State v. Johnson, 35553

• Decision Date: 12 August 1975
• Docket Number: No. 35553,35553
• Citation: 529 S.W.2d 658
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John Wesley JOHNSON, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 658

529 S.W.2d 658

STATE of Missouri, Plaintiff-Respondent, v. John Wesley JOHNSON, Defendant-Appellant.

No. 35553.

Missouri Court of Appeals, St. Louis District, Division Three.

Aug. 12, 1975.

Motion for Rehearing or Transfer Denied Oct. 22, 1975.

Murry A. Marks, Clayton, William J. Shaw, Public Defender and Richard L. Rodemeyer, Asst. Public Defnder, Clayton, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Clayton, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent.

SIMEONE, Presiding Judge.

As a result of an airport search of a briefcase belonging to defendant, which revealed a controlled substance, to wit, heroin, the defendant-appellant, John Wesley Johnson, was charged, tried to the court without a jury, found guilty and sentenced to five years in the department of corrections. §§ 195.017, 195.020 and 195.200(2), RSMo Supp. 1973. ¹ He appeals. For reasons hereinafter stated, we affirm.

In the late afternoon on September 14, 1970, Mr. Patrick R. Zangrilli, the manager of passenger service for American Airlines at Lambert International Airport, received a telephone call. The caller requested the sum of $100,000, 'otherwise a bomb would be put on one of our airplanes.' 'It appeared or sounded as though it was a male Negro voice.' The caller informed Zangrilli that fifty thousand dollars was to be put in a brown bag and left on Lindbergh Boulevard and I--70 at a specified place, and the other fifty thousand was to be delivered to a specified room at a motel across from the airport and was to be placed 'under the mattress on the bed.' Zangrilli was to 'leave the room and leave the door ajar.' If the instructions were not followed, 'a bomb would be placed on one of our airplanes.' Mr. Zangrilli immediately called the city and county police and the F.B.I. He also notified his supervisor at the ticket counter, Miss Marilyn Reed, ² and alerted her to scrutinize every person checking in for any flight on American 'for anything at all that might be suspicious.'

At the time of the bomb threat, Officer Michael Carter, supervisor of the Bureau of Flight Operations of the St. Louis County Police, was working at the airport with Officer John Miederhoff, also of the county police, and Officer John Reeg of the airport police. Officer Carter talked with Mr. Zangrilli, who informed him of the telephone threat. ³ He also talked to Miss Reed and inquired of her whether she had seen or heard anything 'that she felt suspicious.'

Miss Reed, the supervisor of airport passenger service for American, told her ticket agents about the 'extortion threat' after a meeting she and other supervisors had with Mr. Zangrilli. Miss Reed also watched 'the transaction of the purchase' of a ticket at which the defendant-Johnson bought a ticket to Chicago from one of the ticket reservationists--Miss Jeraldine Hall. Mr. Johnson came to the ticket counter and asked for a one-way ticket to go to Chicago. Miss Hall inquired if he had reservations, and he replied, 'No.' She asked, 'What flight do you want to go on?' And he replied he wanted a later flight that evening. During the sale of the ticket, Miss Hall inquired as to his name. '(H)e paused for a minute and seemed hesitant and seemed like he was making up a name and then he gave me a name, a last name which I asked for first, and then he gave me another name and it was hesitant, seemed rather strange because people don't usually hesitate to the (sic) names.' The name he gave was 'L. Jones.' He had no luggage and paid for the ticket in cash. As he left, Miss Reed and Miss Hall 'looked at each other.'

Miss Reed followed Johnson down to the center concourse, lost him for a while and then saw him again at the gate, in the boarding area.

Miss Reed had informed Officer Carter that the only person she felt was acting in a suspicious manner that concerned her was a gentleman who had inquired about a ticket to Chicago who 'had in his possession a black attache case that he clutched rather possessively.' Miss Reed accompanied the officers to the gate and pointed out the defendant, who was sitting in the passenger area near the gate where persons wait to board aircraft. Officer Carter approached the defendant and asked for identification. At about the same time, Officer Carter requested defendant to step out to the 'ramp area' which he did, leaving the briefcase on the bench. In response to Officer Carter's request, the defendant produced an application for a Missouri driver's license, a social security card and his airline ticket. The application and social security card were in the name of John Wesley Johnson, and the ticket was in the name of 'L. Jones.'

Officer Carter inquired 'why there was a discrepancy in the name on the ticket that he had purchased and the name on the I.D. that he showed me and he (Johnson) told me (Carter) that he had purchased the ticket with his brother-in-law's credit card.' Of course, Miss Reed had indicated earlier that the ticket was purchased in cash.

While in the ramp area, Officer Carter, in the presence of Officer Miederhoff and Mr. Reeg, asked the defendant if 'he had anything in the briefcase that he shouldn't have.' And Johnson replied, 'No.' Then Officer Carter said, 'Do you mind if we take a look at it?' Johnson again replied, 'No.' Officer Miederhoff then went back inside and obtained the case. Officer Carter opened it. Inside was found 'a great deal of money'--$2562.00, a hypodermic needle, a silver spoon containing a white powdery substance, a syringe 'like an eye dropper,' and a whiskey bottle containing a red substance 'that did not have the odor of alcohol at all.' A tinfoil packet containing a white powdery substance and two brown bottles marked Dormin were found later.

Officer Carter did not advise Johnson that he had a right not to have the briefcase searched. No force or threats was used; no promises were made. Officer Carter then told Johnson he was under arrest, advised him of his rights and asked him if he understood. 'He nodded that he did.' Officer Carter contacted Officers Thomas Prokawski and Weldon Angelo of the Narcotics Bureau of St. Louis County Police, who came to the police room at the airport about 7:30 p.m. They, together with Officer Carter, went through the contents of the briefcase and initialed the case and the other items. The evidence was turned over to Officers Prokawski and Angelo. They left with the defendant, Johnson. Officer Carter stayed at the airport. Prokawski and Angelo took custody of Johnson, placed him in an unmarked police car and 'gave him his Miranda rights as we drove to Clayton.' There was no conversation between them in the police vehicle, although Johnson said he understood his rights.

When they arrived at headquarters, they met their superior officer, Detective Sergeant Norvell Benoist. Johnson came into the office accompanied by the two officers. Benoist asked if he had been advised of his rights, and the defendant indicated he had. There Johnson made a statement that he was going to Detroit to purchase some drugs and bring them back to the St. Louis area. He said that several persons had given him money to purchase drugs to bring back to St. Louis for distribution among those who had contributed. He was to purchase 'three pounds of marijuana and ten ounces of combined cocaine and speed.'

The material found in the briefcase was turned over by Officer Weldon Angelo to the chemist assigned to the County--Mr. Robert Roither. Mr. Roither, a criminalist employed by St. Louis County Police Department, testified that he ran standard tests on the material found in the briefcase. The white substance on the spoons was heroin; the substance in the tinfoil packet was heroin and the liquid substance in the whiskey bottle was methadone.

On October 16, 1970, the appellant was indicted for unlawfully having heroin in his possession. On February 17, 1971, an information in lieu of indictment was filed charging five previous felonies and possession of heroin. Motions to suppress were filed, and the trial eventually took place beginning on November 27, 1972. Prior to the actual trial, the trial court heard a 'motion for rehearing' to suppress ⁴ the evidence of the alleged unlawful search and seizure and alleged confession and, after hearing the matter, overruled the motion for rehearing as well as defendant's oral motion to suppress the evidence and confession. The court found the statements were voluntary.

After the court overruled the motion to suppress, the defendant voluntarily waived his right to a jury trial, and agreed that the evidence produced on the previous day's hearing on the motion to suppress 'can be stipulated to as though presented in the state's case in chief.'

On December 15, 1972, the court found the defendant guilty as charged and on December 18, 1972 assessed punishment at five years. On June 28, 1973, after the motion for new trial was overruled and after allocution was granted, the defendant was sentenced to five years in the department of corrections. The defendant duly appealed.

On this appeal, the appellant contends that 'the court erred by (sic) overruling the appellant's motion to suppress the evidence.' We are not given the benefit of counsel's thoughts as to 'wherein and why' the court erred, but we glean from the argument portion of the brief that appellant contends the court erred because (1) the defendant did not voluntarily consent to the search of the briefcase, and (2) there was no probable cause by Officer Carter to search the briefcase 'without a basis for suspicion' under the facts recited above. Appellant contends he did not consent to the search of the briefcase, and that consent involves a waiver--voluntarily and intelligently. He also contends that he was not advised of any right to refuse the search, and hence the search of the briefcase...