State v. Drake

• Decision Date: 11 June 1974
• Docket Number: No. 34961,34961
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ronald Charles DRAKE, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 166

512 S.W.2d 166

STATE of Missouri, Plaintiff-Respondent, v. Ronald Charles DRAKE, Defendant-Appellant.

No. 34961.

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

June 11, 1974.

Motion for Rehearing or Transfer Denied July 15, 1974.

Frederick R. Buckles, David U. Uthoff, G. Jeffrey Lockett, Public Defender Bureau, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, J., Brendan Ryan, Circuit Atty., W. Earl Jacobs, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

GUNN, Judge.

Defendant-appellant appeals his conviction by jury of stealing from a dwelling house. Defendant-appellant, by amended information, was charged with the felony of stealing from a dwelling house (§ 560.161 RSMo 1969, V.A.M.S.) and pleaded not guilty. Preliminary hearing was held on the original information which had charged stealing over fifty dollars. The amended information was filed on July 31, 1972 charging, in addition, a prior felony conviction. A pretrial hearing was held on a motion to suppress evidence obtained pursuant to search at the time of arrest. The motion was overruled. As a result of the jury's verdict at a trial held in the Circuit Court, City of St. Louis, defendant was found guilty and sentenced by the trial judge to three years imprisonment.

On appeal, defendant assigns as error: (1) the denial of defendant's pretrial motion to suppress and initial objection to admission of certain evidence which defendant alleges was obtained by an illegal search; (2) the insufficiency of the evidence introduced to support the verdict given; (3) the denial of jury instruction offered by defendant; and (4) the lack of a preliminary hearing to support the amended information. We affirm the judgment.

On December 29, 1971, Helen Brown returned home from her day's labor at approximately 8:45 p.m. and found the door to her St. Louis apartment removed and several items of personal property missing, including a watch and three rings. In response to Ms. Brown's call, police officer Robert Atwood arrived at the apartment at about 9:50 p.m. to investigate the crime. While taking information from Ms. Brown outside her apartment doorway, Officer Atwood noticed defendant and his companion walking along the hallway toward the stairway about 6 to 8 feet from Ms. Brown's apartment. The police officer recognized defendant's companion from previous arrests. The police officer arrested defendant's companion and patted him down for weapons and found a watch in his hip pocket which wa simmediately identified by Ms. Brown as belonging to her. The police officer then asked defendant whetehr he knew anything about the burglary, and the defendant denied any knowledge about it. The police officer then placed the defendant under arrest for burglary and also patted him down. At the police officer's request, defendant removed his wallet and opened it and three yellow metal rings were disclosed which were also identified by Ms. Brown as hers.

Defendant pleaded not guilty upon arraignment to a charge of stealing over fifty dollars. The information was later amended, without preliminary hearing, to stealing from a dwelling house and with one prior felony conviction.

The first issue is whether the arrest and search was valid, with defendant charging that there was no probable cause for his arrest and search and that, therefore, the product of the search was inadmissible. State v. Vineyard, 497 S.W.2d 821 (Mo.App.1973), holds that a warrantless arrest is valid where the police officer has probable cause to believe that an offense has been committed by the person arrested. In Vineyard, the court said, l.c. 825:

'* * * The evidence in issue to be admissible must be the product of a lawful arrest in the absence of a search warrant, and, in turn, the lawfulness of the arrest sans a warrant, is to be based and tested upon probable cause. State v. Novak, 428 S.W.2d 585, 591(2, 3) (Mo.1968). Police officers may arrest without a warrant if reasonable cause exists for them to believe that the person arrested is guilty of a recent felony (State v. Hammonds, 459 S.W.2d 365, 369 (Mo.1970); State v. Johnson, 420 S.W.2d 305, 308(2) (Mo.1967)), and 'Dealing with probable cause for arrest requires dealing with probabilities which are not technical but 'are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. * * * Probable cause exists where 'the facts and circumstances within . . . (the officers') knowledge and of which they have reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed,' Brinegar v. United States, 338 U.S. 160, 175--176(4), 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, and 'The substance of all the definitions (of probable cause) is a reasonable ground for belief of guilt,' Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543.' State v. Novak, supra, 428 S.W.2d at 591(6, 7).'

If the arrest is valid, a warrantless search may be conducted of the defendant's person and the area within his immediate control. Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). There is no requirement that the search be confined solely to a search for weapons; it may also be for fruits of the crime. Preston v. U.S., 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).

The question, then, is whether probable cause existed for defendant's arrest and, if so, was the search reasonable. Did the officer in this case have probable cause to believe that the defendant was guilty of stealing from the dwelling of Ms. Brown? We believe so. Probable cause consists of the facts available to the officer at the moment of arrest and whether at the time such facts would warrant a man of reasonable caution to believe that an offense had been committed and whether at the time of the arrest the facts and circumstances within the knowledge of the police officer were sufficient to warrant a prudent man to believe that the defendant had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Maxwell, 502 S.W.2d 382 (Mo.App.1973). At the time of the arrest, Officer Atwood knew the following: a felony had been committed as recently as little more than an hour before his investigation of the crime; defendant and a companion were walking in the hallway of the victim's apartment within a few feet of the crime; that the identify of defendant's companion was known to the police officer; that defendant's companion had had a record of previous arrests which were known to the police officer; that defendant and his companion acknowledged that they had been in the apartment building for a period of time prior to their effort to leave at the time the police officer apprehended them; that defendant's companion had in his possession property which had recently been stolen from the victim's dwelling.

We believe that the foregoing accumulation of facts known to the police officer were sufficient to warrant a reasonable belief that the defendant had committed a crime. Of course, it is basic that an arrest with or without a warrant must stand upon more substantial ground than mere suspicion, although the arresting officer need not have in hand evidence that would be sufficient to result in a conviction of the defendant. Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The facts here establish that there was more than mere suspicion that defendant had committed a crime which gave Officer Atwood probable cause to make his arrest.

Defendant asserts that association with a known criminal is not, standing alone, reasonable grounds for arrest. State v. Seymour, 438 S.W.2d 161 (Mo.1969). We agree. However, one known or reasonably suspected to be guilty of a crime may be a circumstance to be considered in connection with other circumstances tending to show probable cause to believe that such person has participated in criminal activity. State v. Seymour, supra at p. 163. The factual situation in Seymour is, however, distinguishable from the circumstances in this case, for in Seymour the arrest of defendant was based solely upon his association with a criminal suspect and at a time and place remote from the crime. The court in Seymour said that association in and of itself was not reasonable grounds for arrest, and we agree. But there is more in this case. Here, a crime had been recently committed, the defendant was at the scene of the crime and in association with one who had in his possession fruits of the crime. Thus, there were sufficient circumstances to warrant a finding that the police officer had probable cause to arrest defendant. Defendant argues that the arrest of defendant's companion was illegal and the evidence obtained from defendant's companion was fruit of the poisonous tree, inasmuch as it was obtained as a result of the illegal search and seizure of defendant's companion; that the evidence obtained from defendant's companion cannot be pyramided into a circumstance upon which the arrest of defendant can lie. Walder v. U.S., 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). We do not need to decide whether defendant's companion's arrest was legal or not. Defendant does not have standing to attack the validity and search of his companion. Suppression of evidence obtained by a violation of the Fourth Amendment can only be brought by the person whose rights were violated by the search and not by one who was injured because of the damaging evidence obtained thereby. The Fourth Amendment guaranty against unreasonable search and seizure is personal. Alderman v. U.S., 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1967), and State v. Engberg, 377 S.W.2d 282 (Mo...