MO: PC for personal quantity in console not PC for trunk under automobile exception

Defendant was stopped for potentially being under the influence, and he passed FST’s. The officer had him in the patrol car asking questions, and defendant admitted to Suboxone in the console. Still, for the automobile exception, the court finds no probable cause to believe that possession of a personal use amount in the console would lead to finding evidence in the trunk. Moreover, the state was invited to argue search incident to the trial court and didn’t, and it thus couldn’t argue that as an alternative basis for the search in the court of appeals. State v. Humble, 2015 Mo. App. LEXIS 1136 (Nov. 3, 2015):

We find that the State failed to establish how the fact that the center console contained Suboxone and Roxicodone—which was consistent with Fouch’s original suspicion that Humble was in some way driving while impaired—would lead a reasonably prudent person to believe that contraband could be found in the trunk of the car. The circuit court apparently concluded that the State failed to meet its burden of persuading it that the discovery in the center console of a small amount of Roxicodone and the syringes used to inject it was indicative of more drugs in the trunk. At most, Fouch would have had probable cause to believe that more drugs of which Humble may have been under the influence may be located in the passenger compartment to which Humble had immediate access. However, the circuit court was not persuaded that the circumstances indicated a fair probability that the trunk would also contain drugs.

Viewing the evidence in the light most favorable to the ruling and disregarding all contrary inferences, the circuit court’s determination that Fouch did not have probable cause to search the trunk is not clearly erroneous. “The meaning of ‘probable cause’ is a legal issue; its existence is a factual question, determined here by the trial court upon a presentation of the facts apparent to the trooper at the time he made the decision to search” the trunk of Humble’s car. State v. Milliorn, 794 S.W.2d 181, 183 (Mo. banc 1990). The State failed to meet its burden of producing evidence and persuading the circuit court that an exception to the warrant requirement applied. We are not left with a definite and firm impression that a mistake has been made. The State’s point on appeal is denied.