State v. Hornbeck, 57101

Citation492 S.W.2d 802
Decision Date09 April 1973
Docket NumberNo. 2,No. 57101,57101,2
PartiesSTATE of Missouri, Respondent, v. Charles B. HORNBECK, Appellant
CourtUnited States State Supreme Court of Missouri

John C. Danforth, Atty. Gen., Allan D. Seidel, Asst. Atty. Gen., Jefferson City, for respondent.

Daniel V. O'Brien, St. Louis, for appellant.

HOUSER, Commissioner.

This is an appeal by Charles B. Hornbeck from a judgment convicting him of burglary second degree and stealing, and sentencing him to concurrent terms of 6 and 2 years, respectively. The notice of appeal was filed prior to January 1, 1972.

Various items found in an automobile and seized by police, unsuccessfully sought to be suppressed by pretrial motion, were introduced in evidence against appellant, whose first point is that warrantless searches of (1) the glove compartment, (2) the trunk at the scene of the arrest, (3) the trunk at the police station, and (4) the bags and pillows found in the trunk, and the seizure of the bags and pillows and the articles found in the bags and pillows, were without probable cause; that searches (2), (3) and (4) were each the fruit of the poisonous tree of the preceding illegal search or searches.

The State's evidence: During each of the three months preceding August 20, 1969 there were an estimated twenty-five residential burglaries in the area where the burglary in question occurred. There were approximately twenty burglaries during the first twenty days of August. On the evening of August 20 an informer reported to Rock Hill Police Department that an automobile had driven up and parked in front of a vacant house at 1212 Oak Leaf Drive, and that three men had left the vehicle, gone into the back yard of the vacant house and not returned in 20--25 minutes. At 8:15 p.m. Officer Westbrook was dispatched to investigate. He found a 1969 Oldsmobile parked in front of the vacant house. He checked with the informer and verified that the vehicle did not belong to any of the residents of the area. A license check revealed that the license plate on the Oldsmobile was registered to one Darlene A. Walker and that it had been issued for use on a 1967 Cadillac. Officer Johnstone arrived at the scene at 8:30 p.m. He testified that it was circulated information throughout the Rock Hill Police Department and among different police officers in the jurisdiction of St. Louis County that Darlene Walker was 'associated with' appellant. According to Officer Ritchey this appellant had a prior record of burglary and larceny; was a known residential burglar, and was known to park his car in one part of town, walk to another area to commit burglaries, and then return to his car. The two officers conducted a search of the back yard of the vacant house, all around the house and the area, looking for the three men, and for evidence that the house had been entered. They found nothing; saw no one, and ascertained that no entry had been made. The officers returned to the Oldsmobile. Looking through the closed windows they saw on the floor boards two pairs of men's shoes, a flashlight and a man's wallet. The officers opened the doors of the vehicle and Officer Johnstone checked through the glove compartment. There he found a sales slip from a lumber company evidencing a sale of some lumber to appellant, and some papers with Darlene Walker's name on them. The wallet contained no money, cards or identification data. After finding the sales slip the officers disabled the Oldsmobile by opening the hood and removing a wire running from the coil to the distributor. Then they called the Ladue Police Department, requesting assistance in setting up surveillance of the car. (The two departments had a reciprocity contract to assist each other.) Officers Ritchey and Webber, responding, maintained surveillance for approximately four hours, parking their car 100 feet south of the Oldsmobile. At 12:30 a.m. they observed an individual coming out from behind the house at 1212 Oak Leaf Drive. He looked, paused momentarily, looked up and down the street, went to the trunk of the Oldsmobile, opened it, and stood there for a time. Two other men came running out. They threw what appeared to be white sacks and some satchels in the car trunk. All three men pulled off the top part of their garments (their jackets) and threw them in the trunk of the car. One man went to the driver's side of the car and the other two entered on the other side. The officers moved forward on foot. The dome light in the car was on and Officer Ritchey recognized appellant. The officers reached the Oldsmobile as appellant, after unsuccessfully trying to start the car, opened the front door, put his foot on the ground and looked up and down the street. Officer Ritchey ordered appellant out of the car, but did not place him under arrest immediately. He approached the subjects and asked appellant what he was doing in the area. Appellant 'wouldn't answer any questions at this time.' The subjects were then placed under arrest on suspicion of burglary, advised of their rights and handcuffed. At that time the officers did not know that any burglary had been committed in the area that night. The officer asked appellant if he minded if the officer looked in the auto trunk, asking, 'Do I have your permission?,' to which appellant replied that the keys were on the front seat; that 'You are going to look anyway.' Officer Ritchey found the keys on the front seat and opened the trunk in the presence of Officer Webber and the three suspects. A call was made for assistance. Officers Coffman and Masters and three officers from the Rock Hill Police Department arrived. Some bags full of articles and a gun in a case were observed in the trunk but were not then removed or closely inspected. After observing the articles in the trunk the trunk door was closed. The suspects were taken to the police station and the car towed to the police station, where the trunk was reopened, and the items in the trunk photographed, removed and inventoried. Jewelry, silverware, some guns and papers were found in pillow cases and satchels. There was a .25 calibre automatic pistol and a shotgun in a leather case. Other articles found included two half-length fur stoles; flashlights, three screwdrivers, jersey gloves, walkie-talkie radios; some extra license plates; one luggage tag; two candelabra; one medallion; the silver bowl. At that time the officers still had no knowledge of any burglary. From names and addresses found among the items the officers went to two addresses in the area. At 3:30 a.m. they discovered an open window at the home of the Raybucks in Rolling Rock Lane; the locking device had been punched off. There was other evidence that the house had been entered. The Raybucks later identified the goods found in the trunk as their property. 1212 Oak Leaf Drive is one and a fourth miles from 22 Rolling Rock Lane by direct line; about three and a half miles by car.

