Missouri Case Law

MISSOURI v. SUND, SC87747 (Mo.banc 1-9-2007) State of
Missouri, Respondent v. Kerstin Sund, Appellant. No.
SC87747. Supreme Court of Missouri. January 9, 2007.

Appeal from Circuit Court of St. Louis County, Hon. Steven
H. Goldman.

N. Scott Rosenblum, Michael A. Gross and Joseph F. Yeckel,
Counsel for Appellant.

Shaun J. Mackelprang, Counsel for Respondent.



Ms. Kerstin Sund was convicted by a jury of drug
trafficking in the second degree in violation of section
195.223.7, RSMo Supp. 2005,[fn1] based upon the discovery
of marijuana in the trunk of a rental car she was driving
through Missouri. Ms. Sund claims the trial court erred in
denying her motion to suppress this evidence and in
permitting it to be admitted at trial because it was the
fruit of her unlawful seizure.

This Court agrees that the police officer’s demand that Ms.
Sund and her companion let him search the trunk of their
car or he would detain them while they waited for the
police dogs, even though the traffic stop was concluded and
despite the admitted lack of reasonable suspicion of
criminal activity, constituted an unlawful detention.
Accordingly, the marijuana found in the trunk should not
have been admitted. The judgment is reversed, and the case
is remanded.


At about 10:45 p.m. on the evening of February 27, 2003,
Ms. Sund and Kahlila Wolfe were driving on Interstate 44 on
their way east when they were stopped by Officer William J.
Knittel, Jr., as they passed through Eureka, Missouri. The
officer later explained that he had observed their vehicle
drift onto the dashed white line dividing one lane of
traffic from another and wanted to check that the driver
was not intoxicated or falling asleep. Ms. Sund was
driving, and Ms. Wolfe was in the passenger seat.

After approaching the vehicle, the officer asked Ms. Sund
for her driver’s license and the vehicle registration. She
gave him her license and a car rental agreement. Before
returning to his patrol car to run a computer check on her
license, Officer Knittel asked Ms. Sund a series of
questions to determine whether she was intoxicated or sleepy
and determined that she was neither. He returned to his
vehicle and ran a check on Ms. Sund’s license, which showed
no outstanding violations. He then noticed the name on the
rental agreement was not Sund, but Wolfe. At his request,
Ms. Sund’s passenger showed him her license and confirmed
that the rental agreement was in her name.

Officer Knittel then asked Ms. Sund to join him in his
patrol car. Once in the patrol car, he informed Ms. Sund
that he was going to issue her a warning ticket. While he
filled out the warning ticket and the requisite
racial-profiling form, and while waiting for the results on
a computer check of Ms. Wolfe’s license and the rental
car’s license plate registration (which, when returned,
showed no problem with the license or registration), the
officer asked Ms. Sund questions about herself and the
details of the two women’s trip. She told him that she is a
citizen of Sweden but was living in the United States on a
visa.[fn2] She also told him that she and Ms. Wolfe were
traveling east to assist a friend to prepare for a wedding.

Once the results of the computer checks returned, Officer
Knittel left the patrol car to return Ms. Wolfe’s license.
Ms. Sund remained in the patrol car. Before returning the
license, the officer also questioned Ms. Wolfe about the
details of the women’s trip. She responded consistently
with Ms. Sund’s answers. He then motioned for Ms. Sund to
exit the patrol car. At that point, fifteen to twenty
minutes had passed since he had originally stopped Ms. Sund
and Ms. Wolfe. He completed the traffic stop by telling Ms.
Sund to “be careful,” returning her license, and handing
her the warning ticket, which cited her for a traffic
infraction[fn3] of improper lane usage. See sec. 304.015.5.

As Ms. Sund was walking back to the vehicle in which Ms.
Wolfe was still sitting, Officer Knittel asked Ms. Sund if
he could search the vehicle and all its contents. Ms. Sund
replied, “sure.” When the officer asked Ms. Wolfe to pop
open the trunk, however, she asked him what was going on.
He told her that he believed Ms. Sund had lied to him (a
statement that he later testified was based on “pure
speculation”) and that “interstate highways are used to
conceal drugs, weapons, people and other illegal things.”
Officer Knittel then specifically asked Ms. Wolfe if she
would give him consent to search and again asked her to pop
open the trunk. Neither Ms. Wolfe nor Ms. Sund was willing
to open the trunk for the officer.

