State v. Gailes, 53140
| Decision Date | 10 June 1968 |
| Docket Number | No. 1,No. 53140,53140,1 |
| Parties | The STATE of Missouri, Respondent, v. William Orbrie GAILES, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Dennis J. Quillin, Special Asst. Atty. Gen., Clayton, for respondent.
Gray & Friedman, Charles E. Gray, C. Marshall Friedman, St. Louis, for appellant.
HOUSER, Commissioner.
William Orbrie Gailes, convicted by a jury of illegal possession of a stimulant drug, § 195.240, 1 under the Second Offender Act, § 556.280, and sentenced by the trial judge to six years' confinement in the penitentiary, has appealed.
There was substantial evidence tending to establish these facts: At 11:15 p.m. Rose Rhodes and a man emerged from the three-story private residence building at 4229 Westminster in the City of St. Louis and walked onto an adjacent parking lot. The building had been under surveillance by St. Louis police officers for approximately one month. Officers Flynn and Lodl, who were parked west of the building, drove in the police car onto the lot and 'pulled up' to the man and woman as the latter reached the man's parked car. Officer Flynn observed the woman, hereinafter 'Rose,' drop a tinfoil packet to the ground and put another small tinfoil packet in her mouth. Officer Flynn picked up the tinfoil packet from the ground, arrested Rose for possession of narcotics, and advised her of her constitutional rights. He then handcuffed her and attempted to retrieve the object in her mouth. She resisted, kicked and fought, but finally spit it out and it was recovered by the officer. The officers did not then know that the white powder in the packets was a drug but from previous experience they suspected narcotics. A laboratory test the next day revealed that the powder was dextro-amphetasmine-hydrochloride, a stimulant drug. Two more police officers, summoned for assistance, arrived on the scene. Officer Flynn placed Rose in the police car and asked her if she had any narcotics or stolen property in her house. She answered in the negative. The officer asked her if she 'would mind' if the officers 'went up and looked' and she said 'No.' The officers did not have a search warrant. The handcuffs were removed. Rose unlocked the front door of the house with her key and admitted Officers Flynn, Venz, and Feelson. Rose accompanied the officers to the second floor where her apartment was located. The door to the apartment was wide open. As the officers neared the door Officer Venz observed the defendant and another man standing in the apartment. Defendant had something in his hand. Not knowing then what the object was, Officer Venz drew his pistol. As Officer Venz entered the room he saw defendant drop from his right hand or throw to the floor a four-inch cylindrical container, red and white in color, with lettering on it. When it fell to the floor it rolled a foot or so from the place where defendant was standing. Officer Venz retrieved, opened, and found it to contain three aluminum foil packs. There was a white residue on the interior of the container. Officer Venz put the container in his pocket and placed defendant under arrest for the possession of narcotics. Laboratory tests showed that the white powder was the stimulant drug dextro-amphetamine-hydrochloride.
The apartment was rented to Rose. She had given defendant a key. Defendant used the apartment from time to time with her permission. This was one of twelve apartments in the building.
Defendant filed a motion to suppress on which the court conducted a pretrial hearing. Defendant introduced evidence. Rose testified that she refused to give the officers permission to go up to her apartment; that the officers took her keys from her, ordered her to accompany them, and told her to 'shut up and stand still.' Officer Flynn testified to the previously related facts indicating that Rose consented to the officers' entry into her apartment. The court overruled the motion to suppress. When the case came on for trial defendant filed a new motion to suppress substantially the same as the original motion and asked for an evidentiary hearing. The trial judge stated his understanding that a motion to suppress evidence is a pretrial motion; that in the absence of any new evidence the motion would be overruled, and suggested that at the time the state offered any evidence defendant thought should be suppressed, defendant 'make your motion or your objection then.' At the trial proper, when the state's witness sought to describe the four-inch cylindrical container, defendant objected that the evidence was 'unconstitutionally received' and stated that the court ought to again hear the testimony (on the question of suppression of the evidence). The court overruled the objection, stating that the motion to suppress had been ruled on in the assignment division prior to trial. After having been properly identified the contents of the container were received in evidence.
The first question is whether the court erred (1) in overruling appellant's motion to suppress the container of amphetamine hydrochloride and in (2) admitting the same in evidence at the trial. Appellant claims that the container was obtained as a result of an unlawful search of premises by officers who had no search warrant and no valid reason to search the premises, and that he, the appellant, had standing to complain of the invalidity of the search by reason of the fact that he was using the premises with the permission and consent of the tenant Rose.
The court did not err in overruling the motion to suppress. The evidence in question was not obtained in an illegal manner. It is true that the officers did not have a search warrant to justify their entry into the apartment. It is likewise true that their entry may not be justified on the ground that they were searching the apartment as an incident to a lawful arrest. The arrest of Rose was completed. She was arrested at the parking lot adjacent to the rooming house property, which was not shown to be any part of the premises in which Rose's apartment was located. See Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145, 51 A.L.R. 409; Hernandez v. Superior Court, 143 Cal.App.2d 20, 299 P.2d 678(2). Since the officers had no right to search Rose's home as an incident to her arrest, they were not justified on that ground in entering premises to which defendant had access and (let us assume) equal rights of occupancy and privacy.
Under Officer Flynn's testimony, however, the entry of the officers into the apartment was lawful for the reason that it was acquiesced in and consented to by Rose, the tenant who rented the apartment. It is true that at the pretrial hearing of the motion to suppress Rose testified that she did not give her consent to their entry. This created a conflict in testimony involving the credibility of the witnesses which was resolved in favor of the state by the action of the trial court in overruling the motion to suppress. There was substantial evidence to support the trial court's determination of this evidentiary fact.
Therefore, even though we assume that defendant had 'standing' to object to unauthorized entries into the apartment, the entry of these officers was not unauthorized but on the contrary was permitted and acquiesced in by Rose. As owner and possessor Rose had a right to admit the officers and defendant (who was present with the permission of a person having a paramount possessory interest) is not entitled to assert that the entry of the police officers was unlawful. Rose's authority in the premises as tenant exceeded that of defendant, and 'certainly such person may authorize an entry onto the premises contrary to the wishes of another who has far less authority.' State v. Stuart, Mo.Sup., 415 S.W.2d 766, 768.
Defendant's claim that the search was unlawful does not take into consideration the fact that the can of drugs was not discovered in some place of concealment as a result of a search of the premises, but was discovered in plain and open view of officers lawfully on the premises by invitation. State v. Jefferson, Mo.Sup., 391 S.W.2d 885, l.c. 889(8). As the officers reached the second floor the door to the apartment was open. The officers observed defendant standing in the apartment with some article in his hand. As they entered the door the defendant dropped the article, a can, to the floor. The officers retrieved, opened, and found it to contain a white powdery substance. From their experience the officers reasonably suspected that it was a drug, a suspicion confirmed by laboratory analysis the next day. The container was not seized in the course of an unlawful search. 'Where the articles sought to be suppressed were in plain sight of the arresting officer, were dropped or thrown away by the person arrested, and were picked up by the officers, the articles are admissible in evidence over an objection that they were seized as the result of an unlawful search.' State v. Jefferson, supra, 391 S.W.2d l.c. 888(3). In State v. Baines, Mo.Sup., 394 S.W.2d 312, officers went to defendant's residence to investigate a complaint. Defendant opened the door, and as he stood there in plain view of the officers defendant dropped an envelope containing marijuana. One of the officers picked it up. This was held to constitute no violation of defendant's constitutional rights with respect to search and seizure, for the reason that these facts demonstrate the commission of a felony--illegal possession of a drug--in the presence and within the observation of the officer, thereby justifying the arrest of the defendant. And see State v. Owens, Mo.Sup., 391 S.W.2d 248. What was said in Stuart is apropos here: 'After the police were lawfully in the apartment they saw the defendant engaged in the commission of a felony in their presence, and for that reason the arrest of defendant was lawful, and the seizure of the (can...
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