State v. Cantrell
| Decision Date | 10 March 1958 |
| Docket Number | No. 2,No. 46361,46361,2 |
| Citation | 310 S.W.2d 866 |
| Parties | STATE of Missouri, Respondent, v. Albert Lonzo CANTRELL, Appellant |
| Court | Missouri Supreme Court |
Albert L. Cantrell, appellant, in pro. per.
John M. Dalton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., for respondent.
The defendant was found guilty of burglary in the second degree and larceny and his punishment assessed at imprisonment in the penitentiary for a term of three years for the burglary and for an additional term of three years for the larceny. His motion for a directed verdict of acquittal or for a new trial was overruled, allocution was granted, and the Court rendered judgment and pronounced sentence in accordance with the verdict of the jury. The defendant appealed to this court from the judgment and sentence entered.
On the evening of September 8, 1956, between 6:30 and 9:00 p. m., while the owners were away, the dwelling house of William Lamar and Lou C. Lamar in Platte County, Missouri, was entered by forceably removing a window screen and certain personal property was stolen. Later that night, at about 1:45 a. m. on September 9, the defendant and a companion, Marvin Maertens, were arrested on a public street of Kansas City, Missouri, by members of the police department of that city. From the automobile in which defendant and Maertens were riding the police officers recovered a Felca wrist watch which was later identified as having been stolen from the Lamar home. At the police station the police officers found a rent receipt among the personal effects surrendered by the defendant. The receipt was issued to 'Al Harris' and was for rent of an apartment at 738 Washington Boulevard, Kansas City, Kansas.
Later that day police officers from the Kansas City, Missouri, and the Kansas City, Kansas, police departments went to the apartment, accompanied by the owner of the building. They were admitted to the apartment by Arlene Williams, its only occupant, and there they found a television set, a coffee maker and a toaster which were later identified as having been stolen from the Lamar home. Thereafter Mrs. Lamar went to the apartment with police officers where she identified salt and pepper shakers and an ash tray also taken at the time of the burglary. All of the items so recovered were returned to Mr. and Mrs. Lamar.
Before the trial on April 22, 1957, the defendant filed his motion to suppress ; the rent receipt was the only item specifically mentioned. Evidence was heard and the motion was overruled. Some further objections were made during the trial. The Felca wrist watch and the rent receipt were introduced in evidence. The television set, the coffee maker, the toaster, the salt and pepper shakers and the sah tray were not produced at the trial, but were referred to during the testimony.
Defendant's brief on appeal presents one question for review. He contends the trial court erred in overruling his motion to suppress the evidence and in admitting the evidence because his arrest was unlawful and the search of the automobile, his person and his home, and the seizure of the rent receipt and other articles, were in violation of rights guaranteed by Art. I, Sec. 15, Constitution of Missouri 1945, V.A.M.S. and the Fourth Amendment to the Constitution of the United States of America. This is the principal ground of the motion for a new trial. The other assignments of error in the motion for new trial, not being presented in the appellate brief, are deemed waived or abandoned. 42 V.A.M.S. Supreme Court Rule 28.02; State v. Ash, Mo., 286 S.W.2d 808, 813.
The Fourth Amendment to the Constitution of the United States applies only to the federal government, its officers and agents. Watson v. United States, 5 Cir., 224 F.2d 910, 913; Williams v. United States, 9 Cir., 215 F.2d 695, 696. It has no application to the facts of this case, involving, as it does, state officers only.
In determining the issue of the lawfulness of defendant's arrest, the evidence will be viewed in the light most favorable to the state. State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016, 1018. The state's evidence tended to prove that Gary Waite, a member of the Kansas City, Missouri, police department, in a patrol car, first observed the defendant and Maertens in an automobile being driven by the defendant on Troost between 29th and 30th streets. The automobile stopped and the two men looked about them. The automobile moved ahead about a quarter of a block, stopped, the men again looked around, and the automobile then moved slowly ahead. At this point Officer Waite called for assistance and Officer Niels Jensen responded. The two officers halted the automobile and, while checking defendant's driver's license, noticed a 30-30 rifle laying in plain view on the back seat of the automobile together with a box of shells. Asked about the rifle, the defendant said he had been deer hunting in Idaho. The defendant gave the officers permission to examine the rifle and they found it to be loaded. The defendant and Maertens were then placed under arrest. In the meantime, while Officer Jensen was interrogating him, Maertens opened the glove compartment of the automobile and exposed the Felca wrist watch. After the men were arrested and before the automobile was towed away, it was searched and the Felca wrist watch was among the articles taken from it. The defendant and Maertens were then taken to the police station where they were 'booked for investigation.'
Among the duties and responsibilities imposed upon police commissioners of Kansas City by Sec. 84.420 RSMo 1949, V.A.M.S., as amended, Laws of Missouri, 1953, p. 304, are these: '(1) To preserve the public peace; (2) Prevent crime and arrest offenders; (3) Protect the rights of persons and property.' A similar provision applicable to the City of St. Louis is Sec. 84.090. Section 84.440, also pertaining to Kansas City, provides: 'In case any police official shall have reason to believe that any person has committed, or is about to commit within the city * * * any breach of peace or violation of law and order, or that any person found within the city * * * is charged with the commission of crime in the state of Missouri, against whom criminal proceedings shall have been issued, * * * said police official may cause such person to be arrested by any member of the police force.' Section 544.170 provides: 'All persons arrested and confined * * * by any peace officer, without warrant or other process, for any alleged breach of the peace or other criminal offense, or on suspicion thereof, shall be discharged from said custody within twenty hours from the time of such arrest, unless they shall be charged with a criminal offense * * *.' (Emphasis supplied.)
The authority, conferred by statute upon police officers in Kansas City and certain other cities, to arrest offenders without a warrant, is not restricted to any particular class of offenders or grade of crime, but applies alike to misdemeanors and felonies, where the police officers have reasonable grounds of suspicion although the offense is not committed in their presence. Secs. 84.420 and 84.440; State v. Grant, 76 Mo. 236, 244; Greaves v. Kansas City Junior Orpheum Co., 229 Mo.App. 663, 80 S.W.2d 228, 236. See also Sec. 84.090; State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551, 553; Hanser v. Bieber, 271 Mo. 326, 197 S.W. 68, 70; City of St. Louis v. Simon, Mo.App., 223 S.W.2d 864, 865; City of St. Louis v. Gavin, Mo.App....
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...That remainder, of course, was but a paraphrase of a state standard articulated in the pre-Mapp case of State v. Cantrell, (Mo.Sup.Ct., Div. 2, 1958) 310 S.W.2d 866. The Cantrell case, as will be fully developed later, has been recently expressly rejected by the Supreme Court of Missouri as......
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