State v. Collett

Citation542 S.W.2d 783
Decision Date08 November 1976
Docket NumberNo. 59313,59313
PartiesSTATE of Missouri, Respondent, v. Edward Eugene COLLETT, Appellant.
CourtUnited States State Supreme Court of Missouri

Edward J. Bippen, Asst. Public Defender, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.

FINCH, Judge.

Defendant, found guilty on two counts charging robbery in the first degree with a dangerous and deadly weapon, was sentenced under the second offender act to two consecutive sentences of 27 years each in the custody of the Division of Corrections. On appeal the Missouri Court of Appeals, St. Louis District, affirmed. Thereafter, on application of defendant, the case was transferred to this court pursuant to Art. V, § 10, Mo.Const. We have reviewed the case as though here on direct appeal, and we affirm.

On the evening of March 31, 1973, Mary Osburg and Sandy Kempen were the employees operating a pizza parlor in St. Louis. A man came in and at gunpoint took money from the cash register and took the women's purses plus a jacket belonging to Sandy Kempen. He then left, ordering Mary Osburg to accompany him. Outside the pizza parlor, the man placed the jacket over Mary's head and then directed her to enter a truck and sit on the floor.

After driving for a while, the man stopped the truck and took Mary into a room, then he pulled her blouse, causing the buttons to come off. He tied her to the bed, later forced her into a small room, and finally returned her to the truck. He drove for a short time, releasing her on the side of a highway with her hands still tied and the jacket over her head. Mary succeeded in getting a car to stop and was then taken back to the pizz parlor in St. Louis.

On the morning of April 2, 1973, several Missouri officers went to Illinois in search of defendant on a charge of escape. They had information that he could be located at the Interstate Motor Inn on Collinsville Road. They had a warrant for his arrest which they took to an Illinois magistrate from whom they secured an arrest order for defendant. They did not seek or obtain a search warrant. At that time the officers did not know of any connection between defendant and the pizza parlor robbery.

Accompanied by Illinois deputy sheriffs, the officers then went to the Interstate Motor Inn. There the manager was shown several photographs. She picked out one of defendant, identifying him as a man registered in Room 102 of the motel under the name of Douglas Hurst. The officers then went to Room 102, the door of which was opened for them by the motel personnel. They proceeded immediately to search the room for defendant, looking in the bathroom, the shower area and under the bed. Upon entering the room, the officers had observed two women's purses on the floor next to the dresser. When they did not find defendant, they went to the purses. Looking inside, they found identifications of Sandy Kempen and Mary Osburg. They had heard Mary Osburg's name mentioned in radio dispatches on the pizza parlor robbery and also had read about it that morning in the police department summary of recent crimes.

Two of the officers were going to remain at the motel to await a possible return by Collett but after they learned over their radio that Collett had been arrested in Franklin County, Missouri, on an unrelated charge, all officers returned to St. Louis, bringing with them the two purses and their contents. They had not seized anything else in the room and took nothing else with them. Before leaving they asked the manager not to let anyone take anything from Room 102.

After the officers returned to St. Louis, the purses were identified by Mary Osburg and Sandy Kempen as those taken in the robbery. The officers also exhibited to each girl separately a group of 6 or 8 photographs which included defendant. In each instance the girl pointed out defendant as the one who had held up the pizza parlor.

The officers then took Mary Osburg and her mother to Illinois to the Interstate Motor Inn where Mary was shown Room 102. She identified it as the room to which she had been taken by defendant. While at the motel, she was shown four buttons and a set of keys which the motel manager had found in and removed from Room 102 after the police had left that morning. She identified the keys as hers and the buttons as those torn from her blouse by defendant.

The girls were then taken to Union, Missouri, where they observed separately a lineup of six persons including defendant. Each picked out defendant as the person who held up the pizza parlor.

Defendant filed a motion to suppress evidence obtained from the motel room including the two purses and the various identification cards contained therein. A hearing was held, after which the motion was overruled. At trial defendant objected to introduction of the purses, identification cards, the blouse buttons and the keys, the latter two both found by the motel manager. The objections were overruled.

At the outset, we note that a timely motion for new trial was not filed. The record on appeal does not show that the time for filing such a motion was extended by the trial court. However, even if the court had granted the maximum permissible extension to a total of 40 days, the motion filed still would have been out of time. Hence, whatever review is made of grounds asserted on appeal must be under Rule 27.20(c) which authorizes consideration of plain errors affecting substantial rights even though not properly preserved.

Defendant's first such contention involves the admissibility of certain evidentiary items (the purses, identification cards, blouse buttons and keys) found in and taken from the motel room. He argues that a motel room rented by a suspect is to be accorded the same constitutional protection against unreasonable search and seizure as is the suspect's home and that since the officers had no search warrant and the items were not seized incident to a lawful arrest, their seizure was violative of defendant's rights under the fourth and fourteenth amendments to the Constitution of the United States and Art. I, § 15, Mo.Const.

In considering this issue, we recognize that defendant's motel room was to be accorded fourth amendment protection against unreasonable search and seizure. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Even so, when the officers entered that room after motel personnel opened the door for them, the officers were where they had a right to be. They had a warrant issued in Missouri for defendant's arrest on a charge of escape. They took that warrant to a magistrate in St. Clair County, Illinois, who then issued an order for defendant's arrest. Accompanied by Illinois deputy sheriffs, they then proceeded to the Interstate Motor Inn for the purpose of arresting defendant. Under S.H.A., Ch. 38, § 107--5, Ill.Rev.Stat., these officers were authorized to use all necessary force to effect an entry into any building to make an authorized arrest. People v. Johnson, 45 Ill.2d 283, 259 N.E.2d 57 (1970). Illinois courts have held that an officer is authorized to use a door key to gain entry if the person to be arrested is there or reasonably believed to be there. People v. Scott, 13 Ill.App.3d 620, 301 N.E.2d 118 (1973). It follows that an officer could gain entry by means of having the door opened with a key by motel personnel. While there was no evidence introduced to show that the officers had information that defendant actually was in the room when they sought entry, it did show that they had information that he could be found at that motel and the manager informed them that he was registered in Room 102 under what appeared to be an assumed name. As soon as the door was opened, the officers searched the room for defendant, indicating an expectation that he was there. Under these circumstances, we conclude that the officers had reasonable cause to believe that defendant would be found in the room and that their action in having the motel personnel open the room to enable them to enter and arrest defendant was permissible.

After the officers were unable to locate defendant in the room, they turned their attention to the two women's purses which they had seen on the floor at the time they entered the room. The officers then looked inside and found the various identifications of Mary Osburg and Sandy Kempen.

Under such circumstances, did the officers violate fourth amendment rights of defendant when they seized the two purses and then looked inside and discovered and seized the identification cards contained therein?

At the outset, it is apparent that the purses were not found as the result of a search. They were on the floor, not hidden or concealed in any way. They were in plain view of the...

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