MMACJA Benchmark 6-2004

Jean Harmison

Description

M ISSOURI MUNICIPAL & ASSOCIATE CIRCUIT JUDGES ASSOCIATION 4721 S. STEWART SPRINGFIELD, MO 65804 June 2004 benchmark President’s Report By: Judge Greg Beydler—El Dorado Springs Inside this issue: President’s Report 1 It is our sincere hope that ferent courts within the next year; Murphy v. DOR Opinion all who attended the annual confer- preferably, courts that they have not 2-4 ence not only had a good time but attended in the past. The purpose of Concealed Weapons: 5-8 gained some useful information. these visits is to offer support or as-Brooks v. State of Missouri We had a great turn out at the con- sistance where it is needed and Traffic-Stop Searches 9-10 ference with 342 attending. wanted. This will provide an oppor- We were able to determine tunity for these courts to see that our the highlights and concerns of our association is there for them and offer Board Report 11 conference from the critiques. Our a personal face for the courts to con-Upcoming Events members overwhelmingly gave sult with. 12 positive ratings for the conference, Also, OSCA is ready to do a and the different themes used this trial set-up on court automation in 2 year were well received. The South- municipal courts in our state. I Important Dates: ern District Court of Appeals was would encourage any court that is ♦ MMACJA Board Meet- highly rated as was Morley interested to contact William ings—Lodge of Four ...

Informations

• Publié par: Moshug
• Nombre de lectures: 22
• Langue: English

Extrait

M I S S O U R I  M U N I C I P A L  & A S S O C I A T E  C I R C U I T  J U D G E S  A S S O C I A T I O N 4 7 2 1 S . S T E W A R T  S P R I N G F I E L D O 6 , M 5 8 0 4

Inside this issue: President’s Report

Murphy v. DOR Opinion

Concealed Weapons: Brooks v. State of Missouri

Traffic-Stop Searches

Board Report

Upcoming Events

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2-4

5-8

9-10

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Important Dates: ♦MMACJA Board Meet- ings—Lodge of Four Sea- sons—October 9, 2004— January 8, 2005– March 12, 2004

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MMACJA Regional Semi- nars - Date to be an- nounced —Columbia, St. Louis, Springfield, Glad- stone, Sikeston

MMACJA Annual Confer- ence – May 25 –27, 2005—Lodge of Four Sea- sons

Benchmark Editor: Todd Thornhill 625 N. Benton Springfield, MO 65806 417-864-1376 417-864-1883 (fax) [e-mail]

June 2004

b e n c h m a r k

President’s Report By: Judge Greg Beydler—El Dorado Springs

It is our sincere hope that all who attended the annual confer- ence not only had a good time but gained some useful information. We had a great turn out at the con- ference with 342 attending.  We were able to determine the highlights and concerns of our conference from the critiques. Our members overwhelmingly gave positive ratings for the conference, and the different themes used this year were well received. The South- ern District Court of Appeals was highly rated as was Morley Swingle’s session on DWI. All of the presenters did an outstanding job and deserve the credit for a suc- cessful conference. Without the efforts of our members helping to present the conference, we would be unable to bring you this quality CLE at the low cost we have now. I would like to take this opportunity to publicly thank each of you who worked so hard to make this confer- ence a success.  My goals for the coming year should enhance the goals of our association. I’m asking each Board member to visit at least 2 dif-

ferent courts within the next year; preferably, courts that they have not attended in the past. The purpose of these visits is to offer support or as- sistance where it is needed and wanted. This will provide an oppor- tunity for these courts to see that our association is there for them and offer a personal face for the courts to con- sult with.  Also, OSCA is ready to do a trial set-up on court automation in 2 municipal courts in our state. I would encourage any court that is interested to contact William Piedimonte at 816-836-8900 or email [e-mail] as as possible. This is a major break- through for our courts and it should be a tremendous help to each of our courts.  If any member has any ques- tions, suggestions, or comments, feel free to contact me at: Greg Beydler, 4 1 7- 44 8 -1 21 8 or e ma i lb e y- [e-mail].

