512 S.W.2d 894 (Mo.App. 1974), 9562, State v. Achter

Docket Nº:9562.
Citation:512 S.W.2d 894
Party Name:STATE of Missouri, Respondent, v. Leslie Allen ACHTER, Appellant.
Case Date:July 22, 1974
Court:Court of Appeals of Missouri
 
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Page 894

512 S.W.2d 894 (Mo.App. 1974)

STATE of Missouri, Respondent,

v.

Leslie Allen ACHTER, Appellant.

No. 9562.

Court of Appeals of Missouri, Springfield District.

July 22, 1974

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John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Albert G. Tindall, Charleston, for appellant.

BILLINGS, Judge.

Leslie Allen Achter was convicted by a Mississippi County jury of burglary and stealing and sentenced by the court as a habitual criminal. The only question presented by this appeal is the propriety of the trial court's denial of defendant's motion to suppress the use of certain evidence that was in his automobile and which had been stolen in the burglary. We affirm.

On December 20, 1972, the Bobby Johnson home near Anniston in Mississippi County was burglarized sometime between one o'clock and three o'clock in the afternoon. Among the items taken were a Revelation single-shot shotgun, a Remington electric razor, a table-type cigarette lighter, and a guitar.

At about two o'clock the same afternoon Troopers Grissom and Crismon of the Missouri Highway Patrol were in their parked patrol car on a service station parking lot which adjoined Highway 80 on the outskirts of East Prairie. The officers saw a maroon Oldsmobile approaching on the highway, headed toward East Prairie. The Oldsmobile suddenly pulled to the shoulder of the highway, stopped and the driver got out of the car and spoke to the driver of a farm tractor that the Oldsmobile had just passed. The troopers wondered why the automobile had stopped and decided to investigate.

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As the patrol car drove onto the highway and toward the Oldsmobile, with its red lights flashing, the latter vehicle drove back onto the highway and 'started speeding up.' The Oldsmobile continued to accelerate its speed as the two automobiles neared each other. The officers recognized defendant ('a known burglar') as the driver of the Oldsmobile when the two vehicles met. They knew defendant's Missouri license to operate a motor vehicle had been revoked and saw the license plate on the Oldsmobile had expired. The patrol car was turned around and the automobile driven by defendant pursued. During the ensuing chase defendant's car exceeded the speed limit, was driven on the wrong side of the highway and was weaving in and out of highway traffic in such an erratic manner that other motor vehicles on the highway had to pull onto the shoulder or stop in order to avoid collision with the Oldsmobile. The defendant's automobile continued on into the city limits of East Prairie at a high rate of speed and made a sudden turn on Lee Street. At this point the officers momentarily lost sight of the Oldsmobile but when they turned on Lee Street they saw defendant's car stopped in the middle of the street with the left front door standing open. Bystanders in the vicinity pointed to an alleyway and called out to the patrolmen: 'There he goes.'

By Shank's mare Trooper Crismon went in pursuit of the defendant. He found defendant hiding behind a house a half-block from where the automobile had been abandoned and took him into custody. In the meantime Trooper Grissom had approached the defendant's car and as he started to reach through the open door to obtain the ignition keys he saw the shotgun on the rear seat, the guitar on the rear floor, the cigarette lighter on the front floor, and the razor on the right front seat. In addition, the trooper saw what appeared to be (and actually was) a rifle in a cloth case on the back seat and an automatic pistol partially pushed down between the seat and back portion of the driver's seat.

As Trooper Grissom was removing the aforementioned items from the Oldsmobile and placing them in the patrol car Trooper Crismon and the defendant approached the vehicles. Trooper Grissom asked the defendant why he 'had run from us.' The defendant replied that he didn't want to be caught with 'that hot stuff' in his car. The defendant was charged by the troopers with (1) expired vehicle license plate, (2) driving while under revocation, (3) making a false affidavit to obtain a driver's license, and (4) careless and reckless driving. The defendant was placed in the patrol car and driven to jail by Trooper Grissom with Trooper Crismon following in the defendant's automobile. The officers were at the time unaware of the burglary at the Johnson residence since it was not discovered and reported until late that afternoon. Thereafter, the instant charges were lodged against the defendant.