Appellant first contends that the search of the glove compartment of the Oldsmobile without a warrant, and not as an incident to an arrest, was a 'blatantly impermissible 'general exploratory search in the hope that evidence of crime might be found,'' and that all of the following police activity including the ultimate seizure of the stolen goods was 'fruit of the poisonous tree' of the original search of the glove compartment. Appellant concedes that under State v. Speed, 458 S.W.2d 301 (Mo.1970) and federal authorities citited therein, the search of an automobile, even though not incident to an arrest, may be constitutionally permissible if there is probable cause for the search. Under these authorities probable cause means more than mere suspicion, but exists where the facts and circumstances within the knowledge of the seizing officers, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed or that the contents of the automobile offend against the law.

Probable cause existed for the search of the glove compartment. The recited facts gave rise to a reasonable belief that an offense had been committed under § 301.140, subd. 1, 1 relating to removal of license plates on transfer or sale of motor vehicles, or under § 301.150, subd. 3, relating to fastening of voided plates on motor vehicles (for violation of which sections criminal penalties are provided by § 301.440), or that the vehicle was a stolen car, or that the vehicle was being used in the commission of a felony. The facts and circumstances provided a legitimate reason for the police to inquire further with respect to the use of the license plates; the ownership of the Oldsmobile and whether it was being used as an instrumentality in the commission of a crime; and the identity, whereabouts and doings of the three persons who left the automobile and vanished from the scene. The officers were justified in opening the glove compartment without a search warrant for these purposes to attempt to ascertain the identity of the owner of the Oldmobile, Workman v. Cardwell, 388 F.Supp. 893 (N.D.Ohio 1972), 2 or of the person or persons using the car; to attempt to ascertain the identity and activities of the persons who had mysteriously disappeared; to answer questions legitimately raised by the apparently unauthorized use of the license plates; and, in view of the intention of the police to place the Oldsmobile under surveillance in the hope of intercepting the three men for questioning if and when they returned to the scene, the police for their own protection were justified in searching the glove compartment to be certain there were no weapons concealed therein which might be used against the police when they confronted the men upon their reentry of the automobile.

Next, appellant would impeach the search of the Oldsmobile at the scene on the ground that the warrantless search of the trunk was not incident to...

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