State v. Browner, 35601
| Decision Date | 24 September 1974 |
| Docket Number | No. 35601,35601 |
| Parties | STATE of Missouri, Respondent, v. Leland S. BROWNER, Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
John C. Danforth, Atty. Gen., G. Michael O'Neal and Phil Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Charles D. Kitchin, Public Defender, John Bauer and James C. Jones, Asst. Public Defenders, St. Louis, for appellant.
A jury found defendant guilty on two counts of carrying concealed weapons and he was sentenced to two concurrent five-year terms. Motion for a new trial was denied and he has appealed.
The determinative issue is whether defendant had standing to object to the search of an automobile in which he had been a passenger. We say no and affirm.
On the night of October 23, 1972, St. Louis City patrolmen Roach and Benson saw a Plymouth automobile heading north on De Baliviere Avenue. The patrolmen noticed the car had an unlighted license plate; they turned and followed it to a stoplight at Delmar Boulevard.
When the light changed to green the Plymouth turned left and the officers turned on their red flashing lights. The Plymouth turned into a nearby restaurant parking lot followed by the patrol car. The patrolmen approached the car, occupied by three men. Defendant was seated in the back holding a brief case on his lap. The three occupants alighted and walked toward the restaurant. Officer Benson then asked the driver for his operator's license but was told he had forgotten it. The driver was arrested for operating the car with an unlighted license plate and for failure to display a driver's license.
Officer Benson then asked the defendant what was in the briefcase he had been holding. Without answering defendant fled across Delmar into an alley, pursued by Officer Roach. Officer Benson then searched the other two men, took the brief case from the rear seat of the car and opened it. Inside he found two loaded weapons, a sawed-off 12-gauge shotgun and a sawed-off 22-caliber rifle. When defendant was captured and returned to the scene by Officer Roach, he was arrested for carrying concealed weapons. Both firearms were admitted into evidence over defendant's objections that the search of the car was illegal.
On appeal defendant contends he had standing to object to the policemen's search of the car. .
Defendant relies on In re J.R.M., 487 S.W.2d 502 (Mo. banc 1972). It is readily distinguishable. In that case the police confiscated the appellant's family car and towed it from a parking lot rented by the appellant's father. No search warrant had been obtained. The car was examined at the station by technicians and a search uncovered incriminating evidence. The trial court concluded appellant had no standing to object to the seizure and search. It is significant that in J.R.M., although appellant did not have title to the car, he at least had a constructive interest in it. It belonged to his family and he lived at home. He had permission to use the car at any time, regularly drove it to school, retained his own key and was covered by insurance on the vehicle. Under these circumstances the Supreme Court decided he did have standing to object.
The test utilized in J.R.M. was 'whether defendant was entitled to and did have a reasonable expectation that the property would be free from governmental intrusion other than by a proper and lawful search and seizure.' (at 508(2)). Conversely, the defendant here had no such relation to the automobile in question. He was a casual passenger without privileges or rights of any kind in the use or possession of the car. The automobile searched here was in no way connected with the defendant in a way to give rise to such a reasonable expectation. He was a bystander, a passenger without an interest in the vehicle.
To uphold the search here the State relies on State...
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