State v. Flauaus

• Decision Date: 24 September 1974
• Docket Number: No. 35354,35354
• Citation: 515 S.W.2d 873
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Harry Elbert FLAUAUS, Defendant-Appellant. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 873

515 S.W.2d 873

STATE of Missouri, Plaintiff-Respondent, v. Harry Elbert FLAUAUS, Defendant-Appellant.

No. 35354.

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

Sept. 24, 1974.

Motion for Rehearing or Transfer Denied Oct. 11, 1974.

Application to Transfer Denied Dec. 16, 1974.

Brady, Brady & Devereaux, St. Louis, for defendant-appellant.

Ellen S. Roper, Asst. Atty. Gen., and Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GUNN, Judge.

Defendant was convicted by jury of buying stolen property valued at more than $50 in violation of § 560.270 RSMo 1969, V.A.M.S. The penalty assessed was a fine of $1,000. Defendant appeals.

Defendant primarily assigns as error: 1) the trial court's failure to suppress evidence allegedly obtained through an unlawful search and seizure; 2) the State's failure to state a prima facie case in its opening statement; 3) the State's failure to prove defendant's knowledge that the property purchased was stolen and the failure to prove the value of the property; 4) the trial court's overruling defendant's motion for verdict of acquittal and new trial on the basis that the State's key witness had perjured himself with knowledge of the prosecutor; 5) that a deal was made for the witness' testimony without disclosure to defendant. We affirm the judgment.

On July 23, 1972, the Flat Steel Manufacturing Company in St. Louis was burglarized. Among the items taken was a tool box belonging to Peter Mueller which contained measuring and cutting tools and micrometers. The day after the burglary, Richard Boatright, a 17 year old youth, was arrested and admitted committing the burglary. In his statement to police, and also in his testimony at trial, Boatright told that he and some other youths had taken the tool box from the Flat Steel Manufacturing Company; that on the same night, the tool box was taken by the youths to defendant, who, after being told by Boatright that it was stolen, paid Boatright $28 for the box of tools. Boatright and his companions then assisted defendant in removing the tool box with the tools to a food market at 7142 Watson Road in St. Louis County where defendant worked part time and where the tool box and tools were deposited. Defendant asserted at trial that Boatright had not told him that the tools were stolen; rather, that they belonged to Boatright's grandfather.

After his arrest, Boatright was taken by a police officer to a St. Louis County magistrate, and, based on affidavits of Boatright and the police officer, a search warrant was issued authorizing the seizure of a 'green metal tool box, containing various machinists tools, including several micrometers' at 7142 Watson Road, St. Louis County. Upon entering the food market at the Watson Road address, police observed a tool box in plain view in an open meat display case. The tool box was immediately visible and was not concealed in any manner. It was also the only tool box on the premises. The police officer described the tool box which he seized as black and made of steel or wood with a rough grain finish on the outside. The tool box contained various machinists tools and micrometers.

