State v. Cuezze

• Decision Date: 09 June 1952
• Docket Number: No. 2,No. 42557,42557,2
• Parties: STATE v. CUEZZE et al
• Court: Missouri Supreme Court

Page 373

249 S.W.2d 373

STATE v. CUEZZE et al.

No. 42557.

Supreme Court of Missouri, Division No. 2.

June 9, 1952.

Carl L. Anderson, John J. Cosgrove, Kansas City, for appellants.

J. E. Taylor, Atty. Gen., Robert L. Hyder, Asst. Atty Gen., for respondent.

TIPTON, Judge.

This case comes to the writer on reassignment.

In the circuit court of Clay County the defendants were convicted of the offense of carrying concealed weapons. The jury returned separate verdicts, assessing the punishment of each defendant at two years' imprisonment in the state penitentiary. From this judgment these defendants have duly appealed.

The defendants' first assignment of error is: 'The court erred in refusing to sustain defendants' motion to suppress evidence for the reason that the defendants' arrest was unlawful and the search of the automobile and the seizure of the pistols was in violation of their rights guaranteed by article 1, section 15 of the Constitution of Missouri, 1945, and by the fourth amendment of the Constitution of the United States.'

The statement concerning defendants' arrest as set out in their brief accurately portrays the evidence that was heard by the trial court on this motion. We will, therefore, adopt defendants' statement as the statement of the court. It is as follows:

'Cuezze and DeLuna filed separate motions to suppress evidence procured by unlawful search and seizure. On the hearing of said motions the evidence disclosed that when officers Habert and Powers arrested defendants and their companion Trombina they had no warrant for their arrest; the officers knew of no felony that had been committed, nor were they in pursuit of a felon. Neither of the defendants committed any violation of the law in their presence. They first saw the motor car in which the defendants were riding pull on to Highway 169 off Hill Street, which is in Evans Hills Addition in Clay County. It was a 1947 Chevrolet sedan, maroon color. The officers had received a call from the police dispatcher in Kansas City to investigate three men who were seen in an automobile believed to be a dark Pontiac sedan, which was parked on Hill Street. The officers followed this car from the time it turned on to Highway 169 to a point in Burlington Street in North Kansas City, at which time they made the arrests.

'Defendant Cuezze was driving the car and DeLuna was sitting in the front seat to his right. Upon order, the defendants got out of the car and Officer Habert felt of their persons for weapons, found none and conducted them back to the police car, a distance of about twenty-five feet. Officer Powers searched the automobile and found two pistols under the right front seat. There was a clearance between the floor boards of the car and the bottom of the seat of about four inches. The officers had no report of a Chevrolet being involved in any law violation nor did they have an order to pick up a Chevrolet. They had received no report of a felony having been committed in this district nor were they investigating a felony at the time they stopped the car. The defendants did nothing to indicate they were fleeing from a felony nor anything to indicate they were about to commit a felony. No traffic violations were observed. Information from the dispatcher was that a car, believed to be a Pontiac, had been seen around the vicinity of the Arrow Service Station, which was approximately twenty-five yards south of Hill Street on Highway 169. The men he had been sent to investigate, according to information received from the service station owner, had cashed a twenty dollar bill when they made a purchase of some gasoline, but the officers heard later that the three defendants had only $7.00 in their possession when they were arrested. The defendants were booked for investigation. They saw no other car with three men in it in the neighborhood.

'Trombino, who was acquitted, said the car belonged to a brother or some relative of his. The arrest was made about 10:15 P.M. The defendants said they had just been riding around in the neighborhood, had not stopped anywhere. The police car followed the defendants' car for a distance of about a half mile during which time there was no violation of the law. Powers recognized one of the men as having had a police record, but that had nothing to do with his stopping the car. He stopped the car because of the call he had received about a suspicious car, a car described as a dark Pontiac. There were two pistols under the right front seat of the car. In order to reach these pistols the defendant Cuezze would have had to stretch, but he did not know how far. He did not know about the guns until after he searched the car. When asked, 'Well, suspicion was the only cause for the whole thing, is that correct?' he answered, 'that is correct.' Powers suspected them of being about to commit a felony, not actually committing one; they had no report of a felony having been committed. His information from the dispatcher was that a suspicious acting car, believed to be a dark Pontiac, had been in the vicinity for some time. After the arrest he received information that one of the occupants of the car had walked behind the filling station. He had no other reason to suspect these three men of being about to commit a felony.

'Glen Goforth, operator of the filling station at the Skyline Courts, testified that he called the police station in reference to a car that was parked on Hill Street which he said was a Pontiac. He got his information about the car from a neighbor. We saw this car from a distance, but saw it do nothing illegal. He saw a man walk from this car down the driveway...