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Murphy v. DOR Opinion: This appeal was argued to the Missouri Court of Appeals, Southern District at the MMACJA Conference on May 27, 2004

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Opinion Missouri Court of Appeals Southern District

Case Style:Daniel L. Murphy, Petitioner/Appellant v. Director of Revenue, State of Missouri, Respon- dent/Respondent. Case Number:25767 Handdown Date:06/02/2004 Appeal From:Circuit Court of the Phelps County, Hon. Ralph J. Haslag Counsel for Appellant:Dan L. Birdsong Counsel for Respondent:James A. Chenault, III Opinion Summary:None Citation: Opinion Author:Nancy Steffen Rahmeyer Opinion Vote:AFFIRMED. Parrish, J., and Bates, J., concur. Opinion: Daniel L. Murphy ("Appellant") appeals the trial court's order sustaining the revocation of his driver's license by the Director of Revenue ("Director").We affirm. The record reveals that Sergeant Moberly ("Moberly") of the Rolla, Missouri Police Department stopped Ap- pellant on August 24, 2002, after observing him violate several traffic ordinances. Moberly's attention was drawn to Appellant initially when Appellant followed Moberly too closely. Appellant then weaved his motor- cycle from side to side, ran a stop sign, and almost tipped the motorcycle over at a stop sign. Because of his concerns that Appellant appeared to be intoxicated, Moberly proceeded to administer four separate field sobri- ety tests to Appellant. Appellant's failure of all four field sobriety tests, along with the strong odor of intoxi- cants coming from Appellant's mouth and his driving impairments, prompted Moberly to arrest Appellant for driving while intoxicated, pursuant to Section 577.010.(FN1)Appellant became violent and uncooperative when Moberly attempted to arrest him, and was secured only after another officer was called to the scene to assist Moberly. Following his arrest, Appellant was taken to the Rolla Police Department for booking and to allow Appellant the opportunity to submit to a breath test to determine his blood-alcohol content ("BAC"). When Appellant was

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first brought into the booking room, he resisted Moberly's efforts to remove his handcuffs and was placed in a holding cell still wearing the handcuffs. Moberly then read Missouri's Implied Consent Law to Appellant. According to Moberly's testimony at trial, at 2:14 a.m., Appellant agreed to submit to a breath test in order to determine his blood-alcohol content ("BAC") but, in the next breath, added that he would submit as soon as he talked to his lawyer.(FN2)Moberly told Appel- lant that he had twenty minutes to contact an attorney and to make a decision regarding whether or not to submit to the BAC test. Appellant responded that he would like to call his attorney, but when Moberly started to remove Appellant's handcuffs, Appellant again resisted Moberly's efforts to remove them. Moberly informed Appellant that he was wasting his twenty minutes by not cooperating and left the room to allow Appellant to calm down. Moberly returned approximately ten minutes later and asked Appellant if he was calm enough to allow him to remove the handcuffs. Appellant did not verbally respond and then shook his head to indicate he would not al- low the handcuffs to be removed. Moberly remained in the room and processed paperwork. Approximately five minutes later, Appellant asked Moberly to remove his handcuffs so that he could call his attorney. Moberly re- moved the handcuffs, but instead Appellant then asked to use the restroom. Moberly provided Appellant with a phone book when he returned from the restroom. Appellant sat on a desk while he looked through the phone book and asked Moberly if he could to use his cell phone to call an attorney. Moberly instructed Appellant that he was not going to retrieve Appellant's personal cell phone and that Appel- lant could use the telephone provided in the booking area. Thereafter, Appellant was placed back in the holding cell with the phone book, but he did not ask to use the police department's telephone. Moberly read the Implied Consent Law to Appellant again at 2:45 a.m., and asked Appellant if he was going to submit to the breath test or refuse it. Appellant responded that he would submit to the test after talking to his at- torney. Moberly instructed Appellant that he needed a "yes" or "no" answer on the breath test; however, Appel- lant recited his previous answer. Moberly then told Appellant that his response would be counted as a refusal and marked the ("AIR") to reflect that Appellant refused the test. Subsequently, Appellant's driver's license was re- voked by Director, pursuant to Section 577.041, and Respondent filed a petition for review in the trial court. The trial court sustained the revocation and this appeal follows. In his sole point on appeal, Appellant contends that the trial court erred in finding that he refused to submit to the chemical breath test. Appellant argues that the evidence presented at trial demonstrated that he agreed to take the test but was never given an opportunity to do so.(FN3)He maintains that a police officer never provided the test to Appellant and asked him to take it. As a secondary argument, Appellant argues that the AIR is so contradic- tory on its face that the revocation cannot be sustained. This court will affirm a trial court's judgment to sustain the revocation of a driver's license for a refusal to submit to a chemical test unless it unsupported by substantial evidence, the decision is against the weight of the evi- dence, or it erroneously declares or applies the law.Gonzalez v. Dir. of Revenue, 107 S.W.3d 491, 493 (Mo. App. S.D. 2003). We defer to the trial court's determination of credibility.Hinnah v. Dir. of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). The evidence and inferences favorable to the judgment are accepted as true and all contrary evidence and inferences are disregarded.Zimmerman v. Dir. of Revenue, 72 S.W.3d 634, 636 (Mo. App. S.D. 2002). In a revocation proceeding for refusal to submit to a breath test, the trial court shall determine: (1) whether the person was arrested or stopped; (2) whether the officer had reasonable grounds to believe the person was operat- ing a motor vehicle while in an intoxicated or drugged condition; and (3) whether the person refused to submit to the test.Gonzalez,107 S.W.3d at 493. The Director carries the burden of proving all the requisite elements for upholding the revocation at the hearing.Roberts v. Wilson, 97 S.W.3d 487, 492 (Mo. App. W.D. 2002). If the trial court finds any issue not to be in the affirmative, it shall order the Director to reinstate the license.Gon- zalez,107 S.W.3d at 493. In the case at bar, Appellant does not contest the fact that he was arrested or that Mo- berly had reasonable grounds to believe that he was operating a motor vehicle in an intoxicated state. Appellant argues that he did not refuse to take the test and only failed to take the test because he was not given an opportunity to take it. In the context of the Implied Consent Law, a refusal simply means that an arrestee, af- ter having been requested to take a breath test, declines to do so of his own volition.Id. at 494. The form of the refusal makes no difference. A refusal can occur by saying "I refuse," by remaining silent, by not blowing into the machine, or by vocalizing some qualified or conditional consent or refusal.Spradling v. Deimeke, 528