I. The Search and Seizure

Prior to trial, defendant moved to quash the search warrant and suppress the evidence seized thereby. His attack on the warrant is threefold. He first argues that the information to the magistrate was insufficient to give proper cause to issue the warrant, in that there was no proof of the reliability of the informant, citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Second, defendant contends that neither the premises nor the items seized were sufficiently described, particularly since there was more than one business at 7142 Watson Road. For the second point, defendant relies on In re 1969 Plymouth Roadrunner, 455 S.W.2d 466 (Mo.1970). Third, defendant argues that since the warrant specified a green metal tool box, the wrong item was unlawfully seized by the taking of a black tool box which was made of steel or wood. For reasons which follow, we hold the search warrant valid and find that the trial court was correct in overruling defendant's motion to quash and suppress. Since we have not been furnished a copy of either the affidavits or the search warrant issued, we are required to rely on the testimony contained in the transcript relating to the motion to quash. State v. Montgomery, 424 S.W.2d 744, 746 (Mo.1968); Kansas City v. Mathis, 409 S.W.2d 280, 288 (Mo.App.1966). The evidence we have is that furnished by Boatright, who admitted taking the tool box and who personally appeared before the magistrate and submitted a written affidavit that he had taken the stolen property to the food market at 7142 Watson Road. The defendant seems to suggest that the magistrate must have had previous experience with an informant before he may consider an informant's information reliable. We think not. We believe that the magistrate here had probable cause to issue a warrant. The magistrate was afforded substantial basis to conclude that the stolen property was where Boatright said it was. We deem it sufficiently reliable information if, as in this case, an informant confesses before a magistrate that he has taken certain items, describes the items in an affidavit sworn to before the magistrate and designates where the items are located. The Missouri Supreme Court reached a similar conclusion with a corresponding factual situation in State v. Hunt, 454 S.W.2d 555 (Mo.1970), cert. denied, 400 U.S. 942, 91 S.Ct. 239, 27 L.Ed.2d 245 (1970). Defendant's reliance on Spinelli v. United States, supra, is misplaced, for in Spinelli the informant was never identified for the magistrate issuing the search warrant.

We find the identification of the premises to be searched and the items seized to be adequate and sufficient to comply with Rule 33.01(b), V.A.M.R., which provides:

'(b) The complaint and the warrant issued thereon must contain a description of the personal property to be searched for and seized and a description of the place to be searched, in sufficient detail and particularity to enable the officer serving the warrant to readily ascertain and identify the same.'

Although there may have been one or two other places of business at 7142 Watson Road, there was only one food market which, testimony indicated, was the establishment to be searched, and that is where the search was made. In Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925) the test in judging the sufficiency of a description was set forth as:

'It is enough if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.' (l.c. 503)

Here, the identity of the premises to be searched was sufficiently described to allow a reasonable search to be conducted. The police were not misled by the description recited in the warrant. The police knew the precise area to be searched, and no license was given to them to conduct an indiscriminate, unreasonable search of areas not intended by the warrant. See Hanger v. United States, 398 F.2d 91 (8th Cir.1969), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969), rehearing denied, 395 U.S. 971, 89 S.Ct. 2106, 23 L.Ed.2d 761 (1969), which upheld the validity of a search warrant, based on Steele v. United States, supra, which named an entire apartment building although the intent was to search a single apartment and which contained an erroneous address.

We also find that the description of the items to be seized was sufficient. Absolute precision is not necessary in the identification of items to be seized. The matter to consider is whether the items were sufficiently described so that an exercise of judgment respecting the items to be seized is not arbitrary. The purpose of requiring that items to be seized to be listed specifically is to ensure that the property taken is not left to the caprice of the police conducting the search. Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). The opportunity to exercise such discretion was not available to the police in this case. In this case, a single tool box was in plain view in premises where police had a right to be. ¹ Further, a food market is not a place likely to contain a large quantity of tool boxes. The situation here is not one where police could arbitrarily search through several tool boxes looking for the right one. There was only one tool box for police to search and seize. The law as to reasonable search is not intended to produce the incongruous results which would occur if defendant's position on this point concerning the search and seizure were upheld. Hanger v. United States, supra. State v. Hunt, supra, is particularly apposite to the factual situation here, for in Hunt, the description in the affidavit for warrant for search for 'two small tool boxes red in color' and 'an empty tool chest' was held sufficient.

Under the facts of this case, where there was but a single tool box to be seized in a food market, the reference to color and composition of the tool box would simply be surplusage. In re 1969 Plymouth Roadrunner, supra, relied on by defendant is distinguishable from this case. In Plymouth Roadrunner, a search warrant was found defective, in that it failed to state the names of the persons from whom items had been stolen, the type or names of the items, the time, place, or nature of taking of such items or a definite description of the particular items stolen which would prevent the possibility of seizing items other than those stolen. In this case, we have sufficient description of a limited item and particular premises which satisfies the requirement for a valid search warrant.

II. The Opening Statement

Defendant suggests that the prosecutor's opening statement failed to make reference that the element of actual...