State v. Fields, 54003
| Decision Date | 09 June 1969 |
| Docket Number | No. 2,No. 54003,54003,2 |
| Parties | STATE of Missouri, Respondent, v. James Marvin FIELDS, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Gene E. Voigts, Asst. Atty. Gen., Jefferson City, for respondent.
Louren G. Davidson, Springfield, for appellant.
STOCKARD, Commissioner.
James Marvin Fields was convicted by a jury of burglary in the second degree and with stealing during the commission of the burglary, and was sentenced by the court pursuant to § 556.280, RSMo 1959, V.A.M.S., to be committed to the Department of Corrections for a period of seven years for the burglary and five years for the stealing, the sentences to run consecutively.
On the evening of November 16, 1967, an employee of the Peer Hardware Company located at 317 South Avenue, Springfield, Missouri, placed approximately $1,700 in checks, coins, and currency in the safe and locked it. The store was then closed and the doors locked and secured. That evening, a little after ten o'clock, Detective Wheeler saw a Rambler station wagon in the darkest part of a parking lot located west of the rear entrance of the Peer Hardware store. He was familiar with the area and had never seen that automobile there before. He checked the license number and found that the automobile belonged to one 'that (he) was familiar with.' There were no business establishments in the neighborhood then open. About 11:40 o'clock Detective Wheeler saw three persons approaching the automobile from the east. He could not recognize them at that distance, but he saw that at least two of them were 'carrying something.' One of the persons got in the back seat of the station wagon, and the other two walked further back into the parking lot and out of sight. One of those two then returned and entered the station wagon and drove away. Officer Foster was with Detective Wheeler, and they followed the station wagon for several blocks and then stopped it. By reason of the spotlight on the police automobile, Detective Wheeler recognized appellant as the person in the back seat of the station wagon, and he saw him remove a red jacket he was wearing. A person by the name of Montgomery was driving. While standing near the station wagon, Officer Foster saw a lady's handbag with tools in it, 'hammers and articles,' on the floor of the station wagon between appellant's feet. Ppellant and Montgomery were then placed under arrest by Detective Wheeler for 'investigation of burglary and larceny' and also for 'investigation of possession of burglary tools.' The station wagon was then searched.
A report was made by radio to police headquarters, and a check was made of the Peer Hardware store where it was found that a hasp had been pried off of a door to the store and that the safe had been broken into and its door removed, and that money, several guns and some ammunition were missing.
In the Peer Hardware store there were three empty boxes which had, before the burglary contained pistols. On each box was the serial number of the pistol which had been in that box. When the station wagon was searched a .22 caliber pistol was found under the front seat, and a loaded .38 caliber pistol was found under the back seat. The serial number of each pistol corresponded with the serial number printed on an empty box designed to contain a pistol of that make and caliber which was found in the Peer Hardware after the burglary. In the pocket of the red jacket there were found two boxes of .38 caliber and one box of .45 caliber ammunition, and at least one of the boxes had a Peer Hardware 'sticker' on it. Other items were also found in the automobile including a hunting cap with a Peer Hardware 'tag' on it and some cotton gloves. Montgomery had $179, a majority of which was in one dollar bills, 'twisted and wadded up' in his trouser pocket, and appellant had $22 in 'normal condition' on his person.
Appellant's first point is that the 'search and seizure was in violation of (his) rights under the provisions of the Fourth Amendment to the Constitution of the United States of America and Article 1, Section 15 of the Constitution of the State of Missouri,' and for this reason he contends that the court erred in admitting in evidence the various exhibits hereafter described.
Exhibits I, J and J--1 were not obtained by the police as the result of a search or seizure. These exhibits were three empty boxes designed to hold pistols which were found in the Peer Hardware store after the burglary. When they were offered in evidence appellant's counsel expressly stated as to each that there was 'no objection.'
Exhibits M, N, and O were the three boxes of ammunition found in the pocket of the red jacket, and Exhibit P was the hunting cap found in the station wagon. When they were offered in evidence appellant's counsel expressly stated as to each that there was 'no objection.'
Exhibit K was the .22 caliber pistol found under the driver's seat of the station wagon. When it was offered in evidence the objection was that
Exhibit L was the loaded .38 caliber pistol found under the back seat of the station wagon where appellant was seated. The objection was, 'We renew our same objection.'
Exhibit Q was a transistor radio found on the back seat of the station wagon, and it was tuned to 'the Springfield Police Department frequency.' When offered in evidence, the objection was:
Exhibit R was the cotton gloves, and the objection was: 'I would like to renew the same objection that was previously made concerning these being found in that car not belonging to this defendant.'
Exhibit S and S--1 through S--7 were a lady's handbag, a two pound hammer, an eight pound hammer, a pinch bar and four chisels. The objection to each was 'we will renew our same objection.'
Appellant and Montgomery were charged jointly, and their preliminary hearing was held at the same time. The record discloses that at the preliminary hearing Montgomery moved to suppress the various items of evidence which were taken by the police from the station wagon. No motion to suppress on behalf of appellant was filed at the preliminary hearing or in the trial court. As demonstrated above, at the time the various exhibits were offered in evidence no objection was made on the ground that any of them had been unlawfully seized by the police.
It has long been the rule in this state the evidence obtained by means of an unlawful search and seizure by police officers is not admissible against the person searched, or whose property is searched, where timely objection to the use of such evidence is made. State v. Cuezze, Mo., 249 S.W.2d 373; State v. Holt, Mo., 415 S.W.2d 761. The procedural rules of this state, with an exception not here material, require that the contention of an unlawful search and seizure be made by motion to suppress the evidence in advance of trial. State v. O'Brien, Mo., 252 S.W.2d 357, certiorari denied, 345 U.S. 929, 73 S.Ct. 790, 97 L.Ed. 1359; State v. Lord, Mo., 286 S.W.2d 737; State v. Holt, supra. The validity of a search and the admissibility in evidence of the fruits of that search present issues collateral to the issue of guilt which are to be tried independently, State v. Dalton, Mo., 23 S.W.2d 1, and 'Not only must defendant file a motion to suppress the controverted evidence, but he has the burden of presenting evidence to sustain his contentions.' State v. Holt, supra, 415 S.W.2d at p. 764; Supreme Court Rule 33.03(a)(5), V.A.M.R.; State v. Jonas, Mo., 260 S.W.2d 3. He must also keep the question alive by timely objection, State v. Tunnell, 302 Mo. 433, 259 S.W. 128; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, and by preservation of the issue in a motion for new trial. State v. Lord, supra. The only exception under our procedural rule is where the defendant 'had no reason to anticipate the evidence would be introduced and was surprised.' State v. O'Brien, supra, 252 S.W.2d at p. 359. As previously noted, appellant filed no motion to suppress the evidence, although such a motion was filed by Montgomery in the Magistrate Court at the time of their joint preliminary hearing. In addition, three of the exhibits were not obtained by the police as the result of a search or seizure, and these three exhibits and four others were admitted into evidence only after appellant expressly stated he had no objection. The other exhibits were admitted into evidence over the objection of appellant that 'no connection' between the exhibit and appellant had been shown, which was without merit, but there was no objection to the exhibits on the ground that they had been illegally seized as the result of an...
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