The issue presented is whether the actions of Trooper Grissom, which led to the discovery and subsequent police custody of a stolen shotgun, razor, lighter, and guitar, constitute an unreasonable search and seizure within the ambit of the United States and Missouri Constitutions. Rule 33.03, V.A.M.R.

The Fourth Amendment to the United States Constitution provides 'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized;' Art. 1, § 15 of the Missouri Constitution, V.A.M.S., is couched in similar language and is to the same effect. The United States Supreme Court has held that as a matter of due process under the Fourteenth Amendment to the United States Constitution evidence obtained by a search and seizure violative of the Fourth Amendment is inadmissible in state court prosecutions. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), reh.

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den., 368 U.S. 871, 82 S.Ct. 23, 7 L.Ed.2d 72.

The prevailing rule is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.' Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). These exceptions are 'jealously and carefully drawn,' Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958), and the one who seeks to invoke such an exception has the burden of showing the need for it. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh. den., 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120; State v. Witherspoon,460 S.W.2d 281, 284 (Mo.1970).

Our initial inquiry is whether defendant is potentially 'a person aggrieved' by unlawful police activity so as to have the requisite standing to question that activity. Rule 33.03. The restrictions imposed by the Fourth Amendment were 'designed for protection against official invasion of privacy and the security of property.' Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960). Since defendant had departed from the scene of the contested police activity and possession of the items seized is not an essential element of the crime charged, defendant has no standing unless he had a proprietary or possessory interest in the automobile at the time of the police activity in question. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); State v. Ross, 507 S.W.2d 348, 353 (Mo.1973). Whether defendant had such an interest in the automobile is not to be decided in accordance with subtle distinctions of common law property concepts, Warden v. Hayden, 387 U.S. 294, 305, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Jones v. United States, supra, but may be discerned by inquiring as to whether defendant was entitled to and did have a reasonable expectation that the automobile would be free from governmental intrusion. Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); In re J.R.M., 487 S.W.2d 502, 505--509 (Mo. banc 1972) (comprehensive analysis of United States Supreme Court decisions).

It is settled law that one has no standing to complain of the search or seizure of property which he has voluntarily discarded, left behind, or otherwise relinquished his interest so that he no longer retains a reasonable expectation of privacy with regard to it at the time of search or seizure. Abel v. United States, 362 U.S. 217, 239--241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (abandoned apartment); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (open field); State v. Engberg, 377 S.W.2d 282 (Mo.1964) (motel). Such an abandonment is primarily a question of intent and all relevant circumstances existing at the time of the alleged abandonment should be considered. United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973).

In fact situations closely corresponding to the facts of this case, several state and federal cases have upheld a police search of an automobile abandoned on a highway by a fleeing suspect after a high speed chase by police. United States v. Edwards, 441 F.2d 749 (5th Cir. 1971); Hunt v. Commonwealth, 488 S.W.2d 692 (Ky.1972). 1 These courts reason that by leaving an automobile on a public thoroughfare with keys in the ignition the driver voluntarily

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relinquishes any expectation of privacy which he otherwise would have had. Abandonment has also been found where an automobile is left at the scene of a crime due to the unexpected arrival of police before the crime's completion. Kurtz v. People, 494 P.2d 97 (Colo. banc 1972); Thom v. State, 248 Ark. 180, 450 S.W.2d 550 (1970). In the latter case Justice Byrd had this to say: '. . . Sometimes an automobile takes on the characteristics of a man's castle. Other times an automobile takes on the characteristics of an overcoat--that is, it is movable and can be discarded by the possessor at will. If appellant in his endeavors to avoid the clutches of the law had...

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