State v. Curtis

• Decision Date: 17 July 1975
• Docket Number: No. 47769,47769
• Citation: 217 Kan. 717,538 P.2d 1383
• Parties: STATE of Kansas, Appellee, v. Robert S. CURTIS, Appellant.
• Court: Kansas Supreme Court

Page 1383

538 P.2d 1383

217 Kan. 717

STATE of Kansas, Appellee, v. Robert S. CURTIS, Appellant.

No. 47769.

Supreme Court of Kansas.

July 17, 1975.

Syllabus by the Court

1. Probable cause, to believe that a person has committed a felony to justify an arrest of such person by a law enforcement officer under the provisions of K.S.A. 22-2401(c)(1), refers to that quantum of evidence which would lead a prudent man to believe that an offense has been committed. It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove guilt is more probable than not. It is only necessary the evidence lead the officer to believe that guilt is more than a possibility, and it is well-established that the belief may be predicated in part upon hearsay information.

2. The quantum of information which constitutes probable cause to arrest must be measured by the facts of the particular case.

3. In determining probable cause, all the information in the officer's possession, fair inferences to be drawn therefrom, and observations made by him are generally pertinent, and facts may be considered that would not be admissible on the issue of guilt.

4. It is well-established law that one who aids and abets in the commission of a criminal offense may be charged, tried and convicted as a principal.

5. The giving of an instruction in a criminal action on burden of proof, presumption of innocence and reasonable doubt as set forth in PIK(Criminal) 52.02, was approved in State v. White, 213 Kan. 276, 515 P.2d 1081, and the restriction of counsel's summation to the language contained, as more fully set forth in the opinion, is not erroneous.

Christopher A. Rogers, Winfield, argued the cause and was on the brief for appellant.

Otis W. Morrow, Deputy County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and William C. Ellis, County Atty., were with him on the brief for appellee.

KAUL, Justice:

The defendant-appellant (Robert S. Curtis) appeals from jury convictions of attempted burglary (K.S.A. 21-3715), possession of burglary tools (K.S.A. 21-3717), speeding (K.S.A. 1973 Supp. 8-532, Repealed, Laws of 1974 Ch. 33, Sec. 8-2205), eluding an officer (K.S.A. 8-504, Repealed, Laws of 1974 Ch. 33, Sec. 8-2205), and felony theft (K.S.A. 21-3701).

The arrest of defendant resulted from a series of events occurring during the night of April 10-11, 1973. At 11:30 the night of April 10, a light blue 1967 Ford automobile was reported stolen by the owner-George H. Gower of Wichita. The automobile had been taken from the parking lot of the Seneca Bowl in Wichita. In the early morning hours of April 11, Officer Bob Odell of the Cowley County Sheriff's Department was patrolling in the City of Burden, about thirty-five miles southeast of Wichita. While on patrol, Officer Odell discovered that the hinge pins had been removed from the rear door of Henderson's Drug Store in Burden. Odell also found pry marks on the door, some debris and an army duffel bag. Odell picked up the items and as he continued his patrol he observed a 1967 blue Ford automobile turning east on Highway 160. Odell pursued the automobile turning on his red light and siren. Odell got close enough to the blue Ford to observe the license tag number and what appeared to be three silhouettes in the automobile. Odell pursued the blue Ford at a high speed east on Highway 160 about six miles to Cambridge where it turned north on a county road headed toward Latham. Odell testified that approximately five miles north of Highway 160 the blue Ford left the road, went through a barbed wire fence, and came to a stop on the Ferguson ranch. Odell stopped his automobile about one hundred feet behind the Ford. Odell could not identify the occupants as they left the automobile, because of the dirt and debris thrown into the air by the speeding automobile. Odell then radioed for assistance from other officers. Officer James Lazelle soon arrived and he and Odell searched the area and took photographs of the abandoned Ford automobile. Odell and Lazelle proceeded back toward Burden and on the way, at a point about three miles east of Burden, they found a black attache case which contained various burglary tools. Odell testified that, while he was in pursuit of the blue Ford, he had seen what appeared to be a case thrown from a window of the Ford at a point about three miles east of Burden.