The officer then gave the women a choice to consent to his
searching the trunk or to wait for about forty minutes
until a canine unit arrived to conduct the search in his
stead. Only then did Ms. Wolfe consent and open the trunk.
Upon searching the trunk, the officer found a partially
opened duffel bag containing approximately seventy pounds of
marijuana. He arrested both women, who were subsequently
indicted by a grand jury for drug trafficking in the second
degree, a class B felony.

Ms. Sund filed a motion to suppress the evidence seized
during the search of the vehicle, which was overruled. She
objected, without success, to admission of that evidence at
trial.[fn4] The jury found Ms. Sund guilty of drug
trafficking in the second degree. After denying Ms. Sund’s
motion for judgment of acquittal notwithstanding the verdict
or new trial, the trial court sentenced Ms. Sund to five
years imprisonment, but suspended execution of the sentence
and ordered that she spend 90 days in jail, after which she
would begin a five-year probationary period.

Ms. Sund contends on appeal that the trial court erred in
admitting the marijuana because the officer unlawfully
detained her without reasonable suspicion after completing
the traffic stop by telling Ms. Wolfe and her that they had
to either consent to his searching the trunk or wait for a
canine unit to arrive to conduct the search, thereby
negating the consensual nature of their resulting agreement
to allow the search.[fn5]


A trial court’s ruling on a motion to suppress will be
reversed on appeal only if it is clearly erroneous. State
v. Granado, 148 S.W.3d 309, 311 (Mo. banc 2004). This Court
defers to the trial court’s factual findings and
credibility determinations, State v. Rousan, 961 S.W.2d
831, 845 (Mo. banc 1998), and considers all evidence and
reasonable inferences in the light most favorable to the
trial court’s ruling. State v. Clemons, 846 S.W.2d 206, 218
(Mo. banc 1997). Whether conduct violates the Fourth
Amendment is an issue of law that this Court reviews de
novo. Rousan, 961 S.W.2d at 845.


The Fourth Amendment to the United States Constitution
guarantees that individuals will not be subject to
unreasonable searches or seizures. U.S. Const. amend. IV. A
“seizure” occurs when the totality of the circumstances
surrounding the incident indicates that “a reasonable
person would have believed that he was not free to leave.”
State v. Werner, 9 S.W.3d 590, 600 (Mo. banc 2000).

A routine traffic stop based upon an officer’s observation
of a violation of state traffic laws is a reasonable
seizure under the Fourth Amendment. State v. Barks, 128
S.W.3d 513, 516 (Mo. banc 2004). “The fact that the police
may detain a person for a routine traffic stop does not
justify indefinite detention, however. The detention may
only last for the time necessary for the officer to conduct
a reasonable investigation of the traffic violation.” Id.

Officer Knittel testified that he stopped the vehicle
driven by Ms. Sund because it crossed the white dotted line
in violation of the statutory requirement that cars remain
in a single lane, sec. 304.015.5(1), and because he wanted
to ensure the driver was not intoxicated or asleep.
Assuming this was the reason for the stop, the State agrees
that the traffic stop was complete when the officer handed
Ms. Sund the warning ticket, returned her license, and told
her to “be careful.” See Barks, 128 S.W.3d at 517.

At that point the officer was required to allow Ms. Sund
“to proceed without further questioning unless specific,
articulable facts created an objectively reasonable
suspicion that the individual was involved in criminal
activity.” Granado, 148 S.W.3d at 311. But Officer Knittel
admitted that when he asked Ms. Sund whether he could search
the vehicle after returning her license and telling her to
be careful, he did not have reasonable suspicion of
criminal activity that would have justified continued
detention or a search of the vehicle.

