State v. Edmonds

• Decision Date: 08 February 1971
• Docket Number: No. 2,No. 55625,55625,2
• Citation: 462 S.W.2d 782
• Parties: STATE of Missouri, Respondent, v. Alvin Holt EDMONDS, Appellant
• Court: Missouri Supreme Court

Page 782

462 S.W.2d 782

STATE of Missouri, Respondent, v. Alvin Holt EDMONDS, Appellant.

No. 55625.

Supreme Court of Missouri, Division No. 2.

Feb. 8, 1971.

John C. Danforth, Atty. Gen., Charles A. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent.

Samuel T. Vandover, Public Defender, Clayton, for appellant.

STOCKARD, Commissioner.

Alvin Holt Edmonds was found guilty by a jury of possessing burglary tools in violation of § 560.115 RSMo 1969, V.A.M.S., and pursuant to the Second Offender Act was sentenced by the court to confinement by the Department of Corrections for a term of ten years.

Appellant's first point is that the trial court erred in overruling his motion to suppress evidence because, according to appellant, there was no probable cause for his arrest.

A few minutes before four o'clock of the morning of March 7, 1967, Police Officer David M. Higgins stopped an automobile being operated by appellant after the officer noticed that the license plate was not lighted and that what appeared to be a television set was in the opened trunk of the automobile. When appellant was asked to produce his operator's license he delayed doing so. He stated to the officer that he was a humane officer and that he was on his way to pick up some dogs, and that he had dog cages in his automobile for that purpose. The officer then walked to the automobile and saw a television set on the rear seat and he confirmed that the object in the open trunk was also a television set. There were no dog cages in the automobile. Appellant then told the officer that the television sets belonged to a passenger in the automobile, but when the passenger was asked about them he said they belonged to appellant. Both men were then placed under arrest for suspicion of burglary and stealing, and given the 'Miranda' warnings. In the meantime Officer Loyd arrived in another police automobile, and appellant was placed in that automobile. Appellant then told the officers that the automobile he had been driving was 'hot,' which indicated to the officers that it had been stolen. It was after this information was received that the officers searched the automobile and found in the back seat a brief case which contained a pry bar, bolt cutter, three screwdrivers, flashlights, gloves, and a wide roll of adhesive tape. Appellant told the officers that he had purchased the various items found in the brief case in St. Louis. These items were the subject of appellant's motion to suppress.

Appellant's contention is without merit for two reasons.

First. Appellant admitted the automobile was 'hot,' that is, that it was stolen and that he had no right to possession. He is not entitled to raise the issue of an illegal search of the automobile of someone else. State v. Booker, Mo., 454 S.W.2d 927; State v. Taylor, Mo., 429 S.W.2d 254. He was not charged with an offense of which the claim of the right of possession of the automobile proved or tended to establish the offense charged, so the rule announced in Glisson v. United States, 5 Cir., 406 F.2d 423 is not applicable.

Second. This case is governed by the rule announced in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, where it was stated that "because of their mobility, (automobiles) may be searched without a warrant upon facts not justifying a warrantless search of a residence or office," and that "The right to search and validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law." See State v. Smith, Mo., 462 S.W.2d 425.

Appellant next asserts that error resulted from the giving of Instruction 1 'for the reason that same permitted the jury to convict appellant as charged if the jury found he merely possessed a roll of adhesive tape.'

Section 560.115 RSMo 1969, V.A.M.S., provides, in the parts here material, that 'any person who * * * has in his custody * * * any tool, false key, lock pick, bit, nippers, fuse, force screw, punch, drill, jimmy, bit, or any material implement, instrument, or other mechanical device whatsoever, adapted, designed, or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a building of any kind, shall be guilty of a felony, * * *.'

By Instruction 1 the jury was told that if it found and believed from the evidence beyond a reasonable doubt that appellant 'did wilfully, unlawfully and feloniously have in his possession the personal property mentioned in the evidence, to-wit: three screwdrivers, one pry bar, one glass cutter, one bolt cutter, adhesive tape, two pairs of canvas gloves, and three flashlights, or any part...