Mace v. State, 54627
| Decision Date | 12 October 1970 |
| Docket Number | No. 1,No. 54627,54627,1 |
| Parties | Doyle Howard MACE, Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Warren S. Stafford, Springfield, for appellant.
John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.
LAURANCE M. HYDE, Special Commissioner.
Appellant was convicted of grand stealing, affirmed on appeal, State v. Mace, Mo.Sup., 429 S.W.2d 734. His motion to vacate his conviction, filed under Rule 27.26, V.A.M.R., was overruled in the trial court and appealed here.
The charge on which he was convicted was 'that on October 1, 1965, (appellant) stole one 'Sony' brand tape recorder and one 'Reed' brand pipe cutter from Glenn and Wayne Barclay, d/b/a United Rent-All in Springfield, Missouri, by renting these articles from the Barclay's and thereafter retaining them without their consent.' 429 S.W.2d, l.c. 735. Appellant's principal contention on this appeal is that the police obtained the recorder and pipe cutter by an unreasonable search and seizure, relying on Chimel v. State of California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.
The facts as to the search were that two police officers observed appellant, with a companion, driving his car in Springfield and were instructed by radio that there had been a warrant issued for appellant's arrest for grand stealing. The officers stopped appellant, searched him and his car, found an automatic pistol in the front seat, but found the trunk locked. Appellant said he did not have the trunk key so after the officers radioed their headquarters, a key shop was called and a man came out and opened the trunk. Appellant's car was not moved from the place of appellant's arrest and the car trunk was opened within 10 to 15 minutes after the officers stopped the car. In the meantime, deputy sheriffs came and had served the warrant there. Appellant and his companion stood on the sidewalk with four officers present until the trunk was opened. The pipe cutter was found in the trunk and was received in evidence at appellant's trial.
Chimel v. California involved the search of the home of the defendant in that case. The more recent case of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, concerning a search of an automobile, pointed out: 'In terms of the circumstances justifying a warrantless search, the Court has long distinguished between an automobile and a home or office,' citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, holding automobiles 'may be searched without a warrant in circumstances which would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize.' 90 S.Ct., l.c. 1979. We consider that the circumstances herein were sufficient to show the officers had probable cause to believe articles, for stealing of which a warrant for appellant's arrest had been issued, were contained in the trunk of his car. In Chambers, the search of the car held proper therein was not made at the place of arrest as here, but was made at the police station after it was taken there, although the Supreme Court had held in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, that a search after the car in that case had been moved by the police could not be justified as a search incident to an arrest. However, the court distinguished Preston from Chambers, for the reason that in Preston the arrest was for vagancy so that 'the officers had no cause to believe that evidence of crime was concealed in the auto.' In Chambers, where the arrest was for robbery, the court, considering 'a careful search * * * was impractical and perhaps not...
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...State v. McCarty, 460 S.W.2d 630 (Mo.1970) (car matching description of automobile observed earlier at scene of burglary); Mace v. State, 458 S.W.2d 340 (Mo.1970) (officers instructed by radio to arrest defendant for grand theft). It has already been noted herein that a search of an entire ......
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...United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; Mace v. State, Mo.Sup., 458 S.W.2d 340(1); State v. Smith, Mo.Sup., 462 S.W.2d 425; State v. Edmonds, Mo.Sup., 462 S.W.2d 782(2, 3); and State v. Plant, Mo.Sup., 461 S.W......
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