In the 

Missouri Court of Appeals

Western District

STATE OF MISSOURI,

Respondent,

v.

DEREK L. JOHNSON,

Appellant.

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WD82131

OPINION FILED: 

FEBRUARY 4, 2020

Appeal from the Circuit Court of Boone County, Missouri

The Honorable Jodie C. Asel, Judge

Before Division Three: Alok Ahuja, Presiding Judge, Gary D. Witt, Judge, 

Anthony Rex Gabbert, Judge

INTRODUCTION

Derek Johnson appeals his conviction for possession of a controlled substance. Across five 

points on appeal, he argues that the circuit court erred in overruling his motion to suppress and 

admitting various pieces of evidence at trial. We reverse and remand. 

BACKGROUND

In the early morning hours of September 19, 2015, Appellant Derek Johnson and a 

companion were walking along I-70 Drive Southwest in Columbia, Missouri in a predominately 

business area. Boone County Sheriff’s Deputy Patrick Richardson was patrolling in the same 
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area. A number of burglaries, break-ins, and vehicle thefts had recently occurred in that area, 

though on the night in question, Deputy Richardson had not noticed any criminal activity.

Deputy Richardson noticed Johnson and his companion walking with backpacks on. 

Believing that it was suspicious to see two college age men walking in that particular area of 

Columbia at 2 A.M., Deputy Richardson observed them for a short period of time before he 

decided to stop them. In the time he observed them, he did not see any weapons; they did not 

appear to engage in a drug transaction; they did not trespass on private property or peer into 

windows; they walked on the side of the road, not in the middle; and he received no dispatch 

instructing him to look for individuals matching their description. Nonetheless, he pulled his 

cruiser into the entrance of a car dealership, behind the men as they walked along.

After stopping his cruiser, Deputy Richardson activated his emergency lights. When he 

activated his lights, the men, who were walking away from him, stopped and turned around to 

face him. Deputy Richardson exited his vehicle and asked the two if they would speak with him. 

They walked back towards Deputy Richardson. Deputy Richardson next asked Johnson and his 

companion to remove their backpacks for his safety and they complied. He asked them where 

they were headed, and they told him they were headed to a nearby hotel to meet some friends. 

Deputy Richardson later testified that the hotel in question was a particularly high crime area. 

Two additional patrol cars with three additional uniformed deputies arrived at the scene. The 

additional officers spread out around Johnson and his companion to prevent them from fleeing. 

Deputy Richardson asked them for their identification and they complied. Neither person 

had any warrants for their arrest. He asked them if they had any firearms and they indicated that 

they did not. 
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After asking their consent, he searched their persons and found nothing. Neither 

individual showed any signs of inebriation or impairment nor was there an odor of alcohol or 

drugs. Deputy Richardson noticed that Johnson kept looking at his backpack, and he asked the 

men if they had anything illegal in their backpacks. They answered “no,” but Deputy Richardson 

noticed that when Johnson said “no,” he looked down, and according to Richardson, Johnson’s 

posture indicated to him that Johnson was not confident in his answer. Richardson asked the 

question a second time. Johnson again answered “no” in a manner Richardson interpreted as 

deceptive. Deputy Richardson then asked Johnson if he minded if Richardson looked inside the 

backpack. Johnson responded, “go ahead.”

Deputy Richardson began to search the backpack, and inside the front zipper portion of 

the backpack, he found a glass pipe he knew from experience was used to smoke 

methamphetamine. Deputy Richardson placed Johnson under arrest and read him his Miranda 

rights before continuing to search the backpack. He found a substance he suspected was 

methamphetamine and a scale. He asked Johnson what the scale was used for, and Johnson 

answered that he used the scale when he purchased drugs to ensure that he was buying the 

correct amount. 

