Hampton v. Thurmand, 62039

• Decision Date: 11 May 1981
• Docket Number: No. 62039,No. 2,62039,2
• Citation: 619 S.W.2d 310
• Parties: Michael HAMPTON, Respondent, v. Raymond S. THURMAND, Defendant. William B. CALDWELL, Intervenor-Appellant, v. George PEACH et al., Third-Party Defendants
• Court: Missouri Supreme Court

Page 310

619 S.W.2d 310

Michael HAMPTON, Respondent, v. Raymond S. THURMAND, Defendant.

William B. CALDWELL, Intervenor-Appellant, v. George PEACH et al., Third-Party Defendants.

No. 62039.

Supreme Court of Missouri, Division No. 2.

May 11, 1981.

Murry A. Marks, Clayton, for intervenor-appellant.

Michael K. Fagan, Asst. Circuit Atty., St. Louis, for third-party defendants.

WELBORN, Commissioner.

Proceeding under Section 195.145, RSMo 1978, for forfeiture of motor vehicle used to transport heroin. Trial court entered judgment of forfeiture. Vehicle owner appeals, contending that Section 195.145 is unconstitutional.

At approximately 3:51 A.M. on April 21, 1978, in the City of St. Louis, a white 1974 Oldsmobile sedan was being driven north on Union Boulevard, approaching that street's intersection with Delmar Boulevard. The vehicle had four occupants. Raymond S. Thurmand was driving. To his right was Edward Caldwell. In the rear seat, behind Edward Caldwell, was William B. Caldwell, the owner of record of the Oldsmobile. To his left, behind the driver, was Henry Brown. As the auto approached the intersection from the south, a southbound marked police car was stopped on the north side of that intersection. Michael Hampton, a uniformed officer of the St. Louis Metropolitan Police Department, was alone in the police car.

From the police car, Hampton observed the Oldsmobile slow and reach the intersection. The left rear door of the Oldsmobile opened, Henry Brown jumped from the car and ran across the intersection directly toward Hampton. As Henry Brown ran, he was shouting and yelling to the officer,"They are going to kill me; that fellow in the back seat got a gun" or words to that effect. The Oldsmobile turned east into Delmar Boulevard and proceeded away from the intersection. Having heard and seen Henry Brown, the officer admitted Brown to the police car and turned to follow the Oldsmobile. The police car's emergency lights and siren were activated. The Oldsmobile eventually pulled to the curb in the 5100 block of Delmar. The police car stopped behind the Oldsmobile and Hampton requested, via his police radio, that police assistance be dispatched. Plaintiff asked the three remaining occupants of the Oldsmobile to get out of the car. They did so while Police Officer Terry McDermott arrived to assist plaintiff. At the rear of the Oldsmobile, Hampton conducted a "pat-down" frisk of defendant Thurmand and the Caldwells. No weapon or contraband was found. After telling Officer McDermott what Henry Brown had just said and done, Hampton requested that Officer McDermott examine the passenger compartment of the Oldsmobile. Other police officers arrived, responding to the initial call for assistance, and remained near the three suspects at the rear of the Oldsmobile while Hampton went to assist Officer McDermott.

Officer McDermott examined the front seat area of the Oldsmobile while Hampton examined the rear seat area. Officer McDermott noticed that the screws in the dashboard near the automobile radio differed in appearance from other screws in the dashboard. He also noticed that a small piece of the dashboard, at the edge of the in-dash ashtray nearest the automobile radio, had been broken away. Officer McDermott opened the ashtray and saw that the small broken-away opening in the dashboard, visible when the ashtray was closed, was part of a larger broken-away opening. This larger opening was at the upper left-hand corner of the rectangular indentation in the dashboard into which the ashtray fit.

Looking through this larger opening, Officer McDermott observed two plastic bags filled with brown powder. These bags were affixed to metal inside the dashboard by means of magnets. Officer McDermott seized the two bags and the magnets. Hampton then went to the front seat area of the Oldsmobile and observed, underneath the dashboard and resting on the hump in the center of the automobile's floor, what appeared to be part of a handgun protruding from a heating vent. Closer examination revealed that the item was, in fact, a fully loaded .22 caliber revolver, which was then seized. The heating vent in which the gun had been resting was directly below and back toward the firewall, inches from where the bagged brown powder had been found.

Hampton had the Oldsmobile seized and towed to the police garage for evidence and for safekeeping. Thurmand and the Caldwells were taken to the district police station and booked on charges of kidnapping, carrying a concealed weapon and violation of the Missouri controlled substances laws. Henry Brown signed forms indicating that he had no desire to assist the state in prosecuting the kidnapping cases against the three arrestees. The two bags seized from the Oldsmobile were delivered to a chemist employed by the police department. The contents of the two bags were analyzed and determined to be heroin, having a total weight of 43.73 grams. Hampton went to the Circuit Attorney's Office to seek institution of proceedings against the occupants of the Oldsmobile. The Circuit Attorney declined to institute such proceedings. Hampton also inquired about forfeiture proceedings against the automobile.

