MO: While search was unreasonable, defendant’s testimony at trial he possessed items to be suppressed was waiver

Pulling up one’s pants from behind is not indicative of pulling up the pants because a gun is weighing them down, and the officer failed to articulate reasonable suspicion for defendant’s stop. Also, Missouri is a concealed carry state which might make it legal anyway. But, testifying to possession was a waiver. State v. Norfolk, 2011 Mo. App. LEXIS 1526 (November 15, 2011):

While we believe the trial court clearly erred in denying Norfolk’s motion to suppress, we find this error was harmless beyond a reasonable doubt because the evidence sought to be suppressed would have been cumulative to Norfolk’s trial testimony. Norfolk voluntarily stated under oath at trial that he possessed the gun and the drugs found after the search. This confession prevents us from providing Norfolk any claim of relief on his point of error. “It would be trifling with the administration of the criminal law to award [a defendant] a new trial because of a particular error committed by the trial court, when in effect he [or she] has stated under oath that he [or she] was guilty of the charge preferred against him [or her].” Pate, 859 S.W.2d at 870 (quoting Motes v. United States, 178 U.S. 458, 20 S. Ct. 993, 44 L.Ed. 1150 (1900)). See also, State v. Nunn, 646 S.W.2d 55, 57 (Mo. banc 1983) (no reversible error even if motion to suppress statements should have been granted because defendant testified under oath at trial confirming the truth of the incriminating statements); State v. Patino, 12 S.W.3d 733, 741 (Mo. App. S.D. 1999) (even if drugs should have been suppressed because of an illegal traffic stop, admission into evidence was harmless error because defendant’s voluntary testimony amounted to a confession which made the admission of the drugs cumulative); State v. Davalos, 128 S.W.3d 143, 148 (Mo. App. S.D. 2004) (although troubled by defendant being forced to testify in the face of possibly illegally obtained evidence, defendant’s voluntary incriminating statements rendered the admission of the evidence cumulative and harmless beyond a reasonable doubt).

Obvious practice pointer: As a part of the decision to testify, one has to consider the likelihood of an admission to possession of the contraband being a waiver of the search issue. The defense here argued that there was no waiver, but the court disagreed. Most states would likely follow this rationale. It depends on the case, of course, but is one better off not testifying at all to preserve the search issue, or is there some larger goal to be achieved that justifies testifying and waiver?