Kansas City v. Butters, KCD

• Decision Date: 04 March 1974
• Docket Number: No. KCD,KCD
• Citation: 507 S.W.2d 49
• Parties: City of KANSAS CITY, Respondent, v. Paul Gale BUTTERS, Appellant. 26733.
• Court: Missouri Court of Appeals

Page 49

507 S.W.2d 49

City of KANSAS CITY, Respondent, v. Paul Gale BUTTERS, Appellant.

No. KCD 26733.

Missouri Court of Appeals, Kansas City District.

March 4, 1974.

Sloan R. Wilson, Hill, McMullin & Wilson, Kansas City, for appellant.

Aaron A. Wilson, City Counselor, Louis W. Benecke, City Prosecutor, Kansas City, for respondent.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Defendant was convicted of possession of marijuana (the record is silent as to the amount) in violation of the Revised Ordinances of Kansas City, Missouri, 1966, as Amended, Chapter 18, Section 152, and his punishment was fixed at a fine of $25.00. Following rendition of judgment and imposition of punishment, an appeal was perfected by defendant to this court.

It may be said initially that although this is a case involving minimal punishment, a critical constitutional issue is involved. A constitutional question is no less viable, or of lower case dignity, simply because it emanates from an ordinance violation which resulted in a minimal fine. Such a constitutional issue stands with magnum force alongside a like constitutional issue emanating from a major offense resulting in maximum punishment and both deserve equal judicial consideration.

Prior to trial defendant filed a timely motion to suppress the marijuana upon which the charged ordinance violation was predicated, which motion was denied. At this juncture, the defendant and the city stipulated that the evidence heard by the court relative to defendant's motion to suppress, coupled with defendant's open court admission that the substance in question was, in fact, marijuana, constituted all the evidence to be presented at defendant's trial on the merits of the case. A jury was waived and the case was submitted to the court per the joint stipulation and open court admission. Defendant's oral motion for acquittal was denied and defendant was found guilty by the court.

Defendant's postulate for reversal and unconditional acquittal is that the marijuana in question should have been suppressed and excluded from evidence because illegally obtained as the result of an unreasonable warrantless search in violation of the Fourth Amendment of the Constitutional of the United States, and if suppressed and excluded, there was not sufficient substantive evidence to support his conviction.

A common temptation in resolving 'search and seizure' cases, resistance to which requires constant judicial discipline, is to engage in doctrinaire statements of law with, at best, only a superficial analysis of the underlying facts. Judicial determination of constitutionally proscribed 'unreasonable searches and seizures' necessarily turns on the 'concrete factual context of the individual case'. Sibron v. State of New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917, 932 (1968).

The following constitutes the 'concrete factual context' upon which this appeal must be decided. On December 5, 1972, at approximately 5:07 A.M., a patrolman of the Kansas City, Missouri, Police Department stopped a beige 1967 Chevrolet automobile being driven by a female at or near 39th and Harrison Streets, in Kansas City. The patrolman stopped the vehicle for violation of a traffic ordinance, 'one of the headlights was out'. After the automobile was stopped, the patrolman approached it and, in doing so, smelled what he believed to be the odor of marijuana. He described the odor as 'medium to strong'. Besides the female driver, the automobile was occupied by defendant, a male, and another female. The record is silent as to the seating arrangement of the passengers. The patrolman was unable to pinpoint the odor of marijuana as emanating from the occupants of the automobile, much less the defendant, nor did he see any marijuana being smoked by defendant, or any of the other occupants of the automobile. Additionally, he did not, in fact, see any marijuana whatsoever until removing such from defendant under circumstances hereinafter described. The patrolman further testified that the odor of marijuana he smelled could have been present in the automobile before defendant entered it. The record is silent as to how long defendant had been in the automobile.

