State v. Conti

• Decision Date: 30 October 1978
• Docket Number: No. KCD,KCD
• Citation: 573 S.W.2d 95
• Parties: STATE of Missouri, Respondent, v. Richard Charles CONTI, Appellant. 29485.
• Court: Missouri Court of Appeals

Page 95

573 S.W.2d 95

STATE of Missouri, Respondent, v. Richard Charles CONTI, Appellant.

No. KCD 29485.

Missouri Court of Appeals, Kansas City District.

Oct. 30, 1978.

C. B. Fitzgerald, Warrensburg, for appellant.

John D. Ashcroft, Atty. Gen., Carson W. Elliff, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

SOMERVILLE, Presiding Judge.

On this appeal from conviction and imposition of a two year sentence for possession of Lysergic Acid Diethylamide (L.S.D.), a Schedule I controlled substance, defendant claims error (1) in admitting the L.S.D. in evidence because it was obtained by a constitutionally impermissible warrantless search, and (2) in giving Instruction No. 5, the state's verdict director, because it was unsupported by any evidence that defendant had "actual or constructive possession" of the L.S.D. or that defendant "was aware of the character" of the L.S.D. and "intentionally and knowingly had it in his possession."

The facts upon which defendant's first point turns are gleaned primarily from evidence adduced at a pre-trial hearing held on a motion to suppress filed by defendant. No detail will be spared in setting this evidence forth as judicial determination of constitutionally proscribed "unreasonable searches and seizures" necessarily turns on the "concrete factual context of the individual case". Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 1901, 20 L.Ed. 917 (1968).

On the night of July 4, 1975, at approximately 11:55 P.M., Officer Brooks, age 24 and a member of the Warrensburg, Missouri, Police Department, was on routine patrol within the city limits in a marked patrol car. He was alone, in uniform and carrying a handgun in a hip holster. During the course of his patrol he turned off Holden Street onto West Culton Street, a one-way street carrying westbound traffic. He then proceeded west on West Culton Street at a speed of three to five miles per hour. The headlights of his patrol car were on low beam. As he was cruising west on West Culton Street he observed defendant standing in the street alongside a green Chevrolet van which was parked on the south side of West Culton Street, headed west, in the fourth parking space west of Holden Street, and across from the "Abode". More particularly, the right front door of the van was open at a 45o angle and defendant was standing in the street, facing toward the southwest, with his body positioned between the right front door of the van and the right front entranceway to the van. The only artificial light in the area consisted of a streetlight "to the west of the van". When Officer Brooks reached a point approximately twenty feet east of where defendant was standing he observed that defendant had both hands above his head and appeared to be rolling a cigarette. Officer Brooks kept defendant in view as he drove past, and then stopped his patrol car at a point approximately ten feet west of where defendant was standing. At that point, according to Officer Brooks, defendant glanced at the patrol car, then looked back to what he was doing, then glanced back at the patrol car, and then brought the cigarette he was rolling down and out of view. This prompted Officer Brooks to back the patrol car up and bring it to a stop opposite where defendant was standing. The windows of the patrol car were down at the time, and Officer Brooks, after the patrol car was brought to a stop, asked defendant what he was doing. Hearing no response to his inquiry, Officer Brooks got out of his patrol car and approached to within two or three feet of defendant. While in that position, Officer Brooks again asked defendant what he was doing. Defendant's response was an "unintelligible" mumble. Simultaneously, Officer Brooks observed defendant move and place his right foot over a "handrolled" cigarette which was lying in the street and with his left foot kick at a "canvas-like" green bag which was lying in the street and partially beneath the right side of the van. Defendant kicked at the "canvas-like" green bag three or four times in succession and moved the "canvas-like" green bag some six inches to one foot further under the van. Officer Brooks then moved to within a foot or two of defendant, at which time he was able to see inside the van. From this latter vantage point, Officer Brooks observed a crumpled cigarette paper, a package of cigarette papers, and a clear, plastic "baggie" containing a "green leafy substance" which he "believed" to be marijuana lying on the right front seat of the van. Officer Brooks then placed defendant under arrest for possession of marijuana, took possession of the cigarette papers and clear plastic "baggie" which he had observed lying on the right front seat of the van, and picked up the hand rolled cigarette from where it was lying in the street. After doing so, the van was moved to a "bank parking lot" which was located on the south side of West Culton Street and adjacent to where the van had been parked. After the van was moved, Officer Brooks picked up the "canvas-like" green bag, which was open at one end, from where it was lying in the street and then radioed for "back-up assistance". Two patrol cars responded to Officer Brooks' request for assistance. The driver of one of the patrol cars testified that he responded to Officer Brooks' request for "back-up assistance" at approximately 12:00 midnight. After the backup assistance arrived, defendant was given a "Miranda warning", the contents of the "canvas-like" bag were removed and observed, a "preliminary search" of "defendant's person" was conducted, and a "preliminary search" of the van was conducted. This all occurred at the situs of defendant's arrest. Defendant and the van were then removed to police headquarters. The controlled substance (confirmed by laboratory tests as being L.S.D.) which defendant was charged and convicted of possessing was among the contents of the "canvas-like" green bag. Prior to observing defendant standing alongside the green Chevrolet van, Officer Brooks "had no reports" of "any illegal activity of any kind" in the vicinity. Defendant was a total stranger to Officer Brooks and the green Chevrolet van was an "unfamiliar" vehicle. During the entire span of events which unfolded, Officer Brooks never sensed or felt any cause to be fearful of defendant. Defendant had long blond hair, a mustache, and was wearing wire rimmed gold glasses. A dispassionate view of this evidence leaves no doubt that Fourth Amendment issues of an exceedingly subtle nature may well reach fruition on this appeal.

