State v. Johnson

• Decision Date: 28 February 1984
• Docket Number: No. 46618,46618
• Citation: 670 S.W.2d 882
• Parties: STATE of Missouri, Respondent, v. Henry B. JOHNSON, Appellant.
• Court: Missouri Court of Appeals

Page 882

670 S.W.2d 882

STATE of Missouri, Respondent, v. Henry B. JOHNSON, Appellant.

No. 46618.

Missouri Court of Appeals,

Eastern District,

Division Six.

Feb. 28, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 17, 1984.

Application to Transfer Denied

June 19, 1984.

Henry B. Robertson, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.

Before REINHARD, P.J., and CLARK and MOORE, Special Judges.

CLARK, Special Judge.

Appellant was jury tried and was convicted of robbery in the second degree and carrying a concealed weapon. On this appeal, he raises points of error concerning evidence asserted to have been procured in violation of appellant's Fourth Amendment rights against search and seizure. He also contends his challenge for cause as to a member of the jury panel was erroneously denied. The evidence points, first considered, necessitate some recapitulation of the facts.

In the early afternoon of July 23, 1981, a United Parcel Service driver was making deliveries in a St. Louis city neighborhood. While in his vehicle, the driver was accosted by two men who appeared to be armed. After threatening the driver, the men pushed him to one side, grabbed six or seven boxes from the truck and ran off down the street. The police were called and a number of officers, some of the uniformed service and others from the detective unit, arrived in the area within a few minutes.

The two detectives who accomplished the arrests received information about the suspects by radio. The reports were updated as more information was acquired. In sum, the detectives were alerted to look for two negro men, one five feet seven or eight with acne, hair braided in corn rolls and wearing a green army jacket. The description of the second man was only that he was taller, five feet ten. When last seen, the men were carrying the boxes and running to the rear of a connected row of apartments in the 2600 block of Dickson.

The detectives arrived at the location for the purpose of apprehending the robbers and there observed appellant emerge from the front door of an apartment at 2620 Dickson. The address was later stated by appellant to be his place of residence. The detectives testified that appellant appeared to match the description of the shorter robber by his race, height, rough complexion and braided hair. They left their car to take him into custody, at which point appellant turned and walked rapidly back to the apartment door at 2620 Dickson. He appeared to be nervous and began shaking and banging on the apartment door. He failed to effect entry and was placed under arrest. In a pat down search, a revolver was found concealed in appellant's trousers.

After being informed of his "Miranda " rights, appellant attempted to minimize his involvement in the crime. He stated to one of the detectives that he had not robbed anyone, but had merely carried some of the boxes. He indicated that the man who had actually committed the robbery was in the apartment, apparently cornered there by police surveillance at the front and rear.

The other detective went to the rear of the apartment building and found the back door of apartment 2620 Dickson to be ajar. Through the partial opening, the detective saw cartons, packing materials and Polaroid film packs. He entered the apartment, arrested the second suspect found there and seized the boxes and merchandise later identified as having been taken in the robbery of the UPS truck. Appellant's fingerprints were recovered from several of the Polaroid film packs.

In his first point, appellant contends the trial court erred in not sustaining his motion to suppress evidence of the revolver found on his person at the time of his arrest. He contends the officers did not have probable cause to arrest him without a warrant and thus had no ground to sustain the pat down search which disclosed the revolver. There is no contention made that the officers were not entitled to rely on the information received by radio or that any of the reports came from unreliable sources. Appellant merely contends that the general description of the suspects was insufficient to focus attention on him, but was equally applicable to a large number of young men to be found in the populus neighborhood. He further points out that he was shirtless whereas the description indicated the robber wore a green jacket.

At the heart of the question is the issue of whether the detectives had information sufficient to warrant belief by a man of reasonable caution that appellant had committed the offense under investigation.

The existence of probable cause for an arrest without a warrant depends on the particular circumstances and the particular offense involved, the question being determined by factual and practical consideration of everyday life on which reasonable and prudent men act. Probable cause requires a reasonable ground for belief of guilt. State v. Cuckovich, 485 S.W.2d 16, 20 (Mo. banc 1972). As the court observed in State v. Dodson, 491 S.W.2d 334, 336 (Mo. banc 1973), the decision as to probable cause for arrest is one of fact to which the often quoted principles apply.

The facts of the present case are similar to those in State v. Dodson, supra. There, the broadcast described the suspect as a negro male, about 25 years old, five foot six, weight about 140 wearing a blue or tan striped sweater which could have been a pullover. Dodson was arrested because, in the view of the officers, Dodson matched the broadcast description. In fact, Dodson was six feet tall, he weighed 170 pounds, was 18 years of age and the button-down sweater he was wearing was grey with orange stripes. The court held the warrantless arrest of Dodson to have been proper, notwithstanding the variances in height, weight and age. Of significance to the decision was the added fact that Dodson was near the site of the crime and was arrested soon after commission of the offense.

In the present case, the broadcast description of the shorter robber conformed more closely to appellant's physical character than did the description in State v. Dodson, supra. In addition, appellant had the distinguishing features of complexion and hair style and he was found in the vicinity of the building to which the robbers had fled less than ten minutes before. Appellant's conduct in attempting to avoid the officers added weight to the other circumstances suggesting cause for appellant's arrest. While flight alone does not establish probable cause, it can supply the key ingredient justifying the decision by a law enforcement officer to take action. State v. Trimble, 654 S.W.2d 245, 258 (Mo.App.1983).

The arrest of appellant was upon probable cause which in turn furnished the basis for the pat down search. There was no error in admitting into evidence the revolver which was the product of that search.

Appellant's second point concerns his motion to suppress the UPS packing boxes and contents seized when the officer entered the rear door of the apartment and arrested the second suspect. Appellant contends there were no exigent or exceptional circumstances justifying the warrantless entry and that the state may not rely on the plain view doctrine because the officer had no right to be in the apartment or even in the backyard from which position the stolen merchandise was first visible.

In the first place, we cannot agree that the facts support appellant's assertion that the officer was not lawfully entitled to be in the yard area at the rear of the apartment building. According to the evidence, the apartment in which the stolen goods were observed, 2620 Dickson, was one unit among a row of similar units in a long brick building. The officer proceeded on foot from the front around the building to the rear and ascertained which door gave rear entrance to number 2620 by counting the units from the end. He then approached the doorway where the opening gave a view of the room containing the packing boxes and merchandise. There was no evidence of any fence or other enclosure restricting access by the public to the rear yard.

The proponent of a motion to suppress evidence has the burden of establishing that his Fourth Amendment rights were violated by the challenged search or seizure. Simmons v. United...