State v. Hicks, 58307

• Decision Date: 12 November 1974
• Docket Number: No. 58307,No. 2,58307,2
• Citation: 515 S.W.2d 518
• Parties: STATE of Missouri, Respondent, v. Frank HICKS, Appellant
• Court: Missouri Supreme Court

Page 518

515 S.W.2d 518

STATE of Missouri, Respondent, v. Frank HICKS, Appellant.

No. 58307.

Supreme Court of Missouri, Division No. 2.

Nov. 12, 1974.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.

Frank R. Fabbri, III, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant Frank Hicks.

HOUSER, Commissioner.

This is an appeal from a judgment convicting Frank Hicks of murder in the first degree and sentencing him to life imprisonment. This Court has jurisdiction under its order of April 9, 1973.

This judgment and sentence must be reversed for error in overruling appellant's motion to suppress and admitting in evidence certain articles of personal property belonging to the deceased, because they were obtained as a result of a warrantless and illegal search of the person of appellant.

Alberta Catchings was found dead, lying in a pool of blood in the kitchen of her apartment at 4106 Enright Avenue. Her body was discovered by a friend at 6:40 o'clock on the morning of April 29, 1970. The police were called, the body was removed to the morgue, and an investigation was commenced. Prior to that date appellant had been living at the home of his mother at 4011 Enright Avenue. About 1 p.m. on that date Detective Newsom made a telephone call to Willie Mae Hicks, appellant's mother, asking for permission to come to the home and talk to her son Frank 'because Frank had been in an institution.' Detective Newsom was aware of appellant's history of 'having been at Fulton and having psychiatric problems'; knew that he had been committed by a court to the Fulton institution, from which he had been recently released, and that appellant had a history and record of previous arrests. Sergeant Rowane of the St. Louis Police Department had informed the officers that Frank Hicks was 'a prime suspect'; that he had 'recently got out of the penitentiary.' (He served time for second degree burglary. Nothing indicates that the officers knew the nature of the crime for which he was imprisoned.) Pursuant to the telephone call Detectives Newsom and McCarty appeared at Willie Mae Hicks' apartment at 4:30 that afternoon. She and appellant and several others were present. Detective Newsom testified that 'armed with some information that we had received beforehand' (the nature of which was not revealed) the officers went to 4011 Enright for the purpose of picking up appellant and taking him downtown to the central district police station for questioning. Detective McCarty testified that the officers took appellant to the homicide office as a suspect in the murder of Alberta Catchings; that at the time they picked up appellant the officers had already formed the intention to book him for homicide. Upon their arrival the officers 'patted down' appellant, i.e., made 'a light search' to see if he had a gun, but did not conduct a thorough search of his person. The officers arrested him, took him into custody, and informed him that they were going to take appellant downtown for questioning. There was some excitement. His mother and aunt did not want him to go. Appellant 'was fighting * * * raising Cain, * * * saying he didn't do it * * *,' but the officers handcuffed appellant's hands behind him and he 'had to go.' Arriving at the downtown central district police station at approximately 5 p.m. the officers took appellant directly to the interrogation room, advised him of his rights, and informed him that he was a suspect in the murder of Alberta Catchings. After ten or fifteen minutes of questioning appellant stated that Alberta was his cousin and that he had visited her in her apartment the previous night. The officers gave two different reasons for thereupon conducting a search of appellant's person. Detective Newsom testified that it was because appellant was giving evasive answers. Detective McCarty testified that they searched him 'for weapons.' The State gives a third reason, i.e., that it was routine inventory search customarily made at time of booking. The search, made without a warrant, was conducted not at the place of original arrest but at headquarters, and not at the booking desk but in the homicide office. In appellant's pants pocket the officers found some costume jewelry, a pocketknife, a lady's wristwatch, a lady's ring, and a tie clasp. Detective Newsom testified that he did not know at that time to whom the costume jewelry belonged. Appellant told the officers that a girl friend had given the costume jewelry to him 'sometime back' but refused to name the girl friend. After the search appellant was arrested for the murder of Alberta Catchings. After an hour or so expired he was taken to another part of the building, where he was booked for murder at about 6:30 p.m. The articles removed from appellant's pocket (except for the lady's ring and pocketknife) were identified at the trial as the property of the deceased, and all of these articles were admitted in evidence.

