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STATE OF MISSOURI, Appellant, vs. HARRY DON FOSTER, Respondent.

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Case No. SD32181 FILED: March 20, 2013

APPEAL FROM THE CIRCUIT COURT OF STODDARD COUNTY Honorable Scott E. Thomsen, Special Judge AFFIRMED AND REMANDED The state appeals from an order suppressing evidence, asserting two related theories for reversal. Neither is persuasive. We affirm the trial court's order. Background1 Officers James and Parsley were patrolling late at night, looking for drunk drivers. Up ahead, a car driven by Foster signaled and turned right. The officers followed. The car's left tires crossed the centerline twice in less than a mile. About
Despite bearing the burdens of proof and persuasion below (State v. Hamilton, 227 S.W.3d 514, 515 (Mo.App. 2007)), the state called only one witness, adduced just four pages of direct testimony, and asked a single question on re-direct. We glean the facts from this thin record and state them consistently with our standard of review described infra.
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the time that Foster signaled to turn into his driveway, Officer James activated his emergency lights. Foster pulled into his attached garage and parked. As the door was closing, Officer Parsley got under it and into the garage, followed by Officer James. They had no warrant, no consent to enter, and did not suspect Foster of any felony. The officers asked Foster to step outside. He refused, saying "We're staying in for the night. We're not going to go anywhere." Officer Parsley got Foster by the shoulder and took him outside "under the authority of the law" (according to Officer James) for a half-hour of observation and field sobriety tests. Only after that did the officers decide to arrest Foster for (1) DWI and (2) not driving on the right side of the road.2 The trial court granted Foster's motion to suppress all evidence obtained after the officers' warrantless entry. Principles of Review The state's appeal is authorized by

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