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S.W.2d 759, 766 (Mo. 1975). If a driver has a reasonable opportunity to attempt to consult with counsel but re- fuses to do so, a refusal occurs under Section 577.041.4(3).Kilpatrick v. Dir. of Revenue, 756 S.W.2d 214, 216 (Mo. App. E.D. 1988). Here, Moberly testified that, although Appellant initially indicated that he would submit to the test, he subse- quently conditioned his submission upon talking to an attorney.(FN4)After thirty minutes, Appellant was again read the Implied Consent Law and asked if he would take the test. Appellant refused to give an unqualified "yes," and Moberly instructed him that a conditional answer would be equated with a refusal. Thereafter, Appel- lant failed to take the test without qualification. Here, Appellant's qualified or conditional consent amounted to a refusal. Although, in an attempt to rebut the Director's allegation and to impeach Moberly, Appellant presented evidence from two people who were present at the police department on the evening of the arrest, we defer to the trial court's determination of controverted evidence.SeeHinnah, 77 S.W.3d at 620. We reject Appellant's argument that the AIR was so internally inconsistent that it could not support the revocation. First, the narrative report at- tached to the AIR clearly supports Moberly's testimony at trial. In so finding, we do not ignore the case on which Appellant relies,Mount v. Dir. of Revenue, 62 S.W.3d 597 (Mo. App. W.D. 2001). InMount, the AIR, when coupled with the petitioner's testimony, was found to be so internally inconsistent and confusing that it could not provide sufficient evidence to support the revocation.Id. at 600. In the case before this court, the AIR, combined with the testimony of Moberly, was not contradicted by any other testimony. The ambiguities in the AIR were fully explained by Moberly. Therefore, we find that the trial court's ruling that Appellant "refused to submit to a chemical test of [his] breath" was supported by substantial evidence.Zimmerman, 72 S.W.3d at 637. The judg- ment of the trial court is affirmed.

Footnotes:

FN1.All references to statutes are to RSMo 2000 unless otherwise indicated.

FN2.The Alcohol Influence Report ("AIR") indicates a check of "yes" and "no" for the question "[H]aving been informed of the reasons for requesting the test(s) will you take the test(s)?" Appellant argues the check by the "yes" indicates an unqualified willingness to perform the test.

FN3.In the argument portion of his brief, Appellant asserts that the Director did not prove that he "was afforded the opportunity to call an attorney." As this argument is not addressed in Appellant's point relied on, it fails to comply with Rule 84.04(e), Missouri Court Rules (2003). "The questions for decision on appeal are those stated in the points relied on."Ulmanis v. Ulmanis, 23 S.W.3d 814, 817 (Mo. App. S.D. 2000). Thus, we decline to review that portion of Appellant's argument.

