State v. Davis, 35594

• Decision Date: 29 June 1976
• Docket Number: No. 35594,35594
• Citation: 547 S.W.2d 482
• Parties: STATE of Missouri, Respondent, v. Christopher L. DAVIS, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 482

547 S.W.2d 482

STATE of Missouri, Respondent, v. Christopher L. DAVIS, Appellant.

No. 35594.

Missouri Court of Appeals, St. Louis District, Division Four.

June 29, 1976.

Motion for Rehearing or Transfer Denied Aug. 18, 1976.

Robert E. Heisler, Hayes & Heisler, Clayton, for appellant.

John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

Appellant, Christopher L. Davis, was convicted by a jury of two counts of first degree murder, one count of assault with intent to kill with malice, and two counts of first degree robbery by means of a dangerous and deadly weapon. He was sentenced to two life terms, one term of two years, and two terms of twenty-five years each, all to be served consecutively.

Appellant does not attack the sufficiency of the evidence. We shall summarize the facts, but shall set them forth sufficiently to permit a discussion of the issues.

A little after 1:00 o'clock in the morning of March 18, 1972, several young black persons, including appellant, armed with various weapons entered a tavern named Cousin Hugo's in Maplewood, Missouri, and robbed the patrons. During the course of the robbery a patron was shot, a barmaid was stabbed, and two other patrons were killed, one by a stab wound and the other, an off-duty police officer, by a shotgun wound of the head.

Appellant first contends that the trial court erred in overruling his motion to suppress certain evidence which was seized by the police at the home of Beverly Telfair and Lucius Toney located at 1338 Banneker Street. By stipulation of counsel, appellant's motion to suppress evidence was submitted to the court upon the testimony adduced at a hearing on a similar motion in the case of State v. Johnson, 539 S.W.2d 493 (Mo.App.1976). The evidence sought to be suppressed in each case was identical. We shall relate briefly the circumstances under which the evidence was seized by the police.

The police were informed that four or five young black males had committed the crimes at Cousin Hugo's, and that four black males, one of whom was Lucius Toney, had been seen in the neighborhood of Cousin Hugo's prior to the commission of the crimes. Sergeant Boulch, and two other officers, went to 8109 Dumas Street. Toney's mother was there, and when asked where her son was she became extremely agitated. She hurried down the street to a house around the corner on Banneker Street and shouted "Lucius, Lucius, the police." Toney, who fitted the description of the perpetrators of the crimes at Cousin Hugo's, came onto the porch, and the officers asked for and were granted permission by him to enter and look around the house. After the officers entered, Toney ran past them into the bedroom, and at the same time another person was seen running into the bathroom. Sergeant Boulch followed Toney and observed two more black males in the bedroom, and he also saw what appeared to him to be a shotgun lying on the floor. The officer checked the immediate area for weapons, and in doing so saw a pistol in a partially opened dresser drawer. He also noticed a holster strapped to the belt of one of the persons (appellant) which he removed. (This holster and a pistol found in a dresser drawer were subsequently identified as belonging to the off-duty policeman who was killed by a shotgun blast during the robbery.) Sergeant Boulch placed the four individuals under arrest. After they were handcuffed a quick search of the bedroom and bathroom was made to determine if there was anyone else in the house. During this search the officers found a pistol in the bedroom partially covered by a black beret. (This pistol was subsequently identified as the weapon from which the bullet was fired which wounded the patron.) In the bathroom there was a pile of dirty clothes, which was large enough to conceal a person, on which there was a large plastic bag. When the officer attempted to move the clothes to determine if anyone was concealed under them, the contents of the bag were revealed. It contained ladies' purses, billfolds, credit cards and driver licenses. (These items were subsequently identified as property of the robbery victims, and appellant's fingerprints were found on two of the items.)

