State v. Hall, 26767

CourtCourt of Appeal of Missouri (US)
Citation508 S.W.2d 200
Docket NumberNo. 26767,26767
PartiesSTATE of Missouri, Respondent, v. Frank L. HALL, Appellant.
Decision Date01 April 1974

Robert G. Duncan, William E. Shull, Duncan & Russell, Kansas City, for appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.



Defendant was convicted of first degree robbery. The jury was unable to agree upon the sentence and the trial court sentenced him to thirty-five years in the care of the Department of Corrections. From this conviction and sentence he appeals and urges five points upon which he seeks our mandate of reversal. Two of these require that this case be reversed and remanded for another trial and both involve defendant's constitutional rights. First, he asserts that the court erred in denying his pre-trial motion to suppress certain evidence obtained in a warrantless search and seizure conducted in violation of the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 15, of the Missouri Constitution V.A.M.S. Second, he asserts that the court improperly admitted the testimony of an arresting officer concerning hearsay statements alleged to have been made by one Redcloud, who was arrested with the defendant and who was not proffered by the state as a witness, and this denied the defendant his constitutional rights of confrontation and cross-examination under the Sixth and Fourteenth Amendments of the United States Constitution.

In ruling upon the Fourth Amendment considerations with reference to search and seizure, we must view the 'totality of the circumstances', State v. McGee, 473 S.W.2d 686 (Mo.1971), and the 'concrete factual context', Sibron v. State of New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Kansas City v. Butters, 507 S.W.2d 49 (Mo.App.1974), as disclosed from the record before us. In so doing, this court must carefully balance the basic constitutional rights of the defendant against the necessary functions of law enforcement officers in pursuit of their obligation to protect the public and to enforce the law. This is a balance not easy of attainment. This becomes obvious from a review of the myriad decisions dealing with the subject. However, running as a golden thread throughout the dominant and better reasoned of these decisions is the fundamental premise that when the admissibility of evidence is questioned because of the facts and circumstances surrounding its procurement by search and seizure, any court is firmly committed to meticulously examine the constitutional implications incident thereto.

This court has recently exhaustively reviewed the constitutional limitations on searches and seizures in the cases of State v. Funk, 490 S.W.2d 354 (Mo.App.1973) and City of Kansas City v. Butters, 507 S.W.2d 49 (decided March 4, 1974). We adopt as applicable here the guidelines contained in our Butters decision:

'A properly issued search warrant does not stand alone as the only means by which the Fourth Amendment requirement of reasonableness can be met. The Fourth Amendment's absolute admonition against unreasonable searches is not violated, (1) by a search incident to a lawful arrest, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), (2) by protective searches by officers for weapons upon less than probable cause to arrest, Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) 1, (3) by seizure of items falling within the 'plain view' doctrine, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), nor (4) by the search of a motor vehicle where 'probable cause' exists to believe that it contains a substance which offends against the law, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)'.

The 'totality of the circumstances' and the 'concrete factual context' of the matter before us may be thus summarized:

On January 6, 1972 at 4:00 a.m., a lone man robbed Denny's Restaurant in North Kansas City, Missouri at gunpoint. He was described as wearing a gray parka with the hood over his head, a knit cap and wrap-around sunglasses. He used a pistol or revolver to threaten the employees and customers and, after looting the cash register, he fled the restaurant on foot.

At about 10:00 a.m. on January 6, 1972, two plain clothes detectives, Pasley and Thomas, of the St. Joseph, Missouri police department, were dispatched to the Howard Johnson Restaurant in that city to 'check out two hippie characters' who were attempting to exchange a number of $1.00 bills for currency of larger denominations. They were given a description of a 1960 Chevrolet automobile bearing a Wyandotte County, Kansas license as the car being used by the 'hippies'.

