State v. Esrock, 45826

• Decision Date: 30 August 1983
• Docket Number: No. 45826,45826
• Citation: State v. Esrock, 660 S.W.2d 222 (Mo. App. 1983)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Randall K. ESROCK, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 222

660 S.W.2d 222

STATE of Missouri, Plaintiff-Respondent, v.Randall K. ESROCK, Defendant-Appellant.

No. 45826.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 30, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 26, 1983.

Phyllis Weber, Clayton, John Ashcroft, Atty. Gen., Jefferson City, for plaintiff-respondent.

Harold M. Weber and James W. Whitney, Jr., St. Louis, for defendant-appellant.

SIMON, Presiding Judge.

Randall Esrock, defendant, appeals from a verdict finding him guilty of possession of a controlled substance and resisting arrest.Defendant was sentenced to five years imprisonment on the possession charge and one year on the charge of resisting arrest.The sentences were to run concurrently, but the trial court suspended the five year sentence.

On appeal, defendant contends that the trial court erred in holding that: (1)defendant's Fourth Amendment right against warrantless search and seizure was not violated; (2) a warrantless search of defendant's residence was permissible under the exigent circumstances exception; and (3) a warrantless search of defendant's residence was permissible under the consent exception.Essentially, the issue is whether the police officers' search of defendant's residence and the seizure of the marijuana violate his rights as guaranteed by the Fourth and Fourteenth Amendments.We affirm.

We review the evidence in a manner consistent with the ruling and verdict at the trial and disregard evidence and inferences to the contrary.On February 4, 1981, the St. Louis County Police Department received a 911 "hang-up" call. "911" is a law enforcement device whereby one dials 911 and is connected directly with a police dispatcher to inform the police of an emergency and request assistance.A "hang-up" call occurs when the person dialing 911 hangs up before communicating with the dispatcher.The police dispatcher testified that the procedure established for hang-up calls entails calling the telephone number of the caller, which is displayed to the dispatcher on a screen, and inquiring into the reason for the call.Whether the return call is successful or not, the name and address corresponding to the telephone number is obtained and police are dispatched to the location.The testimony did not reveal why a return call is made if police are to be dispatched in any event, nor did it reveal why police are dispatched after being told no emergency exists.It could be that the return call is aimed at discerning the nature of the emergency in order to provide adequate assistance.Further, police may be sent even if the dispatcher is told no emergency exists in the event that the person answering the return call is the perpetrator of a crime.

The police dispatcher testified that on February 4, 1981, she followed this procedure and talked to a person at the location who stated he was the only person at the location, no emergency existed, he had not dialed 911 and there was no need to send any officers.The dispatcher, in conformity with the procedure, sent two police officers to the location.

At trial, one of the officers testified that he and his partner arrived at the location, a residence, and rang the doorbell.Defendant answered and was asked if he had dialed 911 and if anyone else was in the house.He answered no.He was then asked who lived in the house.Defendant responded that he lived there with his father and brother.The officer testified that defendant was speaking loudly and was barely coherent.They were concerned because defendant's mother had committed suicide at the home approximately a year before.

The officers inquired as to whether they could enter the home to determine if anyone was injured and defendant said, "yes, well come on in."After entering, the officers immediately began looking in the dining room, living room, kitchen, and a hallway.The testifying officer said moments later his partner asked him to come to a hallway.At this point defendant said, "this is my room and you can't go in there, besides there is less than an ounce of dope in there."From the hallway they looked into defendant's bedroom and could see "a pile of green vegetation sitting on a table" which they believed to be marijuana.

The officers informed defendanthe was under arrest.Defendant responded by running away.The officers caught him in the kitchen where defendant began kicking and hitting them while yelling obscenities.He then stated he did not think they should be in the house, specifically stating they were not allowed in his room and he did not want them searching the house.Defendant was subsequently arrested, charged and tried.

Generally, a warrantless search or seizure is per se unreasonable under the Fourth and Fourteenth Amendments to the U.S. Constitution.Katz v. U.S., 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576(1967).However, like many general rules, a trail of exceptions follow and negate the rule's applicability to a certain set of circumstances.The exceptions to the general rule above include consent, emergency (including hot pursuit), automobile, stop and frisk, border searches and plain view.Defendant's situation involves such a negation and activates, not one, but two exceptions, which are consent and plain view.

Defendant...