About this time a large, unruly crowd gathered outside the house and created what gave indications of being a potential riot situation. The police officers were ordered by higher police authorities to leave the house and they did so, but in order to preserve and protect the evidence previously discovered they took with them the plastic bag containing the purses, billfolds and cards, a knife, the holster, the guns, and other items. On the following day two police officers returned to the house on Banneker Street to search for a suspect by the name of Hill. Beverly Telfair, the co-lessee of the house, told the officers that no one was in the house except her two children, and she consented in writing for the officers to search the house. During this search, the officers found three shotguns concealed in the bathroom.

Based on the above testimony, taken at the hearing on the motion to suppress evidence in State v. Johnson, supra, and made a part of the record in this case by stipulation, the trial court overruled appellant's motion to suppress.

Appellant first asserts that the trial court erred in overruling his motion to suppress evidence because (a) the search was made without "voluntary consent;" (b) the search and seizure was not incident to a lawful arrest; (c) the subsequent search made after the arrests "was not confined to the suspects' immediate area of control;" (d) the St. Louis County Identification Bureau "acted totally without the scope of authority;" and (e) the alleged consent to search given by Beverly Telfair, which led to the seizure of the three shotguns, "was not freely and voluntarily given."

The State argues that appellant has no standing to challenge the validity of the search of the house at 1338 Banneker Street. "Standing to object to a search and seizure and use of the fruits in evidence is predicated upon a possessory interest in the items seized; a possessory interest in, or legitimate presence on, the premises searched; or is 'automatic' where the same possession needed to establish standing is an essential element of the crime charged." State v. Ross, 507 S.W.2d 348, 353 (Mo.1974). See also In re J. R. M., 487 S.W.2d 502 (Mo. banc 1972). In this case appellant asserts no propriety interest in any of the items or property seized by the police. He even disclaims any interest in or knowledge of the holster which the police officer said he took from appellant's belt. Also, he had no possessory interest in the premises. As he asserts in his brief, he "did not ever reside at Banneker." However, he was present when the first search was conducted, and he was in the house when he was arrested. There is nothing in the testimony at the hearing to suppress to indicate why he was there. In Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960), it was held that "No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him." While we do not necessarily agree that legitimate presence alone should establish legal standing to challenge a search, we are bound by the interpretation by the United States Supreme Court of the Fourth Amendment. There is nothing to show that appellant was or was not legitimately on the premises but one of those there arrested was Lucius Toney, the co-lessee of the house, and if any inference is permissible it would be that he was present with Toney's consent.

Appellant's challenge to the search and seizure which we have labeled as (a), (b), and (c) were specifically ruled in the opinion in the case of State v. Johnson, supra, handed down by this Court on May 4, 1976. As previously noted, appellant's motion to suppress in this case was submitted to the trial court on the evidence that was received in the Johnson case in support of a motion in that case to suppress the identical evidence. This Court ruled in the Johnson case that the search of the house on Banneker Street was made pursuant to the voluntarily given consent on the part of Lucius Toney, a co-tenant; that the arrests there made, which included the arrest of appellant, were made with probable cause; and that the search made subsequent to the arrests was not overbroad in its scope but was authorized under the circumstances. We also note that the precise issues pertaining to the same search and seizure were ruled adversely to appellant's contentions in State v. Toney, 537 S.W.2d 586 (Mo.App.1976), by the Missouri Court of Appeals, Kansas City District. We approve of those rulings, and we see no occasion to burden this opinion with additional recitation of the basis for them. Instead, reference is made to Part XII of the opinion in the Johnson case and to the opinion in the Toney case.

Appellant also asserts, item (d), that the motion to suppress should have been sustained because the St. Louis County Identification Bureau acted "totally without the scope of authority." The argument portion of appellant's brief adds little to the barren assertation in the point. The substance of the contention appears to be that the "processing" done by the members of the Identification Bureau was "not incidental to a lawful arrest; there was no emergency situation requiring immediate action to keep evidence from being destroyed; (and) no consent was given." We find no merit to this contention. Appellant does not direct our attention to any particular item of evidence which he claims was improperly "processed," or that was not obtained by the consent...