State v. Edwards

• Citation: 317 S.W.2d 441
• Decision Date: 10 November 1958
• Docket Number: No. 46231,46231
• Parties: STATE of Missouri, Respondent, v. Willard O'Neill EDWARDS, Appellant.
• Court: United States State Supreme Court of Missouri

Page 441

317 S.W.2d 441

STATE of Missouri, Respondent, v. Willard O'Neill EDWARDS, Appellant.

No. 46231.

Supreme Court of Missouri, En Banc.

Nov. 10, 1958.

Kenneth K. Simon, Kansas City, for appellant.

John M. Dalton, Atty. Gen., Harold L. Henry, Asst. Atty. Gen., for respondent.

HOLLINGSWORTH, Chief Justice.

Defendant has appealed from a sentence of imprisonment in the State Penitentiary for a term of seven years imposed upon him in accord with the verdict of a jury finding him guilty of possession of a narcotic drug, to wit: heroin, contrary to the provisions of the (so-called) Uniform Narcotic Drug Act set forth in Chapter 195, RSMo 1949, V.A.M.S. (This act was materially amended subsequent to the date of the offense herein alleged, Chapter 195, RSMo 1949, Cum.Supp.1957, V.A.M.S., but the questions presented on this appeal are not directly affected thereby.) Error is predicated upon: (1) refusal of defendant's motion to suppress evidence obtained in a search of defendant's automobile following his allegedly unlawful arrest without warrant; (2) refusal of the trial court to require the arresting officer to reveal the name of an alleged informant who, immediately prior to defendant's arrest, had advised said officer that defendant was selling heroin; (3) refusal of defendant's motion for a directed verdict; (4) refusal to strike from the amended information allegations of two former felony convictions of defendant and in admitting evidence thereof; (5) the instructions given the jury on the permissible extent of defendant's punishment if found guilty, and in furnishing the jury with forms of verdict in accord with said instructions; and (6) improper argument of the cause to the jury by the prosecuting attorney.

The amended information alleged unlawful possession of heroin, a dervivative of opium. It also invoked the provisions of the Habitual Criminal Act, Sec. 556.280 RSMo 1949, V.A.M.S., by alleging two former felony convictions of defendant, one in the Circuit Court of Jackson County, Missouri, for robbery in the first degree, and one in the U. S. District Court at Kansas City, Missouri, for the purchase, possession and sale of heroin, and his final discharge from imprisonment upon compliance with the sentence imposed in each case.

The only evidence adduced at the trial on the merits was that of the State: At 1:30 a. m., on the night of July 30, 1955, Robert B. Heinen, a police officer in the Department of Police of Kansas City, while riding in a police car in company with Reserve Officer Jesse Carmichael, intercepted the defendant as the latter, accompanied by one Margaret Barrett, was turning his automobile around at the dead end of the intersection of 12th Street Terrace and Vine Street in Kansas City, Missouri. Over objection of defendant, the grounds of which objection are hereinafter amplified, the State was permitted to adduce further evidence tending to show that Officer Heinen then and there placed defendant and his companion under arrest, following which he searched the person of defendant, the handbag of Margaret Barrett, and also made a hasty search of defendant's automobile, in the belief that he would find narcotics. Finding none, Officer Heinen placed defendant in defendant's automobile and drove to the police station. Reserve Officer Carmichael took Margaret Barrett to the police station in the police car in which he and Heinen had driven to the scene of the arrest. Upon arrival at the station, the automobiles were parked upon the street and defendant and Margaret Barrett were taken to a room in the station, where they were left in charge of Officer Carmichael. About ten minutes after parking at the police station, Officer Heinen returned to defendant's automobile, where, following a more careful search of it, he found beneath the front seat a capsule filled with white power and an empty capsule with traces of white powder therein. An analysis of the powder in the filled capsule showed it to be heroin.

Over objection of defendant, proof was made of his former conviction of the crimes of robbery and violation of the Federal Narcotics Law, as alleged in the amended information, his sentences of imprisonment to the penitentiary in each case and his final discharge upon compliance with each of said sentences.

