State v. Collins

• Decision Date: 10 September 1991
• Docket Number: 58471,Nos. 56145,s. 56145
• Citation: 816 S.W.2d 257
• Parties: STATE of Missouri, Respondent, v. Kevin COLLINS, Appellant. Kevin COLLINS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 257

816 S.W.2d 257

STATE of Missouri, Respondent, v. Kevin COLLINS, Appellant.

Kevin COLLINS, Appellant, v. STATE of Missouri, Respondent.

Nos. 56145, 58471.

Missouri Court of Appeals,

Eastern District,

Division Four.

Sept. 10, 1991.

Melinda Kay Pendergraph, St. Louis, for appellant.

William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for respondent.

SATZ, Judge.

A jury convicted defendant of possession of cocaine and of possession of heroin, § 195.020, RSMo 1986. ¹ The court sentenced him to two terms of twelve years imprisonment, to be served concurrently. Defendant appeals from these convictions and also appeals from the denial of his Rule 29.15 motion. We affirm.

In his appeal from his convictions, defendant contends the trial court erred in denying his motion to suppress physical evidence and in denying his motion to suppress his post-arrest statements. Neither contention has merit.

Motion to Suppress Evidence

To review a denial of a pre-trial motion to suppress evidence, we are not limited to the record made at the pre-trial hearing on that motion. E.g. State v. Howell, 524 S.W.2d 11, 19 (Mo. banc 1975); State v. Carrico, 696 S.W.2d 511, 513 (Mo.App.1985). A trial court's denial of the motion is interlocutory. Howell at 19. Moreover, there is no constitutional imperative to hear the motion out of the presence of the jury. Howell at 19; see, Watkins v. Sowders, 449 U.S. 341, 349, 101 S.Ct. 654, 659, 66 L.Ed.2d 549, 556 (1981). "The real damage is not done until the evidence [in issue] is introduced ... for consideration by a jury." Howell at 19. Thus, to determine whether the physical evidence in issue should have been suppressed, we may consider the record made at the pretrial hearing, as well as the record made at trial prior to the introduction of the evidence sought to be suppressed. Howell at 19.

The present record so viewed shows that about 9:00 p.m. on January 22, 1988, police officers, acting on information received from an informant, set up a surveillance in the 2700 block of Dr. Martin Luther King Drive. According to the informant, defendant was selling "boys and girls, ... the slang term for heroin and cocaine", from a blue car at that location. One of the officers, John McKenzie, knew "drugs" were being sold in that neighborhood. He also knew defendant, and defendant had previously told him he had "drug convictions."

During the surveillance, the officers watched defendant through binoculars, from a "half of a linear block" away. Through his binoculars, McKenzie saw defendant standing in front of a pool hall, across the street from the blue car. The lighting was "relatively good," with "street lights all along the 2700 ... block ..." and lights in "front of the pool hall".

Within a period of ten minutes, on three separate occasions, McKenzie saw unidentified individuals walk up to defendant, reach into their pockets, pull out what appeared to be paper currency, count the paper, and then hand it to defendant. Defendant would then walk across the street to the car, enter the car on the passenger side, sit down for a few minutes, exit the car, walk back across the street and hand the individual something which McKenzie could not identify.

The officers then returned to a pre-designated "staging area", got into an unmarked police car, and the driver drove up alongside of the blue car. Defendant was sitting in the car, on the passenger side, with the door open. As McKenzie exited his car, he looked into the blue car and saw defendant "hunched over ... fiddling with what appeared to be two pill bottles." Defendant "looked up and apparently saw [McKenzie] or the other officers". He started to get out of the blue car, and, as he did, he "dropped, ..., one pill bottle to the floor" of the car. Defendant exited the car and began walking away.

McKenzie went around the blue car to its passenger side. The car door was still open. He looked into the car and saw two pill bottles lying on the floor on the passenger side. He told one of the other officers that there were "two pill bottles on the floor of the car," and that officer "stopped" defendant.

McKenzie picked up the pill bottles. "[W]hen [he] first picked them up, [he] could see they contained some type of capsules". He was not asked specifically what he thought the capsules contained prior to his opening of the bottles. He did say, however, that, after he opened the bottles and again viewed the capsules, he saw the capsules were "pink and clear" containing powder which he "believed to be a controlled substances [sic]." He had seen similar capsules during his thirteen years as a police officer, and, based upon his experience, he believed these capsules contained cocaine and heroin. Defendant was then formally placed under arrest.