The State concedes that appellant was arrested at his mother's apartment, when he 'struggled and was handcuffed,' and seeks to justify the warrantless search of appellant's person at the police station and the seizure of the articles found in his pocket as 'an inventory search' incident to a valid arrest, asserting that there was probable cause to arrest appellant at his mother's apartment because (1) appellant had a history of prior arrests and had just been released from the state hospital, where he had received phychiatric treatment; (2) appellant lived near the victim's apartment; and (3) appellant became excited, struggled apparently in an attempt to flee when the police told him they would like to ask him some questions concerning Alberta Catchings' death.

Whether the arrest at the apartment of appellant's mother was lawful depends upon whether the officers at that moment had reasonable grounds to believe that appellant had committed the murder. State v. Tomlin, 467 S.W.2d 918 (Mo.1971); State v. Gant, 490 S.W.2d 46, 48(4) (Mo.1973); State v. Henderson, 510 S.W.2d 813, 818(2) (Mo.App.1974). There is no question that at that time the officers knew that a murder had been committed by someone; where the murder was committed, and they knew (1) and (2) above. They had been informed by Sergeant Rowane that appellant had recently been in the penitentiary and that the sergeant felt that appellant was a prime suspect. The basis for the sergeant's suspicion was not revealed. If his suspicion was based upon information received from an informer there is no showing as to the reliability of such informer or as to the credibility of such information. That appellant was a known police character was a factor which the officers could properly weigh in making their determination, State v. Kelley, 473 S.W.2d 707, 710(2) (Mo.1971), but the fact that appellant had a previous criminal record did not justify his arrest. State v. Cuezze, 249 S.W.2d 373, 376(3) (Mo.1952). That appellant had a history of psychiatric problems was also a factor to be considered, but these factors alone were insufficient to justify his arrest for this murder. They would give rise to nothing more than the barest suspicion of appellant's connection with the crime. The requirement of probable cause can never be satisfied with a bare suspicion of guilt. State v. Goodman, 449 S.W.2d 656, 660(5) (Mo.1970); State v. Whorton, 487 S.W.2d 865, 867(3) (Mo.1972). No other facts or circumstances from which the arresting officers might infer a nexus between appellant and the murder were shown to have been known to the officers. ¹ They had no description of the murderer; no information as to his identity, sex, or movements; no evidence of their knowledge of appellant's relationship with the victim, or even that he was acquainted with her; no evidence of previous threats or trouble between them; no statements from participants or witnesses; no fingerprints; no knowledge of any physical evidence obtained either within or without the victim's apartment indicating that any particular person had committed the crime. At that time they did not know that appellant had visited the victim at her apartment the night before. There is nothing to show that the officers knew of appellant's whereabouts during the preceding 24 hours. They were not then apprised of the fact that appellant had on his person and in his room various articles of personal property and effects missing from the victim's person and apartment. The subsequent discovery, on appellant's person and in his room, of jewelry, personal effects, a jewelry box, radio, etc. belonging to the victim cannot be relied upon to justify the arrest. After-the-event justification is not permissible. State v. Seymour, 438 S.W.2d 161, 163(2) (Mo.1969).

The State may not rely upon (3) above as a factor bearing on the question of probable cause. Appellant's reaction when informed that he was being taken to central police headquarters for questioning occurred after, not before, the arrest. Indeed, the determination to arrest appellant and take him to headquarters for questioning had been made prior to the time the officers appeared at 4011 Enright; according to the officers their purpose in going there was to pick up appellant for interrogation. They had formed the intention of booking him for murder before they arrived at the apartment. Incidentally, although appellant's reaction has no bearing in point of time on the...