STATE of Missouri, Respondent, v. Scott E. REAM, Appellant, 223 S.W.3d 874

DANIEL E. SCOTT, Judge. Appellant (“Defendant”) appeals his jury conviction of second-degree drug trafficking, RSMo. § 195.223. We affirm. On October 25, 2004, Corporal Jason Johnson of the Greene County Sheriffs Department was patrolling 1-44 when he saw Defendant’s car, bearing Arizona license plates, illegally driving in the passing lane, but not actually passing another vehicle. After observing the car twice driving on the center-line, Corporal Johnson pulled the vehicle over. Corporal Johnson approached the car and noticed a hanging air freshener that he believed was being used to mask an odor in the car.

The driver, Mr. Klinedinst, produced a driver’s license but he did not have the car’s registration. He indicated the car was owned by Defendant, who was in the backseat. Defendant claimed he bought the car from a friend, he had made three payments totaling $1500, but did not know how much he still owed. He had no registration papers for the car. When Corporal Johnson questioned Defendant and Klinedinst separately, both said they were headed from Arizona to Pennsylvania for vacation. Corporal Johnson thought the answers sounded “rehearsed” and that both men seemed overly nervous.

Missouri State Highway Patrol K-9 officer Thomas Hall stopped to offer help. Corporal Johnson told him that he was suspicious of the vehicle, for reasons detailed later in this opinion. Trooper Hall took his dog around the car and it “indicated” by scratching on three places including the trunk. Corporal Johnson opened the trunk and found two small duffle bags atop two large metal containers. The containers held 111 pounds of marijuana. Corporal Johnson arrested Defendant, read him his Miranda rights, and Defendant invoked his right to remain silent.

Greene County Deputy Scott Horn drove Defendant to jail and booked him. The booking process included a series of questions, which Defendant answered, from the department’s standard booking form. These included his name, date of birth, sex, race, height, weight, eye and hair color, social security number, driver’s license state, address, phone, birthplace, employer, and occupation. At trial, defense counsel sought to suppress Defendant’s answer that he was unemployed. After an evidentiary hearing, the motion was denied.

Defense counsel renewed the objection when the evidence was offered at trial, via a single question and answer comprising three lines of transcript. Defendant claims the State’s use at trial of his “unemployed” book-in response violated his Fifth Amendment rights. Specifically, Point I asserts that “employment” questions “do not properly fall within the booking exception to Miranda,” although Defendant cites no case so holding. Missouri courts, and many others, have considered routine booking questions in light of Miranda.

Some courts hold such questions are not interrogation, so Miranda never applies, while other courts consider them interrogation falling within a Miranda exception. In Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990), four justices essentially took the first position, and four others the second. Id. at 606-08, 600-02, 110 S.Ct. 2638. Despite disagreement on the underlying basis, however, “no court addressing the issue since Muniz has rejected the routine booking exception.” Dixon v. Commonwealth, 149 S.W.3d 426, 432 (Ky.2004)(citing cases).

Missouri cases, back to 1974, tend to fall into the first (“not interrogation”) camp. See, e.g., State v. Isaiah, 874 S.W.2d 429, 436-37 (Mo.App.l994)(routine booking questions not designed to elicit inculpatory statements do not constitute interrogation proscribed by Miranda); State v. Jordan, 506 S.W.2d 74, 83 (Mo.App.l974)(same). See also State v. Mitchell, 999 S.W.2d 247, 254 (Mo.App.1999)(general questions about height, weight, and other background information are not interrogation for Miranda purposes), overruled on other grounds, State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999).

Defendant’s Point I concedes the booking exception, but claims that “employment” questions, specifically, are excluded. State v. Larson, 623 S.W.2d 69, 72 (Mo. App.1981) says otherwise, but only in dicta. Neither Muniz, nor Missouri cases to date, involved or specifically considered “employment” booking questions. However, cases from four federal circuits and at least seven state courts have done so, and have ruled against Defendant’s position. See United States v. Duarte, 160 F.3d 80 (1st Cir.1998); United States v. Gotchis, 803 F.2d 74, 79 (2d Cir.1986); Farley v.

