State v. Johnson, 56809
| Decision Date | 10 December 1973 |
| Docket Number | No. 56809,No. 2,56809,2 |
| Parties | STATE of Missouri, Respondent, v. Harold Count JOHNSON, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Richard E. Vodra, Asst. Atty. Gen., Jefferson City, for respondent.
R. Richard Straub, Kathianne Knaup, St. Louis, for appellant.
Harold Count Johnson, defendant, was found guilty by a jury of carrying a concealed weapon, 1 a handgun found by police during a 'stop and frisk.' He was sentenced by the court to imprisonment for two years and has appealed. 2 We affirm.
The main issue presented is whether the revolver and testimony of the officers who took it from defendant's person were admissible in evidence. Defendant contends that the search of his person and seizure of the gun violated his rights under Mo.Const. Art. I, § 15, V.A.M.S., and the U.S.Const. Amends. IV and XIV, and that evidence produced thereby was not admissible and should have been suppressed. 3 The state contends that the actions of the officers constituted a justifiable investigatory 'stop' and a limited protective 'frisk' for a weapon not in violation of fourth amendment rights as held by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), and also not in violation of Mo.Const. Art. I, § 15, proscribing unreasonable searches and seizures; that, therefore, the fruits of such 'search' were admissible and properly were not suppressed.
Evidence on this issue at the pre-trial hearing on defendant's motion to suppress and that later presented to the jury is essentially the same.
On the night of December 4, 1969, at about 10 o'clock, defendant was in a Velvet Freeze Ice Cream Store to purchase a package of ice cream to take out. The store, well lighted, is located on the west side of DeBaliviere at the intersection of that street with Pershing, a known highcrime area. Officers Harvey Grannemann and Bennie Green of the St. Louis Police Department were at this hour traveling south on DeBaliviere at about 10 or 15 m.p.h. Officer Grannemann was in the front seat on the passenger's side looking out the window toward the west. As they drove past the Velvet Freeze store, Officer Grannemann saw a man, later identified as defendant, leaning over the counter apparently waiting for his purchase. The officer testified that the man had on a three-quarter length light-weight overcoat; that in the back of the coat on the left side at about waist level there was a 'bulge (which) protruded up * * * in such a way that it appeared (to him) to be a gun'; that he told Officer Green to turn the car around because he believed this man was carrying a weapon concealed. The police car was turned around and stopped at the west curb in front of the Velvet Freeze store. As the officers got out of their car, defendant came out of the store with his purchase. The officers walked up to defendant, stopped in front of him, and Officer Grannemann asked him his name. Defendant hesitated and slowed, but did not stop, and uttered an obscenity directed at both officers which strongly implied that he had no intention of answering the question or otherwise cooperating. When this happened, Officer Grannemann reached around to defendant's back, touched the bulge area on the outside of the coat, definitely identified it by sense of feel as being caused by a gun, and told his partner, Officer Green, that defendant did in fact have a gun. Defendant shoved Grannemann back, and in that same instant Officer Green reached up under defendant's coat and grabbed the revolver later introduced in evidence. It was not until after this occurrence that defendant was placed under arrest. Officer Green's testimony is essentially the same as that of Grannemann, except that he did not ever see the bulge because he was not where he could see it until he removed the gun from defendant's pocket.
These officers and other witnesses testified that there was nothing unusual about the appearance or activities of defendant and that he was acting in a peaceful manner while in the store. One witness testified that he followed defendant into the store, through the line for customers, and out the door, and did not at any time see a 'bulge' in the back of his coat.
The arrest of defendant did not occur until after the described search and removal of the weapon from his person, so the 'search and seizure' in this case may not be said to be based upon or incident to a lawful arrest. If this intrusion upon the person of defendant is justifiable at all, it cannot be for the reason there was at that time probable cause for arrest, because the officers did not then have that '* * * precise level of information necessary for probable cause to arrest * * *.' Adams v. Williams, supra, 407 U.S. at 145, 92 S.Ct. at 1923.
In Terry v. Ohio, supra, involving a conviction of carrying a concealed weapon the Supreme Court of the United States held that even though there is not probable cause to make an arrest, a police officer may in appropriate circumstances and in an appropriate manner stop a person for purposes of investigating possible criminal behavior. 392 U.S. at 22, 88 S.Ct. 1868. In Adams v. Williams, supra, decided four years after Terry, the court said at 407 U.S. p. 146, 92 S.Ct. at 1923:
Applying these principles to our case, we hold the officers acted reasonably and justifiably in pursuing their investigation of whether defendant was violating the law in their presence by carrying a dangerous weapon concealed on his person and in Officer Grannemann's very limited search of defendant's person for their protection. The officers were investigating at night in a high-crime area the activity of a person whom Officer Grannemann, by reason of his experience and sense of sight, reasonably believed to be violating the law at the time. When this person, by his action and words, demonstrated that he would not stop and would not identify himself for the officers, the gun Officer Grannemann believed he was carrying became an even greater threat. Under these circumstances, Grannemann's action in reaching directly to the area where he believed a gun to be hidden, patting the outside clothing and thus by sense of feel definitely identifying the bulge as a gun, and Officer Green's removal thereof, was a limited intrusion designed to assure the officers' safety. We conclude and hold this was a reasonable search and seizure and therefore not proscribed by Mo.Const. Art. I, § 15, or the fourth amendment. The loaded gun and the officers' testimony were therefore admissible and the court did not err in overruling the motion to suppress. Terry v. Ohio, supra; Adams v. Williams, supra.
Another point briefed by defendant is that the court erred in overruling his several motions to dismiss or suppress the indictment returned by a grand jury for the reasons: (1) the number of blacks, poor, and unskilled laborers on the grand jury was disproportionate to the number of such persons in the whole population of St. Louis; and (2) the state was collaterally estopped from prosecuting this case since he had been previously acquitted of the charge of assault with intent to kill Officer Green with malice aforethought, which charge arose out of events occurring immediately after the 'stop and frisk,' all of which, defendant says, are 'part of a single transaction * * * the issues (of which are) intertwined.'
As to reason (1) for dismissing the indictment, we note that the state filed and the case actually went to trial on an information which had been substituted for the indictment more than two months before the trial began. Assuming, without deciding, that the court erred in overruling the motion to dismiss the indictment for the reasons stated, this would not contaminate or render ineffective the information under which defendant went to trial without objection. State v. Green, 305 S.W.2d 863 868 (Mo.1957); Rule 24.02. 4 Defendant does not contend that it would, nor does he make any attack on the substitute information. The information did not charge any additional or different offense and no rights of defendant were prejudiced.
As to reason (2) for quashing the indictment, the facts on which charge of assault with intent to kill with malice is based are, in substance, that after defendant had shoved Officer Grannemann back and Officer Green had grabbed the revolver from defendant's pocket, defendant struck at Officer Grannemann and a fight started involving the three men. During this struggle defendant grabbed Officer Grannemann's revolver, broke loose from the officers, ran a few feet, turned, and fired a shot at Officer Green but missed. As indicated, trial of the assault case before a jury resulted in an acquittal and defendant now contends that by reason of that result the state is collaterally estopped...
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