Gailes v. State
| Citation | 454 S.W.2d 561 |
| Decision Date | 08 June 1970 |
| Docket Number | No. 1,No. 54949,54949,1 |
| Parties | William Orbrie GAILES, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | United States State Supreme Court of Missouri |
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
Leo C. De Voto, Jr., St. Louis, for movant-appellant.
On March 17, 1967, movant (hereinafter sometimes referred to as defendant) was convicted of illegal possession of a stimulant drug. See § 195.240. 1 The trial court, under the Second Offender Act, sentenced him to imprisonment for a term of six years. §§ 556.280 and 195.270. Upon appeal this court affirmed. State v. Gailes, Mo., 428 S.W.2d 555. Thereafter, defendant filed the instant motion under S.Ct. Rule 27.26 to set aside and vacate the judgment. After holding an evidentiary hearing the trial court overruled the motion and defendant has duly appealed. He has been represented by appointed counsel at every stage of the various proceedings mentioned.
The sole ground alleged by movant in his pro se motion is that 'the movant was convicted upon 'evidence' which was illegally and unconstitutionally obtained, and therefore said evidence was inadmissible and should have been excluded because said evidence was the 'fruits' of a 'poisonous tree,' and as a consequence the movant was denied due process of law contrary to the 4th and 14th Amendments to the United States Constitution, and Article 1 Section 15, Article 1 Section 10 of the Missouri Constitution (1945).' The only case cited by him in the trial court and here is Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, which is a case applying the 'fruits of unlawful arrest' doctrine. At the time of entering its judgment the trial court made a finding that
In view of the finding of the trial court we consider it advisable to quote the statement of facts contained in our opinion on the original appeal:
'At 11:15 p.m. Rose Rhodes and a man emerged from the three-story private residence building at 4229 Westminster in the City of St. Louis and walked onto an adjacent parking lot. The building had been under surveillance by St. Louis police officers for approximately one month. Officers Flynn and Lodl, who were parked west of the building, drove in the police car onto the lot and 'pulled up' to the man and woman as the latter reached the man's parked car. Officer Flynn observed the woman, hereinafter 'Rose,' drop a tinfoil packet to the ground and put another small tinfoil packet in her mouth. Officer Flynn picked up the tinfoil packet from the ground, arrested Rose for possession of narcotics, and advised her of her constitutional rights. He then handcuffed her and attempted to retrieve the object in her mouth. She resisted, kicked and fought, but finally spit it out and it was recovered by the officer. The officers did not then know that the white powder in the packets was a drug but from previous experience they suspected narcotics. A laboratory test the next day revealed that the powder was dextro-amphetamine-hydrochloride, a stimulant drug. Two more police officers, summoned for assistance, arrived on the scene. Officer Flynn placed Rose in the police car and asked her if she had any narcotics or stolen property in her house. She answered in the negative. The officer asked her if she 'would mind' if the officers 'went up and looked' and she said 'No.' The officers did not have a search warrant. The handcuffs were removed. Rose unlocked the front door of the house with her key and admitted Officers Flynn, Venz, and Feelson. Rose accompanied the officers to the second floor where her apartment was located. The door to the apartment was wide open. As the officers neared the door Officer Venz observed the defendant and another man standing in the apartment. Defendant had something in his hand. Not knowing then what the object was, Officer Venz drew his pistol. As Officer Venz entered the room he saw defendant drop from his right hand or throw to the floor a four-inch cylindrical container, red and white in color, with lettering on it. When it fell to the floor it rolled a foot or so from the place where defendant was standing. Officer Venz retrieved, opened, and found it to contain three aluminum foil packs. There was a white residue on the interior of the container. Officer Venz put the container in his pocket and placed defendant under arrest for the possession of narcotics. Laboratory tests showed that the white powder was the stimulant drug dextro-ampheta-mine-hydrochloride.
The defendant had filed a pretrial motion to suppress the container, and drugs found therein, which was heard and overruled by the trial court. Upon appeal we ruled that the court did not err in overruling said motion and in admitting the items in evidence. In so doing we said that 'even though we assume that defendant had 'standing' to object to unauthorized entries into the apartment, the entry of these officers was not unauthorized but on the contrary was permitted and acquiesced in by Rose. As owner and possessor Rose had a right to admit the officers and defendant (who was present with the permission of a person having a paramount possessory interest) is not entitled to assert that the entry of the police officers was unlawful. Rose's authority in the premises as tenant exceeded that of defendant, and 'certainly such person may authorize an entry onto the premises contrary to the wishes of another who has far...
To continue reading
Request your trial
-
McCrary v. State
...to suggest there would never be an end to litigation. . . . " Sweazea v. State, supra, 515 S.W.2d at 501, quoting from Gailes v. State, 454 S.W.2d 561, 564 (Mo.1970); see also Caffey v. State, 467 S.W.2d 857, 859 The claim of illegal search and seizure was raised on direct appeal and decide......
-
Jackson v. State
...State (Mo.), 478 S.W.2d 347; Beisher (Beishir) vs. State (Mo.), 480 S.W.2d 883; Rowden vs. State (Mo.App.), 523 S.W.2d 102; Gailes vs. State (Mo.), 454 S.W.2d 561; Weaver vs. State (Mo.App.), 520 S.W.2d 640; Cooper vs. State (Mo.App.), 520 S.W.2d 666; Shields vs. State (Mo.App.), 491 S.W.2d......
-
State v. Thompson
...Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting); Gailes v. State, 454 S.W.2d 561, 564 (Mo.1970). At some point litigation must cease. This precept applies with equal force to both society and the individual criminal defendant,......
-
Gilmore v. State
...citation to offer, or a different theory to suggest, or additional evidence which was not offered at the original trial. Gailes v. State, 454 S.W.2d 561, 563-4 (Mo.1970); Sweazea v. State, 515 S.W.2d 499, 501-2 (Mo. banc 1974). Finally, the allegations contained in number 1(f) need not be c......