

The Court finds that this, that there are certain questions of fact which have to be determined by the jury. And that would be whether or not the officer had the ability to, in plain view, see what was on the coffee table. That's a fact that this Court cannot make a ruling [sic] as a matter of law.

The officer was, what is a fact [sic] is not in dispute is the officer was in a position at the doorway. And that position was lawful. And whether or not the Court believes that the case law is clear that certain exceptions to the need for search warrant exist, one of them is whether or not the item that's, the items that are attempting to be suppressed are within the plain view exception to the need for a search warrant.

And with the evidence presented, the Court cannot determine as a matter of law whether or not the officer could or could not see what was on that coffee table, and that the, those being the items that the defendant wishes to suppress.

So based on the—and the Court believes that this is a question of fact for the jury to determine. So, based on that, the Court will overview [sic] the defendant's motion to suppress.

(emphasis added).

At trial, the State presented as witnesses Officer Seper, Det. Burgess, and a criminalist from the St. Louis Metropolitan Police Department crime lab who analyzed the crack cocaine and spoon seized by the officers. Defense counsel objected to “any mention of drug paraphernalia, drugs, or any statements that [Defendant] has made.” Defense counsel based her objection upon the constitutional grounds raised in Defendant's “previously filed motion to suppress the evidence and statements.”³ The trial court granted defense counsel's request for a continuing objection. Defendant called Ms....