Deputy Richardson then brought Johnson to his patrol car, and he asked Johnson if he 

had anything else illegal on his person. Richardson explained to Johnson that if he did not 

disclose other illegal items in his possession and brought those into the jail, he would face 

additional, unnecessary charges. Johnson told Deputy Richardson that there was a bag of 

methamphetamine under his hat, which Deputy Richardson retrieved. The two bags recovered 

from Johnson were later sent to a crime lab. Only one of the bags was tested. Testing revealed 

that the bag contained 1.74 grams of methamphetamine. 
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Johnson was charged with possession of a controlled substance. He filed a motion to 

suppress the evidence found on his person and in his backpack and statements he made to 

Deputy Richardson at the time of his arrest. An evidentiary hearing was held, where much of the 

foregoing evidence was adduced. Johnson’s motion was overruled, and, after a change of judge, 

a bench trial was held. Johnson’s motion was renewed, and the evidence at issue was admitted at 

trial over his objection. After sentencing, he timely commenced this appeal.

DISCUSSION

“A trial court’s ruling on a motion to suppress will be reversed only if it is clearly 

erroneous.” State v. McNeely, 358 S.W.3d 65, 68 (Mo. banc 2012). “In reviewing a trial court’s 

ruling on a motion to suppress, there must be substantial evidence to support the ruling.” State v. 

Perry, 548 S.W.3d 292, 297 (Mo. banc 2018) (citation omitted). “At a hearing on a motion to 

suppress, the state bears both the burden of producing evidence and the risk of nonpersuasion to 

show by a preponderance of the evidence that the motion to suppress should be overruled. State 

v. Carrawell, 481 S.W.3d 833, 837 (Mo. banc 2016) (citation omitted). When reviewing the 

overruling of a motion to suppress, we consider “the evidence presented at both the suppression 

hearing and at trial to determine whether sufficient evidence exists in the record to support the 

trial court’s ruling.” Perry, 548 S.W.3d at 297 (citation omitted). We defer to the trial court’s 

credibility determinations and factual findings. Id. “[T]he question of whether the Fourth 

Amendment has been violated is a question of law and is therefore reviewed de novo.” State v. 

Cromer, 186 S.W.3d 333, 341 (Mo. App. 2005) (citation omitted).

Johnson presents five points on appeal, all of which claim the court erred in overruling 

his motion to suppress and in admitting evidence over his objection. The first four points claim 

the court erred in admitting the evidence seized from Johnson’s backpack and his person, and his 
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statements regarding the same. The arguments presented in Points I and II largely overlap, and 

Points III and IV, which also overlap, are presented as alternatives to Points I and II. Point V 

claims that when Johnson consented to the search of his bag, the consent was not freely given so 

as to justify the subsequent search. Because the points on appeal are so interrelated and they 

examine the encounter between Johnson and Deputy Richardson chronologically, we will 

consider the points together, analyzing the subject encounter and search from the beginning.

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Johnson first argues that the drugs found on his person and in his backpack, and his 

statements regarding the same, were the subject of an illegal search and seizure in violation of 

his constitutional rights. He argues the stop was a detention as Richardson made a show of 

authority such that a reasonable person would not feel that they were free to leave. Furthermore, 

he argues that Deputy Richardson did not possess a reasonable suspicion which would render the 

seizure legal at the time he stopped Johnson and his companion. Johnson then argues that even if 

the initial stop was viewed as consensual, Johnson was detained by the time his backpack was 

searched because additional deputies had arrived on the scene, and that Deputy Richardson still 

did not possess reasonable suspicion at that point in the exchange to justify the detention. 

"The Fourth Amendment of the U.S. Constitution... guarantees citizens the right to be

free from unreasonable searches and seizures." State v. Burnett, 230 S.W.3d 15, 18 (Mo. App.

2007) (citing Cromer, 186 S.W.3d at 343). The same analysis applies to Article I, Section 15 of

Missouri’s Constitution, as it provides the same level of protection as the U.S. Constitution. 

State v. Grayson, 336 S.W.3d 138, 143 n. 2 (Mo. banc 2011). 

 

1 We only intend to explain the structure of our analysis. This should in no way be construed as a criticism 

of how Johnson’s brief was structured and presented, as it comported with our briefing standards and was well 

written. 
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“[A] seizure does not occur simply because a police officer approaches an individual and 

asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). A “seizure” occurs “when 

the officer, by means of physical force or show of authority, has in some way restrained the 

liberty of a citizen." Perry, 548 S.W.3d at 298 (Mo. banc 2018) (quoting Terry v. Ohio, 392 U.S. 

