State v. Grady

• Court: Missouri Court of Appeals
• Writing for the Court: KELLY
• Citation: State v. Grady, 548 S.W.2d 601 (Mo. App. 1977)
• Decision Date: 08 February 1977
• Docket Number: No. 37084,37084
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Herbert Hoover GRADY, Defendant-Appellant. . Louis District, Division Three

Page 601

548 S.W.2d 601

STATE of Missouri, Plaintiff-Respondent, v. Herbert Hoover GRADY, Defendant-Appellant.

No. 37084.

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

Feb. 8, 1977.

Motion for Rehearing or for Transfer Denied March 15, 1977.

William J. Shaw, Public Defender, David M. Adams, Asst. Public Defender, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, Courtney Goodman, Jr., Pros. Atty., Steven H. Goldman, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

KELLY, Presiding Judge.

Herbert Hoover Grady, the appellant, was convicted in a court tried case of possession of a Schedule I controlled substance heroin § 195.017 RSMo. 1969, and sentenced under the Second Offender Act, § 556.280 RSMo. 1969, to twelve and one-half years in the Missouri Department of Corrections. On appeal he raises two points: (1) that the trial court erred in denying his motion to suppress evidence heroin seized from his person following what he contends was a search violative of his federal and state constitutional rights against unreasonable searches and seizures and (2) during the course of the trial overruling his objections to the admissibility of heroin he contends was illegally seized from his person following an unlawful search. Because we conclude that in the "concrete factual context" of this case the warrantless search was incidental to a lawful arrest, we affirm.

As in all search and seizure cases we must first carefully review the facts and the circumstances leading up to the contested search, and in reviewing what is concededly a warrantless arrest and search we must be cognizant that every judicial review of such is permeated with the cardinal principle that all warrantless searches, subject to only a few well delineated exceptions, are, per se, constitutionally offensive. State v. Peterson, 525 S.W.2d 599, 603(2) (Mo.App.1975). Although the appellant has the burden of establishing that this search was unreasonable, nevertheless, this being a warrantless search, the burden is on the State to show that it came within one of the established exceptions to the Fourth Amendment warrant requirements to establish that the arresting officer's acts were, in fact, exempt from the rule that judges or magistrates, rather than police officers, should determine when searches should be permitted and what limitations should be placed on such activities. Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663, 1669 (1948); State v. Witherspoon, 460 S.W.2d 281, 284 (Mo.1970).

The facts adduced at the hearing on the Motion to Suppress conducted on December 6, 1974, before the same judge who tried the case on the merits, consisted of the testimony of the defendant (as appellant shall be hereinafter referred to) and Bobby Gentry, a police officer of the Richmond Heights, Missouri, Police Department.

The defendant's testimony, both on direct and cross-examination, is summarized as follows. He had previously been convicted in June, 1952, of five counts of delivery and sale of marijuana, in December, 1961, of two counts of sale of heroin, and at some unspecified time, of "stealing under fifty." On August 24, 1974, at approximately 2:45 p. m. while driving his 1964 Ford station wagon he was stopped by officers of the Richmond Heights Police Department. At the time he was dressed in a shirt, pants, shoes and socks. When he was stopped he was not shown any search warrant or arrest warrant but he was told that he was stopped because his car fit the description of a station wagon connected with a burglary. His station wagon had both front and rear license plates on it. The two police officers who stopped him asked for his driver's license and car registration. They did not tell him they had stopped him because he had only one license plate on his car. While the police officers were running a record check he stood and talked with them. A passenger in his car, Mrs. Mildred Bartlett, was wearing "adequate or decent clothes; " she had on a blouse which zipped up from the back and pants and they were completely on her so that no parts of her person other than her face and arms were exposed. He denied that while he was talking to the police she addressed him as "Scaggs." He admitted that during that time he had "track marks" on his arm but denied that there was any blood on the "track marks" at that time. He gave the police his correct name. After the police officers completed the record check he was told to lean on the car, put out his arms and spread his legs, and the police officer went into his pockets and emptied everything out of them. In his right front pocket he had a plastic bag containing some capsules and some tinfoil packets containing heroin. Some "currency," including a fifty dollar bill, in a wad, a red plastic coin purse full of coins and a set of keys were also seized from his person. His pockets didn't open "in the sense that they was fitting me snug." In his back pants pocket he had a bottle containing some capsules. He was not arrested until after he had been searched and then he was told that he was arrested for possession of a controlled substance. Prior to the search no arrest for a traffic violation had been discussed; he was told that if he hadn't been arrested for burglary he could go. The first time that he saw the ticket for having only one license plate was the following day, August 25th.

