Johnson v. Com.

• Decision Date: 18 October 1968
• Citation: 443 S.W.2d 20
• Parties: John Thruman JOHNSON et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 20

443 S.W.2d 20

John Thruman JOHNSON et al., Appellants, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 18, 1968.

As Modified on Denial of rehearing June 27, 1969.

Davis Williams, Munfordville, for appellants.

John B. Breckinridge, Atty. Gen., David Murrell, Asst. Atty. Gen., Frankfort, for appellee.

MILLIKEN, Judge.

John Thurman Johnson and James Lee Humphrey, (hereinafter usually referred to as John and James), were convicted of grand larceny--the robbing of vending machines outside a Gulf filling station in Munfordville, and were sentenced to two years' imprisonment. A search of their persons disclosed three keys for vending machine in James' pocket. A search of their automobile uncovered $318.35 in small change and 273 keys designed to open various types of such machines. It is contended on this appeal that the aforesaid evidence was illegally obtained and consequently was inadmissible against them, and for that reason their convictions shuld be set aside.

This state has long observed the rule of law that evidence procured through illegal searches is not admissible against an accused. (Youman v. Commonwealth, 189 Ky. 152, 224 S.W. 860, 13 A.L.R. 1303, a 1920 opinion by Chief Justice Carroll, summarizing precedents.) Such is the law in both state and federal courts now regardless of whose officer performs the illegal search. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). And that exclusion applies also to evidence indirectly obtained through an illegal search. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In Commonwealth v. Vaughn, Ky., 296 S.W.2d 220, at 221 (1956) we said '* * * the fact that a person has committed an offense for which he could have been arrested, does not justify a search, if he has not been arrested for that offense. The law is so certified.' See also 29 Am.Jur.2d Evidence, Sections 411 and 412.

In the light of that brief summary of the governing law, we consider whether the factual situation here compels a reversal of the judgments of conviction. Here, a state trooper stopped the appellants on U.S. 31W about a mile north of Bowling Green, after he had heard over his patrol-car radio about the break-in of the vending machines at Munfordville farther north on U.S. 31W and had received a description of the accused and the automobile in which they were riding. Although the officer had ample reason to believe that the appellants were the men wanted for the break-ins, and he said that is why he stopped them, he arrested them instead for their failure to have a registration receipt for their automobile in violation of KRS 186.170. In searching the men he found three vending machine type keys in the pocket of James, so he took the men to the Warren County jail and called in another member of the State Police, Detective Smith, to handle the case. Believing he had probable cause to do so, Smith arrested the men for breaking in to the vending machines at the Munfordville filling station, then took the three keys found on James Humphrey and opened the vending machine at the jail with one of them, which success and the information he had caused him to obtain a warrant of arrest for the possession of burglary tools--the three keys, and he also obtained a search warrant for the automobile where the $318.35 in small change and the 273 vending machine keys were found, the accused being under the initial arrest in the jail at the time.

As it turned out the men were acquitted of the initial charge of having no registration receipt for the automobile they were in, for the car happened to be owned by James' wife and he would not be expected to have a registration receipt for it. The rule in Kentucky has been that where the accused is acquitted of the charge for which he was initially arrested, the arrest was illegal and any evidence obtained from a search incident to that arrest is inadmissible in a trial for a different offense. Parrott v. Commonwealth, Ky., 287 S.W.2d 440; Thomason v. Commonwealth, Ky., 322 S.W.2d 104; Commonwealth v. Robey, Ky., 337 S.W.2d 34. However in Pennington v. Commonwealth, Ky., 429 S.W.2d 364, we overruled Parrott, Thomason and Robey to the extent they disagreed with the new rule stated in Pennington.

In Pennington a patrolman arrested the driver of the car for its having a loud muffler, and saw several cases of beer in the car, which caused him to take the driver to court where he obtained a warrant to search the car. The search revealed a large quantity of beer and whiskey. In Pennington we overruled the Parrott, Thomason and Robey cases so far as they conflicted with our opinion in Pennington saying:

'* * * The curcial question to be determined by the trial court upon evidence out of the hearing of the jury is whether or not probable cause existed for the initial stopping. This should be done without regard to the pendency or the disposition of the initial offense. It is entirely possible that a defendant may be convicted on a charge when there was not probable cause for the initial arrest or may be acquitted on a charge where there was probable cause. Therefore, the outcome of the trial on the major offense should not be determined by the disposition of the arresting charge * * *.

'Upon remand and retrial of this case the trial court will conduct a preliminary hearing to determine as a matter of fact if probable cause existed for the stopping because of the lond muffler. If such cause existed, the stopping of the automobile was legal and anything discovered incident thereto may be admitted in evidence without regard to the search warrant. * * *. The search warrant would only be necessary to gain access to those items not visible upon a cursory examination * * *'.

In the light of Pennington there is no doubt that the officer had probable cause for stopping the automobile, for it and its two occupants fitted the description heard over the police radio. Also, the officer had reasonable grounds for arresting the occupants for their failure to have a registration certificate for the automobile in violation of KRS 186.170, which was a misdemeanor under KRS 186.990(1) as defined in KRS 431.060, for which the officer was authorized to make an arrest because it was an apparent misdemeanor committed in his presence. (See McCray v. City of Lake Louisvilla, Ky., 332 S.W.2d 837 at page 842 (1960), for the protection accorded a police officer making an arrest in good faith without a warrant in comparable circumstance.) However, our statute governing arrest, KRS 431.005, codifies the common law rule and does not authorize a peace officer to arrest on suspicion of the commission of a misdemeanor as it does on suspicion of the commission of a felony, but limits arrest for a misdemeanor to one committed in the presence of the arresting officer. For that reason acquittal of a misdemeanor charge invalidates such an arrest in this jurisdiction and would, ordinarily, result in the inadmissibility of inculpating evidence procured incident to the arrest, but there is a question whether that exclusion needs to be recognized here.

We are confronted with whether a search can be constitutionally justified where probable cause to make an arrest for the commission of a felony exists but no valid arrest is made. From the view point of constitutionality, is a search without a search warrant and without an antecedent arrest permissible in the total circumstances of this case? In Carroll v. United States, 267...