United States, 381 F.2d 357 (5th Cir.1967); United States v. McLaughlin, 777 F.2d 388 (8th Cir.1985); English v. State, 260 Ga.App. 620, 580 S.E.2d 351 (2003); State v. Rassmussen, 92 Idaho 731, 449 P.2d 837 (1969); People v. Abdelmassih, 217 Ill. App.3d 544, 160 Ill.Dec. 536, 577 N.E.2d 861 (1991); Dixon v. Commonwealth, 149 S.W.3d 426 (Ky.2004); Clarke v. State, 3 Md.App. 447, 240 A.2d 291 (1968); People v. Rodney, 85 N.Y.2d 289, 624 N.Y.S.2d 95, 648 N.E.2d 471 (1995); Mayes v. State, 870 S.W.2d 695 (Tex.App.1994).

Some of these opinions include extensive and persuasive analysis supporting their conclusions, which for brevity’s sake we will not detail. For illustrative purposes, however, we will briefly mention three cases with similarities to ours. The defendant in McLaughlin also faced charges relating to drug distribution, and his answer to his “employment” book-in question also was used against him at trial.

The Eighth Circuit rejected his Fifth Amendment challenge: [CJases demonstrate that a request for routine information necessary for basic identification purposes is not interrogation under Miranda, even if the information turns out to be incriminating. Only if the government agent should reasonably be aware that the information sought, while merely for basic identification purposes in the usual case, is directly relevant to the substantive offense charged, will the questioning be subject to scrutiny.

The pretrial services officer’s request that McLaughlin supply his place of employment and home address was made because employment and length of residence in the community are factors properly considered in determining whether to detain or release a criminal suspect pending trial. Such an inquiry constitutes a request for basic identification information. The officer could not have expected the inquiry to elicit an incriminating response. Indeed, the information as to residence and employment had no relevance to the offenses of which McLaughlin was charged.

Therefore, in this case the questioning did not for Miranda purposes constitute interrogation. 777 F.2d at 391-92 (internal citations omitted). Similar Eighth Circuit holdings include U.S. v. Jones, 266 F.8d 804, 812 (8th Cir.2001) and U.S. v. Keeper, 977 F.2d 1238, 1242 (8th Cir.1992). Dixon is a 2004 drug trafficking case remarkably similar to ours. The defendant invoked his Miranda rights when arrested. At the police station, while answering routine booking questions, he said he was unemployed.

At trial, the state offered that admission, and $193 cash found on the defendant’s person, as additional circumstantial evidence that he was a drug trafficker. 149 S.W.3d at 428. The Kentucky Supreme Court recognized the booking exception’s specific application to employment questions (Id. at 432), yet that did not end the inquiry.

A further issue was whether the police deliberately sought incriminating information under the guise of routine booking, since Muniz indicates the exception does not cover questions “designed to elicit incriminatory admissions.” Id. at 433 (quoting Muniz, 496 U.S. at 602 n. 14, 110 S.Ct. 2638). The trial court had held a suppression hearing and concluded the employment question was “not geared to elicit an incriminating response.” That factual finding, supported by substantial evidence, was conclusive of the issue. Id.

The defendant in English, charged with possessing drugs with intent to distribute, was arrested with $565 on his person, but answered “unemployed” in his book-in questions. At the suppression hearing, the booking officer described the “administrative paperwork” he filled out on the defendant and all arrestees. It sought “name, date of birth, address, the relatives, occupation, education level, things of that nature,” not to gather incriminating responses, but to “be able to track that person, find them later, be able to keep up with them.” 580 S.E.2d at 354.

The “occupation” question was upheld based on “the context of the questioning, the officer’s intent, and the relationship of the question to the crime.” Id. Likewise, our trial court held a suppression hearing on this issue. Deputy Horn explained how he had transported Defendant and hundreds of others to jail in his career. An information sheet always had to be completed, and he identified the one he completed for Defendant. It was a normal booking procedure, required by the jail in every case, regardless of the charge. The jail would not accept anyone without the information on that form.

It was strictly an administrative document for the jail’s use. Deputy Horn did not converse with Defendant, except to ask the questions on the sheet, since it was not his business to have conversation with arres-tees. After hearing the testimony, the trial court recessed to read case law cited by the parties, then reconvened for argument. The court and attorneys discussed Isaiah, Jordan, and Muniz, and specifically whether the employment question was “designed to elicit incriminating admissions” as proscribed by Muniz. Our trial court found otherwise: THE COURT: Yeah, I agree [it is admissible].