It was defendant's contention at the trial and is his contention here that his arrest was unlawful and that the search of his automobile and seizure of heroin therein was in violation of the right of freedom from unreasonable searches and seizures guaranteed to him under the provisions of Article I, Sec. 15, of the Constitution of Missouri, V.A.M.S., and Amendment IV to the Constitution of the United States, and that defendant was thereby deprived of due process of law in violation of Amendment XIV to the Constitution of the United States. It is the State's contention that defendant was guilty of a felony, to wit: the unlawful possession of heroin; that at and prior to the time of defendant's arrest Officer Heinen had reasonable cause to believe defendant to be guilty of such felony, and that the search and seizure made thereafter was lawful.

At the pretrial hearing on the motion to suppress, Officer Heinen testified: He was assigned to the Narcotics Division of the Police Department. Defendant was a known drug addict and it had been rumored since the spring of 1955 that he was active in selling narcotics 'on the street', and it was known that 'narcotics were moving.' During that time a certain drug addict served as an informant of witness as to violations of the narcotic laws in Kansas City. For four or five months said informant and others had reported to the witness that the defendant was selling narcotics. From past experience with said informant, the witness had found him to be reliable. About ten minutes before arresting defendant, the informant personally told the witness that defendant was selling narcotics from his car on 12th Street; that defendant would pick up a customer and take him around the corner and there make the sale; and that he had seen defendant approach a 'user'. This was the first time the witness had a 'concrete case' the defendant was presently in actual possession of narcotics. Upon receipt of said information, the witness and Reserve Officer Carmichael, riding in a police car, went in search of defendant. They came upon him as he drove his car east on 12th Street. Margaret Barrett, a known drug addict, was riding with him. The witness and Carmichael followed defendant's car until it came to and completed a turnaround at the dead end of 12th Street Terrace and Vine, where the witness made the arrest as hereinbefore detailed.

When asked the name of the informant, the witness refused to divulge it, and the trial court denied defendant's repeated requests that he be required so to do, but did permit full interrogation of the officer as to the age, sex and habits of his informant and the methods, places and times of witness' communications with him. In so ruling, the trial judge stated that it would be logical to require, and he was inclined to require, the witness to divulge the name of his informant, but that in view of the ruling of this court in the case of State v. Bailey, 320 Mo. 271, 8 S.W.2d 57, 59, he could not do so.

Defendant cites the cases of State v. Cuezze, Mo.Sup., 249 S.W.2d 373; People v. Simon, 45 Cal.2d 645, 290 P.2d 531; Mueller v. Powell, 8 Cir., 203 F.2d 797; Hobson v. United States, 8 Cir., 226 F.2d 890. We need only discuss the first two of these cases. The Hobson case is in no wise analogous to the facts in the instant case. In the Cuezze case, the defendants were arrested without warrant as they lawfully rode in an automobile. Following their arrest, pistols were found under the right front seat of their car. Thereupon, they were charged with carrying concealed weapons. Evidence heard on their motion to suppress revealed that the arresting officers had received no report of a felony having been committed and there was no visible evidence that the defendants had committed or were committing a crime; there was no evidence that the officers had any suspicion that the defendants had committed a felony; in fact, the officers did not know that a crime had been committed. Under these circumstances, the arrest was held illegal and the evidence seized upon search of the automobile was suppressed. In the Simon case, it was held that where the arresting officer, who merely felt that defendant and another did not have any lawful business in warehouse district at 10:40 p. m., and who saw that the other, who was under 21, had a liquor bottle in his possession, searched defendant first and asked questions only after his search uncovered marijuana cigarettes in his possession, and there was nothing to indicate that, had officer confined himself to a reasonable inquiry, he would have discovered anything to confirm his suspicion that defendant did not have lawful right to be where he was, defendant was entitled to have the information set aside on the ground that all evidence against him, other than admissions, had been obtained by illegal search of his person.

The instant case presents an entirely different picture. Here, the uncontradicted evidence showed that defendant was a known narcotic addict and formerly had been convicted of selling narcotics. He had been under suspicion of selling narcotics for more than a year before he was arrested. A drug addict, who theretofore had furnished Officer Heinen with reliable information as to violations of the narcotics laws, had told him for the past several months that defendant was selling and, on the night in question, had told Heinen that defendant was at that instant engaged in selling and delivering narcotics on 12th Street by taking customers into his car and moving to another point where the sale would be made. Heinen immediately went in search of defendant and found him in an...