FN4.A driver's request to speak to an attorney after being advised of the Implied Consent Law abates the proc- ess of determining the driver's BAC for a twenty-minute waiting period or until the driver ceases attempting to contact an attorney.Keim v. Dir. of Revenue, 86 S.W.3d 177, 180 (Mo. App. E.D. 2002).

Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

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UNLAWFUL USE OF WEAPONS AFTERBROOKS v. STATE OF MISSOURI by: Shawn R. McCarver Municipal Judge Cities of Park Hills, Desloge, Bismarck, Leadwood and Bonne Terre

INTRODUCTION. In September 2003, a super-majority of the Missouri General Assembly overrode a gubernatorial veto to pass House Bills 349, 120, 136 and 328, commonly referred to as the Concealed Carry Act. The Concealed Carry Act repealed Section 571.030, the unlawful use of weapons statute, and enacted three new Sections, 50.535, 571.030 and 571.094. The Concealed Carry Act was to go into effect thirty days after the veto override, on October 11, 2003. On October 10, 2003, St. Louis City Circuit Judge Steven R. Ohmer entered a preliminary injunc- tion against the State of Missouri enjoining enforcement of the Concealed Carry Act. The hearing was reconvened on October 23, 2003 for a final hearing on whether or not a permanent injunction would be entered. On November 7, 2003, Judge Ohmer issued a final declaratory judgment in favor of the Plaintiffs holding that the Concealed Carry Act violated Article I, Section 23 of the Missouri Constitution. Judge Ohmer entered a permanent injunction enjoining enforcement of the act in its entirety. Judge Ohmer re- jected the claims of the Plaintiffs that the law violated the Hancock Amendment. MISSOURI SUPREME COURT SPEAKS. On February 26, 2004, the Supreme Court of Missouri rendered its opinion. In Section II of the opinion, the Supreme Court held that the right to bear arms provision of the Missouri Constitution is plain and unambiguous. The court held that there is no constitutional prohibition against the wearing of con- cealed weapons. The meaning of the “shall not justify” final clause of Article I, Section 23 simply means that a Defendant may not invoke the Constitution as defense to justify the wearing of a concealed weapon. The court also addressed claims made by the parties related to the Hancock Amendment. Al- though the Concealed Carry Act permits a $100.00 non-refundable application fee, the Plaintiffs in the liti- gation contended that the requirements on local sheriffs to conduct background checks and issue permits constituted an “unfunded mandate.” The reason for the contention is because Section 50.535 requires the $100.00 fee to be deposited into the sheriff’s revolving fund, to be used for training and equipment. At the trial only four counties produced evidence of increased administrative costs for which the $100.00 application fee cannot be used. Thus, the Supreme Court ruled that the Concealed Carry Act con- stituted an unfunded mandate in Jackson, Cape Girardeau, Greene and Camden counties. Thus, an injunc- tion was proper to prohibit enforcement of the act by the State of Missouri in those four counties. The Su- preme Court simply held that the four counties listed were not required to comply with the act to the extent that the act mandated those counties to expend funds for that purpose. Thus, the counties in question are not prohibited from issuing permits, they simply do not have to. At least two of the counties have publicly announced that they will process permits despite the ruling of the Supreme Court.

