State v. Funk

• Decision Date: 19 January 1973
• Docket Number: No. KCD26226,KCD26226
• Citation: 490 S.W.2d 354
• Parties: STATE of Missouri, Respondent, v. Othel Leroy FUNK, Appellant.
• Court: Missouri Court of Appeals

Page 354

490 S.W.2d 354

STATE of Missouri, Respondent, v. Othel Leroy FUNK, Appellant.

No. KCD26226.

Missouri Court of Appeals, Kansas City District.

Jan. 19, 1973.

Robert G. Duncan, Duncan & Russell, Kansas City, for appellant.

John C. Danforth, Atty. Gen., Daniel P. Card, II, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, SWOFFORD and WASSERSTROM, JJ., and HARRY A. HALL, Special Judge.

WASSERSTROM, Judge.

Defendant appeals from a conviction for illegal possession of methamphetamine hydrochloride. No evidence was introduced for the defense, and the testimony of the police officers stands undisputed. That testimony, together with a stipulation by the parties of certain limited facts, set forth the factual situation for consideration.

On January 20, 1971, the police made arrangements for what is known in police parlance as 'a controlled buy' of drugs by Johnny Shelton, who is termed in police jargon 'a cooperating individual' and more commonly known as an informer. As a preliminary, Shelton was searched by the police and after ascertaining that he had no articles in his possession, the police officers handed Shelton $65.00 in identified bills. Then Shelton, accompanied by the police officers, drove directly to the residence occupied by the defendant. There the informer went inside the house and stayed approximately four minutes. At the end of that time, he came to the door with the defendant.

Shelton then walked to the car where he handed over a vial containing 100 tablets, subsequently found to be methamphetamine hydrochloride. Shelton also told the officers at that time that there were more drugs in the house and that they were located in the left-hand dresser drawer in the northeast bedroom. The officers then proceeded with Shelton to a nearby gas station where he was again searched. The officers found that the $65.00 was gone and that Shelton had nothing else in his possession.

Two of the officers then went to obtain a search warrant. Other officers remained to keep a surveillance of the defendant's house, and at the same time a police helicopter was assisting the surveillance from its overhead vantage point.

Pursuant to police application, a search warrant was issued by Magistrate Bills authorizing a search of the defendant's residence for 'a quantity of Methamphetamine Hydrochloride, a stimulant drug'. Armed with this search warrant, the officers returned to defendant's house. They knocked on the door and announced themselves as the police. When no answer was received, they broke in and immediately went to the northeast bedroom where they found Mrs. Funk clad in lounging pajamas. Officer Eapmon went at once to the left-hand dresser drawer, where Shelton had said drugs would be found, and various bottles containing methamphetamine hydrochloride were discovered there. A thorough search proceeded of the entire house, and approximately $10,000.00 was found hidden in the basement. The police also encountered in the house the defendant and a teen-age son of Mrs. Funk by a previous marriage.

After the search was completed, both the defendant and his wife were arrested, and an additional sum of approximately $1,000.00 was found in their personal possession. Among the money thus discovered were $60.00 of the identified bills which the police had given Shelton to be used for 'the controlled buy'.

Defendant makes two points on this appeal: (1) that his motion to suppress the evidence obtained by reason of the search should have been sustained, and that those fruits of the search should have been excluded from evidence; and (2) that even if the fruits of the search be considered, still the prosecution failed to make a submissible case of illegal possession by the defendant. Inasmuch as we decide in defendant's favor on the first of those points, it is unnecessary to rule on the second assignment, although the same general question in more circumscribed form will be discussed under Point III of this opinion.

I

Defendant contends that the motion to suppress should have been sustained because: (a) the search warrant was not authorized by any statute; and (b) the affidavit upon which the warrant was issued was legally insufficient. Since we sustain the first of those arguments, the second need not be considered.

If the search warrant were being issued currently, such action would be authorized under § 195.135, V.A.M.S. That section now provides that 'a search warrant may issue, and execution and seizure may be had * * * for any controlled substance unlawfully in the possession or under the control of any person * * *'. However, prior to the 1971 amendment by H.B.No.69, approved June 29, 1971, and not effective until September, 1971, this section was narrower and authorized only the search for and seizure of 'narcotic drugs'. The search warrant in the present case specifically confined the purported authority thereunder to a search for 'Methamphetamine Hydrochloride, a stimulant drug'. Unless methamphetamine hydrochloride, the drug described, came within the statutory term 'narcotic drug', there could be no statutory for the warrant as issued.

The statute itself, § 195.010(17) RSMo 1969, V.A.M.S., defined 'narcotic drugs' as meaning 'amidone, bemidone, cannabis, CB--11 (also known as heptazone or heptalgin), coca leaves, isoamidone, isonipecaine, keto-bemidone, N.I.H.--2933, N.I.H.--2953, NU--1966 (also known as Nisentil), NU--1779, NU--1932, NU--2206 and opium and every substance neither chemically nor physically distinguishable from them and any other drugs to which the federal laws relating to narcotic drugs may now apply.' This definition does not encompass methamphetamine hydrochloride, and the State does not now so contend.

By reason of the foregoing analysis, the State cannot and does not claim that the search warrant in issue was authorized by § 195.135; but it does contend that the search warrant was authorized under the terms of § 542.380(3), V.A.M.S. The latter section authorizes search warrants for 'pills, powders, medicines, drugs or nostrums, or instruments or other articles or devices for producing or procuring abortion or miscarriage, or other indecent or immoral use * * *'. (emphasis added) The State relies upon the quoted words emphasized and claims this phrase to be broad enough to include stimulant drugs. That argument proves too much and cannot be accepted. If this interpretation were true, there would have been no need at all for the original section 195.135, much less any need for the legislature to amend the latter section in 1971 so as to expand its scope. As a matter of fact, Chapter 195 entitled 'Drug Regulations' is a complete code in itself. § 542.380(3) cannot reasonably be understood as being intended to apply to the subject of drug control, as to which the legislature has made other comprehensive provision in Chapter 195. The phrase 'other indecent or immoral use' as contained in § 542.380(3) must be construed as referring to items of a sexual nature.

Since there is no statute which can be said to have authorized this search warrant at the time it was issued, the search warrant cannot be regarded as legally effective. See In the Interest of J.R.M., Mo.Banc, 487 S.W.2d 502; State v. Allison, Mo., 466 S.W.2d 712, l.c. 714; Scurlock, 'Basic Principles of Administration of Criminal Justice with Particular References to Missouri Law', 38 UMKC Law Rev., 167, l.c. 194--195.

II

As a second line of defense, the State retreats to the position that the search of the defendant's home can be justified as incident to a lawful arrest. It is questionable whether the evidence appearing of record in this case shows any reasonable ground before the police forced entry into the house, for the arrest of Mrs. Funk, the only suspect who was in the northeast bedroom at the time the search began, or any other particular person for that matter.

The police themselves seemed to share this doubt at the time as evidenced by the fact that they made no attempt to make any arrest immediately after checking the results of Shelton's 'controlled buy', but instead they repaired to a magistrate in order to obtain a search warrant in the hope of obtaining further evidence. Absent reasonable grounds for arrest, there could be no predicate for a lawful search as incidental to the arrest. However, we pass this question since there are three other reasons why the search must be condemned, even if it be assumed that the police officers did have reasonable grounds for arrest before entering the house.

A. The first reason that the search cannot be sustained as an incident to the arrest is that the search preceded the arrest. The classic statement of the exception permitting a warrantless search incidental to an arrest includes a flat requirement that the arrest precede the search in point of time. State v. Morice, Mo., 79 S.W.2d 741, l.c. 742; State v. Witherspoon, Mo., 460 S.W.2d 281, l.c. 285.

This requirement has been relaxed by recent decisions in circumstances where the police have reasonable cause in advance to make an arrest, without reference to the evidence later obtained as a result of the search. United States v. Taylor, C.A. 8, 428 F.2d 515, l.c. 519--520; United States v. Skinner, C.A. 8, 412 F.2d 98; Holt v. Simpson, C.A. 7, 340 F.2d 853, l.c. 856; concurring opinion of Mr. Justice Harlan in Sibron v. New York, 392 U.S. 40, l.c. 76--77, 88 S.Ct. 1889, 20 L.Ed.2d 917; 'Lawfulness of Nonconsensual Search and Seizure without Warrant, Prior to Arrest,' 89 A.L.R.2d 715. The reasoning of these authorities is that the only purpose of looking at the precise order of occurrence between the arrest and search is to make sure that the police do not attempt to justify the arrest by the results of an illegal search, thereby raising themselves by their own bootstraps. Insistence upon reasonable cause before making the arrest eliminates that possibility.

Nevertheless, even these...