State v. Clark, 42104.

• Decision Date: 14 October 1980
• Docket Number: No. 42104.,42104.
• Citation: 607 S.W.2d 817
• Parties: STATE of Missouri, Respondent, v. Van Lamont CLARK, III, Appellant.
• Court: Missouri Court of Appeals

607 S.W.2d 817

STATE of Missouri, Respondent, v. Van Lamont CLARK, III, Appellant.

No. 42104.

Missouri Court of Appeals, Eastern District, Division Three.

October 14, 1980.

Glenn Hunt, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

GUNN, Judge.

Defendant appeals from his jury conviction for first degree robbery alleging two points of trial court error: (1) certain admitted evidence was the product of an unlawful search and seizure; (2) the instructions deviated from MAI-CR 2d and did not properly instruct on the culpable mental state required for conviction. We affirm.

In the early morning hours of January 12, 1979, a Ferguson 7-11 Store was robbed of approximately $300 in cash, and a number of blank money orders were taken. While one robber, positively identified as the defendant, asked for a pack of cigarettes, his companion pointed a pistol at the store's lone employee. Defendant then removed money from the cash register and the safe which was ordered opened. Blank money orders and a blue bank money bag were also taken from the safe. When a customer's auto stopped in front of the store, the robbers made a hasty exit and were observed driving off in an auto which had been parked nearby.

Police were immediately summoned and the description of one of the robbers and the getaway vehicle was broadcast over the police radio. The suspect was described as a black male, about twenty-one years old, five feet eleven, wearing a dark jacket and a knit cap. The vehicle was described as a green 1970 or 1971 Ford Mustang.

Shortly after the radio transmission, a Ferguson police officer, about six or seven blocks from the crime scene, stopped a green 1969 Chevrolet Camaro occupied by two young black males in the front seats. As the officer approached the vehicle, he noticed the stirring of another black male wearing a knit cap who had been lying down in the back seat. The officer ordered the three occupants to raise their hands to the ceiling of the car and had them remain in that position until an assisting officer arrived some thirty seconds later. The assisting officer opened the passenger door of the vehicle and ordered all three men to get out. A loaded .22 caliber revolver was readily observable on the floor of the car between the passenger seat and the door. Further investigation revealed a blue bank bag, loose currency, rolled coins and some 7-11 Store blank money orders on the rear floor of the vehicle. Two packs of cigarettes were also found, one being the same brand bought by defendant at the 7-11 Store minutes earlier. The three suspects were placed under arrest and taken back to the 7-11 Store where defendant and another suspect were identified as the robbers by the 7-11 employee and a customer who had arrived just as the robbers were leaving the store.

We first consider defendant's contention that the evidence seized from the automobile should have been suppressed. Defendant argues that as the vehicle was not in violation of any of the traffic laws at the time it was halted, because the vehicle did not fit the description broadcasted over the police radio and because only a general description of the suspects was given, there were no reasonable grounds for stopping the Camaro nor was there probable cause to arrest defendant. Hence, defendant claims, the warrantless search of the car was illegal and the evidence seized was maculated and inadmissible at trial.

In appropriate circumstances a police officer may stop a vehicle to investigate possible criminal behavior although no probable cause to make an arrest exists. If a police officer, in light of facts known at the time, entertains a reasonable suspicion that criminal activity may be afoot, he may stop the suspicious person and make reasonable inquiries concerning the suspect's activities. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Bargeon, 578 S.W.2d 364 (Mo.App.1979). Defendant stresses the fact that his vehicle, a 1969 Chevrolet Camaro, was not the year, make or model of the auto described in the police broadcast. He thus argues that the police officer could not have a reasonable suspicion to stop his vehicle. The Camaro, however, was the described color, of close vintage, and the officer testified that it was the same basic size and shape as the described getaway car. In similar situations, reasonable ground for an investigatory stop has been found even though the description was somewhat general or imprecisely fit the suspect vehicle. E. g., State v. Carter, 572 S.W.2d 430 (Mo. banc 1978); State v. Murray, 445 S.W.2d 296 (Mo.1969); State v. Morgan, 593 S.W.2d 256 (Mo.App.1980); State v. Bargeon, 578 S.W.2d 364 (Mo.App. 1979). Given the proximity of time and distance from the 7-11 robbery, the matching color of the vehicle, the similarity in size and shape of the vehicle, and two young black males visible in the vehicle, we specifically find that the police officer had an adequate basis for reasonable suspicion to make a legitimate investigatory stop of defendant's auto.

After stopping the vehicle and noticing the defendant in the back seat wearing a knit cap and generally fitting the broadcast description of one of the robbers, the police properly ordered the suspects out of the car to frisk them. State v. Bargeon, 578 S.W.2d at 367. Possessing knowledge that a pistol had been used in the robbery, the police officer had probable cause to make an arrest when he observed the gun in the vehicle, if indeed it had not existed before then. From that point, any evidence seized from the vehicle, if not in the officer's plain view, was the result of a valid search incident to a lawful arrest, as...