Rather than relying on reasonable suspicion, the State
claims that the officer’s conduct at that point was
permissible because the encounter had become consensual.
The State is correct that police officers are free to
question an individual, even without reasonable suspicion
of criminal activity, if the encounter is consensual. Id.
at 312. But, this “does not mean that an officer is free to
involuntarily detain a driver without reasonable suspicion
under the guise of simply engaging in a voluntary
conversation.” Id. An encounter is consensual only if “a
reasonable person would feel free to disregard the police
and go about his business.” Florida v. Bostick, 501 U.S.
429, 434 (1991) (citations omitted). Thus, the question is
whether the officer’s conduct would cause a reasonable
person in Ms. Sund’s position to believe she was not free
to leave.

To answer that question, a court must consider the totality
of the circumstances surrounding the encounter, Granado,
148 S.W.3d at 312, by engaging in a “careful, conscientious
appraisal . . . of all the evidence that bears” on the
claim. State v. Hester, 425 S.W.2d 110, 114 (Mo. 1968). “As
a rule, a motorist who is involuntarily stopped by a law
enforcement officer, for whatever reason, is going to be
very reluctant to leave the scene until it is perfectly
clear that he or she is free to do so.” State v. Taber, 73
S.W.3d 699, 706 (Mo.App.W.D. 2002), citing Berkemer v.
McCarthy, 468 U.S. 420, 436 (1984). For this reason, while
an “officer does not need to inform a suspect that he or she
is free to leave the scene in order for the encounter to
become consensual . . . that option must be apparent from
the circumstances.” State v. Shoults, 159 S.W3d 441, 446
(Mo.App.E.D. 2005).

As noted, the encounter began when Ms. Sund was stopped for
an extremely minor traffic violation — the officer
said he saw the driver’s side tires briefly touch the white
dotted line dividing the lanes of the road and that this
caused him concern that the driver might be intoxicated or
falling asleep. Although he later testified that this
concern was assuaged in the initial moments of the stop,
Officer Knittel nonetheless extended the stop so that it
lasted for a total of fifteen to twenty minutes. During
this time, he questioned both women at length about the
details of their trip and other background information that
was unconnected with the purposes of the traffic stop.

It was only after the traffic stop was concluded that the
officer asked to search the vehicle and its contents. After
some initial back and forth between the officer and the
women as to whether he could conduct a search, the women
refused to open the trunk. In fact, the officer gained
access to the trunk only by threatening to call the dogs to
come sniff the car if the women failed to open it, a process
that could take forty minutes.

While the State says that this demand that the women either
consent or wait for the dogs did not constitute a
detention, that is not the case. Officer Knittel himself
made it clear he would not have let the women leave,
testifying that his statement about having a canine unit
conduct the search “meant that if [Ms. Sund and Ms. Wolfe]
didn’t consent, they would wait . . . till the canine unit
arrived.” As this Court has recognized more than once, the
circumstances of a stop may be such that a reasonable
person would not feel free to leave while the officer
waited for the canine unit to arrive. In State v. Granado,
148 S.W.3d at 312, this Court held that a “reasonable person
would not have felt free to leave” where defendant and his
passenger were from out of state, had been pulled over on
“a rural Missouri highway in the middle of a cold January
night . . . [and] informed that their truck and all of
their personal possessions were being detained for an
indefinite period of time” to facilitate a canine search.
Accord, State v. Sanchez, 178 S.W.3d 549, 555 (Mo.App.W.D.

Here, too, considering the totality of the circumstances, a
reasonable person in Ms. Sund’s and Ms. Wolfe’s position
would not have felt free to leave at the time that they
opened the trunk in response to the officer’s demand that
if they did not do so he would call the canine unit to come
search. It was nearly 11:00 p.m. on a cold night in late
February. The two women were traveling alone on an
interstate highway running through a rural area of
Missouri. Neither was from Missouri, and in fact, Ms. Sund
was visiting the United States from Sweden. They had
nowhere to go and would have had to abandon their rented car
and their possessions if they did leave. The encounter was
not consensual, but constituted a detention that was
unreasonable because the officer did not have reasonable
suspicion of criminal activity.

