454 S.W.2d 917 (Mo. 1970), 54615, Collins v. State

Docket Nº:54615.
Citation:454 S.W.2d 917
Party Name:Jesse Franklin COLLINS, Appellant, v. STATE of Missouri, Respondent.
Case Date:June 08, 1970
Court:Supreme Court of Missouri

Page 917

454 S.W.2d 917 (Mo. 1970)

Jesse Franklin COLLINS, Appellant,


STATE of Missouri, Respondent.

No. 54615.

Supreme Court of Missouri.

June 8, 1970

Page 918

Carroll J. Donohue, Maury B. Poscover, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.

WELBORN, Commissioner.

Appeal from denial of relief on motion under Supreme Court Rule 27.26, V.A.M.R.

A jury in the St. Louis Circuit Court found appellant, Jesse Franklin Collins, guilty of an unlawful sale of a narcotic drug. The court fixed his punishment at 15 years' imprisonment. On appeal, allegations of trial error were found without merit, but the judgment was set aside and the cause remanded for further proceedings to determine the applicability of the Second Offender Act. § 556.280, RSMo 1959, V.A.M.S. State v. Collins, Mo.Sup., 383 S.W.2d 747. Upon a second appeal following such proceedings, the judgment was affirmed. State v. Collins, Mo.Sup., 394 S.W.2d 368.

On this appeal, from denial of relief after an evidentiary hearing, appellant asserts three grounds for relief. The first is that his arrest, without a warrant, was illegal and violative of the Constitution of the United States, Amendment IV, and the Constitution of the State of Missouri, 1945, Art. I, § 15, V.A.M.S., because the arrest, for an offense committed on January 7, 1963, of which the police were aware at that time, was not made until January 30, 1963. Appellant contends that the police had more than ample time between January 7 and January 30 to have obtained a warrant, and, relying upon the analogy of arrest without a warrant and a search without a warrant, contends that an arrest without a warrant, when there is time available to procure an arrest warrant, is illegal.

We need not consider the contention that the requirement of a warrant for a search whenever a reasonable opportunity

Page 919

for officers to procure the warrant exists, expressed in cases such as Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877, and United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, cited by appellant, is equally applicable to a warrant for arrest. We note that the analogy was rejected in People v. Herrera, 19 Mich.App. 216...

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