State v. Dodson

• Decision Date: 12 March 1973
• Docket Number: No. 56969,56969
• Citation: 491 S.W.2d 334
• Parties: STATE of Missouri, Respondent, v. Cornelius DODSON, Appellant.
• Court: Missouri Supreme Court

Page 334

491 S.W.2d 334

STATE of Missouri, Respondent, v. Cornelius DODSON, Appellant.

No. 56969.

Supreme Court of Missouri, En Banc.

March 12, 1973.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Allan Seidel, Jefferson City, argued, for respondent.

Martin J. Toft, Keefe, Schlafly, Griesedieck & Ferrell, Orville Richardson, Hullverson, Richardson & Hullverson, James A. Tulley, St. Louis, for appellant.

SAMUEL E. SEMPLE, Special Judge.

Appellant was charged and convicted by a jury of first degree robbery by means of a dangerous and deadly weapon and having also been tried under Section 556.280, RSMo 1969, V.A.M.S., was sentenced by the court to twenty-five years' imprisonment. Appellant appeals from that conviction and sentence.

On the morning of November 6, 1970, Harry Hoock, age 68, his wife, Pearl Hoock, age 62, and a friend, Ellen Klein, all of Cahokia, Illinois, were driven to St. Louis by Miss Klein to Barnes Hospital and, following that visit, Miss Klein drove the Hoocks to the Atlas Wholesale House located at 17th and Lucas in the City of St. Louis, Missouri. At about 11:30 a.m., on that date they drove into the parking lot back of the Atlas Wholesale House and parked near the building. A young Negro carrying a folded paper bag, who had been standing by the northwest corner of the building, walked over to the car as Mr. Hoock was getting out, opened the bag, produced a pistol, and held it on Mr. Hoock and ordered him to drop his billfold into the paper bag. Mr. Hoock complied. The man then proceeded to take Mrs. Hoock's purse as she got out of the car. Miss Klein was still seated in the car and the robber then leaned into the car for the purpose of getting Miss Klein's purse. A shot was fired into the seat upholstery and Miss Klein's purse was taken. The robber dumped the contents of the women's purses on the ground and took the currency in the purses. A total of $170 in currency was taken from the Hoocks and Miss Klein. The robber then walked back to the alley at the northwest corner of the building and disappeared.

At about the time the robber left, a panel truck drove into the parking lot. Mrs. Hoock cried to the driver that they had been robbed. The driver went into the Atlas Wholesale House followed by the Hoocks and Miss Klein. The police were called and, upon arrival, took a description of the robber from the three victims. These descriptions were phoned into the police headquarters and a police radio broadcast shortly followed. In substance the broadcast was, 'Holdup at 1701 Lucas, one Negro male, about 25 years old, five foot six, weight about 140. He is wearing a blue stripe or tan striped sweater, which could have been a pullover. He had a gun. Last seen going north across parking lot. Disappeared from view.' Within seven to twelve minutes after the broadcast two police officers saw appellant walking about four blocks north of the scene of the holdup and he was placed under arrest. Appellant was thereupon searched and $159 in currency being found upon his person was seized by the arresting officers. Appellant was then placed in the police car and was taken back to the scene of the holdup where he was identified by Mr. and Mrs. Hoock and Miss Klein as being the man who held them up. This identification occurred about 30 minutes after the holdup.

Appellant testified that at the time of his arrest he was six feet tall, weighed 170 pounds, and was 18 years old. The arresting officer testified he was wearing blue jeans without a belt, had a grey sweater which buttoned down the front with orange stripes only on the front of it. These clothes were taken from him at the police station after his arrest. He also testified he was wearing an orange T-shirt under the sweater.

Appellant contends the court erred in admitting into evidence defendant's clothes (trousers and sweater) and the $159 in currency seized from him at the time of his arrest and search because he was arrested without a warrant and without probable cause. He argues that his arrest could only have been made upon the basis of the police radio broadcast of a description which did not fit him or the clothes he was wearing. That he was arrested in an area highly populated with Negroes and made no attempt to avoid arrest.