On this evidence, the court denied defendant's motion to suppress evidence and permitted the state to introduce the pill bottles and capsules.

Defendant contends the pill bottles and capsules were obtained by an illegal seizure and search in violation of his rights guaranteed by the Fourth Amendment of the United States Constitution and Article I, Section 15 of the Missouri Constitution. In his attack, defendant does not address the issue of abandonment, and the state does not justify its seizure of the pill bottles on that ground. Understandably so. The record is equivocal on this issue and does not show defendant abandoned this evidence even in the Fourth Amendment sense. See e.g. Rios v. United States, 364 U.S. 253, 262, 80 S.Ct. 1431, 1437, 4 L.Ed.2d 1688, 1694 (1960); State v. Simpson, 611 S.W.2d 556, 558 (Mo.App.1981).

Defendant's attack on the trial court's denial of his motion, however, is neither clear nor explicit. As we understand it, it is a three-pronged attack.

Defendant first contends that prior to McKenzie's seeing the pill bottles in the blue car, the officers did not have probable cause to search that car and seize the bottles. Second, this lack of probable cause cannot be cured by McKenzie's view of the pill bottles because his view did not meet the requirements of the plain view doctrine. Third, even if McKenzie's view were proper it, along with the other facts, justified only his seizure of the pill bottles, not his opening of them which was a search in violation of defendant's constitutional rights. We disagree.

Probable Cause

The Fourth Amendment's protection against warrantless searches and seizures is enforceable against the states under the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961); State v. Witherspoon, 460 S.W.2d 281, 283-84 (Mo.1970). The protection afforded by Article 1, § 15 of our state constitution parallels that Fourth Amendment protection. State v. McCrary, 621 S.W.2d 266, 273 (Mo. banc 1981). An exception to this warrant requirement is the search of an automobile. United States v. Ross, 456 U.S. 798, 806, 102 S.Ct. 2157, 2163, 72 L.Ed.2d 572, 582 (1982); State v. Burkhardt, 795 S.W.2d 399, 404 (Mo. banc 1990). The automobile search may be conducted on the probable cause which would justify the issuance of a warrant and exigent circumstances necessitating the search. Ross, 456 U.S. at 804-809, 102 S.Ct. at 2162-2164; Burkhardt at 404. ² Probable cause, thus, may arise when the known facts would cause a person of "reasonable caution" to believe the contents of the automobile "offend the law." Burkhardt at 404; Ross, 456 U.S. at 808-809, 102 S.Ct. at 2164-2165.

Here, McKenzie had probable cause to search the blue car prior to his seeing the pill bottles in it. He knew "drugs" were sold in the area, knew defendant had drug convictions and was informed defendant was selling cocaine and heroin. From his observation of defendant receiving what appeared to be money in exchange for objects apparently taken from the blue car, he could, as a reasonable man, infer defendant was selling these objects. Thus, from the facts he knew prior to observing defendant's conduct and the facts he gained from observing defendant's conduct, McKenzie could, as a reasonable man, infer defendant was selling drugs taken from the blue car. Ross, supra, 456 U.S. at 808, 102 S.Ct. at 2164; see, e.g., State v. Speed, 458 S.W.2d 301 (Mo.1970).

Defendant, however, argues there was no probable cause to believe drugs were in the blue car because the officers did not see anyone using or dispensing drugs and they did not see any conduct from which drug use or possession could be inferred, "unless walking across the street and talking to people constitutes behavior warranting search and seizure." Defendant omits most of the facts known to McKenzie, and, rather than viewing those facts as a reasonable officer would to determine probable cause to search the car, defendant views the facts as an obsessive officer would to determine virtual certainty before searching the car.

Seizure and Plain View Doctrine

Defendant contends the lack of probable cause, as perceived by him, cannot be cured by McKenzie's view of the pill bottles because this view does not meet the requirements of the plain view doctrine, namely, that McKenzie's view of the bottles was not "inadvertent" and their incriminating nature could not be "readily apparent" to him. This argument is misdirected and, thus, misses the mark.

As we have demonstrated, even prior to his seeing the pill bottles, McKenzie had probable cause to believe drugs were in the blue car and, therefore, at that time, had probable cause to search the entire car. Ross, supra; Burkhardt, supra. Moreover, the plain view doctrine relied on by defendant is irrelevant here.

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Court explained the plain view doctrine by stating:

What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of...