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A motion for rehearing was filed by opponents of the concealed carry law and on March 30, 2004, the Supreme Court overruled the motion for rehearing.Brooks, et al. v. State of Missouri, S.C.85674 (Mo. en banc 2-26-2004). [Author’s note: the original opinion of February 26, 2004 was modified on the court’s own motion, but the court specifi- cally held that the substitution does not constitute a new opinion.] OPEN CARRY IN MISSOURI. As discussed in a previous article in Benchmark, Missouri’s Uniform Firearms law, Section 21.750 is also known as the preemption law. Under the preemption law, local firearms laws cannot be more restrictive than those of the state. The Uniform Firearms law does not, however, cover discharge of firearms within the city limits and the open carry of fire- arms. Thus, a local government may still enact ordinances regulating the open carry of firearms. The open carry of fire- arms is legal in Missouri, however, because of the preemption law cited previously, local governments may outlaw the (non-concealed) carry of weapons. Because the Missouri Constitution permits every citizen to keep and bear arms in defense of his home, person and property, restrictions have generally been analyzed related to time, place and manner of carry. Apparently, the constitution also permits open carry of anunloadedgun despite any ordinance to the contrary.City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (Mo.App. E.D. 1994). THE REENACTED UNLAWFUL USE OF WEAPONS STATUTE. The Concealed Carry Act reenacted Section 571.030 with changes. Some changes do not relate to the new con- cealed carry permit authorized by Section 571.094. A quick review of the Unlawful Use of Weapons statute shows that the crime of unlawful use of weapon may be committed in ten ways defined in Section 571.030.1. The ten ways are: (1) carrying a concealed weapon upon or about the person; (2) setting a spring gun; (3) shooting a gun into a house, train or vehicle; (4) exhibiting a weapon readily capable of lethal use in an angry or threatening manner; (5) possession of a weapon while intoxicated; (6) discharging a firearm within 100 yards of a school, courthouse or church; (7) shooting a firearm at a mark, object or at random, on, along or across a public highway or into any out building; (8) carrying a firearm into a church, an election precinct on election day or a building owned or occupied by any agency of the federal or state government or political subdivision thereof; (9) shooting a firearm from a vehicle, at a person or at a structure unless acting in self-defense; (10) carrying any firearm, whether loaded or unloaded, or any other weapon readily capable of lethal use, into a school, on a school bus or on the premises of any school activity. Thus, subsection 1 of Section 571.030 defines ten broad categories wherein commission of the listed act consti- tutes the crime of unlawful use of a weapon. Subsections 2, 3, 4, 5 and 6 create exceptions for certain persons or classes of persons so that commission of an act by such a person or class of persons that would normally be a crime is not a crime. Subsection 2 exempts certain categories of official persons and process servers from eight of the listed ways that the crime of unlawful use of weapons can be committed. The persons exempted by subsection 2 are: (1) peace officers; (2) prison wardens; (3) members of the armed forces or national guard; (4) judges; (5) process servers; (6) federal probation officers; (7) state probation officers; (8) certain corporate security advisors; (9) coroners and medical examiners. Section 571.030.2(1) - (9). Subsection 3 of Section 571.030 creates certain exemptions from the unlawful use of weapons statute that are not based upon the job or class of person. For example, certain provisions of the unlawful use of weapons statue do not apply if the actor is transporting a weapon in a non-functioning or unloaded state when ammunition is not readily accessible. In addition, the Concealed Carry Act modified 571.030.3 to provide that any person twenty-one years of age or older may carry a concealed weapon in the passenger compartment of a motor vehicle so long as the concealable firearm is otherwise lawfully possessed. This does not require a permit. Subsection 3 also exempts persons carrying an exposed firearm for the lawful pursuit of game. Thus, a hunter carrying a rifle may also carry a concealed handgun or other weapon. Subsection 3 also exempts any person while in their dwelling unit or upon premises over which the actor has possession, authority or control, which would include a place of business. Finally, subsection 3 contains the so called peaceful travelers exception which exempts a person traveling in a continuous journey peaceably through this state. Case law has held that the exception applies to both interstate and intra- state travel. Subsection 3 also provides an exception to the carry of a weapon onto a school if the actor is transporting a stu- dent to or from school or if the weapon is possessed by an adult for purposes of a school sanctioned firearm related event. The reenacted Section 571.030 also provides that subdivisions (1), (8) and (10) of subsection 1 shall not apply to any person who has a valid Missouri Concealed Carry permit “or a valid permit or endorsement to carry concealed fire- arms issued by another state or political subdivision of another state.” Section 571.030.4. Thus, a Missouri resident need not have a Missouri permit in order to carry a concealed firearm legally.