The "Petition for Forfeiture" was filed in the St. Louis Circuit Court on May 4, 1978. Thurmand, the driver of the vehicle, was named as defendant. On May 8, 1978, Caldwell, as owner of the vehicle, filed a motion to be allowed to intervene in the action. He also filed a "Motion to Stay Proceedings," pending determination of an action he had filed in federal court, seeking a ruling that Section 195.145 was unconstitutional. The federal action was dismissed. See Caldwell v. Camp, 594 F.2d 705 (8th Cir. 1979).

On August 7, 1978, an answer and counterclaim were filed on behalf of Thurmand and Caldwell. The answer asserted the unconstitutionality of Section 195.145. The counterclaim did likewise, naming the City of St. Louis and the State of Missouri as third party defendants, and requesting a declaratory judgment that the statute is unconstitutional. By an amended answer and counterclaim dated December 15, 1978, George Peach, Circuit Attorney for the City of St. Louis, Eugene Camp, Chief of Police for the City of St. Louis, and the Board of Police Commissioners for the City of St. Louis, individually, were added as third party defendants.

Interrogatories were filed by Thurmand and Caldwell, evoking objections on behalf of plaintiff and third party defendants and further interrogatories by defendants.

The matter came to trial on October 31, 1979. The plaintiff adduced the testimony of Officers Hampton and McDermott to the facts as set out above. A police department chemist identified the contents of the sacks taken from the Oldsmobile as heroin. No evidence was offered by defendants. Taken with the case was defendants' "Motion in Limine" to suppress the evidence seized from the auto on the grounds that they were obtained by reason of an illegal search and seizure. Post-trial memoranda were filed by the parties. On January 18, 1980, the trial court entered its findings of fact, conclusions of law and judgment. It overruled the "Motion in Limine" to suppress evidence; found the automobile a public nuisance and ordered it sold at public auction; and found Section 195.145 constitutional under Federal and State Constitutions.

Defendant Thurmand appealed.

Appellant's first point on appeal is:

"The Trial Court Erred In Overruling Appellant's Motion In Limine And Further Erred In Allowing Into Evidence Over Appellant's Objection The Heroin Seized by Officer McDermott From Appellant's Automobile Because: (1) The Arrest of The Appellant Was Unlawful And Violated His Rights Pursuant To The Fourth, Fifth and Fourteenth Amendments To The United States Constitution In That Officer Hampton Lacked Probable Cause To Arrest Appellant Because He Acted As A Result Of The Unsubstantiated And Unreliable Tip Or Information Given Him By Henry Brown; (2) The Search Of The Vehicle And The Seizure Of The Heroin And Gun Were In Violation Of Appellant's Fourth, Fifth And Fourteenth Amendment Rights Because The Subsequent Patdown And Complete Search Of The Persons Of The Occupants Of Caldwell's Automobile Did Not Substantiate Brown's Tip That Appellant Had A Gun On His Person; (3) The Scope Of The Search Went Far Beyond Legal Limits Since It Encompassed An Area Beyond Which The Arrestees Could Have Obtained A Weapon; (4) Informant Brown Did Not Tell Officer Hampton That Appellant Had Concealed A Weapon Or Narcotics In The Vehicle; (5) The Search and Seizure Of The Car Was Not Conducted Pursuant To Impoundment Or Inventory; (6) The Search And Seizure Was Conducted Without A Valid Warrant Nor Any Other Exception To The Rule Requiring Search Warrants Such As 'Exigent Circumstances'; (7) Neither Officer Hampton Nor McDermott Saw Any Weapons Or Contraband In Plain View In The Vehicle And (8) The Evidentiary Search Conducted By The Officers Was A Subterfuge And (9) The Police Had Ample Time To Obtain A Warrant."

The trial court did uphold the search was incidental to a valid arrest. However, the validity of the arrest * * * is of no moment here because of the rule from State v. Edmonds, 462 S.W.2d 782, 784 (Mo.1971), restating Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970):

... The right to search (an automobile) and (the) validity of the seizure are not dependent upon the right to arrest but depend upon the existence of reasonable cause on the part of the seizing officer to believe that the contents of the automobile offend against the law.

"State v. Hornbeck, 492 S.W.2d 802, 807 (Mo.1973).

"The Court in Hornbeck stated the definition of probable cause to be 'more than mere suspicion ... (existing) where the facts and circumstances within the knowledge of the seizing officers, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable...