State v. Blood

• Decision Date: 26 January 1963
• Docket Number: No. 43255,43255
• Citation: 378 P.2d 548,190 Kan. 812
• Parties: STATE of Kansas, Appellee, v. Harold Wayne BLOOD, Appellant.
• Court: Kansas Supreme Court

Page 548

378 P.2d 548

190 Kan. 812

STATE of Kansas, Appellee, v. Harold Wayne BLOOD, Appellant.

No. 43255.

Supreme Court of Kansas.

Jan. 26, 1963.

Syllabus by the Court.

In a criminal action evidence seized from an automobile on a public highway in the state of Missouri by Highway Patrol Officers of that state was used to prosecute the defendant for larceny and burglary in the second degree alleged to have been committed in Johnson County, Kansas. Over objection by the accused that the evidence was obtained by an unlawful search and seizure contrary to his constitutional rights, the evidence was admitted. On appeal from a judgment of conviction the record is examined and it is held: The trial court did not err in refusing to suppress the evidence and in denying a motion for a new trial, all as more particularly set forth in the opinion.

David R. Gilman, Overland Park, argued the cause and was on the brief for appellant.

Hugh H. Kreamer, County Atty., argued the cause, and William M. Ferguson, Atty. Gen., and Robert Hoffman, Asst. Atty. Gen., were with him on the brief for appellee.

SCHROEDER, Justice.

This is a criminal action in which appeal has been duly perfected from a conviction of grant larceny and burglary in the second degree. Conviction was based upon evidence of possession of stolen property by the appellant shortly after the theft.

The sole question presented on appeal is whether evidence admitted at the trial over the appellant's objection was in fact obtained by an unlawful search and seizure.

Sometime between the hours of 6:00 p. m. December 16, 1964, and 1:30 a. m. December 17, 1961, the Mann Automatic Transmission Company, Inc. in Johnson County, Kansas, was burglarized. Entry was gained by breaking a back window. Property stolen by reason of such entry consisted of blank checks bearing the transmission company's name, a check protector, and money belonging to said corporation. The money was taken by breaking open a cash drawer inside the premises.

The appellant, Harold Wayne Blood, and Bernie Herndon were charged with the crime. Blood was tried alone, and Herndon at the time of trial was in the Missouri State Penitentiary.

At approximately 1:30 a. m. on December 17, 1961, Trooper Price of the Missouri State Highway Patrol was on duty near Harrisonville in Cass County, Missouri. While on regular patrol he received a dispatch from the Lee's Summit radio on a 1954 Oldsmobile bearing license No. CP-2907. The dispatch gave the description of the automobile; said that it was leaving the junction of 150 and 71 bypass; and that the occupants had stolen a watch from a service station at the junction.

Approximately five minutes after Trooper Price received this radio dispatch he stopped the vehicle described. It was bearing a Missouri registration tag. Upon asking the appellant, who was driving the vehicle, for a registration certificate on the vehicle, he produced a Kansas registration certificate from his wallet.

The occupants of the automobile were the appellant, Herndon, and a sixteen-year-old boy by the name of Robert Ray Smith. Upon questioning they denied any knowledge concerning a stolen watch, and at the trooper's direction they drove back to the service station at the junction described, where they parked partially on the shoulder of the highway leading into the service station.

Upon further questioning by Trooper Price at the service station Herndon produced the watch. He had it on his arm at the time.

Trooper Meyer of the Missouri State Highway Patrol met Trooper Price at this location.

As a result of questioning it was ascertained that the appellant owned the vehicle. Upon investigation it was disclosed the Missouri license plate on the vehicle was issued to a Jane Draper of Kansas City, Missouri. Trooper Meyer looked into the automobile from the outside using a flashlight and saw several credit cards lying on the front seat and several on the floor board on the right-hand side. He also observed a green metal box behind the left front seat. After seeing these things he questioned the appellant and Herndon about them. The appellant stated he did not know where they came from, and that they did not belong to him. Herndon likewise denied any knowledge about these items. Trooper Meyer then testified:

'Q. All right. Then what did you do with reference to this defendant and the other two men?

'A. We placed them all under arrest at that time and searched the car.'