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Section 571.030 contains the recognition of permits issued by other states or political subdivisions for several reasons. First, like driver’s licenses, most states with concealed carry laws recognize permits issued by other states, al- though some states do not. This is referred to as “reciprocity.” Secondly, Missouri’s permit is not a separate card as in other states, but an endorsement on the drivers license. Many Missouri residents do not wish such information to appear on a drivers license, which is frequently shown for identification purposes when cashing checks or conducting business, or shown to an officer on a traffic stop. This is understandable as such places as St. Louis County and the City of Hazel- wood have announced, through their anti-gun police chiefs, an intent to harass lawful permit holders. Thus, the privacy of a Missouri resident can be maintained by having a permit issued by another state. The reason our statute specifically includes permits issued by political subdivisions of other states is because, like Missouri, many states issue permits through county sheriffs or local law enforcement as opposed to a central statewide office. Subsection 5 of Section 571.030 exempts the actor from eight provisions of subsection 1 if the actor is engaged in a lawful act of defense pursuant to Section 563.031. Finally, subsection 6 of 571.030 clarifies that it is not unlawful for a student to participate in school sanctioned gun safety courses, student military or ROTC courses or other school sponsored firearm related events. MISSOURI CONCEALED CARRY ENDORSEMENT . Section 571.101 provides that if an applicant can show qualification, the sheriff “shall issue” a certificate for a concealed carry endorsement to be placed on the drivers license or non-drivers license. Thus, Missouri is a so-called “shall issue” state. Section 571.101. To obtain a Missouri certificate, the applicant must be twenty-three years of age, a resident of Missouri for at least six months or a member of the armed forces, and not otherwise disqualified from owning a firearm under applicable law. Section 571.101.2. Note that an applicant must be twenty-three for the Missouri permit, however, many other states issue concealed carry permits beginning at younger ages such as age twenty-one. Missouri law specifically recognizes a concealed carry permit issued by another state and Missouri law contains no qualifiers such as residence or age in relation to an out of state permit. Thus, a Missouri resident age twenty-one could get a permit from Florida and legally carry in Missouri. Section 571.030.4. An application for a Missouri endorsement must be made in the county in which the applicant resides. Section 571.101.4. Since the statute does not specify domicile, it seems apparent that a Missouri resident maintaining residence in dual counties (such as a home in one location and a second home at the lake, for instance, could apply in either loca- tion). An applicant for a Missouri endorsement must pay the required fee, submit a photocopy of a training certificate and submit a completed application. Note that many other states do not require specific training prior to issuing permits. Missouri law simply says that out of state permits will be recognized and there is no provision requiring equivalent train- ing. Section 571.030.4. Prior to issuing a Missouri certificate, the sheriff “shall make only such inquiries as he or she deems necessary into the accuracy of the statements made in the application.” Section 571.101.5. The statute contains strict time periods for the sheriff to process the application and the sheriff shall issue the certificate within forty-five calendar days even if the criminal background check has not been completed. The law does allow the endorsement to be revoked if the back- ground check, received later, results in a disqualifying record. Section 571.101.5. CONCEALED WEAPONS NOT AUTHORIZED IN CERTAIN PLACES. Section 571.107.1 generally provides that a person with a Missouri endorsement or a permit issued by another state or political subdivision of another state is authorized to carry concealed firearms on or about his or her person or vehicle throughout the state. However, such persons are not authorized to carry concealed firearms into: (1) police sta- tions; (2) within 25 feet of a polling place on election day; (3) adult or juvenile detention facilities; (4) courthouses (with certain exceptions); (5) government meetings; (6) the General Assembly, Supreme Court or county or municipal facilities if a rule, regulation or ordinance has been enacted; (7) bars (not including restaurants that serve alcohol); (8) certain areas of the airport; (9) any place where carrying of a firearm is prohibited by federal law; (10) school; (11) child care facility; (12) river boat casino; (13) amusement park; (14) church; (15) private property where the owner has posted a sign; (16) sports arena or stadium with seating capacity of 5,000 or more; (17) public hospital. CONCEALED CARRY INTO PROHIBITED LOCATION IS NOT A CRIME. Section 571.107.2 provides that the carrying of a concealed firearm into any of the 17 locations is not a criminal act. The actor may be denied access to the premises or may be requested to leave the premises. A civil penalty is author- ized if the person refuses to leave the premises requiring a peace officer to be summoned to the scene. It should be noted that the statute generally contains language that a person may possess the concealed firearm in the vehicle outside any of the prohibited places so long as the firearm is not removed from the vehicle or brandished