An innovative argument is tendered by defendant in support of his first point, and one which touches upon seldom encountered ramifications of the Fourth Amendment. Defendant assumes that a seizure of his person within the context of the Fourth Amendment occurred when the police officer initially stopped his patrol car and first placed defendant under observation. After making this broad, sweeping assumption, he argues that seizure of his person was constitutionally unreasonable as measured by the standards articulated in Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and all evidence subsequently obtained by the police officer was inadmissible as fruits of an unreasonable warrantless seizure of his person. ¹ The state, with considerable aplomb, virtually skirts the difficult, underlying issue raised by defendant by arguing that the controversial evidence was admissible under the "plain view" or "incident to lawful arrest" exceptions to the warrant requirements of the Fourth Amendment.

The fatal flaw in defendant's argument is the false assumption upon which it rests. If there was no seizure of defendant's person within contemplation of the Fourth Amendment up to and including the moment the police officer observed what he believed to be contraband in plain view, then, as hereinafter demonstrated, defendant's arrest for possession of marijuana was justified and taking possession of the "canvas-like" green bag thereafter and ascertaining its contents may be constitutionally validated as being incident to defendant's lawful arrest. Thus, events leading up to and underlying the moment the police officer observed the clear plastic "baggie" lying on the right front seat of defendant's van become the ultimate focal points of this case. If the police officer's observation of the contraband was had from a lawful vantage point it could be relied upon to provide probable cause for defendant's arrest. "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." (Emphasis added.) Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 993, 19 L.Ed. 1067 (1968).

Street encounters between police and citizens of less magnitude than traditional arrests and Terry type restraints occupy the twilight zone of Fourth Amendment jurisprudence. Although the majority in Terry realistically recognized that "(s)treet encounters between citizens and police officers are incredibly rich in diversity", 88 S.Ct. at 1875, and that all "personal intercourse between policemen and citizens" does not involve " 'seizures' of persons", 88 S.Ct. at 1879, n. 16, restraint was carefully exercised to avoid laying down any definitive guidelines as to police conduct which falls short of seizure of a citizen within the perspective of the Fourth Amendment. The majority in Terry did, however, skeletally spell out police conduct short of traditional arrest which constitutes seizure of a citizen cognizable under the Fourth Amendment. As unequivocally stated in Terry, "(i)t must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person", 88 S.Ct. at 1877, and no room was left to entertain any doubt that seizure of...