State v. Brasel, 59243

• Decision Date: 14 June 1976
• Docket Number: No. 59243,59243
• Citation: 538 S.W.2d 325
• Parties: STATE of Missouri, Respondent, v. Ronald Eugene BRASEL, Appellant.
• Court: Missouri Supreme Court

Page 325

538 S.W.2d 325

STATE of Missouri, Respondent, v. Ronald Eugene BRASEL, Appellant.

No. 59243.

Supreme Court of Missouri, En Banc.

June 14, 1976.

Rehearing Denied July 12, 1976.

David C. Godfrey, Clayton, for appellant.

John C. Danforth, Atty. Gen., by Philip M. Koppe, Asst. Atty. Gen., for respondent.

FINCH, Judge.

This is an appeal from a conviction on a two-count indictment for unlawful possession of controlled substances in violation of § 195.017. ¹ Defendant was sentenced to concurrent four year terms on each count but sentence was suspended and defendant was placed on probation for five years. Defendant appealed to the Missouri Court of Appeals, St. Louis District, which affirmed the conviction on Count I, but reversed and remanded on Count II. After application to transfer by both defendant and the State, we ordered the case transferred and now decide it as though here on direct appeal. Art. V, § 10, Mo.Const.

Disposition of this case depends on whether the arrest of defendant without a warrant was based on probable cause and whether certain searches and seizures incident to that arrest were lawful. We conclude that both of these questions are to be answered in the affirmative. Hence, we affirm the judgment.

On April 10, 1972, defendant registered at the Inn America Motel in St. Louis County as a chemist named Ronald Bradley from Kansas City. He was assigned room 233 for which he paid one week in advance. Subsequently, he paid for a second week which ran to April 25, 1972.

On Saturday, April 22 and again on Sunday, April 23, the maid assigned to clean a block of rooms which included room 233 noticed a 'Do Not Disturb' sign on the door leading to that room. On each day it remained on the door into the afternoon. On Saturday, the maid did nothing, but after it remained until mid-afternoon on Sunday, April 23, she reported this fact to Mrs. Sandler, her supervisor. Mrs. Sandler then called room 233. Someone answered the telephone and indicated he did not want the room made up. She then did nothing further.

Again, on Monday the maid noticed a 'Do Not Disturb' sign on the door. About midafternoon, she knocked on the door and when she received no response, she used her key and entered the room. She observed bottles of what appeared to be medicines on the dresser and sacks of such bottles on the floor. She stated that the bed was all torn up. She went next door and called Mrs. Sandler to report what she had seen. Mrs. Sandler then came and opened the door and both she and the maid entered room 233. After observing the room and its contents, Mrs. Sandler reported the matter to Mr. Armstrong, the motel manager.

Mr. Armstrong first checked the registration for the room. He then called the room but received no response. He and Mrs. Sandler then went to room 233, unlocked the door and entered. Armstrong remained in the room ten or fifteen minutes during which time he examined the grocery-type paper sacks which contained large quantities of drugs as well as the containers on the dresser. He observed that these bottles contained pills and capsules and many had federal warrants on them.

After closing and locking the door, Armstrong returned to his office and called the county police. He told the officers that there was a large assortment of drugs in the room in question. Shortly thereafter, five officers from the St. Louis County drug squad came to Armstrong's office. He showed them defendant's registration card, which showed the name Ronald Bradley and gave the license number of his automobile. Armstrong stated that he wanted to show them what he had observed and he then took the officers to room 233. Armstrong unlocked the door and he, followed by the officers, entered. The officers then observed first hand the bottles of pills and capsules on the dresser and in the paper sacks which Armstrong had reported to them. Federal warrants were attached to many of the bottles and one officer estimated that there could be 300,000 pills and capsules. The officers then contacted police headquarters for a check on the license number shown on defendant's registration card and thereby learned that the car was registered to Ronald Brasel of St. Louis County, not Ronald Bradley of Kansas City.

After their examination of room 233 and its contents, the officers arranged with Armstrong to occupy the adjoining room for the purpose of a stakeout of room 233. They remained there until about 10 o'clock that night when defendant returned to the motel. He was observed parking his automobile and then coming to his room carrying an attache case and some clothes. Shortly after the officers heard defendant enter room 233 and close the door, Officer Zinselmeier knocked on the door of room 233. When defendant opened the door, Zinselmeier displayed his police badge and asked if he might come in. Defendant, according to the officer, indicated that he could enter and opened the door wider for that purpose. Zinselmeier then entered, as did Officer Reifschneider who had been standing by Zinselmeier. The other officers also had come out of the adjoining room, but it is not clear from the transcript whether they were standing at the door when it was opened by defendant Brasel. In any event they entered defendant's room shortly after Zinselmeier and Reifschneider entered.

Immediately on entering, Zinselmeier asked defendant for some identification. He produced his driver's license and stated that he was Ronald Brasel. Officer Zinselmeier then placed him under arrest on suspicion of unlawful possession of controlled substances and frisked him. When the officer patted defendant's pants pocket, he felt a large bulge. He reached into the pocket and discovered a quantity of pills. ² The attache case which defendant had carried as he returned to the room was on a chair about four feet from defendant. It was opened promptly and in that search other pills were found. ³

Count I of the information on which defendant was prosecuted was based on possession of the pills found in defendant's trouser pocket. Count II was based on the pills found in the attache case. Defendant was not prosecuted for the possession of the large quantity of pills which were in room 233 and which had been observed there by the motel personnel and later by the officers.

Defendant filed a motion to suppress the evidence obtained by the search of the defendant's person and his attache case. The court overruled that motion and admitted in evidence the pills found in defendant's trouser pocket and the pills found in his attache case. Defendant complains with reference thereto on appeal. Since these searches were incident to an arrest and not pursuant to a search warrant, we must determine first whether the arrest of defendant by Officer Zinselmeier after he entered the room was a lawful arrest, that is, whether it was made with probable cause.

Probable cause was defined in Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) in these words:

'* * * Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it--whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'

A further explanation of what is necessary for there to be probable cause was given in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949):

'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.'

A recent decision by this court involving the issue of probable cause was State v. Wiley, 522 S.W.2d 281 (Mo. banc 1975), wherein the court reviewed the law on probable cause and then considered the validity of a warrantless arrest, as well as the admissibility of evidence seized incident to that arrest. Responding to anonymous tips giving officers the specific location of suspects and specific information indicating that the suspects possessed controlled substances the officers approached the front door of the suspects' apartment, announced that they were police officers, arrested the occupants for possession of controlled substances and searched the area which the informer had stated would house the drugs. In considering the legality of the arrest, the court stated, 522 S.W.2d at 287.

'The evidence to be admissible in this case must be the 'product of a search incident to a lawful arrest, since the officers had no search warrant. The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists 'where 'the facts and circumsances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed.' Brinegar v. United States, 338 U.S. 160, 175, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1890 (1949), quoting from Carroll v. Unted States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543, (555), 39 A.L.R. 790 (1925).' Ker v. California, 374 U.S. 23, 34--35, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963).

'Whether there was probable cause to arrest the appellant along with others in the apartment depends on the information in the officers' possession prior to the arrest. Of course, all the information in the possession of the officers and all reasonable inferences therefrom are pertinent to determine probable cause. Whether there is justification for probable cause to arrest without warrant must be determined by practical...