1, 19 n. 16 (1968)). “[T]he test for [the] existence of a ‘show of authority’ is an objective one: 

not whether the citizen perceived that he was being ordered to restrict his movement, but whether 

the officer’s words and actions would have conveyed that to a reasonable person.” Perry, 548 

S.W.3d at 298 (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). “If a reasonable 

person would feel free to disregard the police and go about their business, the encounter is 

consensual and the Fourth Amendment is not triggered.” Id. (citation omitted). 

In arguing that the encounter was a seizure from the outset, Johnson claims that Deputy 

Richardson made a “show of authority” by activating his emergency lights when he pulled his 

cruiser over before asking Johnson if he could speak with him. If Johnson were driving a 

vehicle, our inquiry would be simple, as in that context emergency lights are a well-accepted

“show of authority” commanding drivers to stop their vehicles and submit to an investigative 

detention. See United States v. Salazar, 609 F.3d 1059, 1066 (10th Cir. 2010) (applying Hodari, 

cited supra); see also United States v. Griffin, 652 F.3d 793, 798 (7th Cir. 2011) (stating that the 

activation of emergency lights by police following another vehicle “unquestionably qualified as a 

show of authority”). Lights are also, among other factors, a show of authority when police 

approach a parked vehicle. See United States v. Gaines, 918 F.3d 793, 797 (10th Cir. 2019)

(stating that “flashing roof lights, two marked police cars, and two uniformed officers” would 

cause a reasonable person to question their freedom to leave). Additionally, passengers in 
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vehicles pulled over by police are also deemed seized for Fourth Amendment purposes. See 

Brendlin v. California, 551 U.S. 249, 263 (2007). But here, Johnson was a pedestrian.

Regarding pedestrians, Missouri courts have cited the absence of emergency lights when

finding that there was not a show of authority from police. See State v. Perry, 548 S.W.3d 292, 

299 (Mo. banc 2018); State v. Carr, 441 S.W.3d 166, 170 (Mo. App. 2014). In specifically 

discussing the absence of lights, the holdings in Perry and Carr strongly suggest that the 

presence of emergency lights in pedestrian encounters would be a show of authority effectuating 

a seizure. 

We do find such holdings in other states. In Tanner v. State, 228 S.W.3d 852, 856 (Tex. 

App. 2007), a Texas court held that there was “no question” that an officer who flashed his lights 

behind two pedestrians had initiated an “investigative detention” requiring reasonable suspicion. 

In Davis v. United States, 781 A.2d 729, 740 (D.C. 2001), a court found that flashing lights did 

not by themselves constitute the seizure of a pedestrian, noting that absent additional actions by 

the officer, the pedestrian would not know that he was, in fact, the target of the officer’s inquiry. 

However, lights coupled with a verbal request by the officer to speak with him did constitute a 

seizure, as there the pedestrian knew the lights were directed at him. Id.

2 Under such 

circumstances, the Davis court concluded, the pedestrian would reasonably conclude that he was 

not free to leave. Id.

 

2 Such an approach is not unlike other Fourth Amendment cases where courts have held that where an 

officer communicates a “particularized interest in an individual” such that the individual believes they are the 

specific target of an investigation, that “particularized interest,” though not dispositive, is a factor to consider in 

determining if an encounter is consensual or a seizure. United States v. Glass, 128 F.3d 1398, 1406-07 (10th Cir. 

1997).
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To the extent Johnson is arguing that we should hold that emergency lights constitute a 

per se show of authority anytime they are used during pedestrian encounters, we decline to so 

hold, as such a holding is unnecessary under these facts. As in Davis, we find that it is a factor 

which weighs heavily towards finding that a seizure has occurred when accompanied by other 

factors indicating that an officer held a particularized interest in specific individuals.