The officers arrived at the Howard Johnson restaurant at about 10:10 a.m. and saw defendant Hall and Redcloud coming out of the door into the parking lot. While the officers testified that the men did not look like 'hippies', they stopped the defendant and Redcloud and asked them about the Chevrolet which was parked in the lot. Hall stated it was his car and the officers identified themselves and requested Hall and Redcloud to get into the rear seat of the patrol car for questioning.

In the car Hall showed Officer Pasley his driver's license and his registation for the Chevrolet. Hall stated that he had over $300.00 in cash, and showed Pasley several payrool stubs from his job. Actually, the defendant had $313.00 in cash on his person, of which $71.00 was in $1.00 bills. He told Pasley he saved $1.00 bills. There is conflict here as to the display of a parole card in Hall's wallet. Hall states that Pasley grabbed his wallet out of his hand and over defendant's protest began going through it, while Pasley testified that Hall voluntarily showed him the card. In either event, Hall was carrying a card showing that he was on parole from the Nevada Penitentiary, Carson City, Nevada, where he had served seven years for second degree murder. He told Pasley that he had written permission from his parole officer in Kansas, McElroy, to visit an aunt and uncle in St. Joseph, Missouri and showed Pasley this permission. Redcloud was unable to exhibit any identification to the officers.

Via the police radio the officers requested a computer check on Hall and Redcloud, with negative results. There was no pickup order, warrant, hold order, or any other police request for either of them. At this time, neither Pasley nor Thomas, nor the St. Joseph police department, had any report on the robbery at Denny's Restaurant which had occurred about six hours earlier. While still in the police car, apparently the officers requested, again via radio that a check be made with Hall's parole officer in Kansas.

Pasley, who was sitting on the passenger side of the front seat, noticed a 'bulge' in Redcloud's jacket pocket. He 'patted' down the pocket, felt a weapon, reached in and pulled out an unloaded .22 caliber Smith and Wesson pistol. The questioning in the car up to this point had taken about 15 minutes. Hall and Redcloud were then directed to get out of the car and both were then searched. No weapon of any kind was found on Hall, but the money was found and retained by the officers. He was 'clean'. No other weapon was found on Redcloud.

Pasley testified at the hearing on the motion to suppress that, 'At this point they were placed under arrest for investigation of carrying a concealed weapon.' Pasley testified that Redcloud was then handcuffed and placed back in the police car. Hall testified both he and Redcloud were handcuffed and placed back in the police car.

However, a discussion then occurred with reference to transportation to the police station and the officers decided to take Redcloud there in the police car with Thomas driving, and that Hall would drive his car with Pasley as a passenger. Pasley testified they made this decision 'rather than leave that car (the Chevrolet) sitting there unprotected, it was better for Hall to drive his car to the station while I accompanied him.' He admitted that it was daylight and the car could have been locked, but that was not done.

Since Hall could not drive in handcuffs, they were removed and Hall got behind the wheel of the Chevrolet. Pasley got in the front passenger seat. Pasley stated--'He (Hall) got in the car and sat down, and since I couldn't handcuff him and he had to drive the automobile I 'hit' the glove box * * *' and 'I 'hit' the glove box for my own safety.'

The glove box was closed but not locked and Pasley opened or 'hit' it and found a .38 caliber revolver, a stocking cap and a pair of sunglasses.

All of the foregoing events occurred without any warrant, with no information about the commission of any robbery, without the receipt of any pick-up or hold request, no look out descriptions, and Hall was never asked nor did he give any consent that either he or his automobile could be searched.

En route to the police station, Pasley read the 'Miranda' warning to Hall. At the station both Hall and Redcloud were booked for 'investigation of carrying a concealed weapon and also for investigation of armed robbery.' There was still no specific basis for such charges as to defendant except the fruits of the searches and seizures above-described, which Pasley said 'are things normally used in an armed robbery.'

Upon arrival at the police station, Pasley noticed a gray parka jacket on the back seat of the Chevrolet.

Hall was placed in a cell and Redcloud was taken to another place for interrogation, during the course of which he gave an implicating statement or confession, in which he stated that the .38 caliber pistol was his ...

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