The existence of probable cause for an arrest must necessarily depend upon the facts of each particular case. 'The existence of 'probable cause,' justifying an arrest without a warrant, is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.' 5 Am.Jur.2d, Arrest, § 48, p. 740. State v. Seymour, Mo., 438 S.W.2d 161, 163; State v. Pruitt, Mo., 479 S.W.2d 785, 788.

It has been said that the substance of all definitions of probable cause is a reasonable ground for belief of guilt. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. Much less evidence than is required to establish guilt is necessary. Draper v. United States, 358 U.S. 307, 311--312, 79 S.Ct. 329, 3 L.Ed.2d 327; Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305, 308, 309.

The police officer obviously acting on the police radio broadcast reporting an armed robbery, arrested appellant who was a young Negro man of medium build, wearing a striped sweater. All within a short time after the crime was committed and within seven to twelve minutes of the time of the radio report about four blocks from the scene of the crime and in the direction which the suspect left the scene of the crime. It should also be noted that although appellant was with two friends at the time, only he was arrested by the police officer.

The action of the police officer in making the arrest was not unreasonable. It does not appear significant that the man arrested was not wearing a small cap and carrying a gun and paper bag or that his height, weight and exact age corresponded precisely with the broadcast description.

The determination of the question presented here is one of fact applied to the much quoted principles set out herein. The cases cited by appellant do not apply to the facts presented in this case. State v. Goodman, Mo., 449 S.W.2d 656, and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676, cited by appellant, are distinguishable in that they involved orders to pick up strangers and an order to pick up a number of persons, a so-called dragnet operation. In this case the information was sufficiently specific when considered in the light of all the surrounding circumstances to direct the police officer's attention to appellant and justify his arrest. It is hereby determined that the police officer had reasonable grounds for belief of guilt in making the arrest of appellant. State v. Martin, Mo., 465 S.W.2d 594, 597; Bailey v. United States, supra, 128 U.S.App.D.C. 354, 389 F.2d l.c. 308, 309; Brinegar v. United States, supra; State v. Craig, Mo., 406 S.W.2d 618.

Appellant's next contention is of error of trial court in overruling appellant's pretrial motion to suppress evidence of the out-of-court identifications of appellant at the scene of crime by the victims after appellant's arrest, and in admitting evidence over objection of appellant that the out-of-court identification had been made, and in overruling appellant's objections to in-court identification of appellant which were tainted by improper out-of-court identifications.

The appellant contends that the out-of-court identifications were illegal because (1) they violated his right to counsel protected by the United States and Missouri Constitutions, and (2) they violated his right to due process of law guaranteed by those Constitutions. Appellant relies principally on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, arguing that the out-of-court identifications by witnesses constituted a critical stage of the case at which appellant had a constitutional right to counsel.

Appellant was arrested, searched, and the currency found on him was seized. He was placed in the police car and driven back to the parking lot where the robbery occurred. Mr. Hoock walked over to the police car and identified the appellant seated in the back seat as the man who had robbed him and the others. Mrs. Hoock and Miss Klein also identified appellant there in the parking lot. There was no evidence that the police officers suggested to Hoocks and Miss Klein that appellant was the man who robbed them. There was evidence that all three of these people were close to appellant for up to 10 minutes during the robbery. The identifications by all three persons were made about 30 minutes after the robbery.

The Wade and Gilbert cases relied upon by appellant involved traditional lineups in postindictment or information situations. The situation presented in this case is one wherein a short time after a crime was committed the police arrested a person whom they had reason to believe was the offender and had him viewed immediately by the victims to ascertain whether the person apprehended should be held or released.

In State v. Hamblin, Mo., 448 S.W.2d 603, 608, and State v. Townes, Mo., 461 S.W.2d 761, 763, 764, this court held that in similar factual situations the Wade and Gilbert cases were not applicable and in such situations it was proper and desirable for the police to ascertain at the earliest possible moment whether the person arrested was or was not the person sought. The Hamblin and Townes cases relied particularly on the case of Russell v. United States, 133 U.S.App.D.C. 77, 408 F.2d 1280, certiorari denied 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245, wherein, after a break-in at a shoe shine shop, an officer arrested a man who fit the radio...