As a result of the search the appellant's Kansas license registration tag was found in the trunk of the automobile. Blank check forms bearing the Mann Automatic Transmission Company name were found in a coat pocket lying on the rear seat; a check protector was found inside the green metal box which had been observed from outside the vehicle; and the credit cards seen from the outside of the vehicle, numbering eighteen in all, were identified as credit cards of the Commercial Cartage Company in Kansas City, Missouri. The coat on the back seat was ascertained to belong to the appellant.

Investigation early on the morning of December 17, 1961, disclosed the blank checks and the check protector to have been taken from the Mann Automatic Transmission Company, Inc., which had been burglarized in Johnson County, Kansas, and the credit cards to have been taken from the Commercial Cartage Company in Kansas City, Missouri, which had also been burglarized during the night.

Trooper Meyer testified that he arrested the appellant actually on two charges--'on investigation of theft for the watch and also for a stolen license plate on the car.'

At the time of the arrest both the appellant and Herndon stated the items which had been seen through the window did not belong to either of them. When Trooper Meyer opened the green box which had been seen through the window of the automobile he said 'I had reasons to believe that possibly there was stolen--;' that he was not just fishing, because he saw the credit cards lying in the car, and the explanation given by the appellant gave him reason to believe the credit cards and the contents of the green metal box had been stolen.

At no time did either of the troopers arrest the appellant for possession of stolen property.

Counsel for the appellant moved the trial court to suppress the testimony of Trooper Meyer before it was given on the ground that it was obtained by an illegal search of the appellant's automobile. Counsel for the appellant also moved to suppress the evidence 'of anything that the police officer testified to in the trunk of the car or in the box,' after the testimony was in, for the reason that it violated his constitutional rights. These motions were overruled by the trial court without giving any reason. The foregoing question was reserved by proper objections and motions throughout the trial and is properly presented on appeal.

Our task on appeal is to determine if the evidence was admissible under any theory of the law, consistent with the ruling of the trial court that the evidence was admissible on constitutional grounds. The decision of the trial court in favor of the state on this point necessarily encompassed a general finding on the facts in favor of the state. The facts heretofore stated have therefore been given in accordance with the state's evidence. (See, Davis v. United States [1946], 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453.)

The appellant first contends the highway patrol officers lost the ordinary peace officers' power of search and seizure when the appellant's automobile left the highway and stopped on the ramp of the service station. The provisions of RSMo § 43.200, as amended V.A.M.S., read:

'1. The members of the patrol shall not have the right or power of search nor shall they have the right or power of seizure except to take from any person under arrest or about to be arrested deadly or dangerous weapons in the possession of such person, and except that the members of the patrol shall have the power of search and seizure on a public highway of this state.'

Prior to 1959 the wording of this statute did not include the last exception which now gives highway patrol officers the power of search and seizure on public highways of the state of Missouri. No cases have been cited on this point by the appellant except State v. Jones [1948], 358 Mo. 398, 214 S.W.2d 705, which was decided before the amendment.

The appellant's contention on this point is without merit. The appellant was originally stopped on a Missouri highway as a result of a radio dispatch describing the vehicle and informing the troopers that an occupant of the vehicle had stolen a watch. The appellant was thereupon directed to return to the service station located on the highway, after it had been ascertained that the registration tag on his vehicle did not correspond with the registration certificate in his pocket. The fact that a portion or all of the appellant's vehicle may have been off the highway right of way when the subsequent events occurred is immaterial.

The appellant next contends:

'The protection of the Fourth Amendment [to the Federal Constitution] has to do with the right of a citizen to be secure in his private property. The 'search and seizure' herein, to be upheld, must of course, have been made subject to a lawful arrest. In addition, the search must be bona fide for articles connected with the arrest.'

The objects alleged to have been stolen in this case are: (1) A check protector of the Mann Transmission Company, Inc.; (2) blank check forms of the Mann Transmission Company, Inc.; and (3) an undetermined amount of cash of approximately $50. At the time of apprehension the appellant had $41.64 on his person and Herndon had $69.27.

The Furth Amendment to the Constitution of the United States reads:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be...