It was only through Ms. Sund’s illegal detention that the
officer was able to gain access to the trunk and its
contents. The evidence found in the trunk must, therefore,
be suppressed, for “evidence discovered and later found to
be derivative of a Fourth Amendment violation must be
excluded as fruit of the poisonous tree.” State v. Miller,
894 S.W.2d 649, 654 (Mo. banc 1995). Accord, United States
v. Mosley, 454 F.3d 249, 253 (3d Cir. 2006) (passengers in
a car illegally stopped can “seek to suppress the
evidentiary fruits of that illegal seizure under the fruits
of the poisonous tree doctrine”); United States v. Pulliam,
405 F.3d 782, 787 (9th Cir. 2005) (defendant has standing to
seek to suppress evidence “that is in some sense the
product of his unlawful detention”); United States v.
Green, 275 F.3d 694, 699 (8th Cir. 2001) (defendant lacked
interest in car “that would enable him to directly challenge
the search,” but he could “seek to suppress evidence as the
fruit of his illegal detention”).


The totality of the circumstances surrounding the encounter
between Officer Knittel and Ms. Sund show that the officer
illegally seized Ms. Sund. Because the marijuana admitted
as evidence at trial was discovered as a direct result of
that illegal detention, it must be excluded as fruit of the
improper detention. The trial court erred in overruling Ms.
Sund’s motion to suppress and in overruling Ms. Sund’s
objection to the admission of this evidence at trial. The
trial court’s judgment is reversed, and the case is

All concur.

[fn1] Unless otherwise specified, all subsequent statutory
references are to RSMo Supp. 2005.

[fn2] At the time of the stop, Ms. Sund resided in New York.
Ms. Wolfe was a resident of Arizona.

[fn3] An infraction in Missouri “does not constitute a
crime.” Sec. 556.021.2, RSMo 2000. Rather, it is a
violation of state law that does not even rise to the level
of a misdemeanor. See sec. 304.015.7.

[fn4] This Court notes at the outset that Ms. Sund
adequately preserved this claim by filing a motion to
suppress the evidence and objecting to its admission at
trial and that she had standing to do so. Indeed, even were
there merit to the State’s questionable contention that a
permissive driver of a rental car such as Ms. Sund lacks a
reasonable expectation of privacy in the vehicle that was
searched, compare United States. v. Best, 135 F.3d 1223,
1225 (8th Cir. 1998) and United States v. Thomas, 447 F.3d
1191, 1199 (9th Cir. 2006) (both holding that an individual
not listed on a rental agreement has reasonable expectation
of privacy in and standing to challenge a search of a car of
which the individual is a permissive driver) with State v.
Sullivan, 935 S.W.2d 747, 755 (Mo.App.S.D. 1996) (holding
that defendant-driver lacked standing to challenge search
of vehicle because he was not the owner thereof) and State
v. Toolen, 945 S.W.2d 629, 632 (Mo.App.E.D. 1997)
(defendant-driver has standing to challenge search of rental
car only if he shows “he possessed the car with the consent
of the owner or someone with the authority to grant
possession”), Ms. Sund has standing here because the search
of the vehicle was a fruit of her wrongful seizure and
detention. See, e.g., Wong Sun v. United States, 371 U.S.
471, 487-88 (1963); State v. Shoults, 159 S.W3d 441, 446
(Mo.App.E.D. 2005), and cases discussed infra.

[fn5] Ms. Sund also argues that (1) the officer unlawfully
detained her longer than necessary to complete the traffic
stop without reasonable suspicion to do so, and (2) as a
result of the unlawful detention, any consent to search the
vehicle was not freely and voluntarily given. Because Ms.
Sund’s claim based on unlawful detention after the
completion of the traffic stop is dispositive, this Court
need not address these two claims.

[fn6] Sanchez held that “no reasonable person would have
believed” defendant and his passenger were free to leave
when they were both from out of state, they had been pulled
over on a Missouri interstate highway, “the temperature was
over one hundred degrees, and their car and all of their
personal possessions were being detained” for purposes of a
canine search. 178 S.W.3d at 555.