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while the vehicle is on the premises. This permits a concealed carry holder to remove the firearm from under his clothing and lock it in the passenger compartment of the car prior to entering a place which prohibits the carrying of concealed weapons. Since the statute specifically states that it is not a criminal offense “so long as the firearm is not removed from the vehicle”, the practice of getting out of the vehicle and locking the gun in the trunk may be questionable, although much safer for security and storage of the firearm. It should also be noted that a person in charge of many of the locations may specifically consent on a case by case basis to a concealed carry holder carrying a weapon into one of the listed locations. For example, a concealed carry holder may carry a concealed weapon into a church with the consent of the minister, and there is similar language in sev- eral of the other sections related to the list of generally prohibited locations. Section 571.107.1(14). CONCLUSION As many police officers have not yet been thoroughly trained on the complicated provisions of the new Con- cealed Carry Act, it is quite likely that municipal courts will be confronted with alleged violations of municipal ordi- nance. The Municipal Judge must be aware that, despite the wording of the municipal ordinance, the municipal ordinance is preempted by state law. Thus, to the extent any municipal ordinance makes it a violation to do any of the things au- thorized by the new Concealed Carry Act, the municipal ordinance is no longer valid. The open carry of firearms is still legal in Missouri, and since the Concealed Carry Act does not regulate open carry, city ordinance would still apply if the ordinance made the act of open carry illegal. Thus, in a strange twist, a per- son without a concealed carry endorsement who is over twenty-one years of age may now carry a concealed weapon in the passenger compartment of an automobile throughout the state but the same person may not carry a weapon openly in cities which have enacted ordinances prohibiting the open carry of weapons. The municipal judge and local police must also be aware that there are numerous categories of private citizens who are permitted concealed carry even without any sort of permit. For instance, the law has for years permitted con- cealed carry by a hunter in the lawful pursuit of game provided the hunter carries an exposed firearm. This is unlikely to be an issue within the corporate limits of a municipality. Further, the law has for years permitted concealed carry if on a peaceable continuous journey either interstate or intrastate. The concealed carry act now adds to those long held excep- tions to the prohibition on concealed carry an exception permitting concealed carry by any person twenty-one years of age or older. Such a person may carry a weapon concealed in the passenger compartment of an automobile provided the weapon is otherwise lawfully possessed. No permit is required. Thus, despite city ordinance to the contrary, it is now legal for a person who lawfully possesses a concealed firearm to conceal the firearm in the passenger compartment of the car such as a console, under the seat or a glove compartment, in a loaded and ready to use state, without any sort of permit whatsoever. Finally, concealed carry upon or about the person is legal for certain persons even without a Missouri per- mit. That would include persons who have permits issued by other states, Section 571.030.4, as well as persons on prem- ises under their authority or control, and the other classes of persons set forth in 571.030. It is recommended that the municipal judge undertake a careful study of the newly enacted provisions of the Concealed Carry Act prior to hearing any unlawful use of weapon case. It would be unfortunate for a judge to render a jail sentence to a defendant based upon a municipal ordinance containing provisions which are now preempted by the new Concealed Carry Act.

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SUPREME COURT CLARIFIES RULES FOR DURATION OF TRAFFIC STOPS  BY SHAWN R. McCARVER, MUNICIPAL JUDGE CITIES OF PARK HILLS, DESLOGE, BISMARCK, LEADWOOD AND BONNE TERRE

On March 9, 2004, the Missouri Supreme Court rendered itsper curiamopinion inState v. Barks, SC85735 (Mo. en banc 3-9-2004), which deals with the issue of the duration of a traffic stop and the scope of the investigation allowed pursuant thereto. Defendant was driving west bound, and a state trooper recorded Defendant’s speed at 74 miles per hour in a 55 miles per hour zone. Defendant was stopped, but was outside his pickup when the patrol car stopped. Defendant produced a driver’s license and told the trooper his insurance card was in the pickup. Defendant re- trieved his insurance card. The trooper wrote a ticket to Defendant and handed the Defendant a copy of the mail-in forms and returned Defendant’s driver’s license. The trooper then inquired as to why Defendant “appeared nervous.” Defendant stated his wife had called him, that his child was ill and that he was in a hurry to get home. The trooper then asked Defendant if he had anything illegal, such as weapons, drugs or con- traband in his vehicle. The Defendant said he did not. The trooper noticed Defendant appeared un- comfortable and he asked the same question again. The trooper stated he could visually see Defendant getting more nervous. The trooper stated “I could see his heart beating inside of his shirt.” Defendant then stated that he had a weapon in the vehicle. Defendant gave the trooper permission to get the weapon, after which the trooper ran a check and found out that the gun was not stolen. The trooper then asked for consent to search the vehicle and the Defendant stated he would give it if the vehicle were his, however, since the vehicle did not belong to him he did not think he had the right to let someone search the vehicle. Defendant did agree to allow a search of his person. Defendant emptied all of his pockets except his shirt pocket. The trooper reached in the shirt pocket and removed an item like a cigarette package. The cigarette package contained some tin foil commonly used in the smoking of metham- phetamine. Defendant was arrested for possession of drug paraphernalia. Laboratory analysis re- vealed the tin foil had traces of methamphetamine on it. Defendant was arrested, handcuffed and placed in the patrol car. Defendant was read his Miranda rights. Upon further questioning, Defendant told the patrolman there was a glass bowl in the truck. The trooper found a glass smoking bowl. The trooper also found several more pieces of burned tin foil, a second cigarette pack containing burned tin foil and a rolled bill. The trooper also found a coffee filter in the center console.

