State v. Graham, 40492

• Decision Date: 11 September 1979
• Docket Number: No. 40492,40492
• Citation: 587 S.W.2d 627
• Parties: STATE of Missouri, Respondent, v. James Fowler GRAHAM, Appellant.
• Court: Missouri Court of Appeals

Page 627

587 S.W.2d 627

STATE of Missouri, Respondent, v. James Fowler GRAHAM, Appellant.

No. 40492.

Missouri Court of Appeals, Eastern District, Division Three.

Sept. 11, 1979.

John D. Connaghan, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., James S. Cook, Asst. Circuit Atty., St. Louis, for respondent.

DOWD, Judge.

James Fowler Graham was tried before a jury and found guilty of burglary in the second degree and stealing. He was sentenced by the Circuit Court of St. Louis County to serve a term of five years for second degree burglary with a consecutive two year term for stealing.

At approximately 1:00 a. m. on July 30, 1977, Mr. Gerald Potthoff noticed an unfamiliar automobile in the driveway of his vacationing neighbor's house. The police were called but arrived after the car had left. Mr. Potthoff gave a description of the car which was then broadcast over the police radio. The responding officer then observed that the house had been broken into. At about 1:15 a. m., another officer, in response to the radio broadcast, stopped a car that matched that description. The automobile was driven by the appellant and was stopped just several blocks away from Mr. Potthoff's house. The appellant stated he was in the area because he was lost. Mr. Potthoff was then driven to the location where the appellant had been detained and identified the car as the one he had seen parked in his neighbor's driveway.

The appellant was then arrested. The arresting officer attempted to look into the trunk of the car but was told by both the appellant and the passenger-owner of the car that they did not have a trunk key. The arresting officer did notice a black and yellow-handled screwdriver in the back of the vehicle. The automobile was then towed to the police station.

At about 10:00 a. m. that morning, the trunk of the car was pried open by Officer Jerome O'Keefe. He had not obtained a warrant to search the trunk. Appellant states that the police requested a search warrant but the St. Louis County Prosecuting Attorney's office advised them it was not necessary. Inside the trunk was a stereo system similar to one reported missing from the burglarized house. At trial an occupant of the house identified the stereo as her own.

The appellant was found guilty by a jury of burglary in the second degree and stealing. He claims the trial court erred in overruling his motion to suppress evidence and in admitting into evidence the items found in the warrantless search of the trunk of the automobile at the police station.

Before considering the facts of this particular case, several principles must be noted. First, on appeal, this court is required to view the evidence in the light most favorable to the state and in conformity with the verdict. State v. Wiley, 522 S.W.2d 281, 292 (Mo. banc 1975); State v. Wilborn, 525 S.W.2d 87, 90 (Mo.App.1975). Secondly, according to the Fourth Amendment to the United States Constitution all searches and seizures are not condemned, but only those that are unreasonable. Carroll v. U. S., 267 U.S. 132, 147, 45 S.Ct. 280, 69 L.Ed. 543 (1925). If evidence is obtained in violation of the Fourth Amendment, it is inadmissible in a state criminal trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); U.S.Const., Amend XIV.

Furthermore, whether or not the police could have procured a warrant does not enter into the analysis. The only test is whether the search was reasonable and not whether it would have been reasonable to obtain a warrant. U. S. v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 94 L.Ed. 653 (1950). In addition, the U.S. Supreme Court has held that the validity of warrantless searches must be determined on the "concrete factual context" of each case. Sibron v. State of New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

In interpreting the Fourth Amendment prohibition against unreasonable searches, courts have drawn a distinction between the search of an automobile and the search of a residence. Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973); Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. U. S., supra, 267 U.S. at 153, 45 S.Ct. 280. This distinction is based on the rationale that the driver of an automobile does not expect the same degree of privacy that he expects in his home. Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

Where a search has been made without a warrant, the state has the burden of showing that their acts come within an exception to the warrant rule and are therefore, not unreasonable. The pertinent exception here is the "automobile exception". Carroll v. U. S., supra, 267 U.S. at 149, 45 S.Ct. 280; State v. Witherspoon, 460 S.W.2d 281, 284 (Mo.1970). This requires a finding of probable cause to search the automobile. Probable cause is present when the searching police officer has specific knowledge of certain facts and circumstances which would reasonably justify his belief that the automobile contains the fruits of a crime. Carroll v. U. S., supra, 267 U.S. at 167, 45 S.Ct. 280; Chambers v. Maroney, supra, 399 U.S. at 48, 90 S.Ct. 1975; Almeida-Sanchez v. U. S., 413 U.S. 266, 281, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).

When the automobile is removed from the scene and taken to the police station and then searched, the state must shoulder the additional burden of justifying the seizure. The United States Supreme Court held in Chambers v. Maroney, supra, 399 U.S. at 53, 90 S.Ct. 1975, that if the police had probable cause to search the automobile at the scene, the probable cause is still obtained at the station if the seizure of the automobile was reasonable. ¹ A seizure is considered reasonable if the circumstances show that an immediate search at the scene would be impractical or unsafe. Chambers v. Maroney, supra at 52, n. 10, 90 S.Ct. 1975. The United States Supreme Court has also...