In the meantime, Officer Wallace Parks of the Butler County Sheriff's Department was on patrol in the vicinity of Douglass, about twenty miles west of Latham. Parks received a radio transmission concerning the blue Ford fleeing east from Burden. Parks was directed to patrol an area south of Latham. Parks continued to patrol until about 7 a. m., when he was informed, by another officer by radio, that a single unknown individual had stopped at the Calvin residence and asked for gasoline. Parks was informed by the other officers, who had talked to Mrs. Calvin, that the unknown individual had left the Calvin residence with Mr. Calvin and his son in the Calvin pickup and that they were proceeding north toward Latham.

Parks testified that he was well-acquainted with the Calvins, knew the location of their residence, and knew the route which would probably be taken by the Calvins if they proceeded north from their place-Parks stationed himself accordingly. He recognized the Calvin pickup as it approached and turned on the red light on his patrol car. As the Calvin pickup came to a half, Officer Parks approached with his drawn pistol and ordered the unknown suspect, who was seated between the Calvins, to step out of the vehicle. After a pat down search, in which Parks removed several items including a pair of gloves from the subject's person, the subject was arrested and was later identified as defendant Curtis. While Parks was engaged in the 'frisk' or 'pat down search' of defendant, Verdie Cox, of the Cowley County Sheriff's Department, arrived at the scene.

Officer Bill Brooks, who participated in the search of the Latham area, was called as a witness for defendant. Brooks testified that he participated in the arrest of two other individuals in the Latham area around 10:30 or 11:00 a. m., the morning of April 11, 1973. The two individuals were arrested in connection with the Henderson Drug Store incident.

Defendant specifies three points of error on appeal: (1) Erroneous admission of certain physical evidence taken from defendant as a result of a search and seizure made in violation of defendant's constitutional rights; (2) submission of an erroneous instruction pertaining to defendant's liability for crimes committed by another; and (3) the trial court erroneously instructed the jury and restricted defense counsel concerning the prosecution's burden of proof.

In their briefs both parties made numerous references to the trial transcript which necessitated our calling for the transcript which we have at hand.

Defendant's first point centers on the admission into evidence of the gloves taken from him at the time of his arrest. Flecks of paint were found on the gloves which, according to Officer George Love, of the Wichita Police Department, matched the color paint samples removed from the door of the Henderson Drug Store. Officer Love had been employed in the Wichita Police Forensics Laboratory for thirteen years. He had previously made microscopic paint examinations and color comparisons. He did not make a chemical analysis of the paint samples in question, but only a microscopic examination to ascertain if the samples matched in color. Officer Love's failure to make a chemical analysis goes to the weight and credibility of his testimony, rather than to the question of its admissibility.

Defendant's basic contention concerning the admission of the gloves is that they were the fruit of an unlawful search and seizure. Defendant argues that the evidence failed to establish probable cause to justify the arrest of defendant and that the use of the gloves taken from defendant's person as a product of a search, following an unlawful arrest, denied defendant the constitutional safeguards of the Fourth and Fourteenth Amendments to the Constitution of the United States and Section 15 of the Bill of Rights to the Kansas Constitution. Defendant raised the issue by a pretrial motion to suppress which was denied by the trial court. Defendant again objected to the admission of the gloves at trial.

Officer Parks was the only witness at the hearing on the motion to suppress. His testimony at trial was essentially the same as that given on the motion to suppress. At trial, testimony of other officers tended to corroborate the testimony of Parks concerning the knowledge possessed by him at the time of the arrest. In overruling defendant's motion to suppress the trial court found:

'2. That Officer Parks had probable cause to make an arrest and further at the time he transferred the custody of the Defendant to the Officer from Cowley County, that they had the right to inventory his personal effects and take into custody the personal effects that they found on him since it was a lawful arrest.

'3. That the Court further finds that under all the circumstances as testified to by Officer Parks, the radio, stranger in the vicinity, and the fact that he had known the Calvins for quite some time, gave further impetus to the probable cause factor involved and further the testimony of Officer Parks as to the condition of the clothing of the Defendant and his knowledge of the terrain of the area further added impetus to his knowledge of probable cause.'

At the outset, it should be noted that in the instant case we are concerned with probable cause for a warrantless arrest under K.S.A. 22-2401, as distinguished from the lesser requirements of a stop and frisk authorized by K.S.A. 22-2402. Obviously, Officer Parks had sufficient...