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At trial, the evidence was admitted over Defendant’s objection. Defendant appeals alleging that admission of the evidence seized by the trooper was erro- neous because Defendant was detained “after the lawful purpose of the traffic stop had con- cluded.” The fourth amendment to the United States Constitution guarantees the right of all citizens to be free from unreasonable searches and seizures. A routine traffic stop based upon violation of state traffic law is a justifiable seizure under the fourth amendment.State v. Slavin, 944 S.W.2d 314, 317 (Mo.App. 1997). The fact that police may detain a person for a routine traffic stop does not justify indefinite detention. The detention may only last for the time necessary for the officer to conduct a reason- able investigation of the traffic violation.State v. Woolfolk, 3 S.W.3d 823, 828 (Mo.App. 1999). A reasonable investigation of a traffic violation may include asking for the driver’s license and registration, requesting the driver to sit in the patrol car, and asking the driver about his desti- nation and purpose.State v. McNaughton, 924 S.W.2d 517, 523 (Mo.App. 1996);U.S. v. Ramos, th 42 F.3d 1160, 1163 (8 Cir. 1994). In this case, the circumstances that resulted in the charge for which Defendant was con- victed (possession of methamphetamine) occurred after the trooper completed his investigation of the traffic stop. Once the issuance of the traffic citation was completed, Defendant should have been permitted to go absent the trooper having an objectively reasonable suspicion that Defendant was involved in criminal activity. The objectively reasonable suspicion must be based upon spe- cific, articulable facts. The basis for the reasonable suspicion must arise within the parameters of the traffic stop itself. Suspicions based upon answers to questions asked after the stop is com- pleted are irrelevant to the determination of whether specific, articulable facts supported a reason- able suspicion of criminal activity. Nervous appearance alone dose not give rise to reasonable sus- picion. The court rejected the state’s contention that the conversation following the traffic stop was voluntary. The court noted that the trooper positioned himself at Defendant’s window, looked down at the Defendant, the emergency lights on the patrol car remained activated and the trooper never told Defendant he was free to go. The trooper’s testimony that Defendant could have driven away is not persuasive because the option of driving away was not readily apparent to the Defendant from the circumstances. In fact, at the Motion to Suppress, Defendant testified that he never felt like he could have driven away. Considering the totality of the circumstances, a reasonable person in Defendant’s position would have understood the situation to be one of custody. The Defendant’s belief that he was in custody was warranted. As the admission of the evidence was erroneous because it was obtained following com- pletion of the traffic stop, the trial court has committed an abuse of discretion. The case is re- versed and remanded. State v. Barks, SC85735 (Mo. en banc 3-9-2004).

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MMACJA Board Report for March 20, 2004 By: Judge Larry Butcher—Kearney

The Association’s Board of Directors met at The Lodge of Four Seasons on March 20, 2004. The Annual Courts Conference headed up by Conference Chair Greg Beydler was then only eight weeks away, and by the time our membership reads this issue of Benchmark, the success of the May conference will have been amply demon- strated.  Your Board of Directors continues to address items of interest and concern to our membership. Among them are issues of possible municipal court automation, po- tential legislation pertaining to costs that may be assessed at the municipal level for the issuance of arrest warrants, new and innovative avenues into enhanced judicial educa- tion, including possible on-line training, and model ordinances of current interest, in- cluding a Model Domestic Violence ordinance.  In addition, the Newsletter Committee remains busy with current and informa- tive articles for the Benchmark, the Internet Committee continues in the enhancement of the content and features of the Association’s website(www.mmacja.org) , and the Regional Seminars at five locations throughout the state had over 100 attendees for the March 26, 2004 seminars.