The problem is it’s not in-teiTogation for Miranda purposes. There are legitimate purposes for your address and your employment so you can notify your family and your employer that you may not be able to come into work. I mean, that’s absolutely not a— incriminating-seeking. You look at it on the front end, not after the fact, to see whether it’s incriminating. You ask, is this misconduct, because if there’s a violation of Miranda, it’s misconduct, that’s when we apply the exclusionary rule to punish that. But there’s no misconduct here. They’re using the jail form with perfectly legitimate questions on there.

And so State’s motion — excuse me. Defendant’s motion to suppress will be denied. We admit some ambivalence. It is one thing to collect booking information after a defendant asserts Miranda rights, and another to use it at trial. But the issue before us is not merely one of policy, nor what we might choose or prefer, but what the federal constitution forbids. The Supreme Court, our Missouri courts, and virtually everyone agrees at least some good-faith booking questions are exempt from Miranda. Defendant concedes this, but argues that “employment” questions remain Miranda-protected.

Yet Defendant cites no case so holding, and at least eleven federal and state courts have concluded otherwise. Those courts may not bind us, but we cannot claim greater authority or ability to interpret the federal constitution. Since our trial court has determined the police obtained this information without misconduct or improper motive, we cannot convict the court of constitutional error in admitting it, unless we go against virtually every reported case, and perhaps forge new federal constitutional law.

Moreover, and equally important, the limited mention of Defendant’s unemployment was “neither crucial to nor did it bear heavily upon the determination of his guilt.” Jordan, 506 S.W.2d at 83 (no error or prejudice in using defendant’s social security number, obtained through routine booking questions, to link him to the crime, as there was ample independent evidence to convict). During a two-day trial — over 400 pages of transcript in the jury’s presence — everything the jury heard about “unemployment” could fit a single transcript page, and be read aloud in about a minute.

The State instead hammered the truly damning evidence, of which there was plenty, starting with two four-foot tall, specially built, sealed metal containers, weighing 150 pounds, containing 111 pounds of marijuana worth over $100,000, hidden under duffel bags in Defendant’s trunk. Everything was sealed to hide the smell, and a strong deodorizer was used inside the car for extra protection. Defendant had no registration or paperwork for his car, a common practice of drug runners to avoid a paper trail.

There were two police scanners and three cell phones in the car, a single key in the ignition (no key ring or other keys), and empty bottles and food wrappers on the floor. Despite 111 pounds of marijuana sealed and hidden in the trunk, there was no loose marijuana or drug paraphernalia in the car or on its occupants. Defendant and his companion were so nervous that, although it was late October, their foreheads were sweating.

Given the overwhelming and essentially uncontroverted proof that Defendant was hiding and hauling 111 pounds of marijuana, using odor control, in a car with no paperwork and just one key, carrying multiple police scanners and cell phones, with a lame vacation story, and sweating 'with nervousness when the police stopped him, the limited mention of his unemployment was not prejudicial. Point I is denied. We also deny Defendant’s Point II challenge to Detective Westbrook’s testimony on the marijuana’s street value.

The trial court did not abuse its wide discretion in admitting such evidence, which is relevant to knowledge and intent issues in drug cases. See, e.g., State v. Smith, 97 S.W.3d 560, 563 (Mo.App.2003). We affirm the conviction. PARRISH, J., concurs. RAHMEYER, P.J., dissents in separate opinion. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . Defendant also sought to suppress his address in Nogales, Mexico, but does not raise that issue on appeal. . Rassmussen, Farley, and Clarke also were cited with approval by our Eastern District colleagues in Jordan (506 S.W.2d at 82-83). .

Compare the New York court’s conclusion in Rodney (624 N.Y.S.2d 95, 648 N.E.2d at 474): The arresting officer's question was part of a routine booking form and was reasonably related to such administrative concerns as assignment of counsel, setting of bail, and the arraigning court’s determination whether to release defendant on his own recognizance (accord, United States v.

McLaughlin, supra)_Although the question about defendant's occupation is arguably related to the conduct for which defendant had been arrested, it was not a disguised attempt at investigatory interrogation, and was not reasonably likely to elicit an incriminating response from defendant. . Indeed, the State had all the evidence, as Defendant offered no evidence and called no witnesses.