In the present case, Johnson and his companion were walking alone, along an otherwise 

empty road. Deputy Richardson chose to pull his cruiser up behind the men before activating his 

lights, in a similar fashion to how a traffic stop of a vehicle would be initiated. The emergency 

lights immediately caused the men to stop walking and turn around. As there was clearly no one 

else present, they understandably assumed that Deputy Richardson’s attention was directed 

towards them.3 Once Deputy Richardson exited his vehicle and asked the men to approach, it 

was clear that he held a particularized interested in Johnson and his companion. We find that a 

reasonable person in Johnson’s situation would perceive that they were not free to disregard an 

officer’s requests and were thus not free to leave. Therefore, we hold that the men were detained 

when initially stopped by Deputy Richardson.4 

 

3 Although Deputy Richardson testified that he activated his lights for safety purposes – to be visible to 

passing motorists and other officers should they need to respond – the U.S. Supreme Court has indicated that unless 

an officer’s subjective intent is communicated to the person stopped, it is irrelevant in determining whether that 

person has been seized. United States v. Mendenhall, 446 U.S. 544, 554 n. 6 (1980). Additionally, we would not 

expect Johnson to view Richardson’s lights as merely a safety measure when they were on an empty road at a late 

hour, and Deputy Richardson had pulled his cruiser off of the roadway into the entrance of a closed car dealership. 

Safety concerns regarding passing traffic, though never absent, were certainly minimized in the present case. 

4 The parties fail to discuss the extent to which Johnson submitted to Deputy Richardson, but it is an 

essential element of a seizure. “A police officer may make a seizure by a show of authority and without the use of 

physical force, but there is no seizure without actual submission.” Brendlin v. California, 551 U.S. 249, 254 (2007). 

“[W]hat may amount to submission depends on what a person was doing before the show of authority: a fleeing man 

is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up 

to run away.” Id. at 262. Here, Johnson was walking down the road with his companion when Deputy Richardson 

made the show of authority. Johnson then stopped, turned around, and at the officer's direction walked back to 

Deputy Richardson, thereby submitting to Deputy Richardson’s show of authority. 
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Under Terry v. Ohio, law enforcement may make an investigatory stop if an officer can 

point to “’specific and articulable facts’ that, taken together with rational inferences from those 

facts and the officer’s own knowledge and experience, support a ‘reasonable suspicion’ that 

illegal activity has occurred or is occurring.” State v. Smith, 448 S.W.3d 835, 840 (Mo. App. 

2014) (quoting Terry, 392 U.S. at 21). “[T]he fact that [a] stop occurred in a ‘high crime area’ 

[is] among the relevant contextual considerations in a Terry analysis.” Illinois v. Wardlow, 528 

U.S. 119, 124 (2000). However, “an individual’s presence in an area of expected criminal 

activity, standing alone, is not enough to support a reasonable, particularized suspicion that the 

person is committing a crime.” Id. 

Here, the factors listed by Deputy Richardson – the time of day, the location in a highcrime area, the lack of open businesses in that area at that time – are all “context-based factors 

that would have pertained to anyone” in that area at that time, and thus “should not be given 

undue weight.” United States v. See, 574 F.3d 309, 314 (6th Cir. 2009) (concluding that a stop of 

three men loitering in an unlit car, in an empty parking lot, at 4:30 AM in a high-crime area was 

not justified due to the lack of factors specific to those men). The one factor mentioned by 

Deputy Richardson that is ostensibly specific to these two men – that they were wearing 

backpacks – does not rise to the level necessary to justify the stop. Backpacks are a common 

sight in most places, especially college towns, and Deputy Richardson’s observation that they 

could be used to carry burglary tools could conceivably pertain to any number of bags or 

clothing items. Although conduct justifying a stop may be “ambiguous and susceptible of an 

innocent explanation,” Wardlow, 528 U.S. at 125, a reasonable suspicion requires more than rank 

speculation about what could be contained in a coat pocket, briefcase, or backpack. We note 

that, in multiple cases, the federal courts of appeals have held that mere presence in a high-crime 
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area, late at night, and even carrying a backpack, is not alone sufficient to establish a reasonable 

suspicion of criminal activity, and thus justify a Terry stop.5 The stop was, at the outset, not 

justified by a reasonable suspicion.

Even if we were to view the initial stop as consensual, by the time Deputy Richardson 

asked if he could search the backpack the encounter was without question a detention. The men 

had been patted down, their backpacks had been set to the side, and other deputies had arrived 

and positioned themselves to prevent Johnson and his companion from running away. At this 

point, Deputy Richardson had learned that the men were headed to a nearby hotel to visit 

friends.6 Although the hotel was known for criminal activity, Deputy Richardson still did not 

possess specific and articulable facts that supported a reasonable suspicion that these individuals 

were engaged in criminal activity. Their destination, which was known to be a high crime area, 

was yet another context-based factor which would apply to anyone headed to that hotel. We 

have found that connection to a “drug house” supported a reasonable suspicion. See State v. 

Johnson, 427 S.W.3d 867, 874 (Mo. App. 2014) (holding a Terry stop was justified when the 

 

5 See, e.g., United States v. Hernandez, 847 F.3d 1257 (10th Cir. 2017) (finding no reasonable suspicion 

where defendant “was walking next to a construction site which had been the previous target of construction 

material thefts,” in a high-crime area, and both he and his companion were wearing backpacks); United States v. 

Slocumb, 804 F.3d 677, 682-83 (4th Cir. 2015) (finding no reasonable suspicion despite defendant’s presence in 

high-crime area late at night, “in the parking lot of a commercial business that had been closed for several hours,” 

and despite defendant’s mumbled responses, lack of eye contact, and inconsistent responses to officer’s questions); 

Family Serv. Ass’n ex rel. Coil v. Wells Tp., 783 F.3d 600 (6th Cir. 2015) (finding no reasonable suspicion despite 

individuals’ “late-night presence in a high-crime area,” and “the absence of a nearby car or any open store or 

business that might explain the men's presence”).

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In addition to visiting the hotel, Deputy Richardson testified that Johnson continued to glance at his 

backpack after it was removed, he avoided eye contact, and seemed less than confident in his answer when asked if 

the backpack contained anything illegal, conduct Richardson viewed as deceptive. Nervousness or acts of evasion 

can support a reasonable suspicion, but they must be more extreme than the conduct identified by Richardson. See 

United States v. Slocumb, 804 F.3d 677, 682 (4th Cir. 2015) (finding that a failure to make eye contact, giving “low, 

mumbled responses” to an officer’s questions, and appearing to hurry the exchange along did not support a 

reasonable suspicion). As the Fourth Circuit later observed, “[o]nly those among us with ice water in our veins 

would fail to exhibit mild signs of nervousness when confronted by a police officer...” United States v. Bryant, 654 

F. App’x. 622, 628 (2016).
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appellant had been seen congregating in front of a known drug house); State v. Smith, 373 

S.W.3d 502, 506 (Mo. App. 2012) (holding that the fact that the appellant had just left a drug 

house supported a finding of reasonable suspicion). The incriminating explanations for visiting a 

drug house far outnumber the innocent ones. There are plenty of innocent reasons, however, 

why people visit hotels, even those located in high crime areas. 

Because the initial detention of Johnson was unlawful, all of the evidence subsequently 

obtained as a result of that unlawful detention is fruit of the poisonous tree and must be 

suppressed. See State v. Grayson, 336 S.W.3d 138, 146-47 (Mo. banc 2011). Nonetheless, 

“errors in admitting evidence require reversal only when prejudicial to the point that they are 

outcome-determinative.” State v. Johnson, 207 S.W.3d 24, 42 (Mo. banc 2006). As the State’s 

case rests entirely on evidence obtained from the illegal detention, admitting the same was 

clearly outcome-determinative. The judgment of the trial court is therefore reversed. 

CONCLUSION

Therefore, the trial court clearly erred in overruling Johnson’s motion to suppress and in 

admitting evidence over Johnson’s objection. The judgment of the trial court is reversed, 

Johnson’s conviction and sentence is vacated, and the cause is remanded for further proceedings 

with the opportunity for retrial.

Anthony Rex Gabbert, Judge

All concur.