State v. Johnson

• Decision Date: 12 February 1973
• Docket Number: No. 57208,No. 1,57208,1
• Citation: 490 S.W.2d 20
• Parties: STATE of Missouri, Respondent, v. Larry JOHNSON, Appellant
• Court: Missouri Supreme Court

Page 20

490 S.W.2d 20

STATE of Missouri, Respondent, v. Larry JOHNSON, Appellant.

No. 57208.

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1973.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for respondent.

Douglas N. Merritt, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.

LAURANCE M. HYDE, Special Commissioner.

Defendant was convicted of stealing merchandise of the value of more than fifty dollars from the loading dock of Swanson's store in the Plaza area of Kansas City. He was sentenced under the Second Offender Statute to ten years' imprisonment and has appealed. We have jurisdiction because this appeal from a felony conviction was filed in this court September 20, 1971. We affirm.

The evidence substantially as stated in defendant's brief was as follows: At 12:00 o'clock noon, December 14, 1970, James Ammerman, Kansas City Police Department patrolman, was on duty as a part-time security officer at Swanson's, a ladies ready-to-wear store. He was standing on the lower level of the automobile parking garage near the loading dock when he first saw defendant, from a distance of thirty to forty feet, holding two (2) sealed boxes marked Swanson's. Defendant was standing next to the loading dock in front of his car which was parked facing the dock, where cars were not authorized to be. (Swanson's provided a separate parking area for customers' cars.) The trunk of the car was open and a third box marked 'Swanson's' was visible therein. A woman codefendant was standing at the rear of the automobile holding the trunk door open. When defendant saw the policeman, he placed one of the boxes he was holding onto the dock and one on the pavement by the automobile. Defendant then entered the automobile, locked the doors and attempted to leave the vicinity. Officer Ammerman drew his gun, stopped defendant and held both occupants of the car until an assisting officer arrived. After the arrival of an assisting officer and Mr. Thomas B. Lauhon, secretary of Swanson's, Officer Ammerman used the keys taken from the ignition switch and opened the trunk of the automobile and removed the box he had seen in it. This box and one of the others were received in evidence. They had been sent to Swanson's from other states. Defendant offered no evidence.

Defendant claims reversible error in allowing introduction in evidence of the box which the officer took from the trunk of defendant's car after his arrest. Defendant filed a motion to suppress before the trial which was heard and overruled by the court. Defendant's brief says he relies primarily on the United States Supreme Court decision in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), although he also cites State v. Witherspoon, Mo.Sup., 460 S.W.2d 281 (1970) and State v. Edmondson, Mo.Sup., 379 S.W.2d 486 (1964). The State relies on 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). Our view is that the Coolidge case is not in point in the situation presented in this case. In Coolidge, the defendant was in jail; his car was in the driveway of his home and the police knew for days where his car was. The majority holding was that under these circumstances no exigencies existed which justified the intrusion of seizing and searching Coolidge's car left in his driveway. The court distinguished Coolidge from Chambers on that ground.

In two recent cases, we have held officers had reasonable grounds for opening the trunk of a car based on what they had seen in the car, and the defendant's activity in connection with it, although they had not seen and did not know, as here, what was in the trunk. In Mace v. State of Missouri, Mo.Sup., 458 S.W.2d 340 (1970), the officers, who saw Mace in a car, had been advised that a warrant had been issued for his arrest for grand stealing. They stopped the car and found a pistol in the front seat. They opened the trunk at the place where the car was stopped, by having a man sent out from a key shop to open it, and found one of the stolen articles in it. We held the circumstances shown supported a finding of probable cause for the search.

In State v. Wrose, Mo.Sup., 463 S.W.2d 792 (1971) the officers were sent to the location of a car because of information about articles being carried out of an apartment building to it. They stopp...