Officer Gentry testified for the State that he had been a store detective for one year and a police officer four years and two months on the date of the hearing (3 years and 101/2 months on the date of the arrest) and that he had some training in controlled substances; that on Saturday, August 24, 1974, at approximately 2:40 p. m. he and his partner, Sergeant Zuccraello, were in a police car at the intersection of Wise and Bellevue when they first observed a car westbound on Wise Avenue with the front license plate missing. They followed the car, stopped it, and the driver alighted from the car and came to the back of the car where they conferred as to why they were stopping him. They told him they were stopping him for having only one license plate on his car. The driver of the car told them his name was Grady and that he'd been arrested once for stealing. At one point in the conversation when defendant was asked where he was going he gave no definite answer. A record check was made and showed that he was not wanted, but that he had an extensive arrest record for numerous felony type crimes, among them, burglary, possession of a controlled substance, and homicide. While he was conversing with the defendant another Richmond Heights police officer, Patrolman Whitener, came up and pointed out to Officer Gentry the "track marks" and blood on the defendant's right wrist. He also observed that the right front pocket of defendant's pants appeared to be "bulging from articles." In the meantime he had observed that the female passenger in the car was only partially dressed. She was wearing a pajama top which was unbuttoned so that it exposed her left breast and her slacks were down below her buttocks. At one point she leaned out the window and called the defendant "Mr. Scaggs." He felt an "uncertainty" about her. He didn't talk to her himself; she talked with the Sergeant. Defendant at all times appeared normal and calm.

At this time, after seeing the condition of the woman's clothing, the officer told the defendant to put his hands on the car so they could search him for their protection. He had the defendant spread-eagle against the car with his arms on top of the car and with his legs back, and while he was in this position he could see into the defendant's right front pocket where he observed a clear plastic bag containing numerous tinfoil packets. At this time he placed the defendant under arrest for "suspicion of controlled substances." After placing the defendant under arrest, Officer Gentry began to pat him down in search of a weapon and it was at this point that he observed "numerous articles," including a hard-tip round cylinder type object in the right front pocket of defendant. He pulled the plastic bag from the pocket and handed it to Patrolman Whitener. He also took some currency and a red plastic change purse with some change in it from the same pocket. On cross-examination, Officer Gentry testified that when asked, the defendant displayed his driver's license and car registration for his car and the record check showed that the vehicle was not reported stolen and that it had a new license which was not yet on file. He placed the defendant under arrest "for suspect of possession of controlled substance" before searching him. It "wasn't completely out of his mind that the bulge couldn't be a hand gun; " it "could have been a hand gun, a silver revolver." He described the bulge in defendant's pocket as a "large bulge." And he said that all he saw was the bulge in the pocket. When the defendant leaned over, there was a weight in his pocket which caused the pocket to fall forward. The pocket was so full that he couldn't see what was under the plastic bag with the tinfoil packets in it. A medicine bottle 31/2 inches high and 11/2 inches in circumference was removed from the pocket. He learned that the defendant and Mrs. Bartlett lived at the same address. She didn't appear to him to be coherent. Although he didn't talk with her he could overhear her conversation with Sergeant Zuccraello.

The parties agreed that Patrolman Whitener's testimony would be cumulative and he did not testify. Sergeant Zuccraello was not called either. At the conclusion of the evidentiary hearing on the Motion to Suppress the trial court overruled the defendant's Motion. Throughout the hearing, and at the time each side argued the Motion, the record makes it clear that the basis for the...