The patrolman made no request of the occupants to get out of the automobile until after he radioed for assistance and assistance arrived. After assistance arrived, the patrolman requested the occupants of the automobile to get out, which they did, apparently without any incidents of trouble, resistance or remonstrance. After the three occupants got out of the automobile the patrolman notified the female driver of the vehicle that she had been stopped for a traffic violation. The patrolman made no effort to arrest the famale driver at that time. Next, the patrolman 'frisked' or 'patted-down' defendant for weapons. The patrolman did not 'frisk' or 'patdown' either of the two female occupants and, in explanation for not doing so, testified that 'procedure requires' patrolmen not to 'frisk' or 'pat-down' females unless a patrolman has 'strong reason to believe that they have a concealed weapon on their person'. Conversely, the patrolman testified that 'standard procedure' dictates the 'frisking' or 'patting-down' of 'every male we come in contact with for our own protection, to insure that they do not have a weapon'. The patrolman further testified that such 'standard procedure' was followed with respect to defendant even though there was nothing that caused him to believe that defendant was carrying any kind of a weapon, and, further, defendant at no time directed any threatening gestures or remarks toward the patrolman, or toward anyone else. The patrolman unequivocally testified that he 'frisked' or 'patted-down' defendant for the simple reason that to do so was just 'standard procedure'.

While the patrolman was 'frisking' or 'patting-down' defendant, described by him as 'feeling of the clothing, without going inside the clothing, inside the pockets', he felt a 'long, hard object' which he 'had cause to believe could have been a weapon'. Upon feeling the 'long, hard object', the patrolman conducted a 'search' of defendant's person, at which time a pipe and Bufferin tin containing marijuana were discovered and removed from defendant's person by the patrolman. The patrolman testified that after removing the pipe and Bufferin tin containing marijuana from defendant's person he placed defendant under arrest.

The following positive testimony given by the patrolman can not be ignored in determining the 'concrete factual context' upon which this appeal must be decided. The patrolman testified that defendant was not placed under arrest until after the person of defendant had been searched and the pipe and Bufferin tin containing marijuana discovered. The search preceded, rather than followed, defendant's arrest, according to the testimony of the patrolman. Additionally, the patrolman testified that the did not search the defendant 'to confirm' any 'suspicion that someone had some marijuana'.

The patrolman also testified that prior to stopping the vehicle occupied by defendant and the two females he had no information whatsoever to cause him to be on the alert for an automobile answering the description of the one he stopped because the occupants of an automobile answering such description were suspected of engaging in some type of criminal activity. To the contrary, strictly by chance, he observed the vehicle in question being operated with one of its headlights out and that alone occasioned his stopping the automobile.

The mandate of the Fourth Amendment of the Constitution of the United States, 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .', upon which the 'exclusionary rule' pronounced in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914) was bottomed and which was subsequently held applicable to state court criminal actions via the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), is a suit of armour the people of this country clothed themselves with to protect them from unrestricted intrusions by government into the privacy of their persons and property regardless of the guise of the intrusion. This mandate was never intended to constitute an affirmative tool for law enforcement, rather its sole purpose is to protect the people. True, it does not prohibit all searches and seizures, but it does afford absolute protection to the people from unreasonable searches and seizures which is the very reason for its being. Its absolute protection against unreasonable searches and seizures dominates even though the end result restricts criminal prosecution to the extent that absent the protective mantle afforded by it, such prosecution would have otherwise resulted in the conviction of an accused. The people alone, not the courts, possess the right and power to change this inevitable result.

In view of the above there is no recourse from obliterating defendant's obvious guilt of the charged ordinance violation from consideration, and the sole consideration is whether the marijuana in question was obtained by an unreasonable and therefore constitutionally interdicted search.

A properly issued search warrant does not stand alone as the only means by which the Fourth Amendment requirement of reasonableness can be met. The Fourth Amendment's absolute admonition against unreasonable searches is not violated, (1) by a search incident to a lawful arrest, Harris v. United States, 321 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), (2) by protective searches by officers for weapons